GNQ v CareSouth

[2024] NSWCATAD 262

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.

4. For the following reasons, I have declined to make an interim order to return Child 2 to the Applicant’s care, and I have also dismissed the proceedings on the basis that the application, having been brought without seeking an internal review and not being necessary to protect the interests of the Applicant, is misconceived.

The Interim Application

5. The application and its hearing concerned an interim, not a final, determination. An interim order intends to preserve the interests of the parties and others, not to determine the matter finally. 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. For her part, the Applicant challenges many of the factual allegations made against her. Neither the Applicant nor the Tribunal is assisted by the absence of written reasons or the consideration of an internal review.

6. Directions concerning the application for interim orders were made on 9 August 2024. Those directions included joining the Second Respondent and requiring the parties to file and serve evidence and submissions that they relied upon concerning the interim application.

7. The application for interim relief was heard on 14 August 2024. All parties attended the interim orders hearing by phone or audio-visual link and were given the opportunity to make oral submissions in addition to the written material served.

8. In the case of the First Respondent, Ms Gregory, the clinical care director, made some submissions to the Tribunal concerning the reasons for the substantive decision to remove both Child 1 and Child 2 at the same time.

9. At the interim hearing, the Applicant was given the opportunity to respond to those submissions, which she did.

10. Having regard to the apparent urgency of the interim application and the lack of ability to prepare considered evidence, I allowed the parties to make submissions and give oral evidence where required. I have, as far as possible, given appropriate weight to the evidence and submissions of all parties. However, it was not possible in the time available to receive carefully considered evidence or evidence that had been able to be prepared in detail. I note that the matter is presently entertaining interim relief only and that the final rights of the parties have not been determined at this stage.

Facts

11. These proceedings have been commenced by the Applicant, GNQ, who, with her husband, took on the responsibility of being a foster carer for Child 1 and Child 2 in late February 2024.

12. Parental responsibility for Child 1 and Child 2 currently resides with the Minister on an interim basis. The Tribunal was informed that there are currently proceedings underway in the Children’s Court of New South Wales concerning parental responsibility and whether Child 1 and Child 2 should be restored to their biological parents or remain under the Minister. Accordingly, at the first directions hearing of this matter, the Tribunal joined the Secretary of the Department of Community Services in these proceedings.

13. CareSouth, the First Respondent, is a designated agency accredited by the Children's Guardian to provide statutory out-of-home care.

14. On 5 August 2024, Child 1 and Child 2 were removed from the home of GNQ and were taken to separate out-of-home foster care placements. Prior to the removal of Child 1 and Child 2 that day, the Applicant had requested that only Child 1 be removed from her care. That request arose from the acknowledgement that Child 1’s aggressive and other behaviours were not being managed appropriately and he was becoming a danger to Child 2, the Applicant and other members of the Applicant’s household.

15. From the documentation filed to date, it appears that the First Respondent was, in fact, actively considering whether to remove both Child 1 and Child 2 before the Applicant requested the removal of Child 1 – there is documentation about removal dating from about the middle of July 2024. Despite this, the Applicant appears not to have been informed of those deliberations until she received the material from the First Respondent for the hearing of the interim relief application. It seemed uncontroversial at the interim application hearing that the first time the Applicant was told that both Child 1 and Child 2 would be removed was, at most, about two hours on the day of their actual removal.

16. There is a dispute between the parties about what was said and done when Child 1 and Child 2 were removed from the Applicant’s care. The case workers employed by the First Respondent have prepared lengthy case notes of what they heard, saw and perceived during the removal. Much of the case worker’s accounts are disputed by the Applicant. I am not required to make findings about what occurred; however, what can be gleaned is that the removal of Child 1 and Child 2 was an upsetting and emotionally charged event for the children and the Applicant.

17. On 7 August 2024, the Applicant requested an internal review of the First Respondent’s decision to remove Child 2 (but not Child 1). The grounds stated in the substantive application were, in summary, that the decision was sought to be reviewed on the basis of Child 2’s well-being, the lack of communication around the decision to remove Child 2, the Applicant is given an hour’s notice of removal and a refusal to allow the Applicant to have a support person present as well as other matter in a letter attached to the application. On the same day, the Applicant applied for review in the Tribunal and sought interim orders restoring Child 2 to her care.

18. For its part, the Respondent at the interim hearing made submissions concerning the nature and effect of a “trauma bond” between Child 1 and Child 2 and the detrimental impact that the removal of Child 1 only, and not Child 2 may have on both children (though particularly Child 2); it may well be the case that it will obtain further clinical and expert evidence as part of that process.

19. Ms Gregory from the Respondent gave informal evidence that the effect of removal of Child 1 only from the Applicant’s care would be that Child 2 would be perceived as “the good child” and, further, that it was her opinion, based on a known body of research, that having regard to the history of trauma suffered by Child 2, it was likely that he would start to exhibit the same aggressive and other behaviours as Child 1 if he remained in the care of the Applicant and her husband.

20. The Applicant was adamant that Child 2 and Child 1 had such different personalities, had differing needs, and were at different stages of development that it was unlikely Child 2 would take on Child 1’s behaviours. The Applicant is not an expert in child development or child trauma. However, it was clear she has been a foster carer previously, and she has made significant and sincere efforts to educate herself on such issues in order to support both Child 1 and Child 2. Her lack of expertise, however, leads me to prefer the opinions expressed by Ms Gregory concerning the possible harm to Child 1 and Child 2 if Child 2 were to be returned. The Applicant also stated that she was very much prepared to facilitate continued contact and access between Child 2 and Child 1 if Child 2 were returned to her care; however, continued contact and access is a markedly different thing from removal, and I cannot see that this would ameliorate the likely damage suffered by Child 2 and Child 1 if Child 2 were to be returned to her care.

Legal Context

Jurisdiction

21. Save for the absence of an internal review, 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 1998 (NSW), s 245.

2. On or about 5 August 2024, the Respondent decided to remove Child 1 and Child 2 from the care of the Applicant and her husband. 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 administratively reviewable: 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.

22. 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.

23. At the hearing of the interim application, it appeared that, on 5 August 2024, when 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 Child 1 and Child 2 were removed from the Applicant under emergency powers available under the relevant legislation in appropriate circumstances.

24. As a matter of procedural fairness, the Respondent should have given the Applicant a chance to understand why the decision was made 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. There is, of course, 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].

25. In FQT v Key Assets (No 1) [2022] NSWCATAD 416, a proceeding where a different designated agency had removed children 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.

Legal framework for review

26. Any review of a decision of the kind made by the Respondent on 5 August 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.

27. The safety, welfare and well-being of the children subject to the decision is the paramount consideration: Children and Young Persons (Care and Protection) Act, s 9(1). The following principles are relevant to determining the application for interim relief:

1. the least intrusive intervention that is consistent with the paramount concern to protect Child 1 and Child 2 from harm and promote their development.

2. the provision of a safe, nurturing, stable and secure environment, recognising the Child 1 and Child 2’s circumstances

3. that Child 1 and Child 2 are entitled to a safe, nurturing, stable and secure environment.

4. 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 – unless the retention of those relationships is contrary to their best interests.

28. In the context of the evidence in the current matter, the tribunal is required to assess risk. In ensuring the safety, welfare and well-being of each child concerned in the decision, including the child’s safety, stability, and retention of relationships with people significant to him, including his siblings.

Absence of an internal review

29. As with FQT, the Applicant here has not sought an internal review of the decision to remove the children on 5 August 2024. This is contrary to the general rule under the Administrative Decisions Review Act, s 55(3). Accordingly, I must consider whether the circumstances set out in the Administrative Decisions Review Act, s 55(4)(b) arise, that is, whether it is necessary to deal with the application to protect the Applicant’s interests and whether the applicant was made within a reasonable time following the administratively reviewable decision.

30. The provision in the Administrative Decisions Review Act requiring an internal review to take place before commencing proceedings in the Tribunal cannot be ignored without sufficient reason; the sufficient reasons are those set out in the Administrative Decisions Review Act, s 55(4).

31. Here, the Applicant has applied for orders on an urgent basis and seeks interim orders to protect her interests and the interests, as she perceives them, of Child 2. However, with regard to the material before the Tribunal, I am not satisfied that it is necessary to deal with the application absent an internal review because although the Applicant has brought her application promptly, I am not satisfied that it is necessary to proceed in the absence of an internal review to protect the Applicant’s interests. The facts of this case are materially different in that regard from, for example, the facts in both FQT and GHR v William Campbell Foundation [2024] NSWCATAD 120 at [21]. In GHR, the Applicant had been the sole carer of two children for several years since their infancy, and having those children removed from her care was apparently temporary in the context of an ongoing investigation. In this case, the Applicant has been the carer of Child 2 for about six months; Child 2 and his siblings are being considered for restoration to their biological parents and further disruption to his accommodation by returning him to the Applicant on an interim basis appears contrary to his interests.

32. In considering the effect of the absence of internal review, I have had regard to the decision in Davisv NSW Minister for Health [2023] NSWCATAP 11, where the Appeal Panel referring to the Administrative Decisions Review Act, s 55(2) which requires that an application be made in the time and manner prescribed by the procedural rules, observed that the meeting of procedural requirements are threshold questions to determine whether an applicant is entitled to commence and continue proceedings in the Tribunal’s administrative review jurisdiction. Specifically, the Appeal Panel stated at [52]:

… in NCAT’s administrative review jurisdiction, considerations of whether the initiating application is “not reasonably arguable” or “based on an untenable proposition of fact or law” generally do not arise. Provided the applicant is an “interested person”, the subject decision is an “administratively reviewable decision” and any procedural requirements are met (e.g., making the application within the time prescribed by the relevant legislation: ADR Act, s 55(2)), the ADR Act entitles the applicant to apply to NCAT and seek administrative review of that decision. The applicant is not required to point to material which, if accepted, might support a finding that their challenge to an administratively reviewable decision is based on a “tenable proposition of fact or law” or is “reasonably arguable”. The merit of the subject decision is irrelevant to whether an affected person is entitled to commence and to continue proceedings in NCAT’s administrative review jurisdiction.

33. The inevitable conclusion on the basis of the above finding is that, presently, the application is misconceived for the purposes of the Civil and Administrative Tribunal Act, s 55(1)(b). Specifically, I consider that the Applicant has approached the Tribunal on the basis of a misunderstanding of legal principle: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25]-[26] because she was required first to seek internal review unless her circumstances met the criteria set out in the Administrative Decisions Review Act, s 55(4).

34. I note that, at the hearing of the interim application, the Tribunal did not specifically address the issue of dismissal of the application directly with either party. However, and while the parties did not address the question of dismissal, they were given the opportunity to make submissions concerning any matter they felt relevant, including the need to proceed without internal review. Therefore I am satisfied that the parties have not been denied the opportunity to address the Tribunal before proceeding to dismissing the application.

35. I note further that I would have considered the application to be lacking in substance had Child 2 been returned to his biological parents – in circumstances where the Minister’s responsibility for his care is only temporary, and the Respondent has informed the Tribunal that it is undertaking steps to reunite Child 2 with his parents and siblings. At the time of the hearing, however, Child 2 had not been returned.

36. The decision to dismiss an application is an exercise of the Tribunal’s discretion that can be carried out only once a relevant finding is made under s 55(1)(b); YJC v Public Guardian [2024] NSWCATAP 160 at [107].

37. Having regard to the fact that the Applicant would be entitled to seek an internal review of the decision and then commence proceedings in the normal course, I am satisfied that the discretion to dismiss the application at this stage should be exercised. In dismissing the application in this manner, the Tribunal notes that the Applicant is not prevented from applying to the Respondent for internal review of the decision in the normal course – noting, of course, that the Tribunal may consider that if the Respondent refuses to conduct the review because a time limit may have expired while the matter was before the Tribunal, such refusal to conduct an internal review may well be considered unreasonable and a further application to the Tribunal would be seriously entertained.

38. Accordingly, I have decided to deal with the application in determining the application for interim relief only pursuant to the Tribunal’s ancillary administrative review jurisdiction: Civil and Administrative Tribunal Act, s 30(2)(a) and thereafter, having considered that the application is misconceived because it has been brought without first seeking internal review, I will proceed to dismiss the application pursuant to the Civil and Administrative Tribunal Act, s 55(b).

The nature of the application for interim relief

39. 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 a continuation of an alleged breach does not practically destroy the Applicant’s rights: Lenah at [12], however, the Applicant, in her submissions, focused instead on the interests of the child to continue in her care. I did not understand her submissions to take into account the fact that the child might be removed again from her care after the proceedings are finally determined, including by way of restoration to his parents and siblings, and the effect that repeated removals and relocations might have on Child 2.

40. An application for administrative review of a decision does not affect the operation of that decision: Administrative Decisions Review Act, s 60(1). However, the Tribunal has the power under statute to make orders affecting or staying the decision under review: Administrative Decisions Review Act, s 60(2).

41. The Applicant effectively seeks an interim order, which is in the nature of reinstatement rather than a stay. Child 2 has already been removed from the care of her and her husband. 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 appropriate in this case.

42. 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].

43. 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. Again, neither the Applicant nor the Tribunal is assisted by the absence of written reasons for the decision that was made to remove Child 2.

Consideration

44. I decline to make interim orders for Child 2 to be restored to the care of the Applicant and her husband having regard to:

1. The paramount consideration set out in the Children and Young Persons (Care and Protection) Act, s 9 and the applicable principles that arise in this case;

2. The uncontroversial facts including;

1. that Child 1 and Child 2 have been in the care of the Applicant for a relatively short period of time,

2. that steps are being taken currently to assess whether it is safe and suitable for Child 1 and Child 2 to be restored to their biological parents,

3. the fact that Child 1 is not to return to the care of the Applicant; and

3. My findings that prefer the evidence of Ms Gregory concerning the detrimental effect on the sibling bond and Child 2’s development if Child 2 were to remain in the care of the Applicant and her husband;

45. For the reasons set out in paragraphs 29 to 38 above, having regard to the requirements under the Administrative Decisions Review Act, s 55(4), my finding that I am not satisfied that it is necessary to deal with the Application in the absence of an internal review being sought or determined, I have decided that the application is misconceived and should be dismissed pursuant to the Civil and Administrative Tribunal Act, s 55(1)(b).

Orders

46. Accordingly, I make the following orders:

1. The application for interim relief is dismissed.

2. The proceedings are dismissed.

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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

Amendments

03 September 2024 - Cover sheet - First Respondent name amended

Decision last updated: 03 September 2024