W & B -v- Minister for Community Services [1999] NSWADT 90

CITATION: W & B -v- Minister for Community Services [1999] NSWADT 90

DIVISION: Community Services

APPLICANT: W & B

RESPONDENT: Minister for Community Services

FILE NUMBER: 994016

HEARING DATES: 09/14/1999

SUBMISSIONS CLOSED: 09/14/1999

DATE OF DECISION: 27 September 1999

B Gelin - Judicial Member BEFORE: D Brennan - Member J Mason - Member

PRIMARY LEGISLATION: Chidren (Care & Protection) Act 1987

APPLICATION: Review of decision to terminate the custody of a ward -

MATTER FOR DECISION: Stay of primary decision

Applicant: In person REPRESENTATION: Respondent: W Trugen, Department of Community Services

Orders made on 14 September 1999 ORDERS: 1. Application for stay dismissed. 2. The process of movinf F from the Applicants' care to a new foster home must be gradual and with maximum possible involvement of the parties concerned. 3. The review of the primary decision is to be proceeded with as a matter of high priority, and the Tribunal is to arrange as soon as possible for an independent psychological assessment of the child.

The primary decision appealed against 1 F, born 1998, is a state ward until age 18, currently in the care of the Applicants as a short term placement. On 10.09.99, the Minister, by her delegate the Manager of the Department of Community Services Bega/Batemans Bay approved a recommendation from Barnardos Find-a-Family, Sydney, to move F from the current placement to a longterm placement, thus making the decision ("the primary decision") which is the subject of the primary Application before the Tribunal. The Tribunal has jurisdiction to hear such Application: Section 112 (1)(f) of the children (Care & Protection) Act 1987. The stay application 2 The Applicants concurrently apply for an urgent stay of the primary decision, under Section 60(2) of the Administrative Decisions Tribunals Act 1997. Their arguments for such application are that the removal of F from their care would be psychologically detrimental to her, and that the assessment by Barnardos Sydney of their long term suitability as foster parents is biased, unreasonable and inaccurate. 3 The Tribunal moved expeditiously to hear this stay application. Although the relative merits of the primary decision are clearly relevant to any decision to grant or refuse the stay order sought by the Applicants, it was not possible to call for or assemble and examine all the evidence pertaining or relevant to that primary decision. By its very nature, an urgent application for a stay requires a decision – to grant or refuse such stay – in the absence of, and pending, all of the evidence required to properly review the primary decision. Evidence before the Tribunal 4 The Tribunal read and considered all the written evidence before it: