FQT v Key Assets (No 1) - [2022] NSWCATAD 416

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FQT v Key Assets (No 1) [2022] NSWCATAD 416
Hearing dates: 22 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
Decision:
(1)   The application for administrative review of the respondent’s decision, made on 14 December 2022, to remove children from the applicant’s care is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision.
(2)   The application for an interim order that the children be returned to the care of the applicant is granted subject to the following conditions:
(i)   The applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography.
(ii)   The applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child, and report any instances of access found to the respondent immediately.
(iii)   The applicant will work with Key Assets in a manner that is respectful and comply with her obligations under the Carers Code of Conduct.
(iv)    The applicant, will at all times, provide a home that is safe, clean and comfortable and meets the needs of the children.
(v)   The applicant will provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent.
(vi)   The applicant will allow in-home visits by the respondents when requested by the respondent.
(vii)   The applicant will follow the directives of the respondent in relation to medical, educational and therapy interventions for the children.
(viii)    The applicant will follow the directives of the respondent regarding connection with the children's birth parents and significant others and promote and foster those connections.
(ix)   The applicant is not to speak disrespectfully or denigrate the respondent, the birth parents or significant others in the presence of the children.
(3)   The respondent is to arrange for the children to be returned to the care of the applicant by 4pm on 22 December 2022.
(4) The publication or broadcast of the name of the children and the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: 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.
Note: Either party may approach the Registry with a miscellaneous application to vary or revoke the interim order

Catchwords:
INTERLOCUTORY – stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care - restoration

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Community Services (Complaints,…

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: [2022] NSWCATAD 416
Decision Date: 22 December 2022

CaseChat Overview and Summary

In this case, FQT applied to the Civil and Administrative Tribunal for a stay of a decision by Key Assets to remove children from their care. FQT sought an interim order for the children to be returned to their care. Key Assets opposed the application, arguing that the Tribunal should not grant a stay of the decision and that the interim order should be denied. The dispute was heard in the Civil and Administrative Tribunal.

The primary legal issues in the case were whether the Tribunal should grant a stay of the decision and whether an interim order should be granted for the children to be returned to the applicant’s care. The applicant argued that a stay was necessary to prevent harm to the children and to allow the Tribunal to consider the merits of the application for administrative review. The respondent argued that the applicant had not followed the internal review process and that the children’s welfare would be compromised if they were returned to the applicant’s care.

The Tribunal found that a stay was appropriate to prevent harm to the children and allow the Tribunal to consider the merits of the application for administrative review. The Tribunal also found that an interim order should be granted for the children to be returned to the applicant’s care, subject to conditions to ensure the children’s welfare. The Tribunal noted that the applicant had not followed the internal review process, but found that this was not a bar to granting the interim order. The Tribunal ordered that the application for administrative review be dealt with by the Tribunal, that the children be returned to the applicant’s care subject to conditions, and that the publication or broadcast of the name of the children and the applicant be prohibited.

The final orders of the Tribunal were that the application for administrative review of the decision to remove the children from the applicant’s care be dealt with by the Tribunal, that the children be returned to the applicant’s care subject to conditions, and that the publication or broadcast of the name of the children and the applicant be prohibited.

Orders

Orders of the court

(1) The application for administrative review of the respondent’s decision, made on 14 December 2022, to remove children from the applicant’s care is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision.

(2) The application for an interim order that the children be returned to the care of the applicant is granted subject to the following conditions:

(i) The applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography.

(ii) The applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child, and report any instances of access found to the respondent immediately.

(iii) The applicant will work with Key Assets in a manner that is respectful and comply with her obligations under the Carers Code of Conduct.

(iv) The applicant, will at all times, provide a home that is safe, clean and comfortable and meets the needs of the children.

(v) The applicant will provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent.

(vi) The applicant will allow in-home visits by the respondents when requested by the respondent.

(vii) The applicant will follow the directives of the respondent in relation to medical, educational and therapy interventions for the children.

(viii) The applicant will follow the directives of the respondent regarding connection with the children's birth parents and significant others and promote and foster those connections.

(ix) The applicant is not to speak disrespectfully or denigrate the respondent, the birth parents or significant others in the presence of the children.

(3) The respondent is to arrange for the children to be returned to the care of the applicant by 4pm on 22 December 2022.

(4) The publication or broadcast of the name of the children and the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Note: 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.

Note: Either party may approach the Registry with a miscellaneous application to vary or revoke the interim order

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:	FQT v Key Assets (No 1) [2022] NSWCATAD 416
Hearing dates:	22 December 2022
Date of orders:	22 December 2022
Decision date:	22 December 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Principal Member
Decision:	(1) The application for administrative review of the respondent’s decision, made on 14 December 2022, to remove children from the applicant’s care is to be dealt with by the Tribunal, notwithstanding that the applicant has not applied for internal review of the decision. (2) The application for an interim order that the children be returned to the care of the applicant is granted subject to the following conditions: (i) The applicant will ensure that all media devices in the home have protection installed to prevent the children from accessing pornography. (ii) The applicant is to regularly monitor media devices in the home for access to pornography, that may have occurred by either child, and report any instances of access found to the respondent immediately. (iii) The applicant will work with Key Assets in a manner that is respectful and comply with her obligations under the Carers Code of Conduct. (iv) The applicant, will at all times, provide a home that is safe, clean and comfortable and meets the needs of the children. (v) The applicant will provide information to the respondent about the children’s well-being, including issues that may arise about their development, health, behaviour and educational progress as required under the Code of Conduct or when requested by the respondent. (vi) The applicant will allow in-home visits by the respondents when requested by the respondent. (vii) The applicant will follow the directives of the respondent in relation to medical, educational and therapy interventions for the children. (viii) The applicant will follow the directives of the respondent regarding connection with the children's birth parents and significant others and promote and foster those connections. (ix) The applicant is not to speak disrespectfully or denigrate the respondent, the birth parents or significant others in the presence of the children. (3) The respondent is to arrange for the children to be returned to the care of the applicant by 4pm on 22 December 2022. (4) The publication or broadcast of the name of the children and the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: 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. Note: Either party may approach the Registry with a miscellaneous application to vary or revoke the interim order
Catchwords:	INTERLOCUTORY – stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care - restoration
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Community Services (Complaints,…