DDR & DDS v Lifestyle Solutions (Aust) Ltd

[2017] NSWCATAD 266

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DDR v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266
Hearing dates:	17 August 2017
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	1. The application for stay or interim order filed 19 June 2017 is dismissed.  2. The matter is to be listed in the next available directions list.
Catchwords:	ADMINISTRATIVE LAW- where administratively reviewable decision – where decision to remove from an authorised carer the responsibility for the daily care and control of children - whether stay or other order is desirable - whether to grant an order or interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 (NSW).
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Elgammal v Director General, Department of Transport [1999] NSWADT 82 Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 New South Wales Bar Association v Stevens [2003] NSWCA 95 Polini v Gray (1879) 12 Ch D 438 S v Minister for Youth and Community Services (1986) 10 FamLR 849 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Procedural and other rulings
Parties:	DDR and DDS (Applicants) Lifestyle Solutions (Respondent)
Representation:	Solicitors: DDR and DDS (Applicants self-represented) Care Legal (Respondent)
File Number(s):	2017/00219727
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicants in this matter, known by the pseudonyms “DDR” and “DDS”, seek an order for a stay or otherwise affect the operation of a reviewable decision pursuant to section 60 of the Administrative Decisions Review Act 1997 (NSW) made by Lifestyle Solutions (Aust) Ltd (Lifestyle Solutions) concerning the 3 children; A born in 2008 and now aged 9, B born in 2009 now aged almost 8, and C born in 2013 now aged nearly 4 years. This is a decision to remove from an authorised carer the responsibility for the daily care and control of the children. The decision was made on or about 27 July 2017 and formally notified to the applicants in writing on 3 July 2017.

2. This is administratively reviewable decision that comes within the jurisdiction of the Tribunal to review by reason of section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW).

3. The application was filed on 19 July 2017. Directions were made on 3 August 2017 listing the matter for interim order hearing on 17 August 2017. The parties appeared in person on that date and documents relied upon were all received as exhibits. The parties made brief oral submissions. There was limited time for the hearing and the hearing occurred at the end of the Directions List for that day. The decision was reserved for the delivery of these written reasons.

Legislative provisions in relation to the hearing

4. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.

5. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.

6. The Tribunal may hear an administrative review of decisions made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act because of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW).

7. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:

“As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides:

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

...

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person

...

(1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:

(a) the preparation of a permanency plan, or

(b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.

(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.”

8. In this matter, it is accepted that Lifestyle Solutions is the relevant decision maker in relation to the decision to remove from the authorised carers the responsibility for daily care and control of the children. The decision to remove the children from the care of the applicants is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act.

9. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children’s Court but were considered as part of the process of exercising the Court’s jurisdiction to make a care order. His Honour Justice Campbell stated at [54]:

“In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court.”

10. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held:

“In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here.”

11. None of the parties before the Tribunal asserted that the permanency plan in relation to the children had any relevance to the decisions.

12. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act.

13. The objects contained in section 8 of the Children and Young Persons (Care and Protection) Act are:

“The objects of this Act are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

14. The objects of Chapter 8 of the Children and Young Persons (Care and Protection) Act, which specifically relates to out of home care, contained in section 134 are:

The objects of this Chapter are:

(a) to create a high standard in the provision of out-of-home care, and

(b) to provide a model for the organisation of out-of-home care, and

(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care.

15. The Tribunal, in an application to review the primary decisions, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

16. Pursuant to section 140 of the Children and Young Persons (Care and Protection) Act Lifestyle Solutions has obligations to supervise placements of children with authorised carers.

17. The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child’s safety welfare and well-being is given primacy. There is thus within the supervisory powers granted to Lifestyle Solutions to move a child from their usual caregiver to another person in order to protect the child from neglect or risk of harm, and where the provision of care does not attain the high standard expected and stated by the objects referred to earlier.

18. The provisions of section 60 of the Administrative Decisions Review Act are as follows:

60 Operation and implementation of decisions pending applications for administrative review

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

19. In other words, the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review. The respondent opposed the application for a stay.

Evidence relied upon

20. The parties relied upon the following documents which have been read and were given Exhibit numbers in the following order:

1. General application form filed 19 July 2017 together with the annexures comprising correspondence, references, photographs, and statements by the applicants;

2. Bundle of documents filed by the applicants on 17 August 2017;

3. Section 58 of the Administrative Decisions Review Act documents from Lifestyle Solutions;

4. General Practitioner notes for the 3 children;

5. Written Submissions by the lawyer for Lifestyle Solutions.

The Issue

21. The applicant seeks to stay the decision of Lifestyle Solutions. The applicant seeks that the operation of the decision should be stayed until after a hearing of the review. The Tribunal has to determine whether it is desirable to do so after taking into account:

1. the interests of any persons who may be affected by the determination of the application, and

2. any submission made by or on behalf of the administrator who made the decision to which the application relates, and

3. the public interest.

22. Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82.

23. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), Basten JA who was in the plurality stated at [21] in relation to section 60 Administrative Decisions Review Act:

A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision.

24. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances.

25. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

26. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

27. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

28. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that it is not the Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, it is to be assumed that any conflict in the evidence “would be resolved in the plaintiff’s favour.” The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows:

[31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar terms but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant’s case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354.

[32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say-

[15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11:

"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction".

[33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

Considerations and the Evidence

29. As previously referred to, the issue the Tribunal is to decide later in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before Lifestyle Solutions: section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

30. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

The evidence and considerations

31. The children have actually been out of the care of the applicants’ since 27 May 2017. The decision to move the children occurred on 26 May 2017. The children have been placed with their current carers since 2 July 2017. The children have had one change of placement since they were removed from the applicants’ care.

32. The child A suffered from hand, foot and mouth disease (which is a contagious virus mainly amongst children) on or about 25 May 2017. The child C also suffered from hand, foot and mouth disease in May 2017 and also developed impetigo and interigo. The children also have had a head lice infestation at the time that they were removed from the care of the applicants. These matters are referred to in the general practitioner’s notes and in the notes from Connecting Families tendered in the application. Those issues have now resolved.

33. The reason for moving the children was said to be a number of matters observed about the children’s presentation and the state of the home, pointing to a failure to meet the basic needs of the children. The matter was discussed with the Department of Family and Community Services and the Department agreed with the decision to move the children.

34. Some of the observations recorded in the material are disputed by the applicants. On an interim hearing the Tribunal is not able to make determinations of contested factual matters and if it is possible to do so a determination about those contested facts will be made at the final hearing of this application.

35. It would appear that the factual circumstances about which there is agreement is that the children suffered from severe infestations of head lice on a recurrent basis while in the care of the applicants. Additionally, it would appear to be conceded that the state of the home was cluttered, which the applicants state they have now remedied. The applicants say that it got out of hand when one of them was ill. It would also appear that the applicants concede that the children presented with dirty clothes.

36. The personal references provided by the applicants in support of their application speak glowingly of their ability to care for the children.

37. One of the birth parents of the children observed at contact late last year that the clothing and shoe wear of the children was dilapidated and worn out. In addition, the birth parent complained of the recurrent head lice infestations. The older sibling of A and B visited the home with a contact worker after contact with the birth parents earlier this year about four months prior to the children’s change of residence. The older sibling observed the children’s bedroom and commented that it was a “pig style (sic) [pigsty] as he could not even walk inside.”

38. The children were professionally treated for head lice infestations on 1 June 2017. The child B was assessed to be at level 4 which is described as “excessive” and the other two children were at level 3 which is said to be “mildly excessive”. The professional identified that for the levels of infestation to be that high the children would have had to have the infestation for a minimum of at least four weeks and, if left for another week, the infestation would have been classified level 6 “critically severe” which results in the hair being matted and sores all over the scalp. The child C also had ringworm for which he received a prescribed ointment and antibiotics for a cold and cough when he changed residence.

39. The applicants were approved as authorised carers on 22 February 2011. The children A and B are biological siblings and C is unrelated to them. The child C was placed with the applicants on 29 November 2013. The children A and B were placed with the applicant carers on 24 April 2014. On 29 January 2014 case management for the children was transferred from Family and Community Services to Lifestyle Solutions. Concerns about the carers’ capacity to provide safe and hygienic care were first raised in June 2015.

40. On 29 May 2017, the home of the applicants was attended by the caseworker for Lifestyle Solutions and a caseworker for Family and Community Services. It is recorded by them that:

1. the kitchen sink was stacked with approximately 1-foot high of dirty dishes;

2. there were piles of dirty clothes in the bedroom, on the floor and on the beds of children A and B;

3. there was clothing all over the room of child C;

4. animal stains were observed on the carpets, urine and faeces all over the house and the carpet;

5. clothes were observed to be pushed to the side of the walls to make a past to walk down;

6. there was rotten fruit on the kitchen counter which the caseworker observed the carer to offer the child as a snack;

7. the caseworker observed packets of noodles and a range of condiments in the cupboard;

8. the bathroom was observed to have several full baskets of dirty laundry; there were cleaning chemicals sitting on the counter in the bathroom but the bathroom was observed to be unclean and smelled;

9. the toilet was unhygienic and unclean, smelled of urine and faeces;

10. there were a number of fridges in the home which were child locked and once opened were observed to be dirty and unhygienic with rotten food caked on the shelving and dripping from the bottom of the refrigerator onto the kitchen floor;

11. the fridge was observed to have no fresh food or vegetables in it and was full of condiments;

12. the home was observed to have a strong odour of animal urine and faeces;

13. the carpet was observed to be stained throughout the house including in the bedroom of child C;

14. the carpet in the bedroom of children A and B was not able to be observed because it was covered in clothing.

41. A previous visit to the home on 4 February 2016 observed conditions in the home which were considered unacceptable including excessive garbage in and around the home, clutter, cleanliness and hygiene issues. The carers were advised that the condition of the house was unacceptable and would need to be remedied. It is recorded that the applicants appeared to have little insight into the hygiene and cleanliness issues raised. The treatment of head lice requires washing of bedlinen and clothes which are likely to be infested with lice which would re-infect the children. The applicant DDR was said to have no insight into the need to maintain a clean home environment to prevent further head lice infestation. The school and childcare centre had repeatedly told the applicants that it was necessary to treat the children’s head lice infestations.

42. These observations raise concerns about the level of care provided and also about the capacity of the carers to express insight into the best way to cater for the children’s needs.

43. As previously reported in these reasons the applicants take issue with the detail of the observations made by the caseworkers. Those matters which are conceded may ultimately provide sufficient basis for the actions taken by the respondent.

44. A secondary assessment was completed by Family and Community Services on 21 June 2017 where the issues of neglect, hygiene and inadequate clothing were substantiated. That is, the issues were considered to have more likely than not to have been established on the evidence of the observations of caseworkers and other independent sources of information.

45. The children are reported to be now “doing well in their new schools and were making friends without issue”. The Tribunal was informed that children A and B have been placed with their older sibling and that child C is placed with a different carer. The child C is placed in close proximity to A and B with a carer who is related to the carer for A and B. The children are able to see each other on a regular basis because of this arrangement.

46. The children are having contact with the applicants.

47. The applicants remain authorised carers with Lifestyle Solutions. They are due for a carer review as part of that authorisation. An assessor, Dr Gary Banks, clinical psychologist has been retained to provide that assessment. The Tribunal has been informed that the interviews for that assessment have been appointed on 14 September 2017. A report is likely to be available after 16 October 2017.

48. The children have been out of the care of the applicants now for approximately three months. The order which is proposed by the applicants would see the children returned to their care. That would require the children to experience further disruption to their care arrangements. It would require them to change their schools. The two older children would be separated from their older sibling.

49. The applicants have stated that they have now cleaned up the house. There remains an issue as to the reasons the house became unhygienic and a threat to the safety of the children. There remains an issue as to the insight of the applicants about the level of care required for children in out of home care. The objects of out-of-home care are to provide a high standard of care for children who are not to live with their biological parents.

50. The respondent has commissioned an independent assessment by Dr Banks. In the absence of that assessment and on an interim basis the Tribunal considers that stable arrangements for the care of the children take priority over other interests because that is in the children’s safety, welfare and well-being which is paramount in any decision made about these children. The respondent contends that there is an unacceptable risk of harm to the children if they were to be returned to the care of the applicants.

51. If the children were returned to the care of the applicants on the present state of the evidence before the Tribunal, and then the assessment by Dr Banks (when it is completed) supports the actions taken so far by the respondent, the children would need to be further disrupted in their care arrangements. If however, Dr Banks assesses the applicants as capable of providing the high level of care required for children in out of home care, the children may well be returned to the care of the applicants if that is considered at that time to be an outcome which meets their safety, welfare and well-being.

52. Those matters which are conceded provide sufficient basis for the actions taken by the respondent to remain in place on an interim level of determination.

53. These factors support an outcome where the children remain in their current environments pending final determination of the review.

Conclusion

54. The interests of the applicants and the children may be affected by the determination of the application sought by the applicants. The Tribunal must give primacy to the interests of the children because of section 9 (1) of the Children and Young Persons (Care and Protection) Act. The interests of the applicants will be affected adversely by the failure to grant their application in the short term. If the assessment by Dr Banks is positive then their long-term interests will be enhanced.

55. The respondent has submitted extensively to the effect that it is premature to make the order which the applicants seek, and that return of the children to the applicants’ care would expose them to an unacceptable risk of harm.

56. The public interest is to be given significant weight. There is a legitimate public interest to ensure that the standards of out-of-home care are maintained to the requisite standard.

57. It is in accordance with accepted principle in this jurisdiction and in the Family Court jurisdiction that on an interim basis, where there is a complaint of neglect and inadequate care of children, the Court or Tribunal should act protectively and err on the side of caution: S v Minister for Youth and Community Services (1986) 10 FamLR 849. Findings concerning contested issues will not be able to be made on an interim basis unless there is agreement or concessions between the parties: Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286 esp at [71] and [82]. The evidence on an interim hearing of this matter establishes that there was a basis for the actions which were taken by the respondent. The extent to which those matters remain a continuing concern is for determination at the final hearing of this review. The children are in a position where their interests are currently well met and a return to the care of the applicants may well be disruptive and not in their interests in the short term.

58. The children are currently having contact with the applicants and with each other which should assist to maintain the relationships they have built up in the last few years.

59. For the reasons which have been identified earlier in these reasons, the Tribunal considers that the applicants’ proposed interim order will not secure the effectiveness of the determination of the application.

60. The order of the Tribunal shall be:

1. The application for stay or interim order filed 19 June 2017 is dismissed.

2. The matter is to be listed in the next available directions list.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 August 2017