DOJ v Secretary, Department of Family and Community Services (No 2)

[2018] NSWCATAD 263

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DOJ v Secretary, Department of Family and Community Services (No 2) [2018] NSWCATAD 263
Hearing dates:	28 September 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Scarlett, Senior Member R Royer, General Member
Decision:	The Application for Administrative Review of a decision of the Secretary, Department of Family and Community Services lodged on 22 August 2018 is withdrawn.
Catchwords:	Children – Application for Review – application for joinder – where substantive application withdrawn at hearing
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) s 64
Category:	Procedural and other rulings
Parties:	DOJ (Applicant) Secretary, Department of Family and Community Services (Respondent)
Representation:	Applicant in person   Solicitor: Department of Family and Community Services (Respondent)
File Number(s):	2018/00258074
Publication restriction:	With the exception of expert witnesses or officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. This is an Application by the substantive Applicant, known by the pseudonym DOJ, for review of a decision by the Department of Family and Community Services about which she was notified on 24 July 2018 removing two children from the care of the Applicant and her husband.

2. On 22 August this year the Applicant lodged an Application for Administrative Review of the substantive decision, which was listed for hearing today, and an Application for a Stay.

3. The Application for a Stay was heard by Senior Member Lucy on 30 August and 5 September 2018, and the decision was made on 11 September 2018. On that day the Tribunal decided not to grant a stay of proceedings. Orders and directions were made, not only refusing the stay, but listing the substantive Application for hearing today.

4. The matter came on for hearing at 10:00 am, but in the intervening period of time there were two developments which changed the situation significantly.

5. First of all, on 25 September, which was last Tuesday, the Respondent Department filed in the Children’s Court at Lithgow an Application for the rescission or variation of the care orders which were made on 18 June 2016 in relation to the children, with a view to restore the children to the care of their natural mother, and that Application is returnable at the Children’s Court at Lithgow on Friday 19 October 2018, which is exactly three weeks from today.

6. Second, the natural mother, who is present in the hearing today, filed an Application to be joined as a party to the substantive proceedings. That Application was supported by a statement comprising eight pages of text and an annexed photograph.

7. The Application was filed at the Tribunal on 27 September, which was yesterday. The Respondent Department of Family and Community Services received a copy of the Application and supporting documents that same day. The Tribunal emailed to the Applicant in the substantive proceedings, DOJ, a copy of those documents, but the Applicant told the Tribunal this morning that she had not received the emailed documents until the email came through on her telephone at 4:50 am today. At the time she attended the Tribunal at 10:00 am she did not have a hard copy of the Application or the statement. She did, however, tell the Tribunal that she opposed the application to join the natural mother as a party to the proceedings. Dr Nguyen, who appeared for the Department, told the Tribunal that the Department had no objection to the joinder of the mother.

8. However, it became clear to the Tribunal that the late receipt by the substantive Applicant DOJ of the application to be joined as a party and the supporting statement would place her at a significant procedural disadvantage. It is one thing to be able to read a document off the screen of one’s mobile telephone, it is another thing to have a hard copy of the document or documents so that they can be read through in detail.

9. It is for that reason that at approximately 10:55 am the Tribunal decided to adjourn the proceedings to allow for a hard copy of the documents to be photocopied and provided to the Applicant, so that she could read through the documents and discuss the matters contained within them with her husband, who was also present. The Tribunal stood the matter down until 11:30 am to allow that to take place.

10. It is fair to say that the Applicant was somewhat distressed by the application for joinder and the supporting statement and indicated that she felt as if she were on trial. The Tribunal did its best to inform her that she was not on trial and that she would be given an opportunity to be heard after she had had the opportunity to read through the material.

11. What has subsequently transpired is that at approximately 11:10 am, during the adjournment, the Applicant attended at the counter and signed a statement, which was sought to be added to the file. Copies have been made, and a copy has been provided to the solicitor for the Respondent.

12. In this document the Applicant has said:

13. “I would like to withdraw my application for NCAT hearing on 28 September 2018, 2018/00258074 DOJ v Secretary, Department of Family and Community Services, due to undue stress, bias and unfair advantage of FACS’ continuous attacks on my character, ability as a carer, and I feel I can no longer receive an unbiased account of my review”

14. The Tribunal returned to the hearing room at 11:30 am.

15. There was no appearance by the Applicant or her husband or by a Ms Newman, who was also there in support of the Application.

16. The Tribunal asked for the parties to be called, and Dr Nguyen for the Respondent very kindly made his way out to the waiting room and called the parties. He returned to the hearing room and told the Tribunal that they were not in attendance.

17. Conclusions

18. Based on the document that the Tribunal has now received it is fair to assume that the parties have left the building and that the Applicant certainly does not intend to pursue her application for an administrative review of the decision.

19. What this means is that there is no utility in dealing with the natural mother’s application to be joined as a party to the proceedings as there are now no proceedings to which she can be joined.

20. If the Applicant wishes to withdraw her substantive application that must of necessity bring the proceedings to an end and it will follow that the Respondent Department now has no Application for Administrative Review to respond to.

21. Decision

22. In the light of those developments the only decision open to the Tribunal is to mark the substantive Application as withdrawn and it will be removed from the list.

23. I require a transcript of the Tribunal’s reasons for this decision.

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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: 27 November 2018