On 9 May 2024 Dr Lucy, Senior Member, made orders under section 50 Civil and Administrative Tribunal Act 2013 and directions to dispense with a hearing and to proceed on the papers, having been satisfied that the issues for determination in this application can be adequately determined in the absence of the parties. The directions provided for the parties to provide submissions in support of the applicant's application for an extension of time in which to file a review application. The parties consented to this course. The matter is listed on 20 June 2024 for further directions.
These are the reasons for the determination of the preliminary issue.
The applicant relies on the application dated 9 April 2024, the affidavit of the same date and an affidavit dated 16 April 2024 which adds a further attachment to the material relied upon.
The section 58 Administrative Decisions Review Act 1997 (ADR Act) documents were filed by the respondent on 17 May 2024.
The submissions of the applicant were received by email on 17 May 2024. The submissions of the respondent were received by email on 30 May 2024.
An administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS Review Act) under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 includes in the context of this application:
…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…
An internal review of an administratively reviewable decision is required under sections 53 and 55(3) of the ADR Act. If there has been no internal review then an application for one of the exceptions under section 55(4)(a) or (b) of the ADR Act has to be made.
If the requirements set out in the preceding paragraphs are not satisfied then the application may be dismissed under section 55 of the Civil and Administrative Tribunal Act 2013.
The applicable law (ADR Act s 55(2) and also ADR Act, s 53(9); and Civil and Administrative Tribunal Rules 2014, r 24(3)(b), (4)(a), made pursuant to s 40 of the Civil and Administrative Tribunal Act 2013) requires an administrative review application to be lodged not later than 28 days after the applicant receives notification of the internal review decision.
In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] the Appeal Panel noted that the discretion in section 41 of the Civil and Administrative Tribunal Act to extend time in which to file the review application is to be exercised judicially and having regard to the guiding principles in section 36 of the Civil and Administrative Tribunal Act including "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". In Jackson v Land and Housing Corporation at [22], the Appeal Panel set out the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal. In BKW v Department of Family and Community Services [2014] NSWCATAD 205, at [21], the Tribunal modified these principles for application to matters involving an administrative review (and referring to Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, from [18]). In the Appeal Panel proceedings BKW v Department of Family and Community Services [2015] NSWCATAP 232 the relevant section was identified as subsection 29(3) of the CS Review Act which governed the Tribunal's power to extend time in an application for review made in the Tribunal's community services review jurisdiction.
In section 29(3) and 29(6) CS Review Act the provisions are:
(3) The Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application.
,,,
(6) This section applies despite any contrary provisions of the Civil and Administrative Tribunal Act 2013 or the Administrative Decisions Review Act 1997.
The Appeal Panel in BKW v Department of Family and Community Services referred to and accepted the following as considerations relevant to the exercise of the discretion to extend time to file a review at [48]-[49]:
…
the length of the delay in bringing the review application;
the reason for the delay;
the nature of the decision the subject of the review and whether there is an arguable case that the decision the subject of review is not the correct and preferable decision and should be set aside and varied; and
prejudice to the respondent and any other interested person if strict compliance with the rules is applied.
[49] We accept that each of these matters is relevant to the exercise of a discretion to extend time.
The submissions received addressed these considerations. The applicant also referred to the decision of Choi v Secretary DCJ [2020] NSWCATAD 154 which identifies similar considerations for an extension of time to file an application.
The applicant had the child placed with her in 2022 with a view to adoption. The applicant was an authorised carer. The child was under the parental responsibility of the Minister for Families and Communities until the age of 18. The applicant and the child are of similar racial and cultural backgrounds.
On 15 September 2023 Barnardos removed care and control of the child from the applicant. It is agreed in the applicant's evidence that this was confirmed by letter dated 25 September 2023. The respondent identifies that the decision was confirmed after an internal investigation and consideration of the available evidence communicated in a letter to the applicant dated 31 October 2023. The respondent submits that the applicant then had 28 days to file an application in the Tribunal, that is, by 28 November 2023.
The review application was filed on 12 April 2024, a period of approximately between four to five months after the time allowed by the rules and legislation.
Initially, on or about 14 September 2023 the applicant sent an email to Barnardos Adoptions Program Manager informing her that the child could be picked up and removed from the applicant's care. After consultation with the applicant's Carer Support Officer and a further email from the applicant on 15 September 2023, it was considered by Barnardos that the applicant had formally relinquished care of the child. As a result Barnardos collected the child immediately and transported the child to another foster care placement on 15 September 2023. Concerns were raised about the applicant's mental health, emotional stability, and capacity to provide safe, nurturing care to the child. On or about 21 September 2023 the applicant called the respondent and stated she wanted the child back in her care. The applicant at that time was speaking very fast and was incoherent, jumping from one topic to another. The applicant decided to institute the review process internally with the respondent.
The applicant contends that the explanation for the delay that she was unaware, and not informed as the applicant submits she should have been fully informed, as to her rights. The applicant notwithstanding her alleged ignorance sought an internal review and made a complaint to the respondent. The applicant engaged the advocacy of My Forever Family, which is an organisation advocating for carers' rights. The applicant also approached the Minister's office, the Ombudsman and sought legal advice from at least two lawyers. The respondent submits that the applicant was provided the NCAT fact sheet on two occasions after the removal decision was made. It is clear the applicant was pursuing and elected to concentrate her efforts on the avenues of redress she thought appropriate.
It is therefore not established that the applicant was unaware of her rights as has been submitted on behalf. There is no persuasive reason for the applicant to have delayed submitting her application for review to the Tribunal.
The Children and Young Persons (Care and Protection) Act identifies in section 8 the objects of the legislation and in section 9(1) of the Act identifies the paramountcy principle that in any decision made under the Act concerning a particular child the safety, welfare and well-being of the child is paramount.
There are other principles contained in section 9 (2) the Act also to be applied in the administration of the Act.
The objects of chapter 8 of the Children and Young Persons (Care and Protection) Act are relevant to out-of-home care, as they specifically provide in section 134 for the object of creation of a high standard in the provision of out-of-home care, a model for the organisation of out-of-home care, and to clarify the roles and responsibilities of those involved in the provision of out-of-home care.
The objects of the Civil and Administrative Tribunal Act 2013 provided for in section 3, amongst other things, is to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. This is also reflected in section 38 of that Act that the tribunal is empowered to proceed with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The Tribunal is not bound by the rules of evidence but in doing so is subject to the rules of natural justice. The Tribunal must act fairly to the parties and should act upon material which is rationally probative.
The decision to move the child from the applicant's care was not solely based upon her desire to relinquish care of the child as expressed in emails. There were pre-existing concerns about the applicant's capacity and ability to meet the child's needs. The child has now established a consistent daily routine, developed a positive bond with her carers referring to them as "mummy" and "daddy" and seeks them out for comfort and affection, and to have her daily needs met. The carers are described as loving, fun and patient towards the child and aware of her needs and her non-verbal cues.
The child has had no contact the applicant since she left the applicant's care on 15 September 2023.
The applicant remains an authorised carer under the auspices of the respondent.
As previously identified the safety, welfare and well-being of the child is the paramount consideration pursuant to section 9 (1) of the Children and Young Persons (Care and Protection) Act. The interests of the applicant are not paramount and are subservient to the child's interests.
There is an extensive list of concerns about the applicant's care of the child prior to the decision to remove her from the applicant's care. These are set out in the written submissions for the respondent at paragraph [87]. The evidence supports those submissions. The respondent submits that the applicant does not have an arguable case and the removal decision is the correct and preferable decision.
The evidence establishes that the applicant was not able to fully support the child relationships with her birth family and promote her identity. The applicant asserted baseless allegations against the child's mother to the effect that she was attending contact or family time drug affected and was involved in gang crime. The applicant did not accept the child's paternal heritage and asserted the maternal heritage as dominant because of the child's racial appearance. The applicant made baseless allegations against the child's case manager and refused to work cooperatively with the case manager. The applicant was reluctant to meet the costs of the child's therapeutic needs from her carer allowance and thus failed to show financial independence which would be supportive of an application for adoption. The applicant refused to accept recommendations of medical professionals. The applicant did not meet the child's needs for social stimulation and language development by not taking her to playgroups based upon an inadequate reason. The applicant lacked a supportive informal and formal network, and could not identify persons who could be referees in a future adoption application. The applicant did not show emotional stability and there were reported concerns about her emotional state, including threats of self harm. The applicant relinquished care of the child suddenly and in an unusual manner which did not place the child's interests as paramount.
The applicant also refused to allow the respondent's staff to conduct a home visit. The applicant was reluctant to engage in a carer review which is mandatory for ongoing carer authorisation.
There were significant concerns about the applicant's capacity to work cooperatively with the designated agency which had authorised her and had a responsibility to supervise the placement.
The applicant asserts that the applicant provided a high standard of care for the child and was wholly committed to the care of the child and subsequently wanted to adopt her. The actions and evidence does not support that assertion.
The applicant does not have an arguable case and does not have substantial merit. The child is now in a permanent placement where her are needs met. It would not be in the child's interests to be removed from her current placement where she has been since 12 December 2023. It is accepted that it would be traumatic and harmful to the child's well-being and development to suffer a further placement change, in addition to the previous placement changes since entering out-of-home care, and has not had contact with the applicant since 15 September 2023.
It was considered in DWZ v Wandiyali [2019] NSWCATAD 190 that an application 9 to 10 weeks out of time was a significant and substantial delay having regard to the nature of the application and where timely applications are required in the best interests of the child. Even a short delay may have a significant impact on the safety welfare and well-being of children. There is significant prejudice to the child by the delay in this matter because the child requires stability of care and a high standard of care in accordance with the objects of out-of-home care.
If an extension of time is granted, allowing the applicant to proceed with her application this would create uncertainty for the current placement of the child which would not be in her best interests and would undermine permanency planning for the child.
It is therefore determined that the length of delay in bringing the application is 4 to 5 months out of time, there are no substantial reasons for the delay, due to the nature of the decision and the evidence relied upon by the respondent there is no arguable case and it does not have substantial merit. On the evidence before the Tribunal the correct and preferable decision was the removal of the child from the applicant's care. There is significant prejudice to the respondent and also to the subject child if there is not strict compliance with the requirements in relation to commencement of the review application, because of the uncertainty and the required stability of care for the child to a high standard.
The application for extension of time is refused. The application is dismissed.
The orders of the Tribunal shall be:
1. The application for an extension of time in which to file a review application is refused.
2. The application is dismissed.
[2]
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
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Decision last updated: 24 June 2024