DEN v Benevolent Society

[2017] NSWCATAD 309

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DEN v Benevolent Society [2017] NSWCATAD 309
Hearing dates:	14 September 2017
Date of orders:	25 October 2017
Decision date:	25 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	The application for stay or interim order filed 29 August 2017 is dismissed.
Catchwords:	ADMINISTRATIVE LAW- where administratively reviewable decision – where decision to remove from an authorised carer the responsibility for the daily care and control of child - 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 CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 DDR v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266 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:	DEN (Applicant) Benevolent Society (Respondent)
Representation:	Advocates: J Smith (Applicant) K Stanford (Respondent)   Solicitors: Care Legal (Applicant) Stanfords Solicitors and Conveyancers (Respondent)
File Number(s):	2017/00265980
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 applicant “DEQ”, seeks an order for a stay or to otherwise affect the operation of a reviewable decision pursuant to section 60 of the Administrative Decisions Review Act 1997 (NSW) made by the Benevolent Society concerning 2 children: ‘S’ born in September 2006 now aged 11 years and ‘J’ born in January 2009 now aged 8 years. The decision was made on or about 25 May 2017 and affirmed by an internal review on 24 August 2017 to cancel the applicant’s approval as an authorised carer. The applicant also seeks review of a decision made on 21 April 2017 to remove from her the responsibility for the daily care and control of the children. The applicant seeks that the children be returned to her care.

2. This is an administratively reviewable decision that comes within the jurisdiction of the Tribunal to review by reason of section 245(1)(a1) and 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 24 August 2017. This matter was listed for interim hearing on 14 September 2017. The application for a stay is opposed by the respondent. The parties made oral submissions. There was limited time for the hearing as the hearing occurred at the end of the Directions List for that day. The decision was reserved for the delivery of these written reasons and to consider the lengthy documentary exhibits relied upon by the parties.

Legislative provisions in relation to the hearing

4. The Tribunal has set out the legislative relevant provisions in CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 and DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266. The parties provided written submissions which also referred to these provisions.

5. 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.

6. 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.

7. 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).

8. 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.”

9. In this matter, it is accepted that Benevolent Society is the relevant decision maker in relation to the decision to cancel the applicant’s authorisation as an authorised carer. The decision is one which is described by section 245 (1)(a1) of the Children and Young Persons (Care and Protection) Act.

10. The applicant also seeks to review the decision to remove from her the responsibility for the daily care and control of the children which is described in 245 (1)(c) of the Children and Young Persons (Care and Protection) Act.

11. 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.”

12. 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.”

13. Neither of the parties before the Tribunal asserted that the permanency plan as incorporated in any orders in relation to the children had any relevance to the decisions. Although the absence of a cultural plan was referred to by the applicant in submissions in the context of a submission that cultural identity is enhanced by placement with the applicant and also that it was envisaged in the permanency plan that the children would remain with the applicant until they were 18 years old. None of these matters were embodied in the orders made and therefore section 245(1B) of the Children and Young Persons (Care and Protection) Act is not “brought into play” in this case.

14. 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.

15. 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.”

16. 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.

17. 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].

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

19. 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 Benevolent Society 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.

20. 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.

21. 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

22. 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 29 August 2017;

2. Bundle of documents filed by the applicants on 29 August 2017;

3. Bundle of additional documents relied upon by the applicant filed 14 September 2017 in the hearing;

4. Written submissions on behalf of the applicant dated 14 September 2017;

5. Bundle of documents filed by the respondent on 14 September 2017;

6. Written submissions filed by the respondent on 14 September 2017.

The Issue

23. The applicant seeks to stay the decision of the respondent Benevolent Society. The applicant seeks that the operation of the decision or decisions 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.

24. 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.

25. 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.

26. 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.

27. 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].

28. 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].

29. 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."

30. 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 Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, 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

31. 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].

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

The evidence and considerations

33. The applicant has been involved with the children since they were born. The applicant believes that she has always had a good relationship with the children and always thought that she would provide the children primary care if the mother and father were unable to do so. The applicant was very angry with the mother and father for the way they had been living and the impact of this upon the children. The children had knowledge of drugs and had apparently observed the parents injecting illicit drugs. The applicant was assessed as having appropriate attitudes and genuinely loving the children prior to them coming permanently into her care.

34. The children were placed with the applicant due to parental drug use, parental mental health, homelessness and inadequate supervision of the children. The care plans filed in the Children’s Court envisaged that the applicant would care for the children until they turned 18. The applicant’s home environment was considered neat, tidy and safe for the children.

35. The children were placed under the parental responsibility of the Minister for Family and Community Services until the age of 18 by orders of the Children’s Court in 2012. The children had been in the care of the applicant from that time until approximately the end of 2016 and the early part of 2017. The children were last in the full-time care of the applicant approximately 8 December 2016, according to the respondent. The applicant is the grandmother of the children and this was therefore a kinship placement and culturally appropriate.

36. It is recorded in the notes of the respondent that a decision was made on 21 April 2017 by the respondent and supported by Community Services to place the children with their respite carers until an appropriate long-term placement was sourced. The children were reported to have spent two weeks of the school holidays in Queensland with their paternal grandparents. It is recorded that the children presented as anxious and worried following the placement breakdown with their grandmother.

37. The respite carers wrote to the respondent in June 2017 requesting that the children not remain in their care full-time, but that they be considered as respite carers fortnightly, presumably on the weekends. They recorded that they had been caring for the children from the beginning of 2016 for four weekends out of five and then nine weekends in a row January through to May. Then during the June Federal election campaign they had four weekends out of five. Then there were six weekends in a row and 2 full weeks at 24 hours’ notice in August/September 2016. The carers were required to cancel work arrangements and travel associated with their work in order to care for the children. When the children’s mother was released from jail in September 2016 the children were affected, as was the applicant who sought some support emotionally from the carers. Subsequently, they cared for the children 11 weekends in a row November 2016 to January 2017, including six weeks of school holidays where the children only spent three lots of three nights with the applicant. The carers then had care of the children for 9 whole weeks, except for 10 days when they spent time with their paternal grandparents in Queensland. The carers wrote that much of that time was at short notice and often at the instigation of the applicant. The carers stated that they were worn down by the “shared care with a dysfunctional, failing carer.” This was obviously a reference to the applicant. The applicant has exhibited hostility towards the carers and at the same time has expected emotional support from them. One of the children also told the carers that they (the carers) were the reason they were removed from their “Bubba” (the applicant). The respite carers openly and honestly told the respondent in the written document that they were happy to continue to be respite carers and for more time than they originally signed on for, which was only one weekend per month, for a fortnightly weekend respite arrangement.

38. Some of this respite care is alleged to have been without the knowledge of the respondent. The respondent also states that the children were sent to respite care with their maternal grandfather and his partner without the knowledge of the respondent.

39. The children’s mother was not to have contact with her children pursuant to the Children’s Court orders and undertakings given by the applicant unless it was supervised. The applicant undertook to the Children’s Court that she would not allow the children’s mother to reside in her home. Upon the mother’s release from jail she resided with her mother and spent unsupervised time with the children. In addition the applicant formed a relationship with a person who spent time with the children and in her home without the respondent’s knowledge or the ability for the respondent to undertake assessments of that person to determine if they were safe to be around the children. The applicant was aware of this requirement from her carer training.

40. Some of the observations recorded in the material are disputed by the applicant. 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.

41. The respondent states that the applicant failed to administer prescribed medication to the child S, and failed to facilitate the children attending upon medical practitioners and cancelled or failed to attend scheduled appointments. The applicant also failed to monitor the children’s online activities, so that S apparently contacted a dating site online. The respondent states that the applicant failed to ensure that the children attended school and a regular basis so that they were absent for approximately 15% of the school days in 2016. The children also failed to arrive at school on time resulting in the recording of a number of partial absences. The applicant removed the children from school on two occasions to take them overseas on holidays.

42. It would appear that the factual circumstances about which there is agreement is that the applicant was arrested as a result of an altercation with a neighbour where the police were called in December 2016. The children were present. In the early part of 2017 the applicant experienced health issues due to a change in antidepressant medication resulting in her feeling highly agitated and anxious. The children were placed in respite care while investigations of reportable conduct were undertaken.

43. Criminal charges were laid against the applicant presumably as a result of the altercation with the neighbour and in August 2017 the Local Court dismissed 2 charges of common assault, found the applicant guilty of “destroy or damage property” but did not proceed to conviction pursuant to section 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). An application for an apprehended violence order was also dismissed.

44. The file notes of the respondent record a home visit which occurred on 13 April 2017. During the visit the applicant informed the caseworker that she had a hospital admission overnight and that she was going through significant amounts of pain. The medication that she was taking was shown to the caseworker. The applicant told the caseworker that she felt like she was a vegetable and was not able to do anything on her own. When asked whether she could care for the children, the applicant is alleged to have said that she was not capable but the children and herself would be devastated by that arrangement. The applicant reportedly stated that she would like to consider a shared care arrangement with the respite carers.

45. The applicant was notified by letter dated 25 May 2017 that authorisation as an authorised carer had been cancelled. The applicant was informed that the children would be removed from her care and transitioned into an alternative out-of-home care placement. On 22 June 2017 the applicant wrote to the respondent making a formal complaint and seeking an internal review of the decision to cancel her authorisation. The applicant addressed each of the matters raised as concerns by the respondent. The applicant acknowledged that the children had unsupervised contact with their mother, but only on one occasion. The applicant agreed that she took the children on holidays during term time but said that she was given written permission and the school did not object. The applicant agreed there were two missed medical/psychological appointments.

46. The children were placed with the proposed long-term carer in June 2017. It is reported that the children have settled with the carer and are doing well at school.

47. The applicant submitted that there is no unacceptable risk of harm or safety issues in respect of the children returning to the applicant’s care. The applicant says that the respondent has permitted unsupervised contact between the applicant and the children since their removal from her care.

48. The respondent’s claim of “cumulative harm” is disputed by the applicant. The applicant submits that the concerns the respondent had at the time that it decided to remove the children from her care have been adequately addressed.

49. The applicant submits that the respondent has failed to take into account the child’s right to retain family relationships, the importance of maintaining a child’s identity and religion implicitly through a kinship placement, and the requirement to implement the least intrusive course of intervention in the life of children in order to protect them from harm.

50. The respondent submits that the applicant has not put forward any independent material which would cause the Tribunal to question the decision of the respondent. The respondent submits that the material filed by the applicant in relation to her psychological and other difficulties supports the decision of the respondent. The letters of support from the applicant’s friends are character references which do not address the issues which caused the children to be removed from the daily care and control of the applicant. The respondent submits that these references should be given little weight.

51. The applicant has provided in the material filed in these proceedings, reports from her psychologist and doctors. The Tribunal will need to assess those matters in terms of any final determination.

52. On 24 August 2017 the applicant was notified by mail from the respondent’s CEO that the internal review decision was to affirm the decision to cancel the applicant’s authorisation as an authorised carer. The reasons for the decision were not explicitly stated in that correspondence. The report by the person who conducted the internal review was annexed to the letter. On that same day the applicant’s solicitor notified the respondent that an application would be made to the Tribunal.

53. If the children were returned to the care of the applicant on the present state of the evidence before the Tribunal, and then later the Tribunal ultimately agrees with the decisions made by the respondent, the children would need to be further disrupted in their care arrangements. If however, the applicant is considered 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 applicant if that is considered at that time to be an outcome which meets their safety, welfare and well-being.

54. The applicant has the support of her family, her ex-husband, the children’s maternal grandfather and his wife who have supervised her contact with the children, her psychologist, her general practitioner, Jewish Care, a neighbourhood centre, and her friends. The applicant attended the Tribunal hearing with many of those people accompanying and supporting her.

55. 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. The matters which are in dispute support the view that on an interim basis there is a level of risk which may be considered unacceptable without further determination and testing of evidence.

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

Conclusion

57. The interests of the applicant and the children will be affected by the determination of the application sought by the applicant. 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 applicant will be affected adversely by the failure to grant her application in the short term. If the assessment by the Tribunal is positive then her long-term interests will be enhanced.

58. The respondent has submitted to the effect that it is premature to make the order which the applicant seeks, and that return of the children to the applicant’s care would expose them to an unacceptable risk of harm.

59. 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.

60. 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 applicant may well be disruptive and not in their interests in the short term.

61. The children are currently having contact with the applicant which should assist to maintain the relationship they have built up and maintain their familial links.

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

63. The order of the Tribunal shall be:

1. The application for stay or interim order filed 29 August 2017 is dismissed.
    

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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: 25 October 2017