DEQ v Secretary, Department of Family and Community Services

[2017] NSWCATAD 307

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DEQ v Secretary, Department of Family and Community Services [2017] NSWCATAD 307

Hearing dates:

15, 20 September 2017

Date of orders:

20 September 2017

Decision date:

25 October 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member

Decision:

1. The proceeding is adjourned to 12 October 2017 at 9:30am for further directions.

 

2. The decision made on 18 August 2017 to cancel the Applicant’s authorisation as an authorised carer is stayed pending further order of the Tribunal.

 

3. A guardian ad litem is to act for the child.

 

4. The reasons for interim decision are reserved.

5. The interim order made on 18 September 2017 requiring the child to be returned to the care of the applicant upon his discharge from the mental health unit where he has been treated subject to the Applicant’s undertaking as set out in that order is revoked pursuant to section 61 (1) (b) of the Administrative Decisions Review Act 1997 (NSW).

Catchwords:

ADMINISTRATIVE LAW- where administratively reviewable decision – where decision to cancel authorisation as an authorised carer - 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:

DEQ (Applicant)
Secretary, Department of Family and Community Services (Respondent)

Representation:

Advocates:
P Braine (Applicant)
Dr V Nguyen (Respondent)

File Number(s):

2017/00276849

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 Secretary, Department of Family and Community Services concerning a child born in December 2003. The decision was made on or about 18 August 2017 and formally notified to the applicant in writing on that date. The decision was to cancel the applicant’s status as an authorised carer. As a practical matter that means that the child cannot be placed in the care of the applicant.

2. This is administratively reviewable decision that comes within the jurisdiction of the Tribunal to review by reason of section 245(1)(a1) 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 12 September 2017 and listed for interim hearing on 15 September 2017. The respondent was not properly notified however helpfully appeared by telephone at very short notice.

4. The matter was adjourned to 20 September 2017 for further hearing of the interim application, to allow the respondent to prepare for the application for stay of the respondent’s decision.

5. At the completion of the hearing on 20 September 2017 orders were made in accordance with the orders contained within these reasons. One of those orders is that the reasons for the interim decision are reserved. These reasons are those reserved written reasons.

Legislative provisions in relation to the interim application

6. The Tribunal has set out the legislative relevant provisions recently in CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52 and DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266.

7. The following discussion repeats the matters set out in those published decisions. The decision in this matter relies upon the same legislative provisions as set out in those decisions referred to in the previous paragraph. The respondent’s written submissions also refer to these legislative provisions in similar terms.

8. 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.

9. 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.

10. 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).

11. 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.”

12. In this matter, it is accepted that The Secretary, Department of Family and Community Services is the relevant decision maker in relation to the decision to cancel the status of the applicant 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.

13. 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.”

14. 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.”

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

16. 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.

17. 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.”

18. 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.

19. 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].

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

21. 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 the respondent 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.

22. 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.

23. 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

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

1. Exhibit 1 a patient history for the child;

2. Exhibit 2 a letter dated 5 September 2017 from the Reportable Conduct Unit;

3. Application filed 12 September 2017 annexing the letter dated 18 August 2017 notifying the cancellation of the authorised carer status of the applicant;

4. Affidavit of the applicant filed 15 September 2017;

5. Affidavit of the applicant filed 20 September 2017;

6. Affidavit of Dr Jairam dated 18 September 2017;

7. Written Submissions by the lawyer for the respondent.

The Issue

25. The applicant seeks to stay the decision of the Secretary. 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.

26. 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.

27. 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.

28. 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.

29. 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].

30. 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].

31. 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."

32. 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

33. 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 the decision-maker, the relevant delegate of the Secretary, Department of Family and Community Services: 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].

34. 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

35. The child has been in the care of the applicant since he was 6 ½ months old that is from 2004. He will turn 14 at the end of this year. The child has therefore been in her care for approximately 12 years. The child calls the applicant “mum”. The applicant also has a biological son who is aged 40 years and resides with her and the child. They have a sibling bond. The biological son works three days per week part-time.

36. On 18 August 2017 the respondent determined to cancel the applicant’s authorisation as a foster carer. The letter sent to the applicant identified that the child’s behaviour and level of escalation in the home was not consistent with his behaviour while he was in the Adolescent Mental Health Unit. It was also suggested that the applicant had disregarded medical advice and direction concerning prescribed medications. It was also said that the applicant did not accept professional medical opinion concerning the child because she sought clarification of his diagnosis. It was asserted that the applicant maintained that the child’s behaviours were as a result of his misdiagnosis and his medication being incorrectly prescribed. The applicant has no medical qualifications.

37. The applicant says in her affidavit material that the diagnosis communicated to her has changed over time as a result of different medical practitioners and psychiatrists who have been involved in the treatment of the child.

38. The child was hospitalised around the beginning of May 2017 due to a serious incident of self-harm. He was discharged at the beginning of June 2017. Unfortunately, the child was readmitted at the end of July 2017 and has remained in the adolescent mental health unit. There is no suggestion that the applicant did not contact the relevant emergency services to obtain treatment for the child.

39. Since the child has been in the adolescent mental health unit contact between the applicant and the child was initially daily but now has been limited to twice a week and one additional telephone call per week. The applicant believes that the child wishes to return home to her care when he is discharged from the unit.

40. There was an investigation by the reportable conduct unit into some allegations about the care of the child. That investigation effectively cleared the applicant of any behaviours which would endanger or place the safety, welfare, and well-being of the child at serious risk. The actual findings were that the allegations were “not reportable conduct”. That is defined to mean “that the investigation found that the level of force used by [the applicant] was trivial or negligible and in this instance does not meet the statutory definition of reportable conduct.” The findings were conveyed to the applicant by letter dated 5 September 2017. It is noted that this is the after the date of the letter cancelling the applicant’s authorisation as a carer.

41. Dr Jairam is the treating psychiatrist for the child. The specialty of Dr Jairam includes mood disorders in children and adolescents, child and adolescent onset bipolar disorder, autistic spectrum disorders including Asperger’s syndrome. Dr Jairam observed that the applicant holds strong beliefs that the child has bipolar disorder and that antipsychotic medication and/or mood stabilising medications such as lithium may be the solution for his problems. The current view is that the child does not suffer from bipolar disorder and is currently diagnosed with attention deficit hyperactivity disorder (ADHD) and autism spectrum disorder (ASD) and has been prescribed with appropriate medications. There have been no observations during his admissions of any symptoms of bipolar affective disorder or schizophrenia or prominent mood dysregulation. Dr Jairam has consulted with six other experienced child psychiatrists who have reviewed the child or overseen his care in the past. Those other doctors apparently agree with that diagnosis.

42. Dr Jairam has theorised that because the child’s presentation changes depending on the environment in which he is placed that there are family dynamics and interactional patterns which explain, in part, his reported behaviour and presentation. The theory is that the applicant is struggling with the idea of the child becoming independent and separating from her. The theory further seeks to explain that the applicant is responsible for the child’s behaviours which keep him in a sick role which in turn enables the applicant to keep the child close to her. Dr Jairam believes that the child’s developmental, educational, emotional, and psychological needs will not be met if he were placed in the care of the applicant. Dr Jairam considers that the applicant has demonstrated she has difficulty engaging with services and facilitating any recommendations.

43. The patient history (Exhibit 1) dates from 1 January 2017 to 13 September 2017. This is from a chemist/pharmacy which provides the child his medications. It is clear from this document that the medications which the child has been prescribed have been provided through this pharmacy. This is during periods that the child has been in the applicant’s care. It is therefore difficult to see how it could be thought the applicant has not provided the prescribed medications.

44. Indeed it would appear that there is no allegation that the applicant has not complied with medication regimes. On the material before the Tribunal on the Interim application there is no allegation that the applicant has abused or neglected the child. The applicant has attended all the medical appointments which have been arranged for the applicant. The applicant says that she has attended all the arranged meetings to which she has been invited regarding the child’s care. The applicant has sought second opinions and, in the absence of the child, debated with Dr Jairam, the thinking behind his diagnosis. The applicant believes that she is open to any further psycho-education regarding the child’s condition.

45. 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.

46. It would appear that the factual circumstances about which there is agreement is that the child misses the applicant. The child has developed strong attachments to the applicant and her son where he has lived as part of the family unit for most of his life.

47. The child is currently in a mental health facility for adolescents and it is not known when he will be released. The outcome which is proposed by the applicant would see the child returned to her care upon his discharge from the mental health facility where he is currently residing. An order was made on 15 September 2017 to that effect.

48. If the child is to be returned to the care of the applicant then she will need to be approved as an authorised carer. Otherwise, she will not be in a position to legally care for him. In order for this option to remain open she should remain an authorised carer. The Secretary may consider that it is appropriate on an interim basis at least for the child to return to the care of the applicant even potentially on a respite basis. For this to happen the applicant needs to be approved as an authorised carer. The reasons for cancelling this authorisation will need to be examined in more detail at the final hearing of this application. It is not possible on this interim application to make appropriate determinations one way or the other.

49. The effectiveness of any decision by the Tribunal will be similarly limited if the applicant is not an authorised carer.

50. The applicant has provided some testimonials from friends who attest to her care and consideration for the child. This is the strong factor in support of maintaining the applicant’s authorisation as a carer.

51. The manager casework provided an affidavit based upon the records to which she has access. The applicant is a cousin of the child’s mother. The child was assumed into care from the Royal Hospital for Women Randwick due to the mother’s mental health issues. The positive attributes of this placement are therefore obvious because it is a placement within the child’s extended family. Additionally, the placement has persisted until the relatively recent crises. It is therefore assumed that the child has formed significant familial attachment relationships during that time and that the placement was considered appropriate for that length of time.

52. The events which led to the initial admission of the child in May 2017 occurred when the child became unmanageable during the morning routine, becoming verbally and physically abusive towards the applicant and the LEAP worker, pacing giant steps and ultimately holding a knife to his throat threatening to kill himself. During his admission the social worker identified to the caseworker that the main difficulties they were dealing with were that the child was biting (not biting down) and licking staff, maintaining appropriate physical space in general with staff and other young people, hyperactivity, and that he required redirection. There was no reported aggressive behaviour during the admission.

53. The child was discharged into the care of the applicant in June 2017. A risk of serious harm report was received in relation to the child when he was attending school. The child was sexualised at school saying highly sexually explicit things and making threats of a sexual nature towards staff and other students.

54. In July 2017 the child held a fork to his throat and he was again admitted to hospital. It is said by the manager casework that leading up to this event Dr Jairam was concerned that the applicant was not following the medical recommendations, failing to engage in constructive and supportive ways of dealing with the child’s behaviours. Dr Jairam told the manager casework that there is no doubt that the child is challenging and this relates to his ASD diagnosis. The applicant told the manager casework that she was being blamed for the child’s behaviours and that the Out of Home Care Health Team don’t provide her with any strategies and put things back on her.

55. There is evidence that the child has a poor school attendance history while he was in the applicant’s care.

56. The Secretary is implementing a transitional plan to transition the care of the child to a new authorised carer when the child is discharged from hospital.

57. While there are matters of significant concern raised in the evidentiary material provided for the interim hearing, the proceedings are at an early stage and the relevant section 58 of the Administrative Decisions Review Act documents have not yet been served.

58. It is considered appropriate for the child to be represented by a Guardian ad litem. Given the child’s age and level of development his voice should be heard in these proceedings consistent with the paramountcy principle under section 9(1) of the Children and Young Persons (Care and Protection) Act 1998, principles in section 9 (2) of that Act, and the relevant articles contained within the United Nations Convention on the Rights of the Child to which Australia is a party. It is considered appropriate give effect to those principles and rights so that the child should have a voice in these proceedings, in particular to advocate his right to remain with his family if that is in his interests, the principles contained within section 9 (2) of the Children and Young Persons (Care and Protection) Act and be represented pursuant to section 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Conclusion

59. The interests of the applicant and the child may be affected by the determination of the application sought by the applicant. The Tribunal must give primacy to the safety, welfare and well-being of the child 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 the application in the short term for the child to be returned to her care. If the assessment by the Tribunal is ultimately positive then both the applicant and the child’s long-term interests will be enhanced by that decision.

60. The Tribunal determined on an urgent interim basis on 15 September 2017 that if the child was to be discharged from the mental health facility he should return to the care of the applicant upon her giving appropriate undertakings. The respondent has submitted to the effect that it is premature to make the order which the applicant seeks, and that return of the child to the applicant’s care would expose him to risk of neglect of his educational, psychological and medical needs.

61. 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. However, there is also a significant public interest in ensuring that children are able to remain with their family and persons with whom they have formed significant attachments.

62. 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].

63. The child is currently having contact with the applicant which should assist to maintain the relationship they have built up in the years immediately preceding these events. Given the concerns raised about the care of the child, it would not be appropriate at this interim stage to require that the child be placed in the applicant’s care upon his discharge from the mental health facility and therefore the order previously made will be revoked. The Tribunal does not make a finding that it would be inappropriate to place the child with the applicant and a placement with the applicant can be determined by the Secretary after examining all of the material that it has access to prior to any further determination by the Tribunal.

64. If the applicant retains her status as an authorised carer she will remain an option for placement should the child be discharged from the mental health facility and transition to a new carer is considered inadvisable in the short term. For the reasons which have been identified earlier in these reasons, the Tribunal considers that the stay of the decision made on 18 August 2017 to cancel the Applicant’s authorisation as an authorised carer will secure the effectiveness of the determination of the application.

65. The order of the Tribunal shall be:

1. The proceeding is adjourned to 12 October 2017 at 9:30am for further directions.

2. The decision made on 18 August 2017 to cancel the Applicant’s authorisation as an authorised carer is stayed pending further order of the Tribunal.

3. A guardian ad litem is to act for the child.

4. The reasons for interim decision are reserved.

5. The interim order made on 18 September 2017 requiring the child to be returned to the care of the applicant upon his discharge from the mental health unit where he has been treated subject to the Applicant’s undertaking as set out in that order is revoked pursuant to section 61 (1) (b) of the Administrative Decisions Review Act 1997 (NSW).

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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