DHJ v Secretary, Department of Family and Community Services

In the matter of DHJ v Secretary, Department of Family and Community Services, the applicant sought judicial review of the decision by the respondent, the Secretary of the Department of Family and Community Services, to remove a foster child from the applicant's care. The application also sought an interim stay of the decision pending the determination of the review. The applicant did not apply for internal review before making the application for judicial review. The case was heard by the Tribunal which had to decide if it was necessary to deal with the application in order to protect the applicant's interests, whether the respondent was given a reasonable opportunity to make submissions in relation to the proposed stay, and whether the grant of a stay was appropriate to secure the effectiveness of the determination of the application.

The Tribunal found that it was necessary to deal with the application in order to protect the applicant's interests, as the applicant's relationship with the foster child was of significant importance and the potential harm of the removal could not be undone. The Tribunal also found that the respondent was given a reasonable opportunity to make submissions in relation to the proposed stay, despite not having been given the usual period of notice, as the urgency of the situation warranted the grant of an interim stay. Finally, the Tribunal found that the grant of a stay was appropriate to secure the effectiveness of the determination of the application, as the foster child's best interests would be served by maintaining the status quo until the application was determined.

The Tribunal made orders that the application for administrative review of the decision to remove the foster child from the applicant's care was to be dealt with, notwithstanding the applicant's failure to apply for internal review. The Tribunal also granted the application for a stay and ordered the respondent to arrange for the foster child to be returned to the care of the applicant by 11am on 24 January 2018. Finally, by consent, the publication or broadcast of the name of the applicant and any child referred to in these proceedings was prohibited.