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. Relevant law 10There is no dispute that the decision of the respondent to remove the children from the applicants' care is a reviewable decision falling within the terms of section 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act), section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 and section 245 of the Children and Young Persons (Care and Protection) Act 1998. 11Section 55 of the ADT Act sets out when an application for a review of a reviewable decision can be made to the Tribunal. It relevantly provides as follows: 55 When can an application for a review be made? (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (a) the application is made by an interested person, and (b) where the person was entitled to seek an internal review of the decision-the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision. Note. 1 ... 2 Section 53 (9) provides that an internal review is taken to be finalised if: (a) the applicant for the review is notified of the outcome of the review, or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). 3 .. . (2) The default application period for a reviewable decision is: (a) in the case where the applicant has duly applied for an internal review of the reviewable decision-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or (b) in any other case-the period of 28 days after: (i) if the applicant has requested reasons under section 49 for the reviewable decision-the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the applicant has not requested reasons under section 49-the day on which the applicant was notified of the making of the reviewable decision. (3) .... (4) ... (5) ... 12There is no dispute that the applicants are interested persons for the purposes of paragraph 55(1)(a). Furthermore, as I have already indicated, the applicants did seek internal review of the decision of the respondent to remove the children. That application was made on 7 January 2011. Section 53(9) of the ADT Act provides that an internal review is taken to be finalised if: '(a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application before the review is lodged (or such other period as the administrator and person agree on).' 13Is it the contention of the applicants that they did not become aware of the internal review decision until some time after they had withdrawn their earlier application for external review. The respondent contends that even if they did not become aware of the internal review decision some time after 3 March 2011, the effect of paragraph 53(9)(b) is that time begins to run on the day after the applicants made their internal review request (i.e. from 8 January 2011). 14Section 57 of the ADT Act makes provision for late applications. That section relevantly provides as follows: 57 Late applications to Tribunal (1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, late application means an application not made within the period or time referred to in section 55 (1) (d). When did time begin for the purposes of filing an application for review? 15It is the applicants' contention that it was not until 12 May 2011, that they became aware of the respondent's internal review decision. 16The applicants contend that at no time were they sent a copy of the internal review decision. It would appear that an unsigned copy of this decision was included in a bundle of papers that the respondent had prepared, on 2 March 2011, in response to the applicants' earlier stay application. The Ms Cara Hopkins (Acting Manager Client Services of the Region), made the internal review decision, which affirmed the original decision. 17The bundle of papers sent to the applicants, on 2 March 2011, formed part of the statement of Ms Leanne Smith (Acting Manager Casework, Child Protection), dated that day. The respondent opposed the applicants' stay application. That application was due to be heard on the following day, 3 March 2011. On that day, the applicants did not press the stay application and also withdrew their substantive application. In the material provided to the tribunal in this application, the explained that their withdrawal of the earlier application was due to advice they had received from Connecting Carers and a support worker from the Foster Care Association. It would appear that as a result of allegations having been made against them as carers, the applicants' were advised that they could not seek a stay, or a review, while these allegations were pending. Accordingly, on that advice, they decided to withdraw their application pending the outcome of the determination of these allegations, which they strenuously denied. That advice was clearly incorrect and it would appear that the applicants did not communicate fully to the Tribunal the reason for their withdrawal. 18In any event, the applicants' explained that, subsequently, in early May 2011, when they were going through the bundle, which had been sent to them 'all mixed up', they discovered the unsigned letter that was the internal review decision. They said it was 'hidden in the back among papers relating to 2006'. On seeing the letter, ABK sent an email to Ms Smith expressing her concerns about what had been said about her and her husband in regard to the children in their care. The applicants have provided a copy the email, dated 11 May 2011 and it is clear from its contents that the applicants were very distressed about what had been said about them in the internal review decision letter and the reasons for the removal of the two younger children from their care in January. 19In her statement of 26 April 2012, Ms Hopkins also acknowledged that ABK had telephoned her on 12 May 2011. It would appear that Ms Hopkins did not make a file note of that conversation. However she did make a file note of the conversation she had with ABK on 20 April 2012, after this application was lodged. In that conversation ABK expressed her concerns about Ms Hopkins having had regard to incorrect departmental records for the purpose of her internal review, without checking with her first. 20On the basis of the material before the Tribunal, I accept the applicants' evidence that they were not aware of the internal review decision until May 2011. In making this finding I do not find that the respondent failed to provide the applicants with a copy of this decision. They clearly did so. However, it would appear that by the time the applicants received the bundle of documents, of which the internal review was a part, the documents in the bundle were all mixed up. 21On the basis of my findings and the requirements of paragraph 55(2)(a) of the ADT Act, the applicants were required to lodge their application for review within 28 days after 12 May 2011. This they clearly failed to do. Instead they lodged this application some 8 months thereafter. Should time be extended? 22The applicants contend that time should be extended as they have been treated unfairly and should be given the opportunity to address the allegations that have been made against them. 23In regard to the allegations, these relate to the applicants' care for the eldest of the older children in their care. That child has special needs, for which the applicants had sought the respondent's assistance. The allegations also made reference to events that had occurred some time ago. None of the allegations are of a reportable nature. What is of concern to the applicants is that the allegations are based on incorrect information about them. That information being recorded in the records held by the respondent. This incorrect information the applicants' allege was used in determining to remove the younger children from their care and is also having an ongoing affect on them. 24As I have explained, the tribunal's power to extend time under subsection 57(1) of the ADT Act can only be exercised where it is satisfied that the applicants have provided a reasonable explanation for the delay in making their application. Even where a reasonable explanation for the delay is provided, the tribunal's power to extend time remains a discretionary one. That discretion must be exercised having regard to the nature of the application and the objects and purpose of the legislation under which the reviewable decision has been made. In this application the decision the subject of review is a decision under the Care Act. Subsection 9(1) of that Act provides that the Act is to be administered 'under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.' Subsection 9(2) sets out a number of other principles that are to be applied in administering the Act. 25On the basis of the material before the tribunal, the applicants have received inconsistent advice at the time they decided to withdraw their earlier application. It is also possible that they did not fully understand it. However, once they became aware of the internal review decision, it was another 8 months before they brought this application. This delay appears to be due to the applicants' wish to have the allegations addressed. These remain unresolved to the applicants' satisfaction. While there are avenues available to the applicants to seek correction of the respondent's records in so far as they contain personal information about the applicants, these are not relevant to this application. 26What is in issue is whether the applicants have provided a reasonable explanation for their delay in making their application for the review of the internal review decision, of 2 March 2011, to remove the younger children from their day-to-day care. 27While I accept that the applicants have at all times been unrepresented, I am unable to find that their explanation for the delay in bringing this application is a reasonable explanation in the relevant sense. As I have indicated, the internal review decision letter specifically referred to the applicants' right to seek external review of the decision by the tribunal. The letter also stated that any such external review had to be made within 28 days. It would appear, on becoming aware of the internal review decision letter and its contents, the applicants sought no further advice in this regard. In the meantime the younger children had become settled in their new placement. While I am not at all critical of the applicants, who appear to be genuinely distressed about what has been said about them, in my view this is not a sufficient reason to find that they have provided a reasonable explanation for the delay in seeking a review of the decision to remove the younger children. In my view, having regard to the principles set out in section 9 of the Care Act, review applications of a decision to remove a child from the care of an authorised carer must be brought without delay and it is incumbent on the respondent to inform that person of their review rights at the time the original and internal review decisions are made: see subsection 53(6) of the ADT Act. This is particularly so where the decision to remove the child is made at about the same time as the children are in fact removed. In this case, the respondent had informed the applicants of this right in its internal review determination letter. 28Accordingly, I refuse the applicants' application for the extension of time. ********** 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: 04 July 2012