GHR v William Campbell Foundation - [2024] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHR v William Campbell Foundation [2024] NSWCATAD 120
Hearing dates: 30 April 2024
Date of orders: 06 May 2024
Decision date: 06 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:
(1)   The application for administrative review of the respondent’s decision to remove the Child 1 and Child 2 from the Applicant’s care is to be dealt with by the Tribunal notwithstanding that the Applicant has not applied for an internal review of the decision.
(2)   The application for an interim order that the children be returned immediately to the care of the Applicant is granted, subject to the following conditions:
(a)   The Applicant is to follow all directions of the Respondent concerning home visits and attending on her counsellor;
(b)   The Applicant will strictly comply with the Carer’s Code of Conduct;
(c)   The Applicant is not to speak disrespectfully or denigrate any family member of Child 1 and Child 2, including Half-sister 1, Half-sister 2, Half-sister 3 and Sister.
(d)   The Applicant will maintain prompt contact with the staff of the Respondent via telephone and text message and will ensure, as far as possible that she is contactable by the Respondent at all times;
(e)   The Applicant will follow the directions of the Respondent concerning facilitation of contact by Child 1 and Child 2 of Sister and their half-siblings and birth parents;
(3)   Child 1 and Child 2 are to be separately represented.
(4)   Department of Communities and Justice is joined as a Respondent.
(5) Pursuant to the Civil and administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the names of Child 1 or Child 2 and the Applicant is prohibited.
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 are at liberty to file with the Tribunal an application for miscellaneous matters seeking to vary or revoke the interim orders.

Catchwords:
INTERLOCUTORY – stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care – restoration of care placement pending final determination – consideration of factors

Legislation Cited:
Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998, s 245
Children’s Guardian Act 2019 (NSW), s 72
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28(1)(a)

Cases Cited:
Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45
FQT v Key Assets (No 1) [2022] NSWCATAD 416
QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113
Secretary of Family and Community Services v Allana Pearl Smith [2016] NSWSC…

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: [2024] NSWCATAD 120
Decision Date: 06 May 2024

CaseChat Overview and Summary

The case of GHR v William Campbell Foundation involves a dispute regarding the care of two children, Child 1 and Child 2, who were removed from the care of the Applicant, GHR, by the William Campbell Foundation, a non-government organisation authorised by the Minister for Communities and Justice under the Children and Young Persons (Care and Protection) Act 1998. GHR sought an interim order for the children to be returned to her care while her application for administrative review of the decision to remove them was being determined. The Family Court of Australia was asked to decide whether the interim order should be granted and what conditions should apply if it was.

The central legal issue was whether the court should grant an interim order to return the children to GHR’s care despite the absence of an internal review of the decision to remove them from her care. The court needed to consider the welfare of the children, the statutory framework governing their care, and the rights of GHR as their carer. Additionally, the court had to decide whether the children should be separately represented and whether the Department of Communities and Justice should be joined as a respondent. The court also needed to consider the appropriate conditions for any interim order, including the publication and broadcast of the children's and GHR's names.

The court determined that the application for administrative review should proceed before the Civil and Administrative Tribunal (CAT) despite GHR's failure to seek an internal review. It found that the welfare of Child 1 and Child 2 was paramount and that an interim order should be granted, subject to specific conditions designed to protect the children. These conditions included GHR's compliance with directions from the respondent, adherence to the Carer’s Code of Conduct, respectful communication with family members, and maintaining contact with the respondent. The court also ordered separate representation for the children and prohibited the publication of their names. Finally, the Department of Communities and Justice was joined as a respondent to ensure comprehensive oversight of the case.

The court granted the interim order for the children to be returned to GHR’s care subject to the outlined conditions. It also ordered that Child 1 and Child 2 be separately represented, that the Department of Communities and Justice be joined as a respondent, and that the publication or broadcast of the names of Child 1, Child 2, and GHR be prohibited. Both parties were given the liberty to apply to the Tribunal to vary or revoke the interim orders.

Orders

Orders of the court

(1) The application for administrative review of the respondent’s decision to remove the Child 1 and Child 2 from the Applicant’s care is to be dealt with by the Tribunal notwithstanding that the Applicant has not applied for an internal review of the decision.

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

(a) The Applicant is to follow all directions of the Respondent concerning home visits and attending on her counsellor;

(b) The Applicant will strictly comply with the Carer’s Code of Conduct;

(c) The Applicant is not to speak disrespectfully or denigrate any family member of Child 1 and Child 2, including Half-sister 1, Half-sister 2, Half-sister 3 and Sister.

(d) The Applicant will maintain prompt contact with the staff of the Respondent via telephone and text message and will ensure, as far as possible that she is contactable by the Respondent at all times;

(e) The Applicant will follow the directions of the Respondent concerning facilitation of contact by Child 1 and Child 2 of Sister and their half-siblings and birth parents;

(3) Child 1 and Child 2 are to be separately represented.

(4) Department of Communities and Justice is joined as a Respondent.

(5) Pursuant to the Civil and administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the names of Child 1 or Child 2 and the Applicant is prohibited.

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 are at liberty to file with the Tribunal an application for miscellaneous matters seeking to vary or revoke the interim orders.

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:	GHR v William Campbell Foundation [2024] NSWCATAD 120
Hearing dates:	30 April 2024
Date of orders:	06 May 2024
Decision date:	06 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Gatland, Senior Member
Decision:	(1) The application for administrative review of the respondent’s decision to remove the Child 1 and Child 2 from the Applicant’s care is to be dealt with by the Tribunal notwithstanding that the Applicant has not applied for an internal review of the decision. (2) The application for an interim order that the children be returned immediately to the care of the Applicant is granted, subject to the following conditions: (a) The Applicant is to follow all directions of the Respondent concerning home visits and attending on her counsellor; (b) The Applicant will strictly comply with the Carer’s Code of Conduct; (c) The Applicant is not to speak disrespectfully or denigrate any family member of Child 1 and Child 2, including Half-sister 1, Half-sister 2, Half-sister 3 and Sister. (d) The Applicant will maintain prompt contact with the staff of the Respondent via telephone and text message and will ensure, as far as possible that she is contactable by the Respondent at all times; (e) The Applicant will follow the directions of the Respondent concerning facilitation of contact by Child 1 and Child 2 of Sister and their half-siblings and birth parents; (3) Child 1 and Child 2 are to be separately represented. (4) Department of Communities and Justice is joined as a Respondent. (5) Pursuant to the Civil and administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the names of Child 1 or Child 2 and the Applicant is prohibited. 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 are at liberty to file with the Tribunal an application for miscellaneous matters seeking to vary or revoke the interim orders.
Catchwords:	INTERLOCUTORY – stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care – restoration of care placement pending final determination – consideration of factors
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998, s 245 Children’s Guardian Act 2019 (NSW), s 72 Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28(1)(a)
Cases Cited:	Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45 FQT v Key Assets (No 1) [2022] NSWCATAD 416 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Secretary of Family and Community Services v Allana Pearl Smith [2016] NSWSC…