GMD v CASPA Services Ltd

Case •

[2024] NSWCATAD 227

•

06 August 2024

No judgment structure available for this case.

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Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.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

Catchwords:

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

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

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

Re Scott and Australian Securities and Investments Commission [2009] AATA 798

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Texts Cited:

NSW Child, Family and Community Peak Aboriginal Corporation (AbSec) and Department of Communities and Justice “Aboriginal Case Management Policy: Strengthening Aboriginal families, delivering outcomes for Aboriginal children and young people” October 2018 accessed 2 August 2024

NSW Child, Family and Community Peak Aboriginal Corporation (AbSec) and Department of Communities and Justice “Aboriginal Case Management Policy: Rules and Practice Guidance” March 2023 accessed 5 August 2024

Office of the Children’s Guardian, “Statutory out-of-home-care and adoption agency listing” accessed 2 August 2024

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report – Volume 4 Identifying and disclosing child sexual abuse (December 2017) father

Category:Procedural rulings
Parties:

GMD (Applicant)

CASPA Services Ltd (Respondent)
Representation:

Solicitors:
Applicant (Self-represented)

A Mead (In-house Solicitor) (Respondent)
File Number(s): 2024/00268864
Publication restriction:

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.

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.

REASONS FOR DECISION

Introduction

  1. At the centre of these proceedings is a five-year-old Aboriginal child. The child was placed in the Applicant’s care in January 2024. Then, in late May 2024, the child was removed from the Applicant’s care and placed in the care of her maternal grandfather.

  2. On 22 July 2024, the Applicant, having received no notice of the outcome of an internal review, commenced proceedings in this Tribunal seeking, principally, that the child be returned to her care.

  3. On the same day as filing her primary or substantive application, the Applicant applied for a stay of the Respondent's decision to remove the child from her care and for an order that the Respondent be changed as the agency due to alleged negligence in their responsibility for the child’s welfare. These reasons deal with this interim application.

  4. The matter was listed on an urgent basis for half a day on 1 August 2024. Due to the confidential nature of the proceedings, the hearing was conducted by audio-visual link in the absence of the public. The names and identifying features of the Applicant, the child and others by whom the child might be identified were not recorded in the transcript, which is subject, in any event, to an order for non-publication. Both parties tendered affidavit evidence and gave extensive oral submissions. The Applicant was given the opportunity to comment on and reply to the two affidavits that the Respondent filed and to provide a reply to submissions made in the open session. Due to the fact that some of the Respondent’s evidence was highly confidential and concerned not only the child but other persons, I informed the Applicant that I would hear from the Respondent and receive evidence from it in a confidential session in the absence of the Applicant. A confidential dial-in code was used for that part of the hearing that took place in the absence of the Applicant. I have made orders under the Civil and Administrative Tribunal Act 2013 (NSW), ss 49 and 64, with regard to the evidence and submissions received accordingly. As it transpired, some aspects of the Respondent’s evidence and submissions given in the private session were more properly matters which should have been provided when the Applicant was present. As I note below, in the interests of fairness to the Applicant, I have disregarded any evidence or submission by the Respondent that should have properly been made in the presence of the Applicant since the Applicant should have been given the opportunity to respond to those matters.

Issue

  1. On 1 August 2024, the Tribunal held a hearing in these proceedings to determine an application for urgent interim orders sought by the Applicant. The relief sought by the Applicant was:

  1. That the child be returned to her care.

  2. That the agency with responsibility for the care of the child, currently the Respondent, be changed due to negligence.

  1. In considering whether to make orders affecting the operation of the respondent’s decision, the issue is whether the Tribunal should make orders to secure the effectiveness of the Tribunal’s ultimate determination. As discussed below, there are specific considerations that attend upon that issue.

  2. For the reasons that follow, I have determined that the Tribunal should not grant the interim relief sought by the Applicant, and I have made orders for the orderly preparation of the proceedings.

Jurisdiction

  1. The Tribunal has jurisdiction to review the decision of the Respondent to remove the child from the Applicant’s care this is for the following reasons:

  1. The Respondent is a designated agency accredited by the Children's Guardian to provide statutory out-of-home care, in the form of foster care, in New South Wales pursuant to the Children’s Guardian Act 2019 (NSW), s 72. As such, the Respondent is a relevant decision-maker for the purposes of the Children and Young Persons (Care and Protection) Act, s 245.

  2. On or about 29 May 2024, the Respondent decided to remove the child from the care of the Applicant. The decision by the Respondent as a relevant decision-maker to remove from an authorised carer the responsibility for the daily care and control of a child or young person is an administratively reviewable decision: Children and Young Persons (Care and Protection) Act, s 245(1)(c).

  3. The Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28(1)(a), provides that a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW), s 9, see also the Civil and Administrative Tribunal Act 2013 (NSW), s 30.

  1. I am satisfied that the Applicant is an interested person in the decision for the purposes of the Administrative Decisions Review Act, s 55(1). Accordingly, she has standing to bring an application for review of that decision.

  2. The Tribunal does not have jurisdiction, however, to determine the second order sought by the Applicant on an interim basis, that is, the removal of the Respondent as the designated case-management agency for the child. Accordingly, that relief is dismissed without further consideration. While it was clear from the written and oral submissions that the Applicant’s primary focus was on the return of the child to her care, I acknowledge that the Applicant expressed significant concern and dissatisfaction with the actions of the Respondent in managing the care of the child.

  3. At the hearing of the interim application, it appeared that, at the time the decision was made or carried out, the Applicant was not given notice of the decision in writing as is required under the Administrative Decisions Review Act, s 48 and the Children and Young Persons (Care and Protection) Act, s 234; though there was no suggestion that the child was removed from the Applicant under emergency powers available under the relevant legislation in appropriate circumstances. In the SIC Report, the report writer stated, with regard to the circumstances of the removal and the lack of notice or reasoning:

‘CASPA’s decision to move [the child] without a transition were [sic] as they were concerned [the Applicant] would sabotage a slower transition, and as [the child] knew her family already, a transition would primarily only be for the benefit of [the Applicant] and her family.’

  1. While it is correct that the child has been deeply involved and settled with her broader family for the majority of her life, the reasoning set out in that report, if correct, does not adhere to the most basic concepts of administrative decision-making. In particular, the Respondent was obliged to give the Applicant a chance to understand what was being put against her and have the opportunity to respond: Kioa v West (1985) 159 CLR 550; [1985] HCA 81, at 569 per Gibbs CJ; at 585 per Mason J and at 615 and 629 per Brennan J. While there is no requirement for a decision-maker to provide a running commentary of the individual findings which they might be contemplating: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]; the Respondent’s actions do not account for why the Applicant was not provided with the decision-makers reasons for deciding after it was made.

  2. In FQT v Key Assets (No 1) [2022] NSWCATAD 416, a proceeding where children had been removed by a different designated agency without notice of reasons of the decision being given, the Tribunal observed at [21]-[23] that:

The providing of reasons for decision and internal review process provides an opportunity for an agency to examine and assess all the relevant information and explain the decision.

Further, it was not suggested by the respondent that the children had been removed from the placement pursuant to any of the emergency powers which are available to them under the relevant legislation. The independent assessor report is dated over a month prior to the respondent advising the applicant that they are removing the children. In those circumstances it is peculiar and inappropriate, that an agency with case management of a matter, as sensitive as the care of children, should circumvent that process and not give to the applicant a notice of the decision in writing together with notice of her right to have the decision reviewed, as is part of the respondent’s obligation under s 48 of the Administrative Decisions Review Act.

  1. On 26 June 2024, the Applicant sent an email seeking internal review of the Respondent’s decision. The email ended with the following sentence: “I will patiently await the outcome of your internal review.” In all other respects, the email of 26 June 2024 appears to meet, or substantially meet, the requirements set out in the Administrative Decisions Review Act, s 53.

  2. Ms Gordon, the Executive Director of the Respondent deposed in her affidavit read on the application for interim orders:

‘My responses and correspondence were in relation to the issues [the Applicant] had raised in her complaint. At no point has CASPA services administration or CEO or I received from Ms Edwards a request or an application for an internal review pursuant to 53(2) of the Administrative Decisions Review Act 1997 (ADR Act).’

  1. However, at the hearing of the interim application, the Respondent conceded that the Applicant had sought an internal review by her letter of 26 June 2024 and the Respondent’s failure to notify the Applicant of an outcome of any internal review within the 21 days of the application results in a deemed refusal; Administrative Decisions Review Act, s 53.

  2. Had the Respondent continued to insist that there had been no review application, then I would have considered that the circumstances set out in the Administrative Decisions Review Act, s 55(4)(b) arose, that is, that it was necessary to deal with the application to protect the Applicant’s interests and that the application was made within a reasonable time following the administratively reviewable decision.

Legal Context

  1. Any review of a decision of the kind made by the Respondent on 29 May 2024, including, as here, consideration of whether to affect that decision on an interim basis, must be considered in light of the objects of the legislation, which are set out in the Children and Young Persons (Care and Protection) Act, s 8:

The objects of this Act are to provide—

(a)  that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)  recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)  that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)  that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

  1. The review should also take account of the principles set out in Children and Young Persons (Care and Protection) Act, s 9 which are:

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

  1. Further, where a child is has been removed from their parents or family, the Respondent is required to take “active efforts” to either restore a child to their parents or family, where that is not practicable or in the best interests of the child, to place the child with family, kin or community: Children and Young Persons (Care and Protection) Act, s 9A. Active efforts are described in that provision as including efforts that are timely, practicable thorough and thoughtful, conducted in partnership with the child and family kin and community, and culturally appropriate all of which is subject to the paramount principle contained in s 9(1).

  2. In the context of the evidence in the current matter, the tribunal is required to make an assessment of risk. In ensuring the safety, welfare and well-being of the child, the tribunal must assess whether there is a risk of harm if the child remains in the care of her grandfather or is returned to the care of the Applicant.

  3. As the child in this case is Aboriginal, her placement in out-of-home care is further regulated in accordance with the placement principles set out in the Children and Young Persons (Care and Protection) Act, s 13. The placement principles set out in that provision are expressed as being subject to the principles and objects set out above and are as follows:

3   Aboriginal and Torres Strait Islander Child and Young Person Placement Principles

(1) The general order for placement Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with—

(a)  a member of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b)  if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed—a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c)  if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed—a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child’s or young person’s usual place of residence, or

(d)  if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed—a suitable person approved by the Secretary after consultation with—

(i)  members of the child’s or young person’s extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii)  such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

Note—

The placement principles set out in this section also apply to the making of guardianship orders in relation to Aboriginal and Torres Strait Islander children and young persons (see section 79A(3)(c)).

(2) Relevance of self-identification and expressed wishes of child or young person In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

(3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act.

(4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.

(5)  If a child or young person to whom subsection (4) applies—

(a)  is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or

(b)  is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture.

(6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander—

(a)  Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b)  Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2).

(7) Exceptions: emergency placements and placements of short duration Subsection (1) does not apply to—

(a)  an emergency placement made to protect a child or young person from serious risk of immediate harm, or

(b)  a placement for a duration of less than 2 weeks.

(8)  Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Secretary must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured.

Note—

In the course of any consultation under this Part, the Secretary must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality.

The nature of the application for interim relief

  1. The Tribunal has the power to make orders affecting or staying the decision under review: Administrative Decisions Review Act, s 60(2).

  2. At common law, the purpose of interim relief, particularly by way of interim injunction, is to preserve the status quo of the parties pending the final determination of the matter; Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]. An application for relief may lie in the need to ensure that the Applicant’s rights are not practically destroyed by a continuation of an alleged breach: Lenah at [12], however, the Applicant, in her submissions, focused instead on the safety of the child, submitting that it was in the child’s best interests to be returned to her while the proceedings are determined.

  3. The Applicant effectively seeks an interim order, which is in the nature of reinstatement rather than a stay; the child having already been removed from her care. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, the Court of Appeal, per Campbell JA at [96]-[97], noted that the powers of the Tribunal under the Administrative Decisions Review Act, s 60(2) are wider than the power to merely grant a stay. That case concerned the reinstatement of a licence but the analysis of the text of the provision is apt in this case.

  4. The considerations to which the Tribunal should have regard in exercising its powers under s 60(2) are set out in the Administrative Decisions Review Act, s 60(3). The operation of those provisions was considered by the Appeal Panel of this Tribunal in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 at [31], where the Appeal Panel of this Tribunal set out the considerations that should be applied in considering an application, noting that such considerations can overlap or be related in a particular case:

The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]:

“… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words “to secure the effectiveness of the hearing” include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …”

The relevant considerations in deciding whether to make an order under s 60(2) include:

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2);

(2) whether the order is desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4];

(c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4];

(3) the applicant’s prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129], Loveday at [10] and [11], Re Scott at [4].

  1. Accordingly, in considering the factual findings made below and the submissions of the parties, it is with those principles, together with the paramount principle under the Children and Young Persons (Care and Protection) Act, s 9, that the Tribunal must engage.

  2. Further, I note that the application and its hearing concerned an interim – not a final – determination; such application is intended to be made with a view to preserving the interests of the parties and others, not to determine the matter finally.

  3. Again, neither the Applicant nor the Tribunal is assisted by the absence of written reasons or the consideration of an internal review.

Evidence relied upon by the parties

  1. The Applicant’s evidence consisted of her affidavit and a lengthy exhibit which contained correspondence, medical records of the child and other highly sensitive information. The Applicant also relied on a report from the therapist providing play therapy to the child before she was moved to the care of her grandfather. I do not accept the Respondent’s criticism about the Applicant’s use of these materials; they have been submitted in Tribunal proceedings for a particular purpose, and there is no evidence that they have been published or used contrary to intent. If the Respondent were concerned about the use of such information, they should not have provided it to the Applicant in the first place.

  2. The Respondent relied upon the affidavits of Ms Gordon, its Executive Director of Service Quality and Accreditation, and Ms Bontea, its Executive Director of child, Youth, Family, and Disability. Ms Bontea annexed to her affidavit a letter of support from the child’s current school and an out-of-home care health pathway program health management plan (Health Plan).

  3. The Respondent also relied on the oral evidence of Ms Ford, the Respondent’s Aboriginal Services and Supports Program Manager, who has visited the child in her current placement on at least six occasions in addition to the seven separate visits undertaken by Ms Smtih, who has been the Respondent’s case worker assigned to the child since about February 2024. Ms Ford spoke of her observations of the child, the child’s willingness and excitement at being reunited with her family and the positive changes she had observed as the child settled into her current care arrangements. Additionally, Ms Ford spoke to the Respondent’s adherence to the Aboriginal Case Management Policy and the placement principles under the Children and Young Persons (Care and Protection) Act, the lengthy process she had been involved in with the child’s extended family, the process of deep listening she had engaged in to bring about a kinship care arrangement for the child that has seen her placed with family with whom she was closely involved up until the breakdown of the kinship care arrangement with the child’s aunt.

  4. After the hearing, the Respondent, at the direction of the Tribunal, provided the Tribunal only with the following material:

  1. Carer Resource Manual Acknowledgement, signed by the grandfather and his partner on 28 May 2024,

  2. Undertakings, signed by the grandfather and his partner, dated 11 June 2024. Those undertakings included:

To ensure that [the child] is consistently provided with an appropriate level of my support and supervision and is not left alone with unsafe or unknown persons.

To continue to keep our home a low alcohol environment and to not drink in the presence of [the child].

To ensure that if l do consume alcohol it is at a low enough level whereby I am able to legally drive a vehicle.

To inform CASPA of any significant change in personal circumstances affecting health, housing, employment or family composition.

To ensure my home is free from any domestic or family violence.

To inform the CASPA Caseworker of any Police involvement and/or incidents of domestic or family violence.

To accept the supervision of the CASPA Casework Team and cooperate with the approved case plan for the foster child(ren).

  1. Part One of a Safety in Care Assessment Report prepared by the Department of Communities and Justice with a date in its file name of 24 June 2024 (SIC Report).

  2. A Placement Review Assessment conducted by Catherine Payne of OneFuture dated 24 June 2024 (Placement Review Assessment). That assessment reviewed the level to which the Respondent met its responsibilities, including deciding to place the child with her grandfather.

  1. The Tribunal, for the purposes of considering the matter, has, in addition to the material before it at the hearing, had regard to relevant case authorities, legislation and two further documents;

  1. firstly, the Office of the Children’s Guardian, “Statutory out-of-home-care and adoption agency listing” (Agency Listing) to determine the status of the Respondent with respect to Children’s Guardian Act 2019 (NSW), s 72 and its obligations under the Children and Young Persons (Care and Protection) Act, s 245 and

  2. secondly, the Department of Communities and Justice, AbSec – NSW Child, Family and Community Peak Aboriginal Corporation “Aboriginal Case Management Policy – Strengthening Aboriginal families, delivering outcomes for Aboriginal children and young people”, which has been in effect since October 2018. This document was provided to the Tribunal by the Respondent after the hearing in addition to other materials. However, it is a document that is available on the Department of Communities and Justice website.

Facts

  1. Before outlining the relevant facts, it is necessary to set out, in summary terms some background in which this application arises, including the family structure and the history of care.

Family

  1. The child’s mother was removed from her parents (that is, removed from the child’s grandfather) when she was four years old for her protection. It was determined that she was the subject of physical and emotional abuse as well as psychological harm and neglect at the hands of both her parents. The child’s mother was in the Minister’s care until she turned 18. While under the care of the Minister, she was moved through 34 different placements of kinship care, foster care and residential care. At the time the child was removed from her mother’s care, the mother was noted to have suffered from various developmental and psychological difficulties, and she had a history of substance abuse, homelessness and mental illness.

  2. The child’s father is unknown, and accordingly, any potential support from him or his network of family or kinship is unavailable to the child.

  3. The child has an older sister and a younger brother. The older sister is in kinship care, and the child’s younger brother lives with the child’s mother.

  4. The child’s maternal grandfather lives with his long-term partner and his mother, while the child’s great-aunt also lives nearby.

History of care

  1. Parental responsibility for the child rests with the Minster, Department of Communities and Justice – a situation that has been in place since just before her first birthday when she was removed from the care of her mother. The duties associated with parental responsibility are not transferred merely because an accredited agency manages the residential care of a child; accordingly, I have ordered that the Department of Communities and Justice be joined to these proceedings.

  2. At all times since the child was removed from her mother, the Respondent has had case management responsibilities. After the Minister was allocated parental responsibility for the child, the Respondent was appointed as the child’s case management agency. The following is an outline of the history of care as gleaned from the documents before the Tribunal:

  1. The child was removed from her mother in November 2019 when she was about 11 months old; she was placed in an out-of-home foster arrangement between November 2019 and September 2020. [NOT FOR PUBLICATION].

  2. In a medical history supplied by the Applicant, there is a suggestion that there was an attempt to restore the child to her mother in September 2020, which failed.

  3. For a period of more than three years, between September 2020 and December 2023, the child was placed in a kinship care arrangement where the child’s aunt was her primary caregiver. [NOT FOR PUBLICATION]

  4. The child was placed with another set of foster carers, an arrangement that apparently broke down in early January 2024. At that time, the Respondent placed the child with the Applicant, who is an authorised carer but who had not been authorised to care for a child with the level of need recorded for the child and who had not before fostered a child.

  5. [NOT FOR PUBLICATION]

  6. As noted above, the child was removed from the care of the Applicant in late May 2024 and placed in the care of her grandfather. That arrangement remains in place.

  1. The child has been identified as having some significant developmental, medical and psychiatric needs, though there was controversy between the parties concerning the extent of those needs. The Respondent nonetheless informed the Tribunal that the child is receiving ongoing medical assistance and is continuing to have play therapy with a different therapist than the therapist who provided a letter in support of the Applicant. With regard to the material before me, including the Health Plan, I am satisfied that the child’s medical needs are being appropriately met and that she has been provided with the necessary psychological support, including play therapy.

Submissions of the Parties

  1. The proceedings are at an early stage; neither the Applicant nor the Respondent has been given a chance to prepare, file and serve all evidence relevant to the proceedings and the material before the Tribunal has not been subject to thorough challenge or testing.

  2. The Tribunal was informed of several matters on an interim basis, which are summarised in the paragraphs immediately following.

Complaints by the Applicant about the Respondent

  1. For her part, the Applicant has listed numerous complaints and dissatisfaction concerning the Respondent’s conduct, some of which are:

  1. the lack of any real support or information about the child when sent to her care,

  2. the lack of consistency of support arising from a change-over of a consistent case manager,

  3. the lack of support by the Respondent in meeting the child’s medical needs,

  4. the absence of a proper explanation by the Respondent as to why the child did not have surgery to insert grommets in the child’s ears for about a year after a paediatrician recommended the surgery, which has had a detrimental effect on the child’s speech development,

  5. the absence of any real explanation for why, when it appeared the Respondent knew the kinship care arrangement that had been in place prior to the child coming into the Applicant’s care was breaking down due to the mental illness of the carer, the Respondent had not acted promptly in the best interests of the child,

  6. the absence of any substantive action to the Applicant’s raising of safety concerns around the child visiting her family,

  7. having her phone number given to the child’s mother and then being made responsible for drop-offs and pick-ups after the child visited her mother,

  8. the manner in which the Respondent has appeared to minimise the child’s allegations of sexual abuse by the kinship carer and the slow response and lack of support provided to the child concerning those allegations,

  9. the failure of the Respondent to take action when the Applicant reported the mother had made physical violence and threats to the child during contact,

  10. the Respondent’s objection to the consistent and high volume of correspondence sent by the Applicant, and

  11. the fact that the Applicant’s working with children check was suspended when the child left her care.

Concerns of the Respondent about continued care by the Applicant

  1. For its part, the Respondent had concerns regarding the appropriateness of the care provided to the child by the Applicant; several of these matters were provided in the private session after the Applicant had been excused, which means that the Applicant has not had the opportunity, to consider or respond to these matters. Accordingly, while I have summarised those concerns below, in my consideration of the interim application, I have had regard to those matters to which the Applicant had no opportunity to respond because to do so would be unfair to the Applicant.

  2. The Respondent’s concerns, as set out in oral submissions and in the documents it relied upon, included:

  1. the Applicant’s decision to enrol the child in primary school when a specific placement with transport had been arranged for the child to attend a further year of pre-school. The Applicant, in her written submissions, stated that the child was physically capable and had responded positively to starting school. That may be the case, and indeed, it appears her schooling at the new school is also going well, but it was not the Applicant’s role to make such an important decision having regard to the fact that the child had only been in her care for less than two months before she was enrolled in school and where the child has complex needs that were being carefully programmed and addressed by the Respondent and the services it had engaged.

  2. periodic failure of the carer to ensure the child attends visits to see her family members and relevant cultural activities. The Applicant said she was providing the child with access to culturally appropriate activities and was deeply connected with Aboriginal people, including being an “aunty” to two Aboriginal children.

  3. The Placement Review Assessment relied on by the Respondent indicated that the child had gone from being in contact with her mother for a day each week, unsupervised, plus contact with her broader family on an almost daily basis to having no family time visits between 17 February and 29 March 2024. On 13 May 2024, the child’s great-aunt wrote to the Respondent to record her heart-break at the fact that a scheduled visit between the family (including the child’s older sister) and the child had been cancelled without notice to the family on the basis that the child was attending a birthday party of a school friend. At that date, it appeared the child had not seen her family for more than three weeks. I extract part of that email here because, without identifying the child, it succinctly addresses the importance of this child’s connection with her family:

We know when children are isolated from family this can cause more issues and regular contact with us will ease [the child]’s feelings of grief, loss and abandonment. Family contact is important to [the child]’s needs, and she has the right to have a connection with us. [The Child] has always been part of our lives and visited nearly everyday and now we are not even seeing her monthly. We have always abided by your requests and have done nothing wrong and yet we are being punished and can only see [the child] with supervision and this has only happened once as the visits keep getting cancelled.

  1. The presence in the Applicant’s home of material from horror films, such as posters, dolls and a statue with knives coming out of its head. In that regard, I note that caseworkers observed this material and noted it in their evaluation of the Applicant’s home as being a concern, but they appear to have done nothing to ensure that material was removed before the child, who has a documented history of trauma, was placed there. A photo contained in the SIC Report that shows some of the child’s drawings of hands also depicts the child’s drawings on top of horror-themed material which adds a rather bizarre element to that section of the report. However, since these matters were not disclosed by the Respondent in open session and the Applicant was not given an opportunity to make submissions on this issue, I have disregarded it for the purposes of my consideration of the interim application.

  2. The manner in which the Applicant notified the child’s mother of sexual abuse allegations made by the child – the alleged abuse was disclosed to the mother directly by the Applicant without any appropriate support. The Applicant told the Tribunal she had done this but appeared not to register how inappropriate that communication was and how devastating its effect may have been on the child, the child’s relationship with her mother, not to mention the mother, who is a person with manifest vulnerabilities. I consider that the Applicant’s action in notifying the child’s mother in this way shows that she was well-intentioned but that she lacked the knowledge, training and support to navigate such a complex issue, with the result being that she placed the child at risk of further trauma and familial disruption and may have contributed to delaying plans to restore the child to her mother. There are several reports in the confidential documents that suggest the Applicant asked the child to demonstrate or re-enact the abuse in the presence of her mother. That is a serious allegation that suggests re-traumatisation of the child while under the Applicant’s care. However, since the Applicant did not have an opportunity to address that allegation, I cannot consider it for the purposes of the interim application.

Consideration

  1. The principal reasons why the Applicant says the child should be returned to her care is that the grandfather is not a suitable person to care for the child, that his partner is also unsuitable and that, if she is returned, the child will be made to interact with the aunt against whom the child has made allegations of sexual abuse. The Applicant also complained that the Respondent had removed the child without warning and in circumstances where the child was still recovering from surgery to insert grommets into her ears.

  2. Given the urgency, the nature of the interim relief sought and the procedural fairness issues that arose from the Respondent’s conduct at the hearing. I have limited my consideration of the matter principally to these issues. One matter that I had wished to consider, which was not available to the Tribunal, was independent records of the wishes of the child who, according to both the Applicant and the Respondent, has expressed clear views on where she wants to live. I will make orders for the child to be separately represented so that her interests, separate from the parties and her views, might be advocated.

Suitability of the grandfather

  1. As to the suitability of the grandfather, the Applicant relied on the fact that the grandfather had been physically abusive as a father, including acts of harm towards the child’s mother, before she was removed from his care and violence towards his intimate partners. The grandfather does have a criminal record that includes assault and other domestic violence offences. However, those offences occurred several years ago, and it appeared, from the material provided to the Tribunal in the private session, that the grandfather has taken significant time and effort to address his violent behaviour and the reasons for it and develop strategies for reacting to stressors without resorting to violence. His last contact with police, as an alleged offender, was in 2017 – seven years ago.

  2. It is trite to note that criminal conduct is commonly something that diminishes over time as people mature. However, in this case, there is more than simple maturity; in the confidential evidence provided to the Tribunal, there was documented evidence the grandfather has accepted responsibility for his conduct, regrets what he has done and the damage he has caused, there was independent evidence that he had attended various course and reestablished relationships with the family members who he had been directly and indirectly affected by his criminal conduct.

  3. There was also evidence that his partner, who had in previous years ago, been a target of domestic violence at the hands of the grandfather, had supported his rehabilitation into a contributing member of his family and their relationship was no longer blighted by violence or the power imbalance that such violence causes. In addition to his signed undertaking, the grandfather has completed the necessary training and check required of a foster carer, and he has stated to the Respondent’s staff that he is completely committed to being responsible for his grandchild.

  4. The Respondent also submitted, and it was apparent from the documentary evidence before the Tribunal, that its case officers are making frequent visits to check on the welfare of the child and the success or otherwise of her placement.

  5. There have been at least 13 visits in total by Ms Smith and Ms Ford to the home of the grandfather since the child was placed in his care. This represents an appropriate level of support for a new carer and is consistent with the recommendations for support set out in the SIC Assessment. Ms Bontea informed the Tribunal that the grandfather had attended foster carer training, had been granted provisional authorisation as a carer, and was in the process of obtaining his complete authorisation. In this regard I note that the Applicant was not fully authorised to care for the child because she was a child with moderate needs and that her authorisation was granted while the child was in her care.

  6. The material before the Tribunal does not disclose that there have been any harmful incidents or violent behaviour exhibited in front of or directed towards the child.

  7. The report from the reliving principal of the child’s new school reinforces how happy, well-cared-for and well-adjusted the child is while she resides with her grandfather.

  8. The Applicant made a submission on the Health Plan annexed to the affidavit of Ms Bontea, which indicated that the child had suffered a fracture to her arm while in the grandfather’s care. The incident, as disclosed by the Health Plan, shows that the child broke a bone in her arm when she fell off some equipment in a public park and that she had been discharged from the hospital without incident and had received follow-up treatment at a fracture clinic for her cast. There is no suggestion of any child protection issue arising from that incident, and it is more than likely that had there been any suggestion of mistreatment arising to the child causing such an injury, it would have been reported by the treating hospital or doctors as mandatory reporters. The Health Plan also established definitively that the child had attended the necessary post-surgery appointments with her Ear, Nose and Throat surgeon – a further indication that her medical and care needs are being met while in the care of her grandfather.

Possible interactions with a person alleged to have sexually abused the child

  1. As to the likelihood that the child will be required to interact or be in the presence of the aunt concerning whom the child has disclosed sexual abuse, the issue is less clear-cut than presented by either party at the hearing.

  1. At the hearing, the Applicant told the Tribunal that the child had disclosed sexual touching and both anal and vaginal penetration by the aunt while in her care and that the child had also exhibited sexualised behaviours. The Applicant, as required, made the necessary reports of serious harm. According to the SIC Report, the child’s disclosure occurred in late January 2024 to the Applicant and then to a doctor later the same day, the matter was immediately referred to the Joint Child Protection Response Program (JCPRP), which finalised an investigation in mid-March 2024, concluding that there was insufficient evidence to reach the threshold for criminal prosecution. [NOT FOR PUBLICATION]

  2. [NOT FOR PUBLICATION]

  3. There is a distinct difference between the criminal threshold and the threshold of risk assessment that must be undertaken having regard to the principles of the Children and Young Persons (Care and Protection) Act. As the Tribunal noted in FRW v Commissioner of Police, NSW Police Force [2023] NSWCATOD 21 at [56]-[57], which concerned an application for a security industry licence by a person who had been accused of sexual abuse of his niece and nephews;

In her affidavit and police statement, the Applicant’s niece gives a straightforward account of being the victim of an indecent assault by the Applicant as a five-year-old child. The fact of her late report and the possible confusion with dates are all matters which, on a criminal basis, may be of some weight in determining whether a particular charge is proven to the requisite standard. However, that is not the case in Tribunal proceedings applying a less onerous standard of proof and determining different questions. Despite some confusion with dates, the Applicant’s niece’s account appeared to be truthful or rather, it did not appear to be fabricated or made for any improper purpose.

The manner and lateness of the Applicant’s niece’s disclosure of the assault, follows a recognised pattern of disclosure of persons who have suffered sexual abuse as children. This research was reflected in Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report – Volume 4 Identifying and disclosing child sexual abuse (December 2017), at 9 in which the Royal Commission, in summary, stated that:

Disclosure is rarely a one-off event, and is a process. Victims will disclose in different ways to different people throughout their lives. Disclosures may be verbal or non-verbal, accidental or intentional, partial or complete.

…

  1. The Applicant submitted that the child had been required to attend or participate in a Facetime call with the aunt that took place when she was visiting her grandparents. However the SIC Report concluded that while the Facetime call did take place when the child was visiting her grandparents, the child could not have known who was on the call as she did not have access to view the phone screen. With regard to the age and behavioural characteristics of this particular child, I accept that it is more likely than not that the child did not actually interact with the aunt, nor was she required to do so.

  2. [NOT FOR PUBLICATION]

  3. In summary and without divulging any confidential or identifying elements of its findings, the SIC Report concluded that the child is not at immediate risk of being sexually abused or exploited. She is visible in the community and needs to remain so and, as the report recommends, she needs to develop trusting relationships with a variety of people in the community who she can disclose to if she ever feels unsafe again. Also, as the report recommends, she will also need support throughout her childhood to learn about safe and unsafe interactions.

  4. I am satisfied, having regard to the details contained in the SIC Report, that the child is not in danger of sexual abuse or of being further traumatised if she remains in the care of her grandfather.

  5. [NOT FOR PUBLICATION]

The child being removed immediately after surgery

  1. As to the complaint made by the Applicant that the child had been removed from her care after the child had undergone, to adopt the oral submissions of the Applicant, “major surgery” five days earlier. In fact, it appeared the child had had day surgery to insert ear grommets. That type of surgery is commonly performed as day surgery and while some follow-up is required, it cannot be described as major surgery in the same way, for example, cardiac surgery might be so described. Further, it does not appear that the child’s removal was harmful or unsafe relative to her surgery. The Respondent informed the Tribunal in open evidence that the child had attended her follow-up medical appointments arising from this surgery while under the care of her grandfather. Having regard to the evidence currently before the Tribunal, I am satisfied that the child was not harmed by her removal shortly after her surgery.

  2. A further aspect of the Applicant’s complaint concerning this surgery was that it was meant to have occurred nearly a year earlier. In respect of this issue, the Applicant relied on a report dated 5 April 2023 from a paediatric outpatient clinic in that regard. However, having read the report, it appears that the child’s hearing had been tested four months earlier and found to be normal and that the proposal for surgery to insert grommets was more equivocal and any the surgery was still a matter for further consideration:

“Given her Aboriginal heritage, I believe she would likely benefit from grommets, given that her ears at the moment are dull and is likely consistent with chronic glue ear. I would be supportive of an ENT re-review and consideration for grommets.”

Conclusion

  1. Having regard to the factual findings set out above, the submissions of both parties on the interim application, and the objects and principles set out in the Children and Young Persons (Care and Protection) Act, including the paramount principle and the placement principles for Aboriginal children, I have concluded that the child should not be moved from the care of her grandfather and restored to the care of the Applicant.

  1. As noted above, the Tribunal has no jurisdiction to make orders changing the Respondent's role as the designated agency responsible for the child's case management.

  2. Accordingly, the application for interim relief should be dismissed.

  3. The proceedings should now proceed to final determination in the normal course. In aid of that process, I make the orders and directions for the filing of the Respondent’s documents pursuant to the Administrative Decisions Review Act, s 58, and the filing and service by the Applicant of her evidence. I will direct that the matter be brought back for directions in the Community Services List, and the parties will be notified by the Registry of the next listing date.

  4. After the hearing, the Respondent made an application under the Administrative Decisions Review Act, s 58. I will direct the hearing of that application to be listed at the next available date for the hearing of such an application, and I will direct a timetable for the provision of evidence and submissions addressing that application by reference to the date of the hearing of that application.

  5. I also note that, in this case, the DCJ has not been joined as a Respondent, though parental responsibility rests with the Minister. Accordingly, I will make orders that the DCJ be joined as a Respondent and notified of the next directions hearing.

  6. As noted above, the grandfather is also an interested person in the outcome of these proceedings. If he wishes to do so, he is permitted to be joined to the proceedings and he will be allowed to be accompanied by a support person and, as with any party in this division of the Tribunal, he may be legally represented if he chooses.

  7. Further, having regard to the fact that the child has interests which differ from the Applicant and the Respondent in this case, and given that the child has expressed views about her care, I will order that the child is to be separately represented.

Orders

  1. Accordingly, I make the following orders:

  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 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.

  1. 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.

  2. 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.

  3. With regard to the further management of these proceedings:

  1. The child is to be separately represented.

  2. Department of Communities and Justice is joined as a Respondent and notified of these proceedings.

  3. The child’s grandfather is to be advised of these proceedings and may be joined as a Respondent if he wishes.

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

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

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

  7. The following directions apply to the Respondent’s s 59 Application:

  1. 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.

  2. 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.

  3. 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.

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

  5. 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.

  6. 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.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 08 August 2024

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