FQT v Key Assets (No 2) - [2022] NSWCATAD 417

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FQT v Key Assets (No 2) [2022] NSWCATAD 417
Hearing dates: 23 December 2022
Date of orders: 23 December 2022
Decision date: 23 December 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
Decision:
(1)   The application by Key Assets to revoke the orders made by the Tribunal on 22 December 2022 is dismissed.
(2)   The time for Key Assets to comply with direction 3 made by the Tribunal on 22 December 2022 is extended to 7pm on 23 December 2022.
(3) On finding that these proceedings significantly affect children, namely [the children], it is hereby ordered under s 45(4A) (b) of the Civil and Administrative Tribunal Act 2013 that [the children] be separately represented.
Note: The Registrar will request that Legal Aid New South Wales provide a separate representative for [the children]
(4)   The Registry is to notify the Secretary, Department of Communities and Justice, of these proceedings and provide to them a copy of the applications and orders made to date. The Secretary, Department of Communities and Justice, is to advise the Tribunal and the parties, in writing, by 10 January 2023, of the Secretary's views to being joined as a party.

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, Reviews and Monitoring) Act 1993 (NSW)

Cases Cited:
FQT v Key Assets (No 1) [2022] NSWCATAD 416

Category: Procedural rulings
Parties: FQT (Applicant)
Key Assets (Respondent)
Representation: Solicitors:
Care Legal (Respondent)

File Number(s): 2022/383122
Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act (2013), prohibiting the publication or broadcast of the name of the applicant, any person who appears as a witness and any child referred to in these proceedings.

REASONS FOR DECISION

On 22 December 2022 I made an interim order, for two children to be returned to the applicant by 4pm that day: FQT v Key Assets (No 1) [2022] NSWCATAD 416. These reasons should be read in conjunction with the reasons in FQT v Key Assets (No 1).
At 5.45pm on 22 December 2022, the respondent’s solicitor sent an email to the Registry with an application for miscellaneous matters and a supporting affidavit from Trent Bennison who is the Social Work Team Manager employed by the respondent. The respondent was seeking orders for the revocation of the interim order I had made. The basis of the miscellaneous application was that the respondent had not been able to implement the order to return the children because the children had refused to return.
The email from the respondent’s solicitor had only come to the Registry’s attention after it was forwarded in an email response from the applicant. It later transpired that the respondent’s legal representative had been having…

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 417
Decision Date: 23 December 2022

CaseChat Overview and Summary

The case of FQT v Key Assets (No 2) involved the applicant, Key Assets, seeking to revoke orders made by the Tribunal on 22 December 2022, concerning out-of-home care under the Children and Young Persons (Care and Protection) Act 1998. The Tribunal was called upon to determine the legality of Key Assets' application and whether the time for compliance with the Tribunal's earlier directions should be extended. Additionally, the Tribunal was required to consider whether separate representation was necessary for the children involved in the proceedings.

The primary legal issue before the court was whether Key Assets' application to revoke the orders made by the Tribunal on 22 December 2022 should be dismissed, and if so, what effect this had on the compliance timeframe for direction 3. Furthermore, the court needed to determine whether it was appropriate to order separate representation for the children, given the significant impact of these proceedings on their welfare. The court also had to decide if the Secretary, Department of Communities and Justice, should be joined as a party to the proceedings.

In dismissing the application by Key Assets to revoke the Tribunal's orders, the court found that the applicant had not provided sufficient grounds to warrant such action. The court extended the time for Key Assets to comply with direction 3, granting them until 7pm on 23 December 2022 to do so. The Tribunal further ordered that the children be separately represented due to the substantial impact of these proceedings on their welfare, and requested Legal Aid New South Wales to provide a separate representative for the children. The court also mandated that the Registry notify the Secretary, Department of Communities and Justice, of the proceedings and provide them with a copy of the applications and orders made to date. The Secretary was directed to provide their views on being joined as a party by 10 January 2023.

Orders

Orders of the court

(1) The application by Key Assets to revoke the orders made by the Tribunal on 22 December 2022 is dismissed.

(2) The time for Key Assets to comply with direction 3 made by the Tribunal on 22 December 2022 is extended to 7pm on 23 December 2022.

(3) On finding that these proceedings significantly affect children, namely [the children], it is hereby ordered under s 45(4A) (b) of the Civil and Administrative Tribunal Act 2013 that [the children] be separately represented.

Note: The Registrar will request that Legal Aid New South Wales provide a separate representative for [the children]

(4) The Registry is to notify the Secretary, Department of Communities and Justice, of these proceedings and provide to them a copy of the applications and orders made to date. The Secretary, Department of Communities and Justice, is to advise the Tribunal and the parties, in writing, by 10 January 2023, of the Secretary's views to being joined as a party.

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 2) [2022] NSWCATAD 417
Hearing dates:	23 December 2022
Date of orders:	23 December 2022
Decision date:	23 December 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Principal Member
Decision:	(1) The application by Key Assets to revoke the orders made by the Tribunal on 22 December 2022 is dismissed. (2) The time for Key Assets to comply with direction 3 made by the Tribunal on 22 December 2022 is extended to 7pm on 23 December 2022. (3) On finding that these proceedings significantly affect children, namely [the children], it is hereby ordered under s 45(4A) (b) of the Civil and Administrative Tribunal Act 2013 that [the children] be separately represented. Note: The Registrar will request that Legal Aid New South Wales provide a separate representative for [the children] (4) The Registry is to notify the Secretary, Department of Communities and Justice, of these proceedings and provide to them a copy of the applications and orders made to date. The Secretary, Department of Communities and Justice, is to advise the Tribunal and the parties, in writing, by 10 January 2023, of the Secretary's views to being joined as a party.
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, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	FQT v Key Assets (No 1) [2022] NSWCATAD 416
Category:	Procedural rulings
Parties:	FQT (Applicant) Key Assets (Respondent)
Representation:	Solicitors: Care Legal (Respondent)
File Number(s):	2022/383122
Publication restriction:	Pursuant to s 65 of the Civil and Administrative Tribunal Act (2013), prohibiting the publication or broadcast of the name of the applicant, any person who appears as a witness and any child referred to in these proceedings.