BWO and BWP v Barnardos Australia [2015] NSWCATAD 216

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BWO and BWP v Barnardos Australia [2015] NSWCATAD 216 Hearing dates: 23 July 2015 Date of orders: 21 October 2015 Decision date: 21 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M W Anderson, Senior Member M Bolt, General Member R Royer, General Member Decision: (1)That the decision made on or about 28 April 2015 and notified to the applicants by letter dated 4 May 2015 to not proceed further with their application to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis of their financial circumstances in relation to the applicants' capacity to adequately provide for the child's needs, is set aside. (2)The respondent is to proceed further with the assessment application of the applicants to provide permanent care with a view to adoption for the child currently placed in a crisis placement with the applicants through the Barnardos Temporary Family Care program on the basis that the requirement for the financial circumstances in relation to the applicants' capacity to adequately provide for the child's needs is satisfied. (3)It is noted that by reason of the Order made on 21 May 2015 pursuant to section 55 (3) of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is satisfied that it is necessary to deal with this application notwithstanding an internal review application has not been made. Catchwords: ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section Adoption Act 2000 (NSW) and review jurisdiction conferred by clause 72 (1) (a) of the Adoption Regulation 2003 (NSW) (repealed) or clause 125(1)(a) and 125(1)(b) of the Adoption Regulation 2015 (NSW) - current authorised carer seeking to be assessed to provide permanent care with a view to adoption as an adoptive parent - assessment of carer's financial position – carer has the care of a biological child as well as the care of the child placed under the Children and Young Persons (Care and Protection) Act 1998 (NSW)- correct and preferable decision having regard to the material before the Tribunal – child's best interests enhanced by remaining in current placement and the full assessment to provide permanent care with a view to adoption as an adoptive parent to be undertaken- substituted decision. Legislation Cited: Adoption Act 2000 (NSW) Adoption Regulation 2003 (NSW)(repealed) Adoption Regulation 2015 (NSW) Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Subordinate Legislation Act 1989 (NSW) Uniform Civil Procedure Rules 2005, Schedule 7 Cases Cited: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1 Application of PL, re TB and FB [2007] NSWSC 665 AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BHY v Children's Guardian [2015] NSWCATAD 91 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BWO and BWP (Applicants) Barnardos Australia (Respondent) Representation: Solicitors: Ellis McLachlan (Applicants) Care Legal (Respondent) File Number(s): 1510266 Publication restriction: Section 64 Civil and Administrative Tribunal Act 2013 (NSW), and section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW), restricting publication of information that will identify the applicants, non-professional witnesses, the child(ren), and any evidence given in the proceedings which is likely to identify any of those persons.