DOK v Anglicare - [2018] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DOK v Anglicare [2018] NSWCATAD 204
Hearing dates: 30 August 2018
Date of orders: 31 August 2018
Decision date: 31 August 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
1. The Tribunal determines to deal with the application for review of the decision to remove a child from the applicant’s care, even though the applicant has not duly applied for internal review of that decision.

2. The applicant’s application for a stay is granted.

3. The respondent is to arrange for the return of the child the subject of these proceedings to the applicant by 5pm on two business days after the date of this decision – i.e. Tuesday 2 September 2018.
4. The proceedings are listed for directions at 10.30am on 13 September 2018 at Level 10, John Maddison Tower, 86-90 Goulburn Street Sydney. The parties may appear by telephone if they choose to do so and notify the Tribunal of this in advance of the directions hearing.
Catchwords:
ADMINISTRATIVE REVIEW – Where application made to the Tribunal without applying for internal review – Relevant principles – Whether it is necessary for Tribunal to deal with application to protect applicant’s interests
ADMINISTRATIVE REVIEW – Child protection – Where respondent made decision to remove a child from applicant’s care – Where another, older child in the applicant’s care charged with sexual assault against a young boy – Where applicant applied for stay of decision to remove child from her care - Interests of persons affected by determination of the application - Whether grant of a stay is appropriate to secure the effectiveness of the determination of the application
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)
Cases Cited: AHJ v NSW Trustee and Guardian [2011] NSWADT 311
DFS and DFT v Challenge Community Services [2017] NSWCATOD 177
DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45
Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80
The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384
Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147
Category: Consequential orders (other than Costs)
Parties: DOK (Applicant)
Anglicare (Respondent)
Representation: Solicitors:
Applicant in person
Ms Renshaw (Respondent)

File Number(s): 2018/00260425
Publication restriction: Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.

REASONS FOR DECISION

This is an application by a foster mother for a stay of a decision by the designated agency, Anglicare, to remove a child from her care. The child is nearly four years old and has lived with the foster mother since she was six weeks old.
A teenage boy, who was in the foster mother’s care at the relevant time, has been…

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.

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Details

Case: [2018] NSWCATAD 204
Decision Date: 31 August 2018

CaseChat Overview and Summary

The applicant, DOK, sought review of a decision by Anglicare, a child protection organisation, to remove a child from her care. The application was made to the Tribunal without the applicant having first sought internal review. The Tribunal was required to determine whether it should proceed with the application, despite the procedural irregularity, and whether a stay of the removal decision should be granted. The Tribunal's role in ensuring that the interests of all parties were protected was central to its reasoning. It was noted that the respondent had removed another child from the applicant's care due to an allegation of sexual assault, raising concerns about the safety of children in the applicant's care.

The Tribunal held that it was appropriate to proceed with the application to review the decision to remove the child, despite the procedural irregularity. It found that the applicant had acted with diligence and that the respondent had not been prejudiced by the lack of internal review. The Tribunal emphasised the importance of protecting the interests of the child, as well as the applicant, and the need to ensure that the decision-making process was fair and just. In relation to the stay application, the Tribunal found that it was appropriate to grant a stay to secure the effectiveness of the determination of the application, particularly given the serious consequences of the removal decision for the applicant and the child.

In light of its findings, the Tribunal determined to deal with the application for review, despite the procedural irregularity. It granted the applicant's application for a stay, ordering that the child be returned to the applicant's care by a specified date. The Tribunal also made orders for the listing of the proceedings for directions, allowing the parties to appear by telephone if they chose to do so. The decision demonstrates the Tribunal's willingness to ensure that the interests of all parties are protected and that the decision-making process is fair and just, even in the face of procedural irregularities.

Orders

Orders of the court

1. The Tribunal determines to deal with the application for review of the decision to remove a child from the applicant’s care, even though the applicant has not duly applied for internal review of that decision.

2. The applicant’s application for a stay is granted.

3. The respondent is to arrange for the return of the child the subject of these proceedings to the applicant by 5pm on two business days after the date of this decision – i.e. Tuesday 2 September 2018.

4. The proceedings are listed for directions at 10.30am on 13 September 2018 at Level 10, John Maddison Tower, 86-90 Goulburn Street Sydney. The parties may appear by telephone if they choose to do so and notify the Tribunal of this in advance of the directions hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DOK v Anglicare [2018] NSWCATAD 204
Hearing dates:	30 August 2018
Date of orders:	31 August 2018
Decision date:	31 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	1. The Tribunal determines to deal with the application for review of the decision to remove a child from the applicant’s care, even though the applicant has not duly applied for internal review of that decision. 2. The applicant’s application for a stay is granted. 3. The respondent is to arrange for the return of the child the subject of these proceedings to the applicant by 5pm on two business days after the date of this decision – i.e. Tuesday 2 September 2018. 4. The proceedings are listed for directions at 10.30am on 13 September 2018 at Level 10, John Maddison Tower, 86-90 Goulburn Street Sydney. The parties may appear by telephone if they choose to do so and notify the Tribunal of this in advance of the directions hearing.
Catchwords:	ADMINISTRATIVE REVIEW – Where application made to the Tribunal without applying for internal review – Relevant principles – Whether it is necessary for Tribunal to deal with application to protect applicant’s interests ADMINISTRATIVE REVIEW – Child protection – Where respondent made decision to remove a child from applicant’s care – Where another, older child in the applicant’s care charged with sexual assault against a young boy – Where applicant applied for stay of decision to remove child from her care - Interests of persons affected by determination of the application - Whether grant of a stay is appropriate to secure the effectiveness of the determination of the application
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)
Cases Cited:	AHJ v NSW Trustee and Guardian [2011] NSWADT 311 DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45 Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147
Category:	Consequential orders (other than Costs)
Parties:	DOK (Applicant) Anglicare (Respondent)
Representation:	Solicitors: Applicant in person Ms Renshaw (Respondent)
File Number(s):	2018/00260425
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.