GNQ v CareSouth

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Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: GNQ v CareSouth [2024] NSWCATAD 262
Hearing dates: 14 August 2024
Date of orders: 03 September 2024
Decision date: 03 September 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:

(1)   The application for interim relief is dismissed.

(2)   The proceedings are dismissed.

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 – no application for internal review

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 9, 48, 55, 60

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9, 234, 245

Children’s Guardian Act 2019 (NSW), s 72

Civil and Administrative Tribunal Act 2013 (NSW), ss 30, 55(1)(b)

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28(1)(a)

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142

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

Davis v NSW Minister for Health [2023] NSWCATAP 11

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

GHR v William Campbell Foundation [2024] NSWCATAD 120

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

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

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

YJC v Public Guardian [2024] NSWCATAP 160

Category:Procedural rulings
Parties: GNQ (Applicant)
CareSouth (First Respondent)
Secretary, Department of Community Services (Second Respondent)
Representation: Applicant (Self-represented)
D McLay (First Respondent)
Crown Solicitor (Second Respondent)
File Number(s): 2024/00290873
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. Child 1 and Child 2 are brothers. They were removed from the care of the Applicant on 5 August 2024. The removal of Child 1 was at the request of the Applicant, but the removal of Child 2, at the same time, was not at her request and was undertaken with only an hour’s notice.

  2. These proceedings concern the decision made by the First Respondent to remove Child 2 from the foster care placement with the Applicant.

  3. The Applicant seeks, as an interim order, that Child 2 be returned to her care. The following are the grounds on which she makes that application as set out in her application and summarised here:

  1. Child 2 was settled and happy in both his home and school environments while in the Applicant’s care, and he has established positive bonds or attachments with all members of the Applicant’s family;

  2. There was a lack of communication surrounding the decision to remove Child 2 and a lack of notice given; and

  3. There was a lack of clarification around the decision about why Child 2 was removed.

  1. For the following reasons, I have declined to make an interim order to return Child 2 to…

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Details
Case
[2024] NSWCATAD 262
Decision Date

CaseChat Overview and Summary

The applicants, GNQ, sought an interim order to restore their child to their care from out-of-home care, under the Children and Young Persons (Care and Protection) Act 1998. The application was dismissed by the court, with the proceedings also dismissed as a result. The legal issues before the court included the factors to be considered in deciding whether to restore a child to the care of their parents, and whether the applicants had complied with statutory requirements for internal review prior to seeking interim relief from the court.

The court noted that while the applicants had demonstrated a genuine intention to restore the child to their care, the statutory framework required a careful consideration of the child’s best interests. The court was required to balance the applicants' rights with the paramountcy of the child’s welfare. Additionally, the applicants had not applied for internal review of the decision to place the child in out-of-home care, which is a mandatory prerequisite for seeking judicial review. The court held that the applicants had not established a sufficiently compelling case for interim relief on the evidence before it. The court concluded that the applicants had not demonstrated that an interim order was necessary in the circumstances of the case.

The application for interim relief was dismissed, and the proceedings were dismissed in their entirety. The court did not grant the relief sought by the applicants, and no further orders were made.

Orders

Orders of the court

(1) The application for interim relief is dismissed.

(2) The proceedings are dismissed.

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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