ABL & ABK v Department of Family and Community Services [2012] NSWADT 130

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ABL & ABK v Department of Family and Community Services [2012] NSWADT 130 Decision date: 04 July 2012 Jurisdiction: Community Services Division Before: S. Higgins, Deputy President Decision: 1.The applicants' application has been lodged out side the time prescribed in paragraph 55(1)(d) of the Administrative Decisions Tribunal Act 1997. 2. The applicants' application to extend time within which to lodge their application is refused. Catchwords: Review of decision to remove children from care of authorised carers - jurisdiction - whether application filed out of time - whether time should be extended Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 Category: Principal judgment Parties: ABL & ABK (Applicants) Department of Human Services, Community Services (Respondent) Representation: ABL & ABK (Applicants in person) R Harvey (Respondent) File Number(s): 124008 Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997

REasons for decision

Introduction

1GENERAL DIVISION: Due to the sensitivity of the proceedings, in these reasons for decision the applicants are referred to by the pseudonym ABL & ABK (see also section 126 of the Administrative Decisions Tribunal Act 1997 (the ADT Act)). The children, the subject of these proceedings and the other children in the care of the applicants are also not named or identified. 2ABL & ABK are authorised carers under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The children (the younger children), the subject of this application, are under the parental responsibility of the Minister by reason of an order of the Children's Court. The respondent placed both children into the day-to-day care of the applicants in January and May 2010, respectively. The applicants already had and continue to have another two older foster children in their day-to-day care (the older children). The older children are siblings as are the younger children, however they are not related to each other. The older children were placed into the applicants' care in 2005. 3On 5 January 2011, the respondent advised the applicants, orally, that it had decided to remove the younger children from their care. These children were removed on this day. Two days after their removal, the applicants sought an internal review of the decision of the respondent to remove the younger children. 4On 24 January 2011, the respondent informed the applicant, in writing, of its decision (including brief reasons for decision), to remove the two young children from their care. At about this time, the younger children were placed with their current carers. This is a permanent placement together with another sibling of these children. The respondent has recently assessed this placement to be being stable and happy: see the statement of Sarah Moore dated 23 April 2012. 5On 22 February 2011, the applicants' filed an application with the Tribunal seeking review of the decision of the respondent to remove the young children from their care (the earlier application). The applicants also made an application for a stay of the decision of the respondent pending the determination of their review application. On 3 March 2011, the applicants' withdrew their stay and earlier review application. 6On 13 March 2012, the applicants' lodged this application seeking review of the decision of the respondent to remove the children from their care (this application). This application seeks review of the respondent's internal review determination of 2 March 2011, which they contend was not drawn to their attention for some time after their withdrawal of their earlier application. 7It is the respondent's contention that the Tribunal has no jurisdiction to hear and determine this application, on the basis of having withdrawn their earlier application and also because this application has been filed outside the time prescribed for such applications. The respondent also opposed the applicants' application for an extension of time. The applicants contend that they have lodged their application in time and even if the Tribunal were to find it had not been lodged within time they pressed their application for time to be extended. 8Both parties have provided written submissions and evidence in support of their respective positions. This is discussed in more detail below. 9Having regard to the material before the Tribunal and the relevant law, for the reasons set out below, I have found that the applicants' application has been filed out of time. I also find that the applicants have failed to provide a reasonable explanation for the delay in making this application. Accordingly, I have not granted the applicants' application to extend the time in which they can lodge this application. In light of these findings it is not necessary to consider any issues arising from the applicants' withdrawal of their earlier application.