ECX v Secretary, Department of Communities and Justice

Relevant legislative provisions

1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the Administrative Decisions Review Act, the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act.
2. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) provides that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision that is an administratively reviewable decision under s 245 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
3. 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" is "an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993": Children and Young Persons (Care and Protection) Act, s 245(1)(c). The "relevant decision-maker" is the person or body authorised by or under the Children and Young Persons (Care and Protection) Act or the regulations to make the decision (Children and Young Persons (Care and Protection) Act, s 245(2)).
4. The Children and Young Persons (Care and Protection) 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 (Children and Young Persons (Care and Protection) Act, s 9(1)).
5. It was not disputed that the respondent has power to remove the responsibility for the daily care and control of the child from an authorised carer. Whilst the source of this power was not identified by the parties, it is presumably s 140 of the Children and Young Persons (Care and Protection) Act.
6. In this case, there is a question, to which I will return, as to whether the decision to remove the eleven-year-old from the applicant's care was made by the respondent, or by the applicant herself.
7. A designated agency may authorise a person as an authorised carer pursuant to cl 30(7) of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW). A designated agency may, by notice in writing, cancel the authorisation of an authorised carer if, relevantly, the agency is of the opinion that the authorised carer is no longer a suitable person to be an authorised carer (Children and Young Persons (Care and Protection) Regulation, cl 42(a)).
8. The power to grant an order "staying or otherwise affecting the operation of the decision under review" is contained in s 60(2) of the Administrative Decisions Review Act. Subsections 60(2) and (3) provide: (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
9. Pursuant to s 61(1)(a) of the Administrative Decisions Review Act, the Tribunal may not make an order under s 60 unless the administrator who made the relevant decision has been given a reasonable opportunity to make submissions in relation to the matter.

Hearing

1. The stay application was heard on two different days, with the parties appearing by telephone. On the first day on which the stay application was listed for hearing, the respondent's representative, Ms Smith, notified the Tribunal that she had not received all the applicant's material and that the respondent needed time to lodge some material. The hearing was adjourned to give the respondent time to do this.
2. The applicant filed an affidavit which she relied on for her stay application.
3. The respondent relied upon the affidavit of a caseworker, and also filed written submissions.

Is the decision to remove the eleven-year-old girl a reviewable decision?

1. Ms Smith, for the respondent, submits that, as the applicant decided to relinquish care of the eleven-year-old girl, it was not the respondent's decision to remove her from the applicant's care. She says that the respondent did not make a reviewable decision in relation to the removal of that child.
2. The Tribunal has jurisdiction to review a decision to remove, from the applicant, the responsibility for the daily care and control a child, if this is a decision of "the relevant decision-maker" (that is, the respondent) (Children and Young Persons (Care and Protection) Act, s 245(1)(c)).
3. The applicant accepts that she emailed the case worker on 9 July 2019 saying she had decided to relinquish care of the eleven-year-old girl. However, she says that later that day she was informed that the respondent had decided to remove all three girls from her care. This was after she had sent a message to the caseworker to the effect that, if the eleven-year-old stopped taking her medication, and this resolved her behavioural issues, they may be "work through" some of the issues.
4. I consider that the respondent made a "decision," prompted by the applicant's decision, to remove responsibility for the daily care and control of the eleven-year-old girl from the applicant. FACS could have made a different decision, such as to negotiate with the applicant to see if the applicant would be prepared to continue to care for the child if, for example, the child stopped taking her medication. It did not. The caseworker communicated verbally to the applicant on 9 July 2019 that the "Campbelltown office" had made a "decision" to remove all three children and that they would be picked up the following day. In a letter sent to the applicant on 10 July 2019, a manager, client services informed the applicant that FACS was concerned about the ongoing impact on the children of the applicant's requests, on more than one occasion, to relinquish care of the children. This also indicates that the respondent made a "decision" to remove responsibility for the daily care and control of the eleven-year-old girl from the applicant.
5. Accordingly, I find that the respondent made a reviewable decision to remove responsibility for the daily care and control of the eleven-year-old girl from the applicant, within s 245(1)(c) of the Children and Young Persons (Care and Protection) Act.

Late application for internal review

1. The respondent's decision to remove the girls from the applicant's care was notified to her by letter dated 10 July 2019, which was emailed to her on the same day. The applicant had an entitlement to apply for internal review for 28 days after that notification (Administrative Decisions Review Act, s 53(2)(d)); that is, until about 8 August 2019. She also had 28 days from the notification of the cancellation of her authorisation as carer of the girls, on 31 July 2019, to apply for review of that decision (until about 29 August 2019).
2. The applicant first enquired about applying for internal review on 17 October 2019, more than three months after the removal decision and about two and a half months after the cancellation decision.
3. The general rule is that the Tribunal may only deal with an application for review if the applicant "has duly applied for such an internal review and the review is taken to have been finalised" (Administrative Decisions Review Act, s 55(2)). Subsections 55(4) and (5) provide for the following exceptions to that rule: "(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant."
4. The applicant submitted that the respondent had "unreasonably refused" to deal with her late application for internal review and that it was made within a reasonable time, within s 55(4)(a) of the Administrative Decisions Review Act). She said that, after the decision to remove the girls, she suffered grief and loss and had to take time off work.
5. The respondent did not oppose the applicant's application for the Tribunal to deal with the applicant's application to the Tribunal.
6. The question of whether the circumstances in s 55(4)(a) apply is finally balanced. The children had been living elsewhere for over three months when the applicant applied for internal review. In a situation concerning the welfare and well-being of children, three months is a long time. This makes it less likely that a decision to refuse to conduct an internal review would be unreasonable. However, I consider that the respondent's refusal to consider the application for internal review, when requested to do so on 17 October 2019, was unreasonable in the circumstances, for the following reasons.
7. The letter to the applicant of 10 July 2019, concerning the removal of the girls from the applicant's care, did not inform her of her right to apply for internal review. Although the letter cancelling her authorisation did inform her of this right in that context, that did not mean that she was necessarily aware that she could apply for internal review of the removal decision.
8. Secondly, the applicant's email of 23 October 2019 to the case worker identified that she found the removal of the children traumatic, that she had suffered grief and loss due to their removal, and that she was not in an emotional position to make the application for internal review earlier. The case worker made no further enquiries about this. It was possible that the applicant had been suffering from depression or was otherwise not in a fit state to apply for internal review, for medical or psychological reasons. Dismissing this explanation without further enquiry was not reasonable.
9. Thirdly, the reasons the caseworker gave for refusing to extend the time frame were not reasonable. The circumstance that the girls were placed with family was, possibly, relevant, but the eleven-year-old girl was not in a long term family placement. She was, according to a case worker's affidavit, "in short term foster care." Further, the decision under review was not the placement decision, but the decision to remove the girls from the applicant's care. The other reason given for not extending time, that the Northern New South Wales part of the Department no longer had case management of the girls, was irrelevant to whether time should be extended for an internal review application.
10. The refusal to extend time for an internal review may be read as applying to both the removal decision and the cancellation decision. Although the applicant was on notice of her right to apply for review of the cancellation decision, the other factors discussed above applied to this decision as well.
11. I am satisfied that the application to the Tribunal was made within a reasonable time, having regard to all of the circumstances. Part of the delay is explained by the applicant's emotional state and by the respondent not informing her of her rights. Following the respondent's refusal on 23 October 2019 to extend time for the internal review, the applicant completed the Tribunal application on 14 November 2019. That was then posted to the Tribunal and stamped as being received on 21 November 2019. Although there was some delay, it was not great, given that the applicant was self-represented and that she had not been informed by the respondent that she could apply to the Tribunal.
12. For these reasons, I have decided to deal with the applicant's application to the Tribunal for review of the respondent's decisions, even though the applicant has not duly applied for an internal review of those decisions.

Should the Tribunal grant a stay of the respondent's decisions?

1. The Tribunal may only grant a stay if it considers it desirable to do so after taking into account the interests of any persons who may be affected by the determination of the application, the respondent's submissions and the public interest (Administrative Decisions Review Act, s 60(3)).
2. The main persons who may be affected by the determination of the application are the applicant, the eight-year-old girl, the eleven year-old-girl and the respondent. The girls' aunt (who is currently caring for the eight-year-old girl and living near the eleven-year-old girl) would also be affected, but the Tribunal has little evidence about her interests or wishes.
3. The girls have provided inconsistent messages about whether they wish to live with the applicant. The many messages to the applicant through social media and electronic messaging indicate affection for the applicant and that the children were missing her. There is also evidence to suggest that the respondent may have instructed the children not to contact the applicant by electronic means, and may have taken away the eleven-year-old's electronic devices. However, the children recently told the caseworker that they did not want contact with the applicant.
4. The Tribunal recognises that the children have expressed inconsistent feelings in respect of the applicant and that the verbalisation of what they want does not necessarily equate to what is in their best interests. Nevertheless, the circumstance that both children have said that they do not want contact with the applicant tends against the grant of a stay.
5. The case worker's evidence, which I accept, is that both children are reported by school staff to be settled at school. The eight-year-old is settled in her placement, where she has been since July, and the eleven-year-old also appears to be relatively settled.
6. The "home visit" records completed by the caseworker state that the eleven-year-old says she is enjoying staying in the hotel and likes the youth workers who are looking after her. She has support services including a psychologist. She also reported being happy to be able to see her sister at school.
7. I am not satisfied that a stay would be in the best interests of the girls. Moving them back to Queensland would mean taking them out of the school they are now settled in and is likely to be emotionally unsettling for both of them. A stay order would only have effect until the final determination of the proceedings. If the Tribunal were to decide to affirm the respondent's decision, the girls would need to be moved again. This would be very destabilizing, especially for children who have suffered trauma and have already experienced multiple placements: see DOJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 211 at [2].
8. I have considered whether to grant the stay in respect of the eleven-year-old girl only, having regard to the fact that she is living in a hotel. However, I have decided not to do so. That is because the decision under review is not the placement decision, but the removal decision. Whilst a hotel is not an ideal place for a child to live, as the respondent accepts, the girl reports being happy there and is receiving important services to deal with trauma she experienced earlier in her childhood. The respondent is working on a possible return of the girl to her aunt's care. She is close to her sister and likes seeing her regularly. Whilst the applicant said that it would be good for the girl to be with family or in a foster home for Christmas, there is no evidence that that will not occur. I note that the girl spent the last school holidays with family in Queensland.
9. The applicant's interests are in having the children returned to her. She has developed strong emotional attachments to them and has known them for a long time. She is also concerned for their welfare. I find that she wants the best for them.
10. The respondent opposes the grant of a stay. The respondent submits that the children could suffer further psychological harm if returned to the applicant in light of her previous behaviours in seeking to relinquish care of the children then retracting those requests. The respondent says that, where there is a risk of harm, the Tribunal should act protectively and err on the side of caution, relying on S v Minister for Youth and Community Services (1986) 10 FamLR 849.
11. I have had regard to the respondent's submissions set out above, and other submissions made on behalf of the respondent in writing and at the hearing. I note the applicant's statements at the hearing that she has greater supports than she did previously and that she has a more flexible working arrangement, which would allow her to spend more time with the girls. In these circumstances, I find that it is not likely that the applicant would seek to relinquish care of the girls again, if a stay were to be granted.
12. The public interest does not support the grant of a stay. As Brereton J has observed, "there is considerable public interest in the welfare of children in out-of-home care": The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384 at [30]. In this case, the stability of the children and their welfare, in the short term, is best served by refusing the stay. The question of whether it is in their welfare to return to the applicant on a longer-term basis is something which will be the subject of determination following the final hearing.
13. For all of these reasons, I do not consider that it is desirable to make a stay order (see Administrative Decisions Review Act, s 60(3)).
14. For completeness, I do not consider that a stay order is "appropriate to secure the effectiveness of the determination of the application" within s 60(2) of the Administrative Decisions Review Act. The Tribunal anticipates that a final hearing may occur within the next two months. The effectiveness of the determination of that application is not dependent upon the grant of a stay. The applicant has not demonstrated that, if a stay is not granted, she will "suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful" (Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [8]). Nor has she shown that the review would be deprived of practical point without a stay (see AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [129], cited in Loveday at [11]).
15. For these reasons, I have decided to refuse the applicant's application for a stay of the decisions to remove the girls from her care and to cancel her authorisation as an authorised carer in respect of those girls.

Orders

1. I make the following orders: 1. The Tribunal decides to deal with the applicant's application to the Tribunal for review of the respondent's decisions, even though the applicant has not duly applied for internal review of those decisions. 2. The applicant's application for orders staying or otherwise affecting the operation of the decisions under review is refused.

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: 09 December 2019