GMD v CASPA Services Ltd - [2024] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GMD v CASPA Services Ltd [2024] NSWCATAD 227
Hearing dates: 1 August 2024
Date of orders: 6 August 2024
Decision date: 06 August 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:
(1)   The application for an interim order seeking the immediate return of a child formerly in the care of the Applicant is dismissed.
(2)   The application for an interim order that there be a change of agency is dismissed.
(3) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the name of the child and the Applicant is prohibited.
NOTE: A reference to a person's name includes any information, picture, or other material that identifies the person or is likely to lead to the identification of the person.
(4) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 65, 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 is prohibited.
(5) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.
(6)   With regard to the further management of these proceedings:
(a)   The child is to be separately represented.
(b)   Department of Communities and Justice is joined as a Respondent and notified of these proceedings.
(c)   The child’s grandfather is to be advised of these proceedings and may be joined as a Respondent if he wishes.
(d) The Respondent is to give to the Tribunal and all other parties documents pursuant to the Administrative Decisions Review Act, s 58 by 30 August 2024.
(e)   The Applicant is to give her evidence, including witness statements, documents, and submissions in support of the application for administrative review, to the tribunal and all other parties by 27 September 2024.
(f)   The matter is listed for directions in the Community Services List for further progress, including the timetable for exchanging any further evidence and submissions and the joinder of parties at a date after 27 September 2024, as advised by the Registry.
(g) The following directions apply to the Respondent’s s 59 Application:
(i) The Respondent is to provide to the Tribunal and all other parties with any application for orders under s 59 of the Administrative Decisions Review Act 1997 and s 64 of the Civil and Administrative Tribunal Act 2013 (the s 59 Application), and open evidence and submissions in support of that application, by 6 September 2024.
(ii) The Respondent is to provide to the Tribunal only any confidential evidence and submissions in support of the s 59 Application and the documents the subject of that application by 6 September 2024.
(iii) The Applicant is to provide to the Tribunal and all other parties any evidence and submissions in response to…

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 227
Decision Date: 06 August 2024

CaseChat Overview and Summary

The case of GMD v CASPA Services Ltd involved the Government Minister for Disabilities (GMD) and CASPA Services Ltd, a child care agency, in a dispute regarding the out-of-home care of a child. The matter was heard in the Civil and Administrative Tribunal (CAT), where the GMD sought an interim order for the immediate return of the child and a change of agency, while CASPA Services Ltd opposed these applications. The court was tasked with considering whether the child should be returned to the GMD's care, whether the agency should be changed, and the broader management of the proceedings, including the disclosure of sensitive information and the publication of names.

The central legal issues in the case were whether the GMD was entitled to an interim order for the immediate return of the child and whether there should be a change of agency. The court also had to consider the factors under the Children and Young Persons (Care and Protection) Act 1998 for restoring a child to out-of-home care and the implications of the Administrative Decisions Review Act 1997 and the Civil and Administrative Tribunal Act 2013 on the disclosure of information and the publication of names.

The CAT dismissed the GMD’s applications for an interim order seeking the immediate return of the child and a change of agency. The court emphasised the need to balance the child's best interests with the legal rights and obligations of the parties. It also addressed the disclosure of sensitive information and the publication of names, imposing restrictions under the Civil and Administrative Tribunal Act 2013 to protect the identities of the child and other individuals involved. The court ordered that the child be separately represented and outlined a detailed timetable for the exchange of documents and evidence, the joinder of additional parties, and the scheduling of future hearings.

The final orders included the dismissal of the interim applications, the prohibition of the publication of the child's and the applicant's names, and the restriction of the disclosure of confidential material pending the determination of related applications. The court also directed the separate representation of the child, joined the Department of Communities and Justice as a respondent, and provided a schedule for the exchange of documents and evidence. The matter was set for further directions and a hearing of the s 59 Application, with specific deadlines for submissions and the disclosure of confidential material.

Orders

Orders of the court

(1) The application for an interim order seeking the immediate return of a child formerly in the care of the Applicant is dismissed.

(2) The application for an interim order that there be a change of agency is dismissed.

(3) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the name of the child and the Applicant is prohibited.

NOTE: A reference to a person's name includes any information, picture, or other material that identifies the person or is likely to lead to the identification of the person.

(4) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 65, 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 is prohibited.

(5) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

(6) With regard to the further management of these proceedings:

(a) The child is to be separately represented.

(b) Department of Communities and Justice is joined as a Respondent and notified of these proceedings.

(d) The Respondent is to give to the Tribunal and all other parties documents pursuant to the Administrative Decisions Review Act, s 58 by 30 August 2024.

(e) The Applicant is to give her evidence, including witness statements, documents, and submissions in support of the application for administrative review, to the tribunal and all other parties by 27 September 2024.

(f) The matter is listed for directions in the Community Services List for further progress, including the timetable for exchanging any further evidence and submissions and the joinder of parties at a date after 27 September 2024, as advised by the Registry.

(g) The following directions apply to the Respondent’s s 59 Application:

(i) The Respondent is to provide to the Tribunal and all other parties with any application for orders under s 59 of the Administrative Decisions Review Act 1997 and s 64 of the Civil and Administrative Tribunal Act 2013 (the s 59 Application), and open evidence and submissions in support of that application, by 6 September 2024.

(ii) The Respondent is to provide to the Tribunal only any confidential evidence and submissions in support of the s 59 Application and the documents the subject of that application by 6 September 2024.

(iii) The Applicant is to provide to the Tribunal and all other parties any evidence and submissions in response to the s 59 Application by 20 September 2024.

(iv) The matter is to be listed for an AVL hearing of the s 59 Application for one hour on a date to be advised by the Registry.

(v) Pursuant to the Civil and Administrative Tribunal Act 2013, s 64(1)(d), the disclosure to the Applicant or her legal representative of any confidential evidence or material provided to the Tribunal in accordance with Order 3 (“the Confidential Material”) is prohibited until the determination of the s 59 Application or further order of the Tribunal.

(vi) Pursuant to the Civil and Administrative Tribunal Act 2013, s 64(1)(c), the publication of the Confidential Material is prohibited until the determination of the s 59 application or further order of the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	GMD v CASPA Services Ltd [2024] NSWCATAD 227
Hearing dates:	1 August 2024
Date of orders:	6 August 2024
Decision date:	06 August 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Gatland, Senior Member
Decision:	(1) The application for an interim order seeking the immediate return of a child formerly in the care of the Applicant is dismissed. (2) The application for an interim order that there be a change of agency is dismissed. (3) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a), the publication or broadcast of the name of the child and the Applicant is prohibited. NOTE: A reference to a person's name includes any information, picture, or other material that identifies the person or is likely to lead to the identification of the person. (4) Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 65, 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 is prohibited. (5) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public. (6) With regard to the further management of these proceedings: (a) The child is to be separately represented. (b) Department of Communities and Justice is joined as a Respondent and notified of these proceedings. (c) The child’s grandfather is to be advised of these proceedings and may be joined as a Respondent if he wishes. (d) The Respondent is to give to the Tribunal and all other parties documents pursuant to the Administrative Decisions Review Act, s 58 by 30 August 2024. (e) The Applicant is to give her evidence, including witness statements, documents, and submissions in support of the application for administrative review, to the tribunal and all other parties by 27 September 2024. (f) The matter is listed for directions in the Community Services List for further progress, including the timetable for exchanging any further evidence and submissions and the joinder of parties at a date after 27 September 2024, as advised by the Registry. (g) The following directions apply to the Respondent’s s 59 Application: (i) The Respondent is to provide to the Tribunal and all other parties with any application for orders under s 59 of the Administrative Decisions Review Act 1997 and s 64 of the Civil and Administrative Tribunal Act 2013 (the s 59 Application), and open evidence and submissions in support of that application, by 6 September 2024. (ii) The Respondent is to provide to the Tribunal only any confidential evidence and submissions in support of the s 59 Application and the documents the subject of that application by 6 September 2024. (iii) The Applicant is to provide to the Tribunal and all other parties any evidence and submissions in response to…