DEN v Benevolent Society - [2018] NSWCATAD 131

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DEN v Benevolent Society [2018] NSWCATAD 131
Hearing dates: 9 March and 24 April 2018
Date of orders: 26 June 2018
Decision date: 26 June 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
D Crowley, General Member
Decision:
1. The decision of the respondent to remove from DEN the responsibility for the daily care and control of “S” and “J” is affirmed.
2. The decision of the respondent to cancel DEN’s authorisation as an authorised carer is affirmed.
Catchwords: ADMINISTRATIVE LAW- administratively reviewable decision – where decision to cancel authorised carer status and remove the responsibility for the daily care and control of children under the care of the Minister.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52
DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017 NSWCATAD 266
DEN v Benevolent Society [2017] NSWCATAD 309
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Roberts v Bianco (1987) 8 NSWLR 436
Category: Principal judgment
Parties: DEN (Applicant)
Benevolent Society (Respondent)
Representation:
Solicitors:
Care Legal (Applicant)
R McLachlan (Respondent)
Dr Ainsworth (Guardian Ad Litem)

File Number(s): 2017/00265980
Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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

The applicant (“DEN”) seeks a review of a decision made by the Benevolent Society (“the Respondent”) concerning the cancellation of her status as an authorised carer and the removal of two children from her care, “S” (aged 11 years) and “J” (aged 9 years). S and J are DEN’s maternal grandchildren (“the children”). DEN sought an internal review of this decision where the decision was upheld. DEN then sought a stay or to otherwise affect the operation of the reviewable decision, which was refused (DEN v Benevolent Society [2017] NSWCATAD 309).
There is no dispute that the Tribunal has jurisdiction to hear this application pursuant to the Children’s and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”) and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW).
A Guardian Ad Litem was appointed for the children who was present throughout the Hearing.
The Hearing was held in Sydney over two days.
DEN seeks re-instatement of her status as an authorised carer and the children returned to her care either on a full-time basis or as a respite carer. The Respondent is opposed to DEN’s authorised carer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DEN v Benevolent Society

Details

AGLC: DEN v Benevolent Society [2018] NSWCATAD 131
Case: [2018] NSWCATAD 131
Decision Date: 26 June 2018

CaseChat Overview and Summary

The case of DEN v Benevolent Society involved a dispute between DEN and the Benevolent Society. DEN, who was an authorised carer for two children, "S" and "J", under the care of the Minister, challenged the Benevolent Society's decision to remove them from their role and cancel their authorisation. The dispute was brought before the court to determine whether the decision was legally sound and to seek a review of the decision-making process. The court was tasked with examining the administrative actions taken by the Benevolent Society and deciding whether those actions were lawful, reasonable, and procedurally fair.

The primary legal issues that the court had to address were whether the Benevolent Society had the authority to make the decision to remove DEN from their role as an authorised carer, and whether the decision was made in accordance with the relevant legislation and administrative law principles. The court also had to consider whether the Benevolent Society followed proper procedures, including providing DEN with an opportunity to be heard and to present evidence, and whether the decision was based on relevant and sufficient evidence. Furthermore, the court needed to determine if the decision was unreasonable, irrational, or unjust in the circumstances.

After carefully reviewing the evidence and submissions presented by both parties, the court found that the Benevolent Society had the authority to make the decision to remove DEN from their role as an authorised carer and that the decision was made in accordance with the relevant legislation and administrative law principles. The court determined that the Benevolent Society followed proper procedures, including providing DEN with an opportunity to be heard and to present evidence, and that the decision was based on relevant and sufficient evidence. The court also concluded that the decision was reasonable, rational, and just in the circumstances. As a result, the court affirmed the Benevolent Society's decision to remove DEN from their role as an authorised carer and to cancel their authorisation.

The final orders of the court were to affirm the Benevolent Society's decision to remove DEN from their role as an authorised carer for "S" and "J" and to cancel their authorisation. The court found that the Benevolent Society had acted within its authority and followed the proper procedures in making the decision, and that the decision was based on relevant and sufficient evidence. The court also found that the decision was reasonable, rational, and just in the circumstances. Consequently, DEN's challenge to the Benevolent Society's decision was unsuccessful.

Orders

Orders of the court

1. The decision of the respondent to remove from DEN the responsibility for the daily care and control of “S” and “J” is affirmed.

2. The decision of the respondent to cancel DEN’s authorisation as an authorised carer is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DEN v Benevolent Society [2018] NSWCATAD 131
Hearing dates:	9 March and 24 April 2018
Date of orders:	26 June 2018
Decision date:	26 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member D Crowley, General Member
Decision:	1. The decision of the respondent to remove from DEN the responsibility for the daily care and control of “S” and “J” is affirmed. 2. The decision of the respondent to cancel DEN’s authorisation as an authorised carer is affirmed.
Catchwords:	ADMINISTRATIVE LAW- administratively reviewable decision – where decision to cancel authorised carer status and remove the responsibility for the daily care and control of children under the care of the Minister.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017 NSWCATAD 266 DEN v Benevolent Society [2017] NSWCATAD 309 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Roberts v Bianco (1987) 8 NSWLR 436
Category:	Principal judgment
Parties:	DEN (Applicant) Benevolent Society (Respondent)
Representation:	Solicitors: Care Legal (Applicant) R McLachlan (Respondent) Dr Ainsworth (Guardian Ad Litem)
File Number(s):	2017/00265980
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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.