Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DWX v Department of Communities and Justice [2020] NSWCATAP 144 Hearing dates: 14 February 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President S Higgins, Senior Member Decision: (1) The time for lodging the appeal is extended to 22 November 2019. (2) The applications for a stay of each of the Tribunal's decisions are refused. (3) Leave is refused for the appellants to appeal from the interlocutory decisions to summarily dismiss their applications for administrative review. (4) The appeal is dismissed. Catchwords: APPEAL – child protection – where Tribunal dismissed application for review of decision to remove child and cancel authorisation – whether Tribunal made an error of law and whether leave should be given to appeal on grounds other than a question of law Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Cases Cited: Jackamarra v Krakouer (1998) 195 CLR 516 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Nanschild v Pratt [2011] NSWCA 85 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: DWX (Appellant) DWW (Appellant) Department of Communities and Justice (Respondent) Representation: Solicitors: Appellants (Self Represented) V Nguyen (Respondent) File Number(s): AP 19/53515 Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: N/A Date of Decision: 20 June 2019 and 10 October 2019 Before: Dr J Lucy, Senior Member M Anderson, Senior Member File Number(s): 2019/00187310; 2019/00307889 REASON FOR DECISION Overview 1. The appellants, DWX and DWW, have appealed from two Tribunal decisions. Both decisions dismissed their applications for a review of decisions made by the respondent, the Department of Communities and Justice. The main issue on appeal is whether the Tribunal was correct to dismiss the appellants' applications because it did not have jurisdiction to hear those applications. The Tribunal has jurisdiction to review a decision to cancel a person's authorisation as an authorised carer, but not a decision to cancel an authorisation granted on a provisional basis: Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), s 245(1)(a1). 2. DWX is the grandfather of a child who was about 18 months old at the time of the hearing of this appeal. DWW is his partner. On 10 July 2018, about a month after the child was born, the Secretary of the Department, on behalf of the Minister, assumed the care and responsibility of the child: Care Act, s 44. The child, who we will call Child 1, was subsequently placed into the day-to-day care of the appellants. The appellants had also cared for the child's older brother (Child 2) from 10 July 2018 but decided in March 2019 that they could not continue to care for him. 3. On 2 May 2019, the respondent removed Child 1 from the appellants' care. We will refer to the decision as "the removal decision". The appellants describe the decision to remove Child 1 as unlawful. They disagree with the respondent's reasons for removal. 4. A week later, on 9 May 2019, the respondent wrote to the appellants. The letter stated that it was being written 'in response to your application dated 15/07/2018 for authorisation as a family kinship carer for Child 1 and Child 2 and also in relation to the change in Child 1's placement upon which your provisional authorisation was cancelled.' The letter went on to say that the respondent had decided to refuse the appellants' application for authorisation as authorised carers: Children and Young Person (Care and Protection) Regulation 2012 (Care Regulation), cl 30(7)(b). The letter also purported to cancel the appellants' application to be authorised carers. We will refer to this decision as "the refusal and cancellation decision." 5. The ground on which the respondent cancelled the appellants' provisional authorisation was that it was not satisfied that the appellants had met all the criteria prescribed in Schedule 2 of the Care Regulation. Clause 31(4) provides that an agency may obtain or conduct a suitability assessment of the person and any adult residing on the same property as the person in accordance with that clause and the 'Uniform suitability assessment requirements' in Schedule 2. 6. The appellants say that this decision was made three days after they complained to the respondent about their case worker. The effect of the respondent's decision to refuse the appellants' application for authorisation was that the provisional authorisation ceased to have effect: Care Regulation, cl 31(15). 7. The appellants applied to the Tribunal for a review of the removal decision and the refusal and cancellation decision. The Tribunal has power to review a decision to remove from an authorised carer the responsibility for the daily care and control of a child: Care Act, s 245(1)(a1). The Tribunal has power to review a decision to cancel a person's authorisation as an authorised carer but does not have power to review a decision to cancel an authorisation granted on a provisional basis. Before the respondent made this decision, its understanding was that the appellants had provisional authorisation to care for Child 1: Care Regulation, cl 31(1). The appellants also applied for a 'stay' of those decisions. In two separate decisions, the Tribunal dismissed those applications. The appellants have appealed to the Appeal Panel from both decisions. Tribunal's jurisdiction to review decisions 1. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (Community Services Act) sets out the categories of decisions about which a person may apply to the Tribunal for an administrative review. One of those categories is a decision that is an administratively reviewable decision under s 245 of the Care Act. Sections 245(1)(a1) and (c) of the Care Act are relevant to this appeal: (1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993—A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions— (a1) a decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137(2)(e), . . . (c) 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, 1. There is no dispute that the respondent, as a designated agency under s 139 of the Care Act, is a 'relevant decision maker': Care Act, s 245(2). Tribunal's first decision 1. On 20 June 2019, the Tribunal dismissed the application for review of the refusal and cancellation decision. The first reason the Tribunal gave for dismissing the application was that it did not have jurisdiction to review the refusal and cancellation decision because the appellants were only provisionally authorised. The second reason was that, even if the Tribunal had jurisdiction, the proceedings were frivolous, vexatious or otherwise misconceived or lacking in substance: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(1)(b). The basis for that decision was that, a few days before the Tribunal hearing, the appellants had been joined to proceedings about Child 1 in the Children's Court. In those proceedings, the appellants are seeking parental responsibility for Child 1. 2. The Tribunal did not consider whether it had power to review the removal decision. Tribunal's second decision 1. The appellants did not appeal to the Appeal Panel from the Tribunal's first decision. Instead, they lodged a second application for a review of the removal and the refusal and cancellation decisions. That application was heard by a different Tribunal Member on 10 October 2019. The appellants provided new evidence which they said supported their case that they were fully authorised carers, not carers with provisional authorisation. The Tribunal looked at that document but ultimately decided to dismiss the application on the basis that it was frivolous, vexatious or otherwise misconceived or lacking in substance. The reason for the dismissal was that the Tribunal had already considered and determined an application for review of the removal decision and dismissed that application. The legislative scheme 1. Chapter 8 of the Care Act makes provision for out-of-home care of children who are unable to remain in the care of their parents. Section 135(1) defines what is meant by out-of-home care as follows: 135 Definition and types of "out-of-home care" (1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided— (a) by a person other than a parent of the child or young person, and (b) at a place other than the usual home of the child or young person, whether or not for fee, gain or reward 1. Chapter 8 makes provision for three types of out-of-home care: Care Act, s 135(2). In this case, the relevant out-of-home care is statutory out-of-home care, which is defined in s 135A of the Care Act to mean (italics added): 135A Statutory out-of-home care (1) Statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days— (a) pursuant to a care order of the Children's Court, or (b) by virtue of the child or young person being a protected person. (2) Any statutory out-of-home care provided in respect of a child or young person is taken to commence— (a) immediately on the making of a care order for a period of more than 14 days in respect of the child or young person, or (b) in any other case—immediately the child or young person is placed with an authorised carer. … 1. Section 136(1) of the Care Act provides that statutory out-of-home care may be provided only by an authorised carer. Section 136(2) makes it an offence for a person, other than an authorised carer, to provide out-of-home care. 2. Section 137 of the Care Act defines what is meant by the term 'authorised carer'. That section relevantly provides: 137 Authorised carers (1) In this Act, authorised carer means— (a) the principal officer of a designated agency, or (b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or (c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer, or … (1A) … (2) The regulations may make provision for or with respect to the following— (a) the making and determination of applications for authorisation, (b) the authorisation of persons, by designated agencies or otherwise, as authorised carers, (b1) the authorisation of persons, by designated agencies, as authorised carers on a provisional basis, (c) … (d) the period for which an authorisation remains in force, (e) the cancellation or suspension of an authorisation, including prescribing events, the occurrence of which, raise a presumption that an authorisation is to be cancelled. … 1. Division 2 of Part 6 of the Care Regulation make provision for the authorisation of carers by designated agencies. Clause 30(1) in this Division provides that a natural person may apply to a designated agency to be authorised as a carer. Clause 30(4) provides that a designated agency is not to authorise an individual to be an authorised carer unless it has determined that the individual 'is capable and suitable to be an authorised carer'. Clause 30(5) sets out the matters a designated agency is to take into account in assessing whether an applicant 'is capable and suitable to be an authorised carer', which include: 1. the person (and any adult who resides on the same property as the person) having complied with the requirements of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) for engaging in child-related work as an authorised carer: Care Regulation, cl 30(5)(b); and 2. the agency having obtained or conducted a suitability assessment of the person and any adult residing on the same property as the person in accordance with that clause and the 'Uniform suitability assessment requirements' in Schedule 2: Care Regulation, cl 30(5)(c). 1. Clause 31(1), of Division 2 of Part 6 allows a designated agency to provisionally authorise a relative or kin of a child to be an authorised carer in cases of an emergency. Clause 31(2) provides that a designated agency must not authorise a person under that clause unless it has determined that the person 'is capable and suitable to be authorised on a provisional basis'. Clause 31(4) provides that an agency may obtain or conduct a suitability assessment of the person and any adult residing on the same property as the person in accordance with that clause and the 'Uniform suitability assessment requirements' in Schedule 2. 2. Clause 31(7) provides that, when authorising a person as an authorised carer on a provisional basis, the designated agency is required to make all reasonable efforts to inform that person (and any other adult who resides on the same property as the person) of the relevant requirements of the WWC Act. A condition of a provisional authorisation is that the authorised carer take all reasonable steps to become authorised as an authorised carer under cl 30 of the Care Regulation. 3. The role of an authorised carer is prescribed as being child-related work under s 6(3)(c) of the WWC Act. Section 8(1) of that Act prohibits a person from engaging in child-related work unless that person is the holder of a current working with children check clearance, or there is a current application by the person to the Children's Guardian for a clearance. Hence, a pre-requisite to being authorised (including being provisionally authorised) as a carer, is being issued with a working with children check clearance, by the Children's Guardian, under the WWC Act. The appeal 1. The appellants have appealed from both the Tribunal's first and second decisions. The appeals were not lodged within 28 days of being notified of the decision but, for the reasons we give below, we have extended the time to appeal. 2. Both the first and second Tribunal summarily dismissed the appellants' application. Summary dismissal decisions are interlocutory decisions and the appellants must obtain the Appeal Panel's permission or 'leave' before appealing from such decisions: NCAT Act, s 4 and s 80(2)(a). 3. As well as appealing from the Tribunal's decisions, the appellants applied for a 'stay' of those decisions. Lodging an appeal does not stop the decision from operating unless the Tribunal makes an order stopping it from being enforced. This type of order is called a 'stay': NCAT Act, s 43(3). The appellants asked for a 'stay' so that Child 1 could be returned to their care until the appeal was finalised. 4. The respondent sought to tender an affidavit of Nicholle Andreuzza dated 19 December 2019. To the extent that this affidavit contained new evidence which had not been before either the first or second Tribunal, we have not taken that evidence into account on appeal. 5. There are four main issues on appeal: 1. should we accept the appeals even though they were lodged out of time; 2. should we stay either of the Tribunal's decisions; 3. should we give the appellants permission to appeal from the decision to summarily dismiss the application to review the refusal and cancellation decision; 4. should we give the appellants permission to appeal from the decision to summarily dismiss the removal decision. Should we accept the appeal even though it was lodged out of time? 1. An appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is later: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c). The Appeal Panel may extend the time for lodging an appeal: NCAT Act, s 41. 2. The appellants were notified of the Tribunal's first decision on 20 June 2019 and of the second decision on 10 October 2019. The appellants first attempted to file an appeal on 18 November 2019. At that time, the appellants lodged two separate appeals. Following a telephone call from the Registry advising them that only one Notice of Appeal was necessary, the appellants lodged a new Notice of Appeal on 22 November 2019. 3. The appeal from the Tribunal's first decision was lodged 16 weeks late. The appeal from the Tribunal's second decision was lodged 2 weeks late. The respondent indicated that it was not pressing the Appeal Panel to reject the appeal because it was filed out of time. 4. When deciding whether to extend time we must keep in mind that the Tribunal has made a decision in the respondent's favour. We should refuse to extend the time unless that would result in an injustice to the appellants and the appeal has some prospects of success: Jackamarra v Krakouer (1998) 195 CLR 516 at [4] and [7], Gallo v Dawson [1990] HCA 30; 93 ALR 479 at [2]; Nanschild v Pratt [2011] NSWCA 85 at [38] and [39]; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The considerations that the Tribunal must take into account include the length of the delay, the reason for the delay, the merits of the appeal and the extent of prejudice, if any, that the respondent would suffer if an extension is granted: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 5. The length of the delay is relatively short in relation to the Tribunal's second decision. That decision was that the application should be dismissed because the Tribunal had already considered and determined an application for review of the decision to remove Child 1 from the appellants' care. Although the prospects of success on appeal are low, the two decisions are directly related and should be considered together. We have decided to extend the time for the appeal to be lodged to 22 November 2019. Should we stay either of the Tribunal's decisions? 1. On 13 December 2019, nearly three weeks after filing the Notice of Appeal, the appellants filed an application to stay the original decision pending appeal. On 23 December 2019, the Appeal Panel adjourned consideration of that application 'on condition that the Respondent (the Department) does not change the current separate arrangements for the care of (Child 1) and (Child 2) pending the appeal.' 2. The Appeal Panel has power to make an order staying or otherwise affecting the operation of a decision 'as it considers appropriate to secure the effectiveness of the determination . . .': NCAT Act, s 43(3). Staying a decision means preventing it from operating or coming into effect. Child 1 is currently living with a maternal great aunt. The respondent is planning to move Child 2 to the same placement and then to transition both children back to living with their mother. The respondent told the Appeal Panel at the hearing that the plan was to place the child's brother with him permanently on Monday, 17 February 2020. 3. The appellants maintain that Child 1 should not live with his older brother, Child 2 because he 'tried to kill' Child 1 when they were living together with them. At the hearing of their appeal, we explained that the Tribunal (including the Appeal Panel) does not have power to change a permanency plan that has been embodied in or approved by an order of the Children's Court: Care Act s 245(1B). Nor does the Tribunal have power to prevent the respondent from deciding to place the siblings together. 4. In both the Tribunal decisions under appeal, the Tribunal dismissed the application. If those decisions were stayed, that would mean that the applications are still on foot but it would not mean that a decision could or would be made for Child 1 to be returned to their care. For that reason, the applications to stay each of the Tribunal's decision is refused. Should we give the appellants permission to appeal from the decision to summarily dismiss the application to review the refusal and cancellation decision? 1. The respondent refused the appellants' application for authorisation as authorised carers and cancelled the provisional authorisation. A decision to refuse an application for authorisation under cl 30(7)(b) of the Care Regulation is not a decision that is prescribed under s 245 of the Care Act, as being an administratively reviewable decision. Hence, the Tribunal has no jurisdiction to review such a decision: NCAT Act, s 30 and Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9. As we have already noted, the decision to cancel the appellants' provisional authorisation is not an administratively reviewable decision: Care Act, s 245(1)(a1). 2. The ground of appeal in relation to the refusal and cancellation decision was that the first Tribunal was wrong to conclude that it did not have jurisdiction to review that decision. The first Tribunal should have found that they were fully authorised and that, as a result, the Tribunal had power to review the respondent's refusal and cancellation decision. They were fully authorised either because they automatically became fully authorised carers three months after they began caring for Child 1, or because they were, in fact, fully authorised. 3. The submission that the appellants automatically became fully authorised carers three months after they began caring for Child 1, relies on cl 31(12) of the Care Regulation: The Children's Guardian, when it becomes aware that a provisional authorisation has continued for more than 3 months, must monitor the designated agency's progress in determining the application that is made (or taken to have been made) under clause 30. 1. This provision requires the Children's Guardian to monitor the respondent's progress in determining an application to be authorised as an authorised carer. It does not deem the appellants to be authorised carers after three months. The first Tribunal did not misunderstand or misconstrue cl 31(12) of the Care Regulation and we refuse to give the appellants permission to appeal on this ground. 2. Secondly, the appellants submitted that they were fully authorised carers. The respondent authorised the appellants jointly as kinship carers for Child 1 in July 2018. That happened soon after the Minister was given parental responsibility for Child 1. The placement was an emergency response and the respondent maintain that the authorisation was on a provisional basis under cl 31(1) of the Care Regulation: 31 Provisional authorisation (1) A designated agency may, in an emergency, authorise a natural person who is a relative or kin of a child or young person or who is known to the child or young person as an authorised carer for the child or young person on a provisional basis (a provisional authorisation). 1. The provisional authorisation took effect on 10 July 2018 when Child 1 was placed in the appellants' care. Because it was an emergency, cl 31(7) of the Care Regulation only required the respondent to inform the appellants of their obligations under the provisions of the WWC Act, which it did. Each appellant duly applied to the Children's Guardian, under s 13 of the WWC Act, for a working with children check clearance. Having made that application, the appellants were permitted to engage in their role as authorised carers of Child 1. However, the nature of their authorisation at that time was provisional only. 2. On 15 July 2018, the appellants submitted a joint application to be fully authorised as kinship carers for both Child 1 and Child 2: Care Regulation, cl 30. Clause 30(7) of the Care Regulation provides that a designated agency is to determine an application under that clause by approving the application and authorising the applicant as an authorised carer or refusing the application. 3. We understand from the material filed in the Tribunal, that the Children's Guardian subsequently granted DWW a working with children check clearance. However, DWX's application had not been assessed. We note that on 28 February 2019, a caseworker employed by the respondent, assisted DWX to contact the Office of the Children's Guardian about the progress of his risk assessment. He was advised that there was a backlog and the matter had not yet been allocated to an assessor. 4. The appellants attempted to put forward new evidence to the Appeal Panel that they were, or should have been, regarded as authorised carers, not carers on a provisional basis. The document is headed 'OOHC Carer Authorisation application #APPC0025753' and relates to DWW. On page 3 there is reference to a household application. The appellants said that they obtained the document from the Office of the Children's Guardian under cl 86N of the Care Regulation. 5. We accept that this document is part of the NSW Carers Register maintained by the Office of the Children's Guardian. Under cl 86B(2) of the Care Regulation, the Children's Guardian is to enter the following information about a person into the Register: (a) a person who has made an application for authorisation under clause 30 (including a person who is provisionally authorised under clause 31 and who is taken to have made such an application), (b) a person who is authorised as an authorised carer under clause 30, (c) a person who resides for more than 21 days on the same property as another person at any time while that other person is a person referred to in paragraph (a) or (b). 1. However, the new document does not prove that either of the appellants are, or had been, fully authorised as carers under cl 30 of the Care Regulation. For that reason, we refuse to give permission for the appellants to appeal from the first Tribunal's decision to summarily dismiss their application for administrative review. Should we give the appellants permission to appeal from the decision to summarily dismiss the removal decision? 1. Child 1 was removed from the day-to-day care of the appellants on 2 May 2019, which was one week before their provisional authorisation was cancelled and their application for authorisation under cl 30 of the Care Regulation was refused. The respondent's reasons for removing Child 1 from the appellants' care were the same as those given for the cancellation of the appellants' provisional authorisation and the refusal of their application for authorisation. The Tribunal has power to review a decision to remove from 'an authorised carer the responsibility for the daily care and control of a child': Care Act, s 245(1)(c). 2. The reason the second Tribunal gave for dismissing the application was that the first Tribunal had 'already considered and determined an application for review of the decision to remove the child from the applicants' care by dismissing the application.' In fact, the first Tribunal had not considered whether it had jurisdiction to review the removal decision. The first Tribunal had only addressed the refusal and cancellation decision. 3. When the Member in the second Tribunal proceedings questioned the respondent about the removal decision, the respondent's legal representative submitted that the decision to remove Child 1 was not a separate decision. Rather, it came into effect on the cancellation of the provisional authorisation. The representative added that, "the key for this matter is that it has been decided by the Tribunal that the matter was dismissed under s 55 of the NCAT Act . . . (Transcript of Thursday 10 October 2019, p 26). 4. In our view, based on the parties' submissions, the second Tribunal incorrectly assumed that the first Tribunal had summarily dismissed the application to review the removal decision. 5. As we have noted above, s 136(1) of the Care Act provides that statutory out-of-home care may only be provided by an authorised carer. Hence, on the cancellation of their provisional authorisation and the refusal of their application for authorisation under cl 30 of the Care Regulation, the appellants were not permitted to have Child 1 returned to their day-to-day care. Both Tribunals had jurisdiction to review the removal decision. However, because the appellants were no longer authorised as carers under cl 30 or 31 of the Care Regulation, a review of that decision would be futile because Child 1 could not be returned to their care. Accordingly, we refuse to give permission for the appellants to appeal from the second Tribunal's decision relating to the removal decision. Orders 1. The time for lodging the appeal is extended to 22 November 2019. 2. The applications for a stay of each of the Tribunal's decisions are refused. 3. Leave is refused for the appellants to appeal from the interlocutory decisions to summarily dismiss their applications for administrative review. 4. The appeal is dismissed. ********** 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: 17 July 2020