FMP v Secretary, Department of Communities and Justice [2023] NSWCATAD 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FMP v Secretary, Department of Communities and Justice [2023] NSWCATAD 128 Hearing dates: 8 and 9 December 2022 13 January 2023 and 27 February 2023 Date of orders: 31 May 2023 Decision date: 31 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member L Houlahan, Senior Member Decision: (1) The decision of the respondent, made on 16 August 2022, to cancel the authorisation of the applicants is set aside and for abundant caution, a decision is made that the applicants' authorisation is immediately restored. (2) The decision of the respondent, made on 16 August 2022, to remove Child A from the day-to-day care of the applicants is set aside and in substitution thereof a decision is made that Child A is returned to the day-to-day care of the applicants by 14 June 2023. Catchwords: ADMINISTRATIVE LAW – Child Protection – Authorised carers – review of decision of the respondent to (a) remove a foster child from the applicants' day-to-day care and (b) cancel the applicants' authorisation as out-of-home carers – allegation of sexual abuse made against the male authorised carer – the requisite degree of satisfaction required to find that the alleged abuse did occur – in the absence of a finding that the alleged abuse did in fact occur, whether on the material before the Tribunal the male authorised carer nevertheless posed an unacceptable risk to the safety of the foster child in the care of the applicants Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Cases Cited: BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336 Department of Communities and Justice (DCJ) and Janet and Xing-fu [2022] NSWChC 7 Health Care Complaints Commission v Dizon [2023] NSWCATOD 49 Isles & Nelissen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69 Category: Principal judgment Parties: FMP and FMQ (Applicants) Secretary, Department of Communities and Justice (Respondent) Representation: Counsel: B Dean (Respondent)