CMJ v Secretary Department of Family and Community Services and Wesley Dalmar [2017] NSWCATAD 52

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CMJ v Secretary Department of Family and Community Services and Wesley Dalmar [2017] NSWCATAD 52 Hearing dates: 9 February 2017 Date of orders: 13 February 2017 Decision date: 13 February 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1. The decision by Wesley Dalmar notified on 30 December 2016 to suspend the carer authorisations of the applicants is stayed. 2. The decision to remove the children from the care of the applicants is stayed. 3. The children shall be returned to the care of the applicants within 48 hours. 4. The applicants shall provide undertakings to Wesley Dalmar as may reasonably be requested and agreed between the parties and shall comply with conditions in accordance with the undertakings reasonably imposed pursuant to section 137 of the Children and Young Persons (Care and Protection) Act 1998 and clause 34 of the Children and Young Persons (Care and Protection) Regulation 5. In the event that there is any dispute about the undertakings or conditions the parties shall have liberty to apply for determination by the Tribunal as to the extent of those undertakings or conditions to give effect to these reasons. 6. The final hearing of these proceedings shall occur commencing at 10am on 29, 30 March 2017 and if required to continue on 18, 19, and 20 April 2017. 7. The Secretary and Wesley Dalmar shall file and serve the section 58 Administrative Decisions Review Act 1997 (NSW) documents on or before 24 February 2017. 8. The Secretary and Wesley Dalmar shall file and serve any evidence on or before 10 March 2017. 9. The Applicants shall file and serve any evidence they rely upon on or before 24 March 2017. 10. Liberty to apply upon 3 days notice to the other parties and to the Tribunal. Catchwords: ADMINISTRATIVE LAW-review of decisions under section 245 Children and Young Persons (Care and Protection) Act 1998(NSW) and section 28 (1)(a) Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW) – interim stay sought under section 60 Administrative Decisions Review Act 1997 (NSW) pending final hearing of review - primary issue is balancing of risks of harm on an interim basis- mitigation of risks possible by undertakings and conditions enforced by the agency and the Secretary- issue on final hearing is the correct and preferable decision having regard to the material before the Tribunal - interim stay granted on conditions and undertakings acceptable to the agency, the Secretary and the applicants. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW) Cases Cited: AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Blinko and Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 M v M [1988] HCA 68; 166 CLR 69 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CMJ (Applicant) Secretary Department of Family and Community Services (First Respondent) Wesley Dalmar (Second Respondent) Representation: Counsel: L Goodchild (Applicant) G Moore (First Respondent)