BKW v Department of Family and Community Services [2014] NSWCATAD 205

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BKW v Department of Family and Community Services [2014] NSWCATAD 205 Hearing dates: On the papers Decision date: 25 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application for an extension of time within which to lodge her application for review is refused. Catchwords: ADMINISTRATIVE REVIEW - review of decision to remove child from the applicant an authorised out-of-home carer - application to extend time in which to lodge the application for review Legislation Cited: Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993 Cases Cited: Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: BKW (Applicant) Department of Family and Community Services (Respondent) Representation: Legal Aid ( Applicant) A Vassallo (Respondent) File Number(s): 1410425 Publication restriction: Pursuant to s 65(1)(b) of the Civil and Administrative Tribunal Act 2013 the name of the applicant and the children the subject of this application are not to be published or broadcasted.

reasons for decision 1The applicant 'BKW' is an authorised kinship carer under the Children and Young Persons (Care and Protection) Act 1998. On 13 November 2013, the respondent wrote to the applicant to inform her that it had decided to remove the two children placed into her care in 2009. The children were aged seven and six at the time of their removal. 2On 24 March 2014, the applicant made an application, to the respondent, seeking internal review of the respondent's decision. While that application was out of time (see subsection 53(2) of the Administrative Decisions Review Act 1997), the respondent accepted the application out of time and made an internal review determination. 3The applicant seeks external review of the internal review determination of the respondent dated 20 June 2014. 4There is no dispute that the decision for which the applicant seeks review is a decision that is reviewable by the Tribunal (see subsection 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, subsection 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (the enabling legislation), section 30 of the Civil and Administrative Tribunal Act 2013 and sections 7 to 9 of the Administrative Decisions Review Act 1997). 5The Tribunal's jurisdiction to hear and determine an application for review a reviewable decision is governed by the requirements set out in section 55 of the Administrative Decisions Review Act 1997 (ADR Act). That section relevantly provides as follows: 55 Making of applications (1) ... (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. 6The term 'procedural rules' is defined to have the same meaning as in the Civil and Administrative Tribunal Act 2013 (NCAT Act). These are defined in section 4 of that Act to mean the Tribunal rules (i.e. the Civil and Administrative Tribunal Rules 2014) and the regulations made under that Act. 7In this case, the Tribunal rules apply, as the enabling legislation does not prescribe a time within which an application for review is to be made. 8Clause 24 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) relevantly provides that 'unless the Tribunal grants an extension under section 41 of the Act' an application for review of an administratively reviewable decision is to be made within 28 days after the day on which the 'internal review is taken to have been finalised'. I have dealt with this provision in more detail below. 9In her application for review, the applicant said she was notified of the 20 June 2014 internal review decision on 26 June 2014. Her application for external review is recorded as having been lodged with the Tribunal on 8 August 2014, which is two weeks outside the prescribed time limit. The applicant sought an extension of time within which to file and serve her application for review. 10The application first came before me at a directions hearing on 11 September 2014. Mr P Latham, of Legal Aid, appeared on behalf of the applicant and Mr A Vassallo appeared on behalf of the respondent. 11Mr Vassallo did not object to the Tribunal extending the time within which the applicant was to file and serve her application. I did not deal with this issue as Mr Latham sought an adjournment to obtain clarification from the applicant as to whether she sought to press her application to have the respondent's decision set aside and the children returned to her care. I granted this adjournment as Mr Latham had indicated the applicant accepted that a return of the children to her care was unlikely, given the passage of time since their removal. 12The matter next came before me at directions hearing, on 25 September 2014. On this occasion, Mr Latham advised the applicant did press her application for review and the return of the children. On this basis, by consent, I made orders for the filing and serving of evidence and submissions as to whether time should be extended for the applicant to file and serve her application for review. I also made an order, by consent, pursuant to subsection 50(2) of the Civil and Administrative Tribunal Act that the applicant's extension of time application is to be determined on the papers. 13The applicant filed and served her material on 17 October. The respondent has not filed any material in reply. 14I have now considered all the material filed and served by the applicant and for the reasons set out below I have determined to refuse the applicant's application for an extension of time to lodge her application for review.