Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DFS and DFT v Challenge Community Services [2017] NSWCATOD 177 Hearing dates: 8 November 2017 Date of orders: 08 November 2017 Decision date: 08 November 2017 Jurisdiction: Occupational Division Before: S Higgins, Senior Member Decision: 1. The request of DFS and DFT to stay the decision made by the respondent on 27 October 2017 to remove child A (13 yrs) and child B (7 yrs) from their care is refused. 2. By consent, the Tribunal determines to deal with the applicants' application in the absence of an internal review. 3. Challenge Community Services is to give to the Tribunal and all other parties a redacted copy of the confidential material on which it relies, on or before 15 November 2017. 4. Challenge Community Services to give to the Tribunal and all other parties the following material: documents under s 58 of the Administrative Decisions Review Act 1997 and evidence including statements on or before 29 November 2017. 5. DFS and DFT are to give to the Tribunal and the other party the following material; evidence including statements on or before 14 December 2017. 6. The proceedings are listed for directions on 19 December 2017, at 2.00pm at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 10 minutes. 7. Challenge Community Services is allowed to appear by phone at the directions hearing. 8. The proceeding is listed for hearing on 22 January 2018 at 10.00 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 1 day. Catchwords: ADMINISTRATIVE REVIEW – interlocutory application for a stay of the administrative decision the subject of review – respondent decided to remove two children from the day-to-day care of the applicants following receipt of a report(s) that indicated the children were at risk of significant harm - applicants are authorised as carers to provide out-of-home care – applicants' sought an order staying the decision of the respondent pending determination of their application for review - whether having regard to the interests of the persons who would be affected by the order, the submissions of the respondent and the public interest it is desirable and appropriate to make an order to stay the decision of the respondent so as to secure the effectiveness of the applicants' application for review – application for stay order refused. Legislation Cited: 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) Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 CMJ v Secretary, Department of Family and Community Services and Wesley Dalmar [2017] NSWCATAD 52 DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266 Elgammal v Director General, Department of Transport [1999] NSWADT 82 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Procedural and other rulings Parties: DFS and DFT (Applicants) Challenge Community Services (Respondent) Representation: Solicitors: Ellis McLachlan Lawyers and Solicitors (Applicants) NLS Law (Respondent) File Number(s): 2017/00327493 Publication restriction: Pursuant to section 65(1)(b) and (2) of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person Reasons for decision Introduction 1. The applicants, a husband and wife (DFS and DFT) are authorised as out-of-home carers under s 137 of the Children and Young Persons (Care and Protection) Act 1989 (NSW). By reason of s 65(1)(b) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW), the names of the applicants and the children to which this application relates cannot be published or broadcasted without the leave of the Tribunal: see Community Services (Complaints, Reviews and Monitoring) Act (NSW), s 4(1). This prohibition applies to any information that may identify the applicants or the children. 2. The applicants have been authorised as carers for almost 30 years. On 20 October 2017, the respondent removed child A (a girl aged 13 years), from the applicants' care. She was removed as the respondent had received a report indicating that child A was at risk of significant harm whilst in the applicants' care. 3. On 27 October 2017, the respondent removed child B (a boy almost 7 years of age) from the applicants' care. He was removed as the respondent had received further reports in relation to child A and child B being at risk of significant harm whilst in the care of the applicants. 4. By order of the Children's Court of NSW, the Minister has parental responsibility for both children: Children and Young Persons (Care and Protection) Act, s 79. Child A and child B have been in the applicants' care since they were a few months old. 5. The decision of the respondent to remove child A and child B from the applicants' care is subject to the outcome of an investigation that is currently being undertaken by the Joint Investigation Response Team (JIRT) and the Department of Family and Community Services (FACS). 6. On 27 October 2017, the applicants made an application to the Tribunal seeking review of the respondent's decision to remove child A and child B from their care: Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 28 and Children and Young Person (Care and Protection) Act 1998 (NSW), s 245(1)(c). The applicants also made an application for a stay order under s 60 of the Administrative Decisions Review Act 1997 (NSW). 7. On 8 November 2017, I heard the applicants' application for a stay order. The respondent opposed the making of the order. 8. After considering the material before me and the submissions made by the parties, I determined it was not, at that time, appropriate to grant a stay and made an order refusing the applicants' stay application. I also made a number of directions for the filing and serving of evidence. By consent the applicants' substantive review application was set down for hearing on 22 January 2018. 9. In support of its opposition to the stay application, the respondent sought to rely on the contents of three documents for which it sought a confidentiality order as it contained sensitive information that should not be disclosed to the applicants, the applicants' legal representatives or the public. With the consent of the respondent I disclosed the general nature of each document, the date of the document and number of pages in each document. The respondent, however, pressed its application for an order prohibiting the disclosure of the substantive matters (i.e. a confidentiality order). After hearing submissions from each party I made the orders sought. I also made an order at the conclusion of the hearing that the respondent file and serve a copy of each document with the substantive matters redacted therefrom. 10. The applicants subsequently made a request for written reasons for my decision to make a confidentiality order in regard to the substantive matters contained within the abovementioned documents and my decision to refuse their application for an order to stay the respondent's decision pending the determination of their review application. The following are my reasons for decision. Confidential Documents 1. Section 64 of the Civil and Administrative Tribunal Act gives the Tribunal the power to restrict certain disclosures concerning proceedings before it. That section relevantly provides as follows: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) .. … (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings." 1. The documents for which the respondent sought a confidentiality order were two completed pro-forma documents of the respondent that were entitled "Allegation Risk Assessment" and a further completed pro-forma document entitled "Incident Summary". The "Incident Summary" is dated 19 October 2017 and is 6 pages in length. The "Allegation Risk Assessment" documents are dated 19 October 2017 and 26 October 2017. The 19 October 2017 "Allegation Risk Assessment" consists of 8 pages and the 26 October 2017 "Allegation Risk Assessment" consists of 7 pages. 2. The substantive matters contained within each document were the respondent's record of allegations of serious risk of harm to child A and child B it had received and were the subject of a current investigation by JIRT. At the time of the hearing of the stay application, the applicants had not been made aware of the nature of the allegations or who the alleged perpetrators were. It was the respondent's submission that a disclosure of the information to the applicants at that time had the risk of seriously jeopardising the investigation. The applicants, on the other hand pressed for the disclosure of the information. While I understood the applicants frustration in not being informed about the nature of the allegations that had been made, I was satisfied from the material before me that a disclosure of the substantive matters contained in the three documents for which the respondent sought a confidentiality order may impact on the current investigation into the allegations contained therein. I was so satisfied because the allegations had been made very recently and were being investigated at that time. Hence I determined it was appropriate, at that time, to make the order sought. 3. As I have indicated above, I also made an order that the respondent provide the applicants with a copy of each document with the specific allegations redacted. I note the respondent filed a redated copy of each document, on 15 November 2017. I note, in providing a redacted copy of the two "Allegation Risk Assessment" documents, the respondent has disclosed to the applicant, which child was the subject of the report and the name of the alleged perpetrator(s) of the alleged serious risk of harm. However, the substance of the allegation(s) in each document was not disclosed. Stay application Legal Principles 1. There was no dispute that the decision of the respondent for which the applicants sought review was an administratively reviewable decision and that the Tribunal had the power to make an order staying the operation of that decision. That power is a discretionary power as prescribed in s 60 of the Administrative Decisions Review Act, which relevantly provides: "60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) …." 1. Section 61(a) of the Administrative Decision Review Act provides that the Tribunal may not make an order under s 60 unless the administrator who made the decision to which the order would relate has been given a reasonable opportunity to make submissions in relation thereto. There was no dispute, in this case, that the respondent had ample opportunity to make submissions in relation to the applicants' application for a stay order. 2. Section 62 of the Administrative Decision Review Act enables the Tribunal to impose conditions on a stay order: see Elgammal v Director General, Department of Transport [1999] NSWADT 82. 3. As indicated by the Tribunal in CMJ v Secretary Department of Family and Community Services [2017] NSWCATAD 52, at [8] and DDR & DDS v Lifestyle Solutions (Aust) Ltd [2017] NSWCATAD 266, at [19], a stay order, whether granted or not, does not determine the substantive review application of an applicant. 4. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), at [21], Basten JA described the nature of the Tribunal's power to grant a stay pursuant to s 60 as follows: "A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. …" 1. The role of the Tribunal in its administrative review jurisdiction is to decide the correct and preferable decision as at the time of hearing and it must do so by having regard to the relevant factual material before it and the applicable law: see Administrative Decisions Review Act, s 63 and YG & GG v Minister for Community Services [2002] NSWCA 247, at [25]. That is, the Tribunal sits in the shoes of the administrator who made the decision the subject of review and in this regard the Tribunal must have regard to the legislative provisions relevant to the administrative decision the subject of review. In this case, the relevant provisions are contained in the Children and Young Persons (Care and Protection) Act. Of particular importance is s 9(1) which provides: "This 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." 1. Section 9(1) of the Children and Young Persons (Care and Protection) Act is also applicable in determining an interlocutory application such as a stay order. The evidence 1. In support of their application for a stay order, the applicants relied on an affidavit sworn by DFT, on 31 October 2017, and an affidavit sworn by DFS, on 8 November 2017. The affidavit of DFS was in response to the affidavit of Ms Christina Lee, Sydney Regional Manager Foster Care, filed and served by the respondent, on 6 November 2017. 2. In her affidavit, DFT explained that she and her husband have been authorised as carers for approximately 30 years and during this time they have successfully fostered a number of children. In March 2014, the management of the children in their care, including child A and child B, was transferred from the Department of Family and Community Services (FaCS) to the respondent. 3. In her affidavit, Ms Lee explained that at the time of the transfer the applicants had five foster children in their care, with child A and child B being the youngest. The other children were two older boys and a girl. The Minister also had parental responsibility for these children until they reached the age of 18 years. The eldest boy, AA, is now 18 years of age and I understand that the next eldest boy, AB, is also almost 18 years of age. Both boys continue to live with the applicants. The girl, child C, is now 15 years of age. She, like the boys and child A and child B, had been in the applicants' care since she was a few months old. In April 2016, child C was placed into the care of the applicants' son and his wife. That placement ended in March this year and in June, child C was placed into the care of her half-sister. 4. In her affidavit, DFT explained that her authorisation and that of her husband has always been the subject of review. The most recent review, an independent review, was conducted in February this year. The reviewer did not identify any elements of the applicants' competency that required improvement. However, the reviewer did identify an area of the applicants' competency that required strengthening through additional support and training by the respondent. The relevant area was managing challenging behaviours. In her affidavit, Ms Lee, acknowledged that the children in the applicants' care had special needs and were prone to behaviours that were challenging. In some cases the children were prescribed medication to address their behaviour. 5. DFT said that she and her husband accepted that action needed to be taken to protect a child where there are serious allegations of risk of harm. In the absence of being informed about the nature of the allegations on which the respondent decided to remove child A and child B from their care, DFT said she and her husband assumed there had been fresh allegations made by child C. 6. DFT explained that in recent years while in their care, child C's behaviour had deteriorated at home, out of home and at school. She said that as these behaviours worsened, she and her husband sought medical support and assistance from the respondent, which was refused. DFT said that, as child C's behaviour worsened, she alleged that she and her husband had acted inappropriately towards her. She said they were interviewed in regard to these allegations and that they were found to have no substance. 7. Then in February 2017, the respondent informed her and her husband that child C had made allegations of a sexual nature against AA and AB. As a result the boys were temporarily removed from the applicants' care. The boys and child A and child B were interviewed. DFT said the boys both denied the allegations that had been made against them. 8. In late July 2017, the boys were returned to the applicants' care. They were returned after an independent risk assessment had been conducted by Mr Tyrone Hill, a registered psychologist engaged by the respondent. In addition to conducting the assessment, Mr Tyrone developed a safety plan. 9. DFT said that she and her husband heard no more until 20 October 2017, when child A was removed from their care. She said they received a letter from Chris Brown, State Manager of Challenge Foster Care advising them a report relating to a child in their care had been received and based on that report a risk assessment had been undertaken. The outcome of that risk assessment was that child A was to be placed into respite while further enquiries were made. DFT said that in the interests of all their children she arranged for child A to be placed into the care of her son. 10. In her affidavit, Ms Lee explained that she had contacted DFS, by telephone, late in the afternoon on 19 October 2017 to inform him of the removal of child A. It was her evidence that DFS had enquired why she was being removed and being dissatisfied with her response, he requested the matter be escalated to a higher level. It was as a result of this request that Mr Chris Brown wrote to the applicants the following day. 11. In her affidavit, Ms Lee explained that, on 23 October 2017, FaCS Manager Casework, Tanya Earl, interviewed the child A and child B at their school. She went on to say an officer of the respondent was also present. 12. Ms Lee went on to explain that on 24 October 2017, the respondent was advised that JIRT were taking over the matter and that they were going to interview child C on 26 October 2017. She said that on 26 October further information was received about child A and child B being at risk of significant harm and that the additional information was also being investigated by JIRT together with the respondent. She also said that as a result of a conversation with FaCS, the respondent had concerns about the safety of child B remaining in the applicants' care while the investigation was pending. She said following a meeting with the applicants and their daughter in-law, on 27 October 2017, the respondent sought a letter from FaCS stating they supported its decision to remove the children from the applicants' care. This letter had been sought because the applicants had again requested further information about why the children were to be removed. 13. On 27 October 2017, JIRT advised the respondent that a Provisional Apprehended Violence Order had been issued against AA and AB. The protected person named in that order is child C. 14. Ms Lee said that on the same day the respondent sought the assistance of the police to remove child B from the applicant's care and child A from the care of the applicants' son and his wife. However, DFT and her daughter in-law delivered both children to the respondent's care without the need for any police let alone any force. Ms Lee explained the children have been placed in respite, pending the outcome of the JIRT investigation of the allegation followed by an investigation by the respondent. 15. In her affidavit, DFT said she and her husband were told that they would be interviewed in regard to the investigation. However, as at the date of the hearing of the stay application no interviews with the applicants had been arranged. 16. In their respective affidavits, DFS and DFT explained that they have made several requests for contact with the children since their removal. However, contact of any kind has been refused. Ms Lee explained that on 31 October 2017, the respondent sought advice from FaCS Manager Casework, Tanya Earl, in regard to their position as to contact between the applicants and the children. Ms Earl responded by advising that JIRT would not recommend contact until the matter had been investigated and assessed. In this regard Ms Lee advised that child B was again interviewed on 2 November 2017. 17. In her affidavit, Ms Lee raised a number of additional issues concerning the applicants' care of the children. In his affidavit, DFS responded to these. It was unnecessary to deal with these issues in any detail in this application as the respondent primarily relied on the allegations it had received, in October 2017, as its grounds of objection to the stay application. Consideration 1. As I have explained, it is not for me to determine the substantive matters in issue in this application. What I am required to determine is whether I consider it desirable, having regard to the material before me and the matters prescribed in s 60(3) of the Administrative Decisions Review Act, that it is appropriate to grant a stay so as to secure the effectiveness of the determination of the applicants' application for review. 2. I accept that the decision to remove child A and child B from the applicants' care has been very traumatic for them. This was especially so as they have not been informed about the substance of the allegations, or the identity of the alleged perpetrator(s). The only information they have been provided with, as at the date of hearing, is that the allegations are of a serious nature and that an assessment had been made that if the children remained in their care they were at risk of serious harm. 3. I accept that on the basis of the confidential material before me that the allegations, if sustained, are very serious and on this basis there is a risk of serious harm if the children are to be returned to the applicants' care while the investigation of those allegations are pending. As I explained to the parties, it is the safety, welfare and well-being of the children that is paramount in this application. This includes protecting the children from serious physical or psychological harm: Children and Young Person (Care and protection) Act, s 23. 4. As the allegations of serious harm were only recently received by the respondent and they are the subject of a current investigation, I am not satisfied that, at this time, it is appropriate to make the order sought. I also take into account the agreement of the parties to an early hearing date for the applicants' substantive application (i.e. 22 January 2018). 5. I raised with the parties the importance of a timely conclusion of an investigation of allegations of any kind, as a protracted investigation can cause considerable uncertainty for children, who until their removal have only known the family from which they were removed. I had no evidence before me in this regard concerning child A or child B's attachment to the applicants by reason of the length of time they have been with the applicants. Hence, I made and make no findings in this regard, other than to note that the respondent is aware of such issues and, if relevant, this will be a matter that can be dealt with at the hearing of the applicants' substantive application. Conclusions 1. For the reasons set out above I make the following orders in regard the applicants' application for a stay order and the respondent's confidential material: 1. The request of DFS and DFT to stay the decision made by the respondent on 27 October 2017 to remove child A (13 yrs) and child B (7 yrs) from their care is refused. 2. Challenge Community Services is to give to the Tribunal and all other parties a redacted copy of the confidential material on which it relies, on or before 15 November 2017. 1. A copy of these orders and the other orders made on 8 November 2017 are set out in the cover page to these reasons for decision. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 12 December 2017