Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DCF v Life Without Barriers [2018] NSWCATAD 142 Hearing dates: On the papers Date of orders: 02 July 2018 Decision date: 02 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: 1) The requirement for a hearing is dispensed with pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW). 2) The application filed 18 September 2017 is dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) since the proceedings are misconceived or lacking in substance. 3) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. It is noted 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. Catchwords: ADMINISTRATIVE LAW- administrative review jurisdiction of the Tribunal - order dispensing with a hearing - section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 - where no administratively reviewable decision - where the decision sought to be reviewed does not come within section 245 Children and Young Persons (Care and Protection) Act 1998(NSW). Legislation Cited: Administrative Decisions Review Act 1997(NSW) Child Protection Legislation Amendment Act 2015 (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) Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: DCF (Applicant) Life Without Barriers (Respondent) Representation: Advocates: J Smith (Respondent) Solicitors: Care Legal (Respondent) File Number(s): 201700284040 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. It is noted 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 applicant is known by the pseudonym "DCF" in these proceedings in order to protect the identity of the applicant which would also identify children associated with this matter. 2. There will be an order made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. 3. In February 2017 the respondent commenced an assessment process pursuant to an application by the applicant to be assessed by Life Without Barriers as an authorised carer. Due to concerns raised in that assessment process the respondent determined not to continue with the assessment process and revoked the applicant's approval as a household member in a home where an authorised carer was caring for a child who had been placed with her on a long-term basis since the child was 2 days old. The child is currently 5 years old. The applicant did not reside with the authorised carer but proposed to move into the household with the child and the authorised carer. 4. The respondent decided to make arrangements for an independent assessment by an external assessor who was briefed to conduct the assessment on 3 August 2017. The applicant and his partner refused to participate in interviews with the independent assessor unless certain documents and information were provided. 5. On 21 August 2017 the State Director for the respondent wrote a letter to the applicant explaining why the decision made on 2 June 2017, not to proceed with the applicant's assessment to become an authorised carer with the respondent and to revoke his approval as a 'household member' in the authorised carer's household, were not administratively reviewable decisions. 6. On 18 September 2017 the applicant filed an Administrative Review Application in the Tribunal seeking a review of a decision made by Life Without Barriers on 2 June 2017 not to proceed with the applicant's assessment. The applicant received a letter from the respondent together with reasons for the decision in the letter dated 2 June 2017. The applicant filed this application despite the letter dated 21 August 2017 which clearly identified (as was requested) that there was no administratively reviewable decision. 7. On 26 October 2017 the matter came before the Tribunal for directions. It was identified that the application for summary dismissal would be appropriately determined on the papers. The Tribunal directed the parties to file evidence and submissions with the respondent's application for summary dismissal to be determined on the papers. An Application was filed on 6 November 2017 formally seeking summary dismissal of the application filed pursuant to section 55 of the Civil and Administrative Tribunal Act 2013 (NSW). The basis for the application is that the Tribunal has no jurisdiction to deal with the Administrative Review Application. 8. The Tribunal is required to hold a hearing except in certain circumstances as provided in section 50 of the Civil and Administrative Tribunal Act. That provision is as follows: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. Relevantly, the Tribunal may dispense with a hearing if the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the documents and written submissions that are provided by the parties. The Tribunal may not make an order dispensing with the hearing unless the parties have been afforded an opportunity to make submissions about the proposed order and taken those submissions into account. The proposal to make such an order was raised in the directions list on 26 October 2017. The parties were afforded an opportunity to make submissions about that course at that time. Subsequently, the respondent has filed the application on 6 November 2017 seeking summary dismissal together with documents relied upon by the respondent including written submissions to which the applicant has not responded. The applicant was served with those documents by the solicitor for the respondent. 2. The summary dismissal application raises a threshold issue concerning the jurisdiction of the Tribunal to deal with the application for review. This is purely a legal question which does not require an oral hearing and can be determined on the papers. The Tribunal can only exercise jurisdiction granted to it by relevant legislation. This is an issue which can be adequately determined in the absence of the parties. There would be little utility and a disproportionate use of resources of the Tribunal if an oral hearing were to be held in relation to this threshold issue. An order under section 50 of the Civil and Administrative Tribunal Act dispensing with the hearing is therefore appropriate. 3. The ultimate determination of the Tribunal is that the Tribunal does not have jurisdiction to deal with the application filed by the applicant for the reasons which are set out in this decision. In those circumstances, the application will be dismissed. The documents relied upon 1. The applicant relied upon documents annexed to the application originally filed on 18 September 2017. 2. The respondent filed an application seeking dismissal together with a bundle of documents filed on 6 November 2017. Legislative Provisions relevant to jurisdiction 1. The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator who is the person or body that makes (or is taken to have made) the decision under enabling legislation, if the enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Civil and Administrative Tribunal Act. (As provided by sections 7, 8 and 9 of the Civil and Administrative Tribunal Act). The term "enabling legislation" is defined in section 4 (1) of the Administrative Decisions Review Act 1997 (NSW). The enabling legislation relevant to this matter is the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). 2. The relevant legislative provisions relating to the decision made by the respondent are the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Children and Young Persons (Care and Protection) Regulation 2012 (NSW). 3. By reason of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of any of the decisions referred to in section 245 of the Children and Young Persons (Care and Protection) Act. 4. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act. 5. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act. 6. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 7. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. 8. The jurisdiction of the Tribunal may only be exercised if the relevant statutory provisions, in this case section 245 of the Children and Young Persons (Care and Protection) Act, enable the Tribunal to review the decision which has been made by the decision-maker in Life Without Barriers. 9. Section 245 of the Children and Young Persons (Care and Protection) Act provides: 245 Decisions that are administratively reviewable by Civil and Administrative Tribunal (1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993: (a) a decision of the relevant decision-maker to suspend a person's authorisation as an authorised carer or to impose conditions on a person's authorisation, (a1) a decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e), (b) a decision of the relevant decision-maker to accredit or not to accredit a Public Service agency or an organisation (or part of a Public Service agency or organisation) as a designated agency, (c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person, (d) a decision of the Children's Guardian to grant an employer's authority or to impose a condition on, to revoke or vary any condition of, to impose a further condition on or to suspend or revoke any such authority, (e) a decision of the Children's Guardian to declare under section 221 (2) that a person is taken to be the employer of a child, (f) a decision of the Children's Guardian to grant an exemption under section 224 (1), to limit the extent of any such exemption or to impose conditions on any such exemption, (f1) a decision of the Secretary to transfer a child protection order to a participating State under Division 1 of Part 2 of Chapter 14A, (g) a decision of the Minister, the Children's Guardian or the Secretary belonging to such class of decisions as may be prescribed by the regulations, (h) a decision of the Minister or the Secretary under section 246 with respect to the accommodation of a child or young person, (i) a decision of a relevant decision-maker to refuse to make a decision referred to in this section that the decision-maker is empowered and has been requested to make, (j) a decision of a designated agency to disclose high level identification information concerning the placement of a child or young person, (k) a decision of a designated agency to refuse to disclose information concerning the placement of a child or young person, (l) a decision of the Secretary or a designated agency as to the suitability of a person to be a guardian. (m), (n) (Repealed) (1A) Sections 29–31 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 do not apply in respect of a review of a decision referred to in subsection (1) (j) or (k). (1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: (a) the preparation of a permanency plan, or (b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court. (2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court. The Issue 1. The issue in these proceedings at this stage of the proceedings is whether the Tribunal has jurisdiction. If the Tribunal does not have jurisdiction then the application must be dismissed. 2. The issue before the Tribunal, if the Tribunal has jurisdiction, is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the decision under review: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. Considerations 1. The applicant relies upon the following grounds in the application: "False allegations, violence towards children, domestic abuse, high risk towards children, both sexually and physical, parenting of my own 4-year-old son, AVO and psychological problems-extreme trauma, needing urgent help. No right of reply!" The applicant also identifies in the application that he has "been informed several times [that there is] no right of reply" and that "NCAT has no power over them. Life Without Barriers". 2. The applicant sought to be approved as an authorised carer with the respondent. A decision in relation to seeking to be approved as an authorised carer is not contained within the currently operative section 245 of the Children and Young Persons (Care and Protection) Act. 3. Amendments were made to section 245 of the Children and Young Persons (Care and Protection) Act which took effect on 2 November 2015 on the commencement of the Child Protection Legislation Amendment Act 2015 (NSW). Prior to the amendments section 245 (1) (a) read as follows: "the decision of the relevant decision-maker to authorise or not authorise a person as an authorised carer, or impose conditions of an authorisation, or to cancel or suspend a person's authorisation as an authorised carer". 4. The amendments had the effect of removing as a reviewable decision by the Tribunal a decision to authorise or not to authorise a person to be an authorised carer. It is apparent from the second reading speech for the Bill that introduced the Child Protection Legislation Amendment Act that this was a conscious decision by the legislature. The second reading speech is as follows: The industrial relations system already recognises that failure to appoint a person to a position is not generally a matter capable of review. To bring the child protection system in line with the industrial relations system, changes will be made in relation to the NSW Civil and Administrative Tribunal review rights. Consequently, a refusal to authorise an applicant as an authorised carer would no longer be reviewable by the Tribunal. 1. The applicant was said to have been previously approved as a 'household member' or more properly described as a person who has resided or will reside for more than 21 days on the same property as an authorised carer thus requiring an assessment by the designated agency pursuant to clause 31A of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW). The designated agency is the assessment body which assesses the suitability of that person. If the assessment body forms an opinion that the person is an unsuitable person or any person who resides on the same property is an unsuitable person, it is not required to continue to obtain any information or conduct any check in respect of the assessable person by reason of clause 6 of schedule 2 of that regulation. 2. The decision to revoke the approval as a "household member" is also not contained within the provisions of section 245 of the Children and Young Persons (Care and Protection) Act. That decision is therefore not administratively reviewable by the Tribunal. Conclusion 1. There is no identifiable administratively reviewable decision which has been made by the respondent in respect of the applicant. 2. Therefore the Tribunal has no administrative review jurisdiction in relation to the matter about which the applicant seeks a review. The application for an administrative review is clearly misconceived and the applicant was informed in writing, prior to lodging the application, of the basis upon which it is determined that the Tribunal does not have jurisdiction to review the decision made by the respondent. 3. The Tribunal has no jurisdiction to deal with the Administrative Review Application. In those circumstances, section 55(1)(b) of the Civil and Administrative Tribunal Act is applicable and "the proceedings are…….misconceived or lacking in substance." The Review Application proceedings are therefore dismissed on that basis. Orders 1. The orders of the Tribunal are that: 1. The requirement for a hearing is dispensed with pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application filed 18 September 2017 is dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) since the proceedings are misconceived or lacking in substance. 3. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 4. It is noted 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. ******** 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: 02 July 2018