Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DRZ v Barnardos Australia (No 2) [2020] NSWCATAP 105 Hearing dates: On the papers after 19 May 2020 Date of orders: 10 June 2020 Decision date: 10 June 2020 Jurisdiction: Appeal Panel Before: N Hennessy ADCJ, Deputy President P Durack SC, Senior Member Decision: (1) A hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). (2) In accordance with this decision, the Tribunal is to reconsider the case based on the evidence before it and the factual findings it has made, but without making the "Code of Conduct error." (3) If the Tribunal sets aside the decision to cancel DRZ's authorisation, it should go on to consider whether the decision to remove from DRZ the responsibility for the daily care and control of the child is the correct and preferable decision. That decision may be made with or without further evidence, as the Tribunal sees fit. Catchwords: APPEAL – decision to remove child and cancel authorisation as an authorised carer – where Appeal Panel upheld the appeal in part based on "Code of Conduct error" and directed parties to provide submissions on the further orders the Appeal Panel should make – whether Appeal Panel should determine the matter based on the evidence adduced before the Tribunal and those findings of the Tribunal not disturbed by the Code of Conduct error or whether the Appeal Panel should remit the matter to the Tribunal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Person (Care and Protection) Regulation 2012 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: DRZ (Appellant) Barnardos Australia (Respondent) Representation: Counsel: C Birch SC (Appellant) M Breeze (Appellant) G Mahoney (Respondent) Solicitors: Michael Vassili Barristers and Solicitors (Appellant) Care Legal (Respondent) File Number(s): AP 19/40838 Publication restriction: Under s 65 of the Civil and Administrative Tribunal Act 2013 – except with the consent of the Tribunal, the publication or broadcasting of the names of the appellant, the child to which the application relates, any person who appears as a witness or is mentioned or otherwise involved in the proceedings is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2019] NSWCATAD 157 Date of Decision: 6 August 2019 Before: S Higgins, Senior MemberProf J Goodman-Delahunty, General Member File Number(s): 2019/00019082 REASONS FOR DECISION Overview 1. DRZ has appealed from a decision of the Tribunal that her authorisation as an authorised carer be cancelled. Barnardos Australia removed a child from DRZ's care and cancelled her authorisation for reasons including that she had failed to tell Barnardos about a relationship she had with Mr AB. The Tribunal affirmed Barnardo's decision but on a narrower basis. The Tribunal found that DRZ's conduct in not reporting to Barnardos that she had learnt that Mr AB was a person of interest in a homicide investigation, breached the reporting provisions of the Code of Conduct for Authorised Carers. The Tribunal also found that DRZ's subsequent conduct in maintaining a relationship with Mr AB meant that she was no longer a suitable person to be an authorised carer. We will refer to this conduct as the "failure to report conduct" and the "maintaining the relationship conduct". 2. We found in our first decision that the Tribunal below had misconstrued the reporting requirement in the Code of Conduct (the Code of Conduct error): DRZ v Barnardos Australia [2020] NSWCATAP 47 at [29]. DRZ's "failure to report conduct" did not breach the Code of Conduct. We upheld the appeal, in part, and concluded that, to the extent that the Tribunal's orders were based on the Code of Conduct error, the orders could not stand. However, because there was more than one basis for the Tribunal's decision, we invited the parties to make submissions as to the appropriate orders we should make. 3. After receiving those submissions, we have decided to dispense with a hearing about the orders we should make: Civil and Administrative Tribunal Act 2013 (NSW), s 50. 4. Because the Tribunal's decision was based on a combination of two reasons, the reason found to be in error must be disregarded. The task now is to determine whether the "maintaining the relationship" conduct, on its own, justifies the decision to cancel DRZ's authorisation as an authorised carer. Either the Appeal Panel can determine that issue or we can ask the Tribunal below to reconsider it. For the reasons we give below, we have decided to ask the Tribunal to reconsider that part of the case. Barnardo's decision 1. On 17 January 2019, Barnardos Australia decided to: 1. cancel DRZ's authorisation as an authorised carer: Children and Young Person (Care and Protection) Regulation 2012 (NSW) (Care Regulation), cl 42; and 2. remove from DRZ the responsibility for the daily care and control of the child. 1. We will refer to these decisions as the "cancellation decision" and the "removal decision." The Tribunal has power to review both those decisions: Children and Young Persons (Care and Protection) Act 1998, s 245(1)(a1) and (c). 2. The grounds on which Barnardos made those decisions were DRZ's: 1. failure to disclose her 'significant ongoing intimate relationship' with a man, Mr AB, who she had known since 2011 and who, in late 2018, was a 'person of interest' in a police homicide investigation; and 2. failure to disclose a significant incident, namely that she had been victim of an alleged assault perpetrated by Mr AB in early September 2017; and 3. failure to disclose the level of contact that the child had with Mr AB, while in the applicant's care; and 4. failure to show insight into the potential risk to the child by continuing to associate with Mr AB who, in October 2018, was a person of interest in a police homicide investigation. Grounds for cancelling a person's authorisation and removing a child 1. An agency, such as Barnardos, may cancel a person's authorisation as an authorised carer on several grounds. The grounds the Tribunal relied on were that DRZ had failed to comply with a condition of authorisation and that she was no longer a suitable person to be an authorised carer. It is a condition of authorisation that authorised carers must comply with the Code of Conduct: the Care Regulation, cl 34(4). 2. Cl 42(a) and (b) of the Care Regulation are the relevant provisions: 42. Cancellation or suspension of authorisations by designated agencies A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer: (a) is no longer a suitable person to be an authorised carer, or (b) has failed to comply with any condition of the authorisation, or . . . 1. The grounds for Banardos other decision – to remove from DRZ the responsibility for the daily care and control of the child – are not listed in the legislation. When determining that issue, a decision maker must keep in mind the objects in s 8 of the Care Act and the principle in s 9 that "the safety, welfare and well-being of the child or young person are paramount". That includes an assessment of whether there is an "unacceptable risk" of harm to the child: M v M [1988] HCA 68 at [25]. Tribunal's decision 1. In the first Appeal Panel decision we summarised the Tribunal's findings and reasoning at [8] – [9]: 8 . . . The Tribunal affirmed Barnardos' decisions but not for all the reason it had relied on. 9. The Tribunal accepted DRZ's evidence that she did not consider that her relationship with Mr AB was a significant relationship. The Tribunal did not make any adverse findings about DRZ's failure to disclose the relationship before October 2018. However, the Tribunal found that her conduct in: (1) failing to immediately report to Barnardos in October 2018 that she had learnt that Mr AB was a person of interest in a homicide investigation; and (2) her subsequent conduct from November 2018 to December 2018 in maintaining a relationship with Mr AB was of such seriousness that it warranted cancellation of her authorisation. Tribunal's reasoning 1. At [11] of the first Appeal Panel decision, we set out our understanding of the Tribunal's reasoning: As we see it, in essence, the Tribunal arrived at its decision because: (1) the "failure to report conduct" was a serious breach of the Code of Conduct for Authorised Carers (Code of Conduct) and consequently a failure to comply with a condition of the authorisation; [16], [168], [172] (2) the "maintaining the relationship conduct" demonstrated a serious lack of insight and understanding of her role as an authorised carer to protect the child from any possible risk of harm and this in combination with the serious breach of the Code meant that she was no longer a suitable person to be an authorised carer, having regard to the principle in s 9 (1) of the Care Act that "the safety, welfare and wellbeing of the child are paramount", and despite the many factors in her favour ; [173] and [17]. (3) Plainly, once it was found that DRZ was no longer suitable to be an authorised care, it also followed that the correct and preferable decision was that the child should be removed from her care. (Emphasis added.) 1. Barnardos understood the Tribunal to have concluded that the "failure to report conduct" was a failing that independently and separately warranted the cancellation of the authorisation as distinct from it being a breach of the Code of Conduct. In other words, the Tribunal considered the "failure to report conduct" as a second basis for concluding that DRZ is not a suitable person to be an authorised carer. It follows, according to Barnardos, that even without the Code of Conduct error, the Tribunal would have come to the same conclusion. Consequently, the appropriate order is to dismiss the appeal. 2. DRZ characterised the Tribunal's reasoning differently. They submitted that, as the Tribunal's decision rested on a combination of two key findings, one of which has now been found to have been erroneous, it must follow that the decision of the Tribunal cannot stand. On any fair reading of the decision, once one of the matters relied on by the Tribunal is removed as a basis to support the decision, the decision must be set aside. DRZ submitted that the appropriate orders are to: 1. set aside the Tribunal's cancellation decision and substitute a decision that DRZ is authorised as an authorised carer; and 2. set aside the Tribunal's removal decision and substitute a decision that the child be restored to DRZ. 1. Neither the Appeal Panel, nor the Tribunal, has considered whether the removal decision is the correct and preferable decision if the cancellation decision is set aside. 2. As we said at [11](2) of our first decision, the Tribunal's reasoning was that the "maintaining the relationship conduct" in combination with the conduct giving rise to a serious breach of the Code, meant that DRZ was no longer a suitable person to be an authorised carer. The "failure to report conduct" was not, in the Tribunal's view, a failing that independently and separately warranted the cancellation of DRZ's authorisation. Without the Code of Conduct error, the remaining basis for the Tribunal's decisions is that DRZ engaged in the "maintaining the relationship conduct." Would the Tribunal have concluded that that conduct alone meant that DRZ was no longer a suitable person to be an authorised carer? We cannot predict, with any certainty, what conclusion the Tribunal would have reached. As DRZ submitted, it is "an evaluative judgment as to whether the evidence of, and facts found regarding the "maintaining the relationship conduct" means that the correct and preferable decision is to affirm Bernardo's decisions. In those circumstances the options are for the Appeal Panel to determine that issue ourselves or ask the Tribunal below to reconsider it. Re-determine or remit? Appeal Panel's powers and parties' submissions 1. The Appeal Panel's powers are listed in ss 80(3) and s 81 of the Civil and Administrative Tribunal Act 2013 (NSW). (3) The Appeal Panel may-- (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 81 DETERMINATION OF INTERNAL APPEALS (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following-- (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. Relying on s 81(2), DRZ submitted that the Appeal Panel should determine the matter based on the evidence adduced before the Tribunal and those findings of the Tribunal not disturbed by the Code of Conduct error. According to DRZ, that determination would not involve the determination of any contested issues of primary fact. Rather, it would be an evaluative judgment as to whether the evidence of, and facts as found, regarding the "maintaining the relationship" conduct, warrants cancellation of DRZ's authorisation as a carer. DRZ then made submissions that DRZ is a suitable person to be an authorised carer under cl 42(a) of the Regulation, that her authorisation should be reinstated, and the child should be returned to her care. 2. Barnardos submitted that we should remit the decision about cancelling DRZ's authorisation as an authorised carer to the Tribunal, including with further and fresh evidence. In relation to the decision to remove responsibility for the daily care and control of the child from DRZ, Barnados submitted that we should dismiss the appeal. 3. We acknowledge DRZ's submissions about the further costs and delays that will result if we remit the matter to the Tribunal. Those considerations are relevant and we have taken them into account. The Tribunal's guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings." While remittal may not be the quickest or cheapest option, in this case justice requires that the body who heard the evidence and assessed DRZ's credibility, make the final decision. In theory, we could read the evidence and the transcript and adopt the Tribunal's findings on those issues. However, in a case like this where DRZ's motivations and candour were so crucial to an assessment of her suitability, it would be fairer for the Tribunal to re-determine the correctness of the cancellation decision: NCAT Act, s 81(1)(e). That decision should be based on the evidence that was before the Tribunal at first instance and the findings that have not been disturbed by the Appeal Panel's 17 March 2020 decision. No further evidence should be adduced. 4. If the Tribunal sets aside Barnardo's decision to cancel DRZ's authorisation, the Tribunal should go on to consider whether the decision to remove from DRZ the responsibility for the daily care and control of the child is the correct and preferable decision. The Tribunal should decide whether to admit further evidence in relation to that issue. Orders 1. A hearing is dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. In accordance with this decision, the Tribunal is to reconsider the case based on the evidence before it and the factual findings it has made, but without making the "Code of Conduct error." 3. If the Tribunal sets aside the decision to cancel DRZ's authorisation, it should go on to consider whether the decision to remove from DRZ the responsibility for the daily care and control of the child is the correct and preferable decision. That decision may be made with or without further evidence, as the Tribunal sees fit. ********** 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: 10 June 2020