CXN v Child and Adolescent Specialist Programs and Accommodation

NCAT Administrative and Equal Opportunity|2017-03-30

and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that 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.

Introduction

The applicants in this matter, known by the pseudonyms "CXN" and "CXO", seek an order pursuant to section 52(2) of the Administrative Decisions Review Act 1997 (NSW) for the North Coast Children's Home trading as Child and Adolescent Specialist Programs and Accommodation but is now known as CASPA Services Ltd "to provide an adequate statement of reasons" for: 1. the decision to remove from them, as authorised carers, the responsibility for the daily care and control of two children; and 2. a decision of the relevant decision-maker to cancel their authorisation as an authorised carer.

Legislative provisions in relation to the hearing

The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.
The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.
The Tribunal may hear an administrative review of decisions made by a "relevant decision-maker" if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act because of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW). This is not the review of such a decision but the determination of whether the reasons which were provided by CASPA Services Ltd are adequate and if not make an order that adequate reasons be provided so that the applicants might then consider whether to bring an application for review of the decisions.
It is useful to consider the nature of any application for administrative review which might be made in order to test whether the reasons provided are adequate. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]: "As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides: (1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal: ... (c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person ... (1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: (a) the preparation of a permanency plan, or (b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court. (2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court."
In this matter it is accepted that CASPA Services Ltd is the relevant decision maker in relation to the decision to remove from the authorised carers the responsibility for daily care and control of the children. The decision to remove the children from the care of the applicants is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act.
In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children's Court but were considered as part of the process of exercising the Court's jurisdiction to make a care order. His Honour Justice Campbell stated at [54]: "In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court."
Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held: "In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here."
None of the parties before the Tribunal asserted at this stage that the permanency plan in relation to the children had any relevance to the decisions.
The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act.
The Tribunal, in an application to review the primary decisions, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
It is provided in the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) as follows: "41 Management of behaviour of children and young persons (1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care: (a) must not use: (i) any physical coercion or physical punishment (including corporal punishment), or (ii) any punishment that takes the form of immobilisation, force-feeding or depriving of food, or (iii) any punishment that is intended to humiliate or frighten a child or young person, and (b) must, in any event, use only behaviour management practices approved by the designated agency. (2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency. (3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed: (a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or (b) by changing the placement arrangements.
Clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 provides: 34 Conditions of authorisations (1) A designated agency may at any time impose such reasonable conditions as it thinks fit on the authorisation of an authorised carer, including a condition that provides that the authorised carer may provide out-of-home care only to specified children or young persons or to children or young persons belonging to a specified class. (2) A designated agency may at any time vary or revoke a condition of an authorisation imposed under subclause (1). (3) The imposition, variation or revocation of a condition takes effect when it is notified to the authorised carer in writing. (4) It is a condition of an authorisation that the authorised carer must comply with the code of conduct for authorised carers. (4A) It is a condition of an authorisation that an authorised carer may provide out-of-home care only to a child or young person who is a relative or kin of the carer or who knows the carer unless the carer has completed a course of training on the provision of care for a child or young person who is not a relative or kin of the carer. (5) In this clause: "code of conduct for authorised carers" means the code of conduct for authorised carers approved by the Minister for the purposes of this definition and published on the relevant website of the Department, as in force from time to time. Note: The relevant website of the Department is www.community.nsw.gov.au.
Conditions of authorised care therefore may be imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act and clause 34 of the Children and Young Persons (Care and Protection) Regulation.
Pursuant to section 140 of the Children and Young Persons (Care and Protection) Act CASPA Services Ltd has obligations to supervise placements of children with authorised carers.
The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child is safety welfare and well-being is given primacy. There is particular emphasis in the intervention powers granted to CASPA Services Ltd by that Act to remove a child from their usual caregiver in order to protect the child from the risk of serious harm. The risk of serious harm is undefined in the Act but it has been held that "it is quite clear that exposure to sexual abuse comes within the phrase. Obviously, physical violence is within the phrase": Re Cameron [2012] NSWSC 1453 at [13], Young AJ.

Evidence relied upon

The parties relied upon the following documents which were read: 1. General application form filed 27 January 2017 together with the annexures comprising correspondence between the parties prior to the filing of the application; 2. Letter dated 23 March 2017 from the solicitors for the applicants; 3. Letter dated 29 March 2017 from the solicitors for CASPA Services Ltd's in response to the letter from the applicant's solicitors; 4. Letter from the applicant's solicitors dated 30 March 2017 together with annexures in support of an application for costs.
In addition, the Tribunal heard oral submissions.

Issue

The applicants seek an order for the provision of adequate written reasons.
The Tribunal in an administrative review is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. More specifically, the applicants seek an order for the provision of "adequate statement of reasons". CASPA Services Ltd contends that the applicant has been given "adequate statement of reasons". The issue in dispute on this application therefore is whether that determination by CASPA Services Ltd is the correct and preferable decision. The determination of whether the reasons provided are adequate is the issue which determines whether an order should be made for reasons to be provided which will satisfy the requirements for adequate reasons imposed by the Administrative Decisions Review Act.

The content of an adequate statement of reasons

The applicants seek an order under section 52(2) of the Administrative Decisions Review Act 1997 (NSW): 52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons (1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order. (2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order. (3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3).
Section 49 of the Administrative Decisions Review Act 1997 (NSW) provides: 49 Duty of administrator to give reasons on request (1) If an administrator makes an administratively reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. (4) The regulations may: (a) exclude any class of administratively reviewable decisions from the application of this section, or (b) alter the period within which a statement of reasons under this section must be given.
In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at page 397 paragraph [121], Basten JA set out how a medical panel could properly explain the process of arriving at a decision when assessing the level of impairment of a claimant for workers' compensation. The following guidance his Honour provided is with respect to his Honour capable of more general application: "Where it is necessary … to make findings of fact, in order to reach a particular conclusion as to the existence, nature and extent of any [key issue], it may be expected that the findings of material facts will be set out …When facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which it is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary … to give explanation of [the] preference for one conclusion over another."
There are also well-known policy reasons in favour of reasoned administrative decisions and because section 52(2) of the Administrative Decisions Review Act requires that adequate reasons be given, it is implied that those policy reasons are behind the statutory requirement: see, e.g., Osmond v Public Service Board [1984] 3 NSWLR 447 at 463 (Kirby P); and see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (referred to as Palme) at [105] per Kirby J. In that case, Palme, Justice Kirby summarised the policy as follows: [105] Rationale for reasons: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others"[56]. They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making"[57]. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made[58]. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so[59]. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power[60]. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions[61]. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons[62]. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process"[63]. [106] In the context of more general developments in Australian administrative law, facilitated by legislative provisions enacted by the Parliament requiring the giving of reasons, the foregoing explanations and justifications are reinforced both by Australian judicial authority[64] and by expert administrative agencies[65]. Similar points have been made in academic writing both in Australia and overseas[66]. [1]
In a recent decision of Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 71, the Appeal Panel of this Tribunal stated a number of propositions concerning the giving of reasons by the Tribunal which it is helpful to set out in determining whether the reasons given here are adequate: [57] A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
The statement of reasons are required by section 49 (3) of the Administrative Decisions Review Act to set out the following: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the administrator's understanding of the applicable law, 3. the reasoning processes that led the administrator to the conclusions the administrator made.
An adequate statement of reasons should contain reference to the 3 matters referred to in section 49 (3) of the Administrative Decisions Review Act.
Adapting these statements of principle to this matter it is possible to state a number of propositions which appear to be common ground in the cases and are consistent with section 49(3) of the Administrative Decisions Review Act: 1. Written reasons are not required in every decision but are required when a request is made pursuant to section 49 (1) of the Administrative Decisions Review Act. 2. The reasons provided by the decision maker are not judicial reasons and since transparency in decision-making is an important value but is not cost free, those reasons need not be lengthy or of exquisite quality. 3. The content and detail of the reasons for the decisions to be provided by CASPA Services Ltd will vary according to the nature of the decision which it is making and the particular matter the subject of the decision. In this matter the authorised carers have had children removed from their care and their status as authorised carers removed. 4. The findings of fact relating to each of the allegations made against the authorised carers should be set out with sufficient description for the applicant to know what is alleged against them. The purpose of the reasons is also partly to enable the applicants to determine whether or not to bring an administrative review of those decisions to this Tribunal. The reasons therefore need to deal with those matters which are relevant to the safety, welfare and well-being of the children, and any risk of harm issues that might have arisen in the care of the authorised carers. If the code of conduct or other relevant conditions of authorised care has been breached they should be referred to, even in shorthand form, so that the authorised carers know the content of the allegations against them. 5. The evidence upon which those findings of fact are based should be included. The evidence need not be referred to in great detail but should be sufficiently identified so that the authorised carers know the evidence which is relied upon by the decision maker. 6. The administrator's understanding of the applicable law or laws must be set out in those reasons. This is because, as Justice Kirby stated in Palme extracted earlier in these reasons: "Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process."" 1. Lastly, the administrator must identify the reasoning processes which led to the decision that was made. This should not be perfunctory recitation of factual matters, but should identify the process of logic and reasoning to give confidence that there was no arbitrary reaction which led to the decision. Where more than one conclusion is open, it will be necessary to give explanation of the preference for one conclusion over another.

Reasons provided

The first letter dated 7 December 2016 from CASPA Services Ltd states: "As you are aware CASPA has been investigating allegations made by a child, recently in your care. I have determined to make a finding that there is sufficient evidence that reportable conduct occurred in the category of behaviour causing psychological harm to a child. As we are legislated to do, I will be notifying the NSW Office of the Children's Guardian of this finding. For your benefit I have enclosed a document from the NSW Ombudsman that defines Reportable Conduct. I will encourage you to contact that office if you would like further information on this subject. I have further determined to the authorised US CASPA Foster Carers also to become effective immediately. This means that CASPA will not place further children or young people in your care, and our association with you will cease."
This letter did not comply with section 49 (3) of the Administrative Decisions Review Act.
The applicants requested written reasons by letter dated 13 December 2016. In addition the applicants stated that there was no legislative requirement for the notification of the findings to the NSW Office of the Children's Guardian.
The second letter dated 14 December 2016 from CASPA Services Ltd stated: "... I made a determination based upon the information provided to me. In making this determination, I consider that interview notes and statements from all involved, together with a detailed clinical psychologist report. As a result, I made a determination that reportable conduct occurred due to behaviour that resulted in psychological harm to a child... One child made serious disclosures through her school counsellor and refused to return to the placement. The other child wanted to stay with his sister. In any case it is normal practice remove children from a placement with carers when there is a reportable conduct allegation and the possibility that the child(ren) may be at risk of harm... I acknowledge an error in my letter where I noted that would be notifying the NSW Office of the Children's Guardian of this finding. I retract that statement. At the same time, I would like to advise that CASPA will be notifying the NSW Ombudsman of the finding, as is required of us under the Ombudsman Act.
This letter also fails to comply with section 49 (3) of the Administrative Decisions Review Act.
It was submitted on behalf the applicants that the children want to return to the care of their former authorised carers. This appears to have been acknowledged in the correspondence from CASPA Services Limited. But it is stated in the correspondence that "this is symptomatic of childhood trauma. Whilst considered, it does not mean it would be in their best interest.(sic)"
The letter written on behalf of the applicant dated 14 December 2016 refers specifically to section 49 (3) of the Administrative Decisions Review Act and requests a statement of reasons in accordance with that sub-section.
In response to that letter CASPA Services Ltd provided a letter dated 16 January 2017. In that letter one of the children is alleged to have made disclosures regarding the conduct of the applicants. The child also claimed to be "scared" of the applicants. As a result of those disclosures CASPA Services Ltd determined not to return the child to the applicants. The other child in the placement was then spoken to and the child expressed a desire to remain with their sibling (in a different placement to the applicants' home). The applicants were then contacted at the home and orally informed that the placement had been terminated. Subsequently the carers were told not to speak with the children. Apparently some written questions were sent by CASPA Services Ltd and responded to by the applicants. A psychotherapist report was provided to CASPA which deemed the behaviour of the applicants to be psychologically harmful. The decision was made on 6 December 2016 that the applicants should not be authorised carers based on the information available to the Chief Executive Officer.
Apart from the reference to the fact that the child was "scared" and "disclosures" were made, the findings on material questions of fact, referring to the evidence or other material on which those findings were based is absent from the written reasons. There is also a reference to section 25A of the Ombudsman Act. There is no reference to any legislation on which the decision was based. The reasoning process is disclosed to the extent that conclusions based upon the unidentified disclosures were identified by the decision maker. This letter does not comply with section 49 (3) of the Administrative Decisions Review Act.
As a result of the directions made by the Tribunal the solicitors for CASPA Services Ltd provided a letter dated 29 March 2017. In that letter it is stated at page 2: "The Respondent must respect any need for privacy or confidentiality of the young person in care. As such, the respondent is unable to give specific information requested by the applicants regarding psychological harm, or exacerbation psychological harm that it is alleged to have been suffered by the child, [child's name]. This information is personal and specific to the health and well-being of [child's name].
The disclosures or the findings of fact and the evidence upon which those findings were based are not provided in the written reasons. There is further reference to legislation specifically section 9 (1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), section 25A (1) and 25D of the Ombudsman Act 1974 (NSW). There is also reference to regulation 42 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW). The reasoning process is said to arise from the expertise that the respondent has in working with children and young people with extensive early childhood trauma and the opinion expressed to the decision maker that the behaviour of the applicants was psychologically harmful. It is also said that the applicants were unable to provide sufficient care to protect the safety welfare and well-being of the children. It is said that the applicants did not provide care in accordance with CASPA's Therapeutic Care Framework, Carers Code of Conduct or Policy.
It was submitted on behalf of CASPA Services Ltd that there was no need to provide any further particulars because of the nature of confidentiality to the child. This is a formulation of the respect for privacy referred to in the letter.
It was submitted on behalf of the applicant's that the reasons failed to particularise specific findings of fact made by CASPA Services Ltd and does not provide any explanation of what the alleged disclosures were, what behaviour, acts or omissions of the applicants were complained about which may raise safety concerns. The reasons, it was submitted, do not set out what psychological harm, or exacerbation of psychological harm is alleged to have been suffered by one of the children.
The Tribunal favours the submissions made on behalf of the applicants for the following reasons.
The allegations made against the carers should be identified. They have not been sufficiently identified in the reasons provided to date. The findings of fact relating to each of the allegations made against the authorised carers should be set out with sufficient description for the applicant to know what is alleged against them.
The purpose of the reasons is also partly to enable the applicants to determine whether or not to bring an administrative review of those decisions to this Tribunal. The reasons therefore need to deal with those matters which are relevant to the safety, welfare and well-being of the children, and any risk of harm issues that might have arisen in the care of the authorised carers. If the code of conduct or other relevant conditions of authorised care has been breached the conditions or provisions of the Code of Conduct should be identified and should be referred to, even in shorthand form, so that the authorised carers know the content of the allegations against them.
The evidence upon which those findings of fact are based should be included. The evidence need not be referred to in great detail but should be sufficiently identified so that the authorised carers know the evidence which is relied upon by the decision maker. Except that disclosures are identified the nature of those disclosures remains opaque. This is not sufficient.
The behaviour, acts or omissions of the applicants complained about which may raise safety concerns or the evidence about them are not identified. The reasons do not set out what psychological harm, or exacerbation of psychological harm is alleged to have been suffered by either or one of the children.
The identification of the applicable law is only to be found in the very last letter written at the direction of the Tribunal. Even then, the letter is deficient in failing to identify how the relevant law applies in this particular matter.
Lastly, the explanation of the reasoning process appears to be a perfunctory recitation of factual matters, and does not identify the process of logic and reasoning to give confidence that there was no arbitrary reaction which led to the decision. It is expected that the reasoning process considered whether the children should remain with the carers and what the likely positive and negative effects might be of that outcome. There is no identification of why the preferred option is the one which was chosen. Where more than one conclusion is open, it will be necessary to give explanation of the preference for one conclusion over another.
The applicants have been justified in claiming that the reasons are deficient and an order should be made pursuant to section 52 (2) of the Administrative Decisions Review Act.
An order to that effect will be made.

Costs

The applicants seek costs in the sum of $1320 particularised in a letter provided to the Tribunal and served on the solicitors for CASPA Services Ltd by letter dated 30 March 2017. The solicitors for CASPA Services Ltd simply submitted that there were no special circumstances within the meaning of section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) which would warrant an award of costs. There was no dispute about the quantum of costs sought by the applicants raised before the Tribunal.
The Tribunal has the power to order costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) if it finds there are special circumstances which warrant an order for costs.
The basis upon which the applicants assert that they are entitled to costs is not set out in the letter identifying the quantum of costs. However, the closing submission made by the applicants is that it is not possible for the applicants to respond to any the factual matters relied upon by CASPA Services Ltd for the decision without proper reasons. In those circumstances it is the Tribunal's determination that these proceedings have been prolonged unreasonably due to the failure of CASPA Services Ltd to provide adequate reasons. In addition, it has been open to the respondent to provide adequate reasons at any point in time prior to the determination of the Tribunal. The applicants cannot properly determine whether to bring an application for review of the administrative decision without provision of adequate reasons. In all the circumstances, the Tribunal finds that there are special circumstances warranting an award of costs. The special circumstances are that the respondent has by its conduct required the applicant to bring the proceedings and the applicants have been unnecessarily disadvantaged by the conduct of the respondent in the course of the proceedings. Additionally, the guiding principle in all proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act. The respondent has not facilitated the just, quick and cheap resolution of the real issue in this matter having regard to the proportionality of the importance to the applicants of the provision of reasons as a basis for them to comprehend the nature of the action taken to remove the children from the care of the applicants, and potentially to provide them with a means of redress in relation to a momentous decision in their lives and the lives of the children in their care.

Conclusion

For the reasons which have been identified earlier in these reasons, the applicants are entitled to an order pursuant to section 52 (2) of the Administrative Decisions Review Act.
The applicants are also entitled to an order for costs pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NSW).
If it is necessary to decide the issue, in all the circumstances, the Tribunal decides on information which is now before the Tribunal that the correct and preferable decision in all of the circumstances is an order pursuant to section 52 (2) of the Administrative Decisions Review Act..
The order of the Tribunal shall be: 1. That pursuant to section 52 (2) of the Administrative Decisions Review Act 1997 (NSW) within 7 days of the date of these orders, reasons be provided by CASPA Services Ltd which comply with section 49 (3) of the Administrative Decisions Review Act to the extent required and as identified in this decision, in relation to the decision to remove from the care of the applicants the care responsibility for the 2 children who were previously in their care, and the reasons for revoking the authorisation of the applicants as authorised carers. 2. That within 7 days of the date of these orders CASPA Services Ltd caused to be paid to the solicitors for the applicants the sum of $1320 which is the amount of the applicant's costs assessed by the Tribunal and ordered to be paid pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NSW).

Endnote

Footnotes to accompany the extract: [56] de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995) at 459 citing Tramountana Armadora SA v Atlantic Shipping Co SA [1978] 2 All ER 870 at 872. [57] de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995) at 459. [58] de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995) at 459 citing R v Secretary of State for the Home Department; Ex parte Singh (The Times, 8 June 1987 per Woolf LJ). [59] Craig, "The Common Law, Reasons and Administrative Justice", (1994) Cambridge Law Journal 282 at 283. [60] de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995) at 472. [61] de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995) at 472. [62] Craig, "The Common Law, Reasons and Administrative Justice", (1994) Cambridge Law Journal 282 at 283 citing Rabin, "Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement", (1976) 44 University of Chicago Law Review 60 at 77-78. [63] Craig, "The Common Law, Reasons and Administrative Justice", (1994) Cambridge Law Journal 282 at 283. [64] e.g. Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 489-490; Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 482-483. [65] e.g. Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No 33 (1991). See also Administrative Review Council, Practical Guidelines for Preparing Statements of Reasons, (November 2002). [66] e.g. Macdonald and Lametti, "Reasons for Decision in Administrative Law", (1990) 3 Canadian Journal of Administrative Law and Practice 123; Wade and Forsyth, Administrative Law, 8th ed (2000) at 516-520; Mason, "Australian Administrative Law Compared with Overseas Models of Administrative Law", (2001) 31 AIAL Forum 45 at 60-62; Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed (2001) at 871-873. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2017

Children and Young Persons (Care and Protection) Regulation 2012(NSW)

Civil and Administrative Rules 2014(NSW)

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