EKH v Burran Darai Aboriginal Corporation Inc

Relevant law

1. A decision of the "relevant decision-maker" 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 (NSW) (Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act"), s 245(1)(c)).
2. A "relevant decision-maker" is the person authorised to make the decision (Care Act, s 245(2)). It is not in contention that the respondent was authorised to make the removal decision.
3. A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a decision that is an administratively reviewable decision under s 245(1) of the Care Act, including a decision to remove a child from the care of an authorised carer (Community Services (Complaints, Reviews and Monitoring) Act, s 28(1)(a)).
4. The second applicant, being an authorised carer, was therefore entitled to apply to the Tribunal for a review of the removal decision. The first applicant was also entitled to apply as a person having a genuine concern in the subject-matter of the decision concerned (Community Services (Complaints, Reviews and Monitoring) Act, s 29(1)).
5. The Tribunal has jurisdiction to hear and determine such an application (Administrative Decisions Review Act, s 9(1); Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 30(1)).
6. Where an applicant is entitled to seek an internal review of the administratively reviewable decision (as was the case here), an application to the Tribunal may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under s 53(9) of the Administrative Decisions Review Act (Administrative Decisions Review Act, s 55(3)). An internal review is "taken to have been finalised" if the applicant is notified of the outcome of the review, or if the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (Administrative Decisions Review Act, s 53(9)).
7. The internal reviewer directed to deal with an application must be, as far as is practicable, an individual who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed (Administrative Decisions Review Act, s 53(3)(b)).
8. In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant (Administrative Decisions Review Act, s 53(4)).
9. Following an internal review of an administratively reviewable decision, the internal reviewer may decide to vary or affirm the decision, or set it aside and make a new decision in substitution for the original decision (Administrative Decisions Review Act, s 53(5)).
10. The administrator is required to notify the applicant of the outcome of the internal review within 21 days (Administrative Decisions Review Act, s 53(6)(a)).
11. An application to the Tribunal for administrative review is to be made in the time and manner prescribed by the procedural rules (which include the Civil and Administrative Tribunal Rules 2014 (NSW)) (Administrative Decisions Review Act, s 55(2)).
12. The rules provide, relevantly, that an application is to be made within 28 days after the day on which the internal review is taken to have been finalised under s 53(9) of the Administrative Decisions Review Act (Civil and Administrative Tribunal Rules, r 24(3)(b) and (4)(a)).
13. There is no dispute that the applicants' application to the Tribunal was made outside this time period.
14. The Tribunal has power to "extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation" (NCAT Act, s 41(1)).

Extension of time - principles

1. The principles governing the grant of an extension of time, in a case decided in the Administrative and Equal Opportunity Division, were set out in Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 at [15]-[16] as follows: "The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted."
2. The principles applicable to extending time in administrative review proceedings were also considered by Molony SM in CFZ v Department of Education [2015] NSWCATAD 231. The Senior Member said (at [8]) that the principles to be applied by an Appeal Panel on applications for an extension of time, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, were equally applicable to an administrative review application, with appropriate adaptation.
3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said at [22]: "The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant -Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision …. (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
4. In CFZ v Department of Education [2015] NSWCATAD 231, Molony SM also referred to some considerations which are relevant in administrative review applications: "In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review."
5. In this case, the decision which the applicants seek to have reviewed was made under the Care Act. The Care 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" (Care Act, s 9(1)). It is relevant to consider that principle when determining the applicants' application for an extension of time.

Parties' submissions

1. The applicants explained the delay in making the application to the Tribunal in this way. They acknowledged that they had been informed by the respondent of their right to apply to the Tribunal, but said they were not informed that there was a 28-day time limit on making an application. They said they did not discover this until the first directions hearing in the Tribunal. They also claimed that "every step of the appeals process was long and drawn out" by the respondent (from the time the youngest child went to respite in January this year and was not returned).
2. The applicants said that they engaged a lawyer after receiving the consultant's report and were advised to consider an application to the Children's Court. The applicants did not realize until 27 August 2020 that they had "exhausted all internal appeal options" and then decided to apply to the Tribunal. They said that if they had been informed earlier of the time limit, they would have applied earlier. The applicants rely upon the great attachment the girls have to them and their extended family after so many years.
3. The applicants submit that a refusal of an extension of time would result in a great injustice to them and to the girls who would be denied a long-term stable and secure placement.
4. The respondent accepted that it had not informed the applicants of the 28-day time limit, but pointed out that they knew that they could apply to the Tribunal and could have contacted it. The respondent also submitted that the lawyers the applicants consulted "would have canvassed the rights of the applicants including their right to appeal the decision at the Tribunal."
5. The respondent submitted that a grant of an extension of time would "result in significant expense to the respondent in circumstances where the prospect of success for the applicant is minimal." It also submitted: "The Respondent complied with its obligations in accordance with the law (section 48 Administrative Decisions Review Act 1997). On 22 April 2020 the Applicant was advised in writing of: (a) the decision; (b) the persons right of review of the decision."

Consideration

1. For the reasons which follow, I consider that the applicants provided a reasonable explanation for the delay, that the delay was not unduly long, that the applicants have a reasonably arguable case, that there is no significant prejudice to the respondent and that the public interest in ensuring the safety, welfare and well-being of children favours the grant of an extension of time.
2. In light of the delays caused by the respondent in deciding whether the children may be returned to the applicants, and the respondent's failure to conduct an internal review which complies with the requirements of the Administrative Decisions Review Act, strict compliance with the rules would work an injustice upon the applicants.

The internal review

1. As indicated above, the respondent submitted in opposition to an extension of time that it had complied with its legal obligations. Whilst it did inform the applicants of their right to apply to the Tribunal, it appears that it did not comply with its obligations in relation to the conduct of an internal review.
2. The respondent invited the applicants in its letter of 22 April 2020 to apply for a review within 14 days. As indicated above, the applicants had a statutory entitlement to apply for an internal review within 28 days of being notified of the decision.
3. The respondent engaged an external consultant to conduct a review of the removal decisoin. There is no evidence that it was impracticable for an employee of the respondent to conduct the internal review within s 53(3)(b) of the Administrative Decisions Review Act.
4. In its written submissions to the Tribunal, the respondent stated that it conducted both an internal review of the decision and an external review. However, I was not taken to any evidence of an internal review having been conducted. In oral submissions made on the respondent's behalf by its solicitor, Ms McNeilly, at the hearing, Ms McNeilly described the letter of 22 April 2020 as being the internal review. However, this was the first letter informing the applicants of the decision not to return the children to their care. It was not an internal review within s 53 of the Administrative Decisions Review Act.
5. The review undertaken by the consultant was not an internal review.
6. The consultant did not invite or consider any relevant material submitted by the applicants, as is required of an internal reviewer (Administrative Decisions Review Act, s 53(4)). The applicants were not invited to make any submissions or provide any material to the consultant. The fourth paragraph of the consultant's report states: "The conclusions and recommendations in this report have been based on the information provided by Burrun Dalai Management and staff. As a result, [the consultant] accepts no liability for errors or omissions resulting from the information provided."
7. It is apparent from the remainder of the consultant's report that the consultant interviewed staff of the respondent but did not have any contact with the applicants. Under the heading "Recommendations," the consultant stated in the report: "All concerns raised in the letter to the carers …. dated 22nd April 2020, identified case notes and or other forms of evidence such as third-party evidence appear to support the agencies claim. It is important to note that this statement comes from interviews held with the care team on the 27th May 2020 via Zoom due to COVID-19. Interviews were not held with third parties including the carer and a full file review was not conducted as this was not part of the request by the agency…"
8. The consultant stated, in the report, that she had been instructed not to talk to the carers. She stated in the third paragraph of the report that the review request from the respondent "was to review the documented evidence provided and not conduct formal interviews with the carers, children or other third parties mentioned in the information provided."
9. The consultant did not vary, affirm or set aside the decision as is an internal reviewer's function (Administrative Decisions Review Act, s 53(5)). Instead, the consultant made a number of recommendations to the respondent. The respondent, unsurprisingly, did not depart from its original decision.
10. Instead of completing an internal review within 21 days as required (Administrative Decisions Review Act, s 53(6)), the respondent provided the applicants with the consultant's report about two and a half months after they had orally requested a review, at the Zoom meeting on 14 April 2020.
11. It is arguable that, in this case, the internal review was taken to have been finalised within 21 days of the oral request made at the Zoom meeting for a review. It might also have been taken to have been finalised within 21 days of the written notice of decision on 22 April 2020. Alternatively, it might have been taken to have been finalised on 30 June 2020, when the applicants were provided with the consultant's report.
12. If the internal review is taken to have been finalised within 21 days of the written decision on 22 April 2020 (in circumstances where the respondent had informed the applicants that it was engaging the consultant to review the decision), this would mean that the internal review was "taken to have been finalised" by about 13 May 2020. If this was the case, any application for Tribunal review should have been made by about 10 June 2020.
13. If, on the other hand, the internal review is taken to have been finalised when the applicants were provided with the consultant's report, they had until about 28 July 2020 to apply to the Tribunal.

Explanation for the delay

1. The delay in lodging an application for review with the Tribunal is just over two months (if it was required to be lodged by about 10 June 2020) and just under three weeks (if it was required to be lodged by about 28 July 2020).
2. If the internal review was required to be lodged by 10 June 2020, the applicants have a reasonable application for the delay up until 30 June 2020, and the 28 days following that, being that the respondent had told them that the decision was being reviewed by an external consultant and it was reasonable for them to wait for then consider that report and decide what action to take. The letter of 22 April 2020 advised them that they could apply to the Tribunal if they were "still" unhappy with the review (that is, if they were unhappy having received the review of the decision). They were not advised that they could apply to the Tribunal 21 days after the date of the letter.
3. The applicants also have a reasonable excuse for the delay after 28 July 2020. This is that they had sought legal advice and been told by their lawyer to consider an application to the Children's Court. Further, the respondent had not advised them of the 28 day time limit. I do not accept the respondent's speculative submission that they "would have" been told by their lawyer that they only had 28 days to apply to the Tribunal. I accept the second applicant's evidence that they did not know about the time limit until the first directions hearing at the Tribunal.

Prejudice to respondent

1. The respondent has not pointed to any particular prejudice it would suffer if time were to be extended. There is, of course, a general prejudice in not having applications dealt with quickly and efficiently.

Applicants have an arguable case

1. The respondent submitted that the applicants' prospects of success were minimal, having regard to a number of matters. The respondent told the Tribunal that 26 risk of serious harm reports had been received about the children in the fourteen months prior to removal, nineteen of which directly related to the applicants.
2. The second applicant gave unsworn evidence, at the hearing, about some of the matters the subject of the allegations in the risk of serious harm reports.
3. One allegation is that the first applicant made a video of one of the children exposing her genitals and posted it on social media. He then allegedly failed to remove the video when requested to do so.
4. The second applicant stated that her husband, the first applicant, placed some videos of the children on Youtube whilst she was in hospital, so she could see the children. There was one video of the three year old in which the three year old had no clothes on below her waist. The second applicant said the video was amusing to them and not posted to titillate. She also said her husband had thought he was able to post the video so only they could see it, but this was not the case. They tried to remove it when asked, but it was technically difficult because he had cached the videos and they could not work out for some time how to remove them.
5. The respondent relied upon what it described as "numerous admissions" made by the second applicant about not coping with the care of the children.
6. The two younger children have autism and ADHD as well as other issues. The oldest child has ADHD and oppositional defiance disorder. These conditions present many challenges.
7. The second applicant said that the applicants needed more support around issues such as the children destroying the house and how to cope with autism and anger issues. Almost all of the training they had been offered was around trauma based behaviour.
8. The respondent made other allegations, including that the living conditions of the children were unhygienic and the applicants sent the children to school with mouldy food. The applicants denied these allegations.
9. The second applicant impressed me, in the telephone hearing, as a credible witness. She gave apparently reasonable responses to the allegations made against her and her husband.
10. In the written submissions, the second applicant described herself as "distraught" following the removal of the youngest child and emphasized the attachment between the girls and her and her family. She stated that they were "missing them dreadfully." It was apparent at the hearing that the second applicant cares deeply about the children. In its letter to the applicants of 22 April 2020, the respondent acknowledged the applicants' "love of the girls and the things that you have sacrificed to maintain the placement."
11. The applicants have provided, with their application, a document dated 20 March 2020 by Annamarie Cohen which purports to be a report commissioned by the respondent. It appears to be a parenting capacity report. In this report, Ms Cohen recommends that the youngest child be returned to the applicants' home. It is also recommended that there be independent mediation between the second applicant and the respondent to mend the relationship.
12. The second applicant stated, in material provided to the Tribunal, that, around 3 February 2020 she was told that the respondent had no concerns about the applicants' care of the two older children. I accept that evidence, which was not challenged.
13. Another matter relied upon by the respondent was its suspension then cancellation of the second applicant's authorisation as an authorised carer. It submitted that, as a result, the applicants could not have the children returned to their care.
14. The second applicant told the Tribunal, at the hearing, that she had decided to apply for review of the decision to cancel her authorisation as a carer (the cancellation decision). I accept this evidence. It could not be said, in circumstances where she is seeking review of this decision, that the applicant's application for review of the removal decision is futile. It could be said that the review of the cancellation decision might not be concluded by the time of any hearing of these proceedings. However, in circumstances where the second applicant has already applied for review of the removal decision, she may decide to apply to the Tribunal for review of the cancellation decision before the internal review was finalised, on the basis that it is necessary for the Tribunal to deal with the application in order to protect her interests (Administrative Decisions Review Act, s 55(4)(b)). The Tribunal would then have to determine whether to deal with her application in these circumstances.
15. A likely course is that, once the Tribunal was seised of both applications for review, it would decide to deal with the application for review of the cancellation decision and the application for review of the removal decision together. Any application for review of the cancellation decision would raise similar issues to those raised in the application for review of the removal decision.
16. In light of all the considerations set out above, I find that the applicants have a fairly arguable case in these proceedings.

Public interest

1. The public interest in the safety, welfare and well-being of children favours the grant of an extension of time.
2. The children appear, from the evidence before the Tribunal, to have a strong attachment to the applicants. That would be expected given that they have spent almost all of their lives in the applicants' care. The second applicant told the Tribunal that, when they were allowed contact with the children, the children asked when they could come home. The respondent's evidence is that two of the girls are settled in their placements and the third is about to be moved to a more long-term placement. Nevertheless, this does not mean that they do not have powerful attachments to the applicants.
3. It is in the interests of the children and in the public interest that the Tribunal review the removal decision and decide whether it is the correct and preferable decision.

Conclusion

1. I have taken into account the consideration that time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. However, in this case, the interests of justice require that the applicants' application for an extension of time be granted.
2. The proceedings should be heard and determined as soon as is practicable, having regard to the best interests of the children.

Orders

1. I make the following orders: 1. Time is extended for the making of the applicants' administrative review application to the date of lodgement, 17 August 2020. 2. The matter is listed for directions on 5 November 2020 at 10.30am. The parties are to appear by telephone.

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: 27 October 2020