Gunida Gunyah Aboriginal Corporation v Griffen - [2019] NSWCATCD 49 - NSWCATCD 2019 case summary — Zoe

NSWNSWCATCD

Gunida Gunyah Aboriginal Corporation v Griffen

[2019] NSWCATCD 49

NCAT Consumer and Commercial|2019-03-20

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At a glance

Source facts

Court

NCAT Consumer and Commercial

Decision date

2019-03-20

Source

Original judgment source is linked above.

Judgment (7 paragraphs)

[1]

Background

In 2016 the landlord and the tenant entered into a Residential Tenancy Agreement in respect of a property at X XXXXX Street Gunnedah. It is agreed that the tenancy is a Social Housing Tenancy Agreement within the meaning of the Act.
Following an inspection in June 2018 the landlord filed an application on 8 June 2018 seeking an order for termination on the basis that the tenant or occupant was causing serious damage or injury.
The matter came before the Tribunal initially on 26 June 2018 and on 17 August 2018 in Gunnedah orders were made terminating the Residential Tenancy Agreement between the parties and requiring the respondent to vacate the premises on or before 31 August 2018. (see SH18/25931).
The tenant lodged an appeal against the order of the Tribunal on 4 September 2018 and the appeal was ultimately heard on 14 November 2018 with the decision and orders being handed down on 28 November 2018.
The Appeal Panel determined that the Member's reasons in relation to a consideration of ss.154D and 154E were inadequate in regard to the application of a statutory test whether "the termination order would be likely to result in undue hardship being suffered by a child." It was accepted by the Appeal Panel that s.154D(3) was engaged by the Tribunal Member.
The Appeal Panel determined further that it was not appropriate to substitute its own decision in such a discretionary factual matter, and it was resolved to return the matter for re-hearing by a differently constituted Tribunal.

[2]

[3]

Applicant's Evidence

The Applicant sought to rely on the evidence initially filed in the original proceedings on 10 July 2018 comprising some 200 pages together with additional material which included letters from Gunnedah Family Support dated 30 November 2015 and 28 April 2016 together with correspondence received from the respondent on 17 October 2018, 24 October 2018 and 31 October 2018.
The documentation included the Residential Tenancy Agreement dated 8 June 2016 along with an ingoing inspection repot of the same date and advice of bond lodgement.
An order of the Tribunal made 15 May 2017 was also included although it has little relevance at the present time because the consent order related to interference with the peace comfort or privacy of neighbours.
A short Statutory Declaration from Brenda Porter dated 22 June 2018 referred to a routine inspection undertaken on 7 June 2018 where reference was made to damage and rubbish at the property. She also noted that the tenant had seven minors and an elderly mother living at the property in what was described as a non- liveable house. The opinion of Ms Porter is not received as an expert opinion and her references to health hazards are descriptions which can only be considered after a review of the photographs provided.
A further Statutory Declaration of Anthony Johnson dated 22 June 2018 referred to his observations on the inspection which was undertaken on 7 June 2018. Again his descriptions represent his own opinions and the Tribunal can make its own assessment based upon perusal of the photo graphs provided in the following 149 pages.
A quote for repair work was provided from Darren Loftus Building and Construction and the total of the repair works was costed at $20,257.93.
By a letter dated 3 July 2018 the applicant sought to amend the orders sought to include a claim that the tenant had breached the Tenancy Agreement clauses15.5 and 16.2.
The additional material filed on behalf of the applicant on 21 December 2018 included letters from the Gunnedah Family Support dated respectively 30 November 2015 and 28 April 2016. The earlier letter noted that the respondent came to their service for support as she was homeless and had been residing between her mother's house and her ex-partner's house for over 12 months with the children moving between the respective residences. It would appear that the respondent had indicated that she was keen to work with the Family Support group and that she appeared to be motivated to get herself and her children into stable and secure housing.
The further letter dated 28 April 2016, written before the commencement of the tenancy, suggested that there were other associations working with her planning a case management program involving various services to assist the tenant to get her children back into school.
A letter from Winanga-Li Aboriginal Child and Family Centre dated 12 October 2018 refers to an inspection on 12 October 2018 to take photos of any new damage. The author of the letter was not sure whether the photographed items were new damage as they had been covered up with furniture.
The balance of the additional material comprised photographs taken in October 2018 before the Appeal Hearing.

[4]

Respondent's Submissions

The first document provided on behalf of the respondent included some 7 pages which represented the only material submitted to the Tribunal for the first hearing in August 2018. That material consisted of a letter dated 5 July 2018 from Ms Walters, aboriginal support specialist from Family and Community Services Aboriginal Housing office in which she noted that she would work closely with Community Services and any other support group deemed to be necessary to overcome her homelessness and to do all that was required to achieve this goal. She suggested that children would also be supported to achieve better outcomes in their life with an overall health and well- being check-up. That material was followed by a three page Family support Plan and a User Support Plan comprising some three pages from Winanga - Li Aboriginal Child and Family Support. That document noted a referral to the Salvation Army and North West Medical on 9 July 2018 again not long before the matter was first dealt with by the Tribunal.
In an affidavit of Louise Griffen sworn 7 September 2018 she noted that she was presently 37 years of age and on a disability support pension and family support payments from Centrelink.
In relation to her personal circumstances she stated that she had been on a learning disability pension since finishing high school and she had never worked. She claimed to have experienced domestic violence from her ex-partner and that she was now a single parent with seven children aged from five to sixteen. Six of her children lived with her and attended Gunnedah Public School and Gunnedah High School.
Ms Griffen also claimed that her 13 year old son Dallas was diagnosed with Autism and ADHD early in 2017 and he had recently started taking medication as a result of which his behaviour had improved.
She claimed that her 11 year old son Isaac had suffered problems at school relating to his behaviour and attendance. To assist with this he had commenced Equine Therapy at the Gunnedah Public School.
She claimed to have been engaged with the Winanga-Li Support Services for approximately two years and that she had been receiving assistance from Family and Community Services Gunnedah and Family Support and Services My Way for a period since the initial hearing specifically directed to (a) cleaning property, (b) fixing damage to the property (c) buying new furniture (d) caring for her children (e) engaging with any other services as needed.
A copy of a support letter from her FACS case worker was attached to her affidavit.
In relation to the damage to the property Ms Griffen conceded responsibility for it but observed that most of the damage was caused by her ex-partner and her children as a result of family violence. She noted that she was separated from her partner and he no longer lived in the property and he was also the subject of an AVO in favour of her and her mother.
Ms Griffen claimed that all six children usually resided with her but at the time of her affidavit three of the children were staying with other family members due to uncertainty around her housing and some conflict between her children. Her sister Ruthy and her daughter had moved out several weeks earlier, eliminating an overcrowding issue. She noted that a significant amount of work had already been done to improve the property. Iit had been cleaned and some repairs had been undertaken by FACS. She claimed to be receiving ongoing support to fix the property and to keep things clean and also improve the challenging behaviour of her children. A copy of her assessment and support plan was also attached to the affidavit.
She submitted that with these measures in place any risk of further damage had been drastically reduced and she noted that she was presently up to date with her rent. She understands that she is obliged to keep paying her rent while the present proceedings are being decided.
In addressing the effect of a potential eviction Ms Griffen stated that she would be homeless and although some of her children may be able to stay with family members she could not find somewhere for all of them as she did not know anyone she could stay with.
She stated that her mother is 60 years old and that she would be homeless if the family was evicted as she did not have anyone she could stay with.
Ms Griffen states that she had searched private rental accommodation in her area, details of which were attached in a document which was also annexed to her affidavit. She claimed that it would be difficult to afford any of the properties that are available. She noted that there were no properties available to rent for her subsidised rent or less in Gunnedah or the surrounding suburbs. She claimed it was essential that she be able to stay in Gunnedah as all the services for her children and for herself were linked with the Gunnedah area.
Ms Griffen finally submitted that being homeless would impact on her ability to continue engaging the support services. She claimed that she was worried that all the progress she had made would be affected and she may lose access to some or all of her children. As a result her sons Dallas and Isaac may no longer receive the extra support that they needed.
Much of the material deposed to in her affidavit is supported by a letter from Angela Ford, her case worker from Family and Community Services, who notes that Ms Griffen has agreed to work closely with services including Wananga - Li, Services Our Way,Sarah Ferguson - therapist and Gunnedah Family Support. Ms Ford pointed out that since the intervention of services Louise Griffen has managed to maintain a clean and tidy home environment which included maintaining established routines for her children who are living within the home. Ms Ford expressed the opinion that eviction and termination of Louise's tenancy would have a serious negative impact upon the family as there was little to no housing options available within the Gunnedah area and all of Louise's support and network were within the Gunnedah area.
A letter from Winanga - Li Aboriginal Child and Family service Centre dated 29 January 2019 notes that Winanga- Li would continue to offer support to the family although it had ceased for a period of time in August 2018. This support is to be provided in liaison with Christine Waters from Service Our Way.

[5]

Decision

Reference is made to the Appeal Panel decision in this matter (Griffen -v Gunida Gunya Aboriginal Corporation [2018] NSWCATAP 284). The Appeal Panel noted that the Tribunal at first instance was satisfied of the matters in s.90(1)(a) and further that there was serious damage to the premises. It was noted that it was, indeed, not contested by tenant. The evidence appeared to be overwhelming.
At the initial hearing the tenant did not give evidence nor did she provide any other direct evidence such as a statement of affidavit. The evidence provided to the Tribunal in the initial hearing was documentary and there was no evidence provided by any witness. The initial Tribunal Hearing was brief with the whole transcript contained in less than six pages.
Having reviewed the whole of the material directed to the grounds for termination the Tribunal is satisfied that the matters required under s.90(1)(a) have been made out. The reasons provided in the initial decision indicate that the tenant's evidence focused upon the social support network organisations and planning being mobilised to support the tenant. The Tribunal in first instance determined that the circumstances were sufficient to justify a termination of the tenancy agreement and it is observed that the finding was not challenged on the Appeal. I am satisfied that the evidence in relation to s.90(1) is sufficient to justify a consideration of termination of the agreement.
Section 90(1)(a) provides 90 Serious damage or injury by tenant or other occupant (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that if the tenant or any person who, although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted (a) serious damage to the residential premises or any neighbouring property (including any property available for use by the tenant in common with others) The element of serious damage is not in dispute but in terms of the discretion to make an order under s.90 as a result of the word "may" it is necessary to consider the intentional or reckless cause of the damage.
Nothing in the evidence provided establishes an intention to cause damage but it is clearly necessary to consider the element of recklessness. In Cure v Bridge Housing Ltd [2014] NSWCATAP 80 the Appeal Panel observed that the language of "intentionally or recklessly" brings to mind the element of "mens rea" in the field of criminal law. What constitutes grounds for termination under s. 90(1) may well constitute a criminal offence……also in that field a person is said to be reckless when that person acts with knowledge that a consequence is probable or in some cases possible as a result of his or her actions.
In the present case the affidavit of Louise Griffen asserts that she was diagnosed with a learning disability since finishing high school. Her sworn evidence claims that most of the damage was caused by her ex-partner and her children as a result of family violence. Whilst these factors are not exculpatory nonetheless they are something which one must take into account in the overall exercise of a discretion as to whether to make an order for termination. This must of course be balanced against the extent of the damage and the apparent failure to report it prior to June 2018.
The Tribunal member in the first instance found the breach was sufficient to justify termination in the circumstances of the case and he then proceeded to consider ss.154D and 154E of the Residential Tenancies Act 2010. He concluded, for the purposes of s.154D(3)(b), that hardship for a child may result from a termination order but he did not consider that hardship to be beyond what any child would suffer in such circumstances. He concluded, in this case, it did not constitute undue hardship. He then concluded further that there were no exceptional circumstances as provided for in s.154D(3)(c).
The Appeal Panel found that the member's reasons were inadequate in regard to the application of the statutory test whether the termination would be likely to result in undue hardship being suffered by a child. The evidentiary material filed on behalf of the tenant for the purposes of the present hearting contains much more detail than the limited seven pages which was before the Member at the initial hearing. The additional material was, of course, before the Appeal Panel when it dismissed the Member's orders and directed the matter be remitted to another member for further determination.
Section 154D of the Residential Tenancies Act, so far as is relevant, provides: (2) Subject to subsection (3) the Tribunal must make a Termination order on the application of the landlord if:- 1. An application for the order is made under s.90 and the Tribunal is satisfied that the matters set out in 90(1) and subsection (1) of this section does not apply. (3) However: 1. Subsection (1) does not apply if he application for the termination order is based on an act of a person who, although not a tenant, is occupying or jointly occupying the residential premises and not on any act of the tenant and; 2. Subsections (1) and (2) do not apply if the Tribunal is satisfied that a termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the same Social Housing premises and; 3. Subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made.
The affidavit evidence provided by the respondent satisfies the Tribunal that she and two of her children could fit within the definition of "a person who would be likely to suffer undue hardship if a termination order was made".
The Affidavit and a Statutory Declaration in relation to Centrelink income establishes that the respondent receives a Disability Support Pension as a result of her learning disability which was diagnosed in 1998. It has been submitted of the respondent that the Anti-Discrimination Act 1977 defines a disability in s.4 as:- (a) a total or partial loss of a person's bodily or mental functions or of a part of the person's body and (d) a disorder or malfunction of a person's learning that results in a person learning differently from a person without the disorder or malfunction; or (e) a disorder illness or disease that effects a person's thought processes, perception of reality, emotions or judgment that results in disturbed behaviour.
The respondent's disability was diagnosed by Dr Anwair as being sufficiently permanent to entitle her to receive the Disability Support Pension.
The Tribunal accepts that the respondent, on the evidence, has a type of disability that impedes her from developing skills like a normal person would. She requires sustained guidance to be able to acquire skills she needs to perform her role a mother effectively. As a recipient of the Disability Support Pension due to a learning disability she clearly has an undisputed disability within the meaning of the Anti-Discrimination Act 1977.
The respondent is a single parent with children who, on the evidence, are aged between 5 and 16 years. Two of her children suffer from some medical or mental disorder and the support letter from Family and Community Services identifies one of the children as having ADHD. The action plan developed in July 2018 is focused on the development of the children and Winanga-Li has undertaken cultural activities and equine therapy for the boys from April 2018, which was prior to the issue of the present application for termination.
The respondent tenant, in her affidavit expressed the fear that if she was evicted she would be homeless because she did not know anyone she could stay with and because a search of private rental accommodation suggested that there are no properties available to rent for her subsidised rent or less in the Gunnedah area.
She further expressed a concern that the children may be able to stay with family members but she could not find somewhere for all of them and they may therefore be split up. She also expressed her fear that if she or the children were removed from the Gunnedah area she would be removed from the services which have been provided to assist her and her children. She expressed a further fear that if she was homeless it would impact on her ability to continue to engage with support services and she may lose access to some or all of her children. She was concerned that her children Dallas and Isaac would no longer receive the extra support they needed.
The circumstances of the respondent and her children were such that service organisations and Family and Community Services had proposed an allocation of significant funds for activities to be undertaken between July and August 2018 in order to provide support for the respondent and her family. It was submitted that the respondent's case was addressed with a significant degree of importance because of the social and economic vulnerabilities apparent in her situation. The urgency and significant involvement by these social service providers within such a short space of time may well serve to indicate the significant hardship which those authorities anticipated might arise if a termination order was to be made.
The more recent communications from Family and Community Services and from Winanga-Li make it clear that ongoing support will be available to assist the respondent to move through the difficulties which have played a substantial part in the damage to the property and which has resulted in the request for a termination order.
In Orr-v NSW Land and Housing Corporation [2018] NSWSC 1909 Adamson J observed: that the likely hardship to a social housing tenant if a termination is made is a mandatory relevant consideration when the Tribunal is considering whether to terminate the social housing tenancy in circumstances where the person (including a tenant) is in occupation of the premises and falls within the descriptors in s.154D(3)(b) and the termination order would be likely to result in undue hardship. This conclusion follows from the wording of ss 154D and 154E. It can hardly be supposed that the hardship to a person within the description in s.154D(3)(b) (A child in whose favour an Apprehended Violence Order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act) is relevant only when it is not undue, in which case a termination order is mandated under s.154D(1). The potential hardship (which is, for the discretion to arise, by definition undue) to persons within this category must also be relevant to a discretion whether a termination order ought be made under s.91 ….. .. While the weight to be given to the hardship was a matter for the Tribunal it was bound to take it into account; Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] 16CLR 24.
It is clear from the correspondence provided that as the tenancy dispute concerning the landlords application for termination and vacant possession under s.90 of the Residential Tenancy Act continued, the various organisations had concerns. Their involvement moving forward and the fact that they made a significant investment of staff time and resources within a short space of time appears to recognise the vulnerabilities in the tenancy and the consequences which may occur if it was terminated.
The services engaged with Family and Community Services to develop an action plan recognised the needs of the children and their vulnerabilities if they became homeless. The available evidence suggests that these organisations are hopeful of continuing that support.
Winanga-Li have expressed their intention to continue working with the respondent and the Gunnedah Family Support has expressed the same intention.
The respondent tenant does not dispute the landlord's assertions of damage to the property. She has already undertaken steps to pay for the damages which arguably could only have been caused recklessly or otherwise. Since November 2018 the respondent has been making weekly payments of $70 in addition to her rent which are automatically deducted through Centapay. It is appropriate to note that she has recognised and is taking responsibility for these damages notwithstanding her disability and personal circumstances.
Having considered the material referred to in the respondent's affidavit and the other matters which have been outlined above the Tribunal is satisfied that purposes of s.154(2)(b) that the respondent and her children and also her mother, who has the benefit of Apprehended Violence Order, would all suffer undue hardship if the tenancy was terminated.
It is necessary to further consider the effect of s.154E of the Residential Tenancies Act. That section provides: 154E Exercise of discretion to vacate Termination order (1) In considering whether to make a Termination order for a Social Housing Tenancy Agreement the Tribunal must have regard to the following: (a) the effect the tenancy has on neighbouring residents or other persons (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated (c) the landlord's responsibility to its other tenants (d) the history of the current tenancy and any prior tenancy arising under a Social Housing Tenancy Agreement with the same or a different landlord. (e) whether the tenant wilfully or otherwise is or has been in breach of an order of the Tribunal.
It is noted that the landlord has not sought to adduce any evidence in relation to the operation of s.154E in this case. Although the property was described, in a short Statutory Declaration of Anthony Johnson deposed 7 June 2018, as unclean and uninhabitable with a smell in the air hard to put up with, there is no detailed evidence to establish a basis upon which those conclusions were drawn, other than through direct observation on the date of the inspection in June. The property was further described in a Statutory Declaration of Brenda Porter dated 7 June 2018 as having health hazards such as carpet stove and kitchen and bedrooms covered with piles of rubbish. There is nothing to suggest that the findings made at that inspection impact on neighbours. It is noted further that all of the evidence now provided suggests there has been a significant improvement as a result of the intervention of authorities anxious to assist the respondent and her family.
The Tribunal is satisfied that there is nothing in relation to findings on this s.154E which would balance out the significance of undue hardship which may be suffered by the respondent and her family if a termination order was made. In all the circumstances it is appropriate to exercise a discretion and refuse to make the Termination order sought but in lieu thereof it is proposed to make a Specific Performance Order in respect of the obligations under cl.15.4 of the Residential Tenancy Agreement with a relist period of six months.