Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DWZ v Wandiyali [2019] NSWCATAD 190 Hearing dates: 15 August 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: (1) The Tribunal refuses the application to extend time for the filing of the Administrative Review application filed on 17 June 2019. (2) The application for Administrative Review filed 17 June 2019 is dismissed. Catchwords: ADMINISTRATIVE LAW- whether to extend time for filing of an administrative review application – where no fairly arguable case – where no substantial merit in the applicant's case for review. 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 BKW v Department of Family and Community Services [2014] NSWCATAD 205 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 YG & GG v Minister for Community Services [2002] NSWCA 247 ZHA v ZGZ [2018] NSWCATAP 249 Texts Cited: None cited Category: Consequential orders (other than Costs) Parties: DWZ (Applicant) Wandiyali (Respondent) Representation: Solicitors: Applicant (Self Represented) Care Legal (Respondent) File Number(s): 2019/00187464 Publication restriction: Pursuant to section 65 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 applicant seeks a review of a decision where a child was removed from her care on 6 March 2019. The respondent removed responsibility for the daily care and control of the child from the applicant. On that date the child was placed in an alternative placement with an authorised kinship carer. 2. The Tribunal has jurisdiction to hear administratively reviewable decisions by reason of subsections 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). The decision which was made falls within the category of decision referred to in subsection 245 (1) (c). 3. The Children and Young Persons (Care and Protection) Act provides in section 9(1) as follows: "(1) 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. A person who is entitled to seek an internal review of an administratively reviewable decision, is not entitled to apply to the Tribunal unless the person has applied for an internal review and the review is taken to have been finalised: Administrative Decisions Review Act, s 55(3). A review is "taken to have been finalised" if the applicant is notified of the outcome of the review or if the applicant is not notified of the outcome of the review within 21 days after the application was made: Administrative Decisions Review Act, s 53(9). 2. There was an internal review of the challenged decision sought by the applicant on 19 March 2019. The outcome of the internal review was notified to the applicant on 10 April 2019: the outcome of which was to affirm the decision made to remove the child from the applicant's daily care and control. 3. By reason of clause 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) unless the Tribunal grants an extension under section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time within which to seek a review of the reviewable decision is 28 days after the day on which the internal review is taken to be finalised. The application to the Tribunal was filed on 17 June 2019 which is approximately 9 to 10 weeks after being notified of the outcome of finalisation of the internal review. 4. In the period between the notification of the outcome of the internal review and the filing of the application in this Tribunal, the applicant was notified of the outcome of a reportable conduct investigation which had been undertaken since 9 April 2019. The outcome of the reportable conduct investigation was notified to the applicant on 20 May 2019. The applicant was incorrectly advised in the letter notifying her of that outcome that she had 28 days within which to bring an application to the Tribunal for review in respect of the reportable conduct investigation findings. There is no jurisdiction in the Tribunal to review that reportable conduct investigation separately to an application for review of the decision to remove the child from the applicant's daily care and control. 5. The respondent opposes the extension of time sought pursuant to section 41 of the Civil and Administrative Tribunal Act. Relevant history 1. The child was born in 2011 and then placed with her aunt who was in a relationship with the applicant at that time. The child had been assumed into care by the relevant delegates of the Department of Communities and Justice (as it is now known and was formerly the Department of Family and Community Services) less than a week after her birth. 2. Final Orders were made in the Children's Court on 16 February 2012 placing the child under the parental responsibility of the Minister until the age of 18 years. 3. The management of the care of the child was transferred from the Secretary of the Department to the respondent on 29 July 2013. 4. In September 2013 the child was placed in the sole care of the aunt, the applicant and the aunt having separated at that time. On 2 November 2014, the child was placed in the sole care of the applicant because the placement with the aunt had broken down. The child has therefore been in the sole care of the applicant for over 4 years. 5. The child has been with a kinship carer since 6 March 2019 which is more than 5 months prior to the date of the interim hearing. This is a substantial period of time in a young child's life. Legislative provisions in relation to the application 1. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (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 forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436. 2. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings", subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act. 3. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]: "As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides: (1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal: ... (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 ... (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." 1. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter, where the provisions of the care plan were not obviously embodied in the order made by the Children's Court but were considered as part of the process of exercising the Court's jurisdiction to make a care order. His Honour Justice Campbell stated at [54]: "In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court." 1. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held: "In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here." 1. The permanency plan or the care plan in relation to the child is not enforceable in this matter, because the orders have not embodied or incorporated the provisions of the permanency plan nor the care plan. 2. The meaning of "decision" is contained in section 6 (1) of the Administrative Decisions Review Act and includes the following: "(a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing." 1. It is correct to say that the Tribunal has no power to enquire at large into matters that take its interest but over which it has no jurisdiction. There is a duty not to hear such cases: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48. 2. Section 32 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 provides: "32 Additional powers of Tribunal (1) The Tribunal may decline to hear or determine an application if, in the opinion of the Tribunal: (a) the applicant has available an alternative and satisfactory means of redress, or (b) the applicant has not made appropriate attempts to have the matter to which the application relates resolved otherwise, or (c) the ground for the application is unacceptable having regard to the frequency of applications previously made by or on behalf of the appellant in respect of the same subject-matter. (2) In giving its decision on an application, the Tribunal may make recommendations for consideration by the person who made the decision concerned or the relevant Minister, if the decision was made by a service provider and, if any recommendations are made, the parties affected by the decision are entitled to be informed: (a) of any action taken in relation to the recommendations, or (b) that it is not proposed to take any such action. (3) Nothing in this section limits the powers of the Tribunal under Division 3 (Powers on administrative review) of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997." 1. As previously identified the paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act. 2. The objects contained in section 8 of the Children and Young Persons (Care and Protection) Act are: "The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment." 1. The objects of Chapter 8 of the Children and Young Persons (Care and Protection) Act, which specifically relates to out of home care, contained in section 134 are: "The objects of this Chapter are: (a) to create a high standard in the provision of out-of-home care, and (b) to provide a model for the organisation of out-of-home care, and (c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care." 1. The Tribunal, in an application to review primary decisions, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 2. The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child's safety welfare and well-being is given primacy. Submissions of the parties 1. The parties filed written submissions reflecting their respective positions and made oral submissions at the interim hearing. 2. The applicant agrees that the letter dated 10 April 2019 informing her of the result of the internal review stated that there were 28 days within which to apply for a review of this decision by the Tribunal. The applicant submits that the application was filed within 28 days of receipt of the notice about the reportable conduct findings (i.e. receipt on 20 May 2019). 3. The respondent has provided a bundle of section 58 Administrative Decisions Review Act documents. The Issue 1. The applicant seeks to review an administratively reviewable decision and the application has been filed about 10 weeks outside the time permitted. The time for filing the application has to be extended for the matter to proceed to review of the decision. 2. It is submitted by the applicant that she was pursuing the reportable conduct review which raises issues that led to the child being removed from her care. The applicant sought but could not obtain legal representation. The applicant says there is no prejudice to the respondent if the extension of time is granted. The applicant submits that she has a strong case because the allegations that have been made are "false and incorrect". 3. The respondent submits that the delay by the applicant causes prejudice not to the agency, but to the child. The consequent uncertainty for the child's placement is extended if the extension of time is granted. It is also submitted on behalf of the respondent that the applicant does not have a strong case for review and that an examination of that merit reveals that the application for review is a futile exercise. Consideration 1. Section 41 of the Civil and Administrative Tribunal Act provides: "(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired." 1. As previously referred to, the issue the Tribunal is to decide what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the respondent if this is an administratively reviewable decision: section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong in relation to an administratively reviewable decision: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. 3. The respondent submits that there is not a fairly arguable case for review of the decision. Because of the delay since the making of the reviewable decision with the consequent internal review and delay since then, and the prejudice to the child, it is submitted that the applicant is obliged to demonstrate that her case has substantial merit rather than being fairly arguable: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. The Tribunal agrees with the submission and the authorities cited in support of that contention. 4. The applicant accepted in her submissions "that time limits are set to promote orderly and efficient conduct", and in order to "provide certainty for parties and finalise litigation." 5. In BKW v Department of Family and Community Services [2014] NSWCATAD 205, at [18] and [34] it was held that time limits should generally be strictly enforced unless the interests of justice require an extension to be granted, and in that matter a delay of 6 weeks was considered a substantial delay in proceedings of this nature. Also noted in that decision, is the fact that it is not necessary to obtain legal representation before filing an application for external review. That lack of representation appears to be a significant reason for delay put forward by the applicant in this matter. 6. Also in BKW v Department of Family and Community Services [2014] NSWCATAD 205 at [21] the Tribunal modified the principles identified for granting an extension of time in an administrative review matter as set out in relation to an appeal in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] and [22]. It was observed in Jackson v Land and Housing Corporation that the discretion to extend time is to be exercised judicially having regard to the guiding principles in section 36 of the Civil and Administrative Tribunal Act which refers to the imperative to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 7. The principles identified and as modified from Jackson v Land and Housing Corporation [2014] NSWCATAP 22 are: 1. the length of the delay; 2. the reason for the delay; 3. the nature of the decision subject to review and whether there is an arguable case that the decision the subject of review is not the correct and preferred decision and should be set aside or varied; and 4. prejudice to the respondent or any other interested person if strict compliance with the rules is applied. 1. The reviewable decision was based upon a number of grounds. They included: 1. concerns about the stability of the applicant's housing situation. There were multiple moves in relation to accommodation for the applicant and the child. 2. Ongoing domestic violence and arguments between the applicant and her former partner to which the child was exposed and placed at risk of psychological harm. The child was named on an AVO between the applicant and her former partner. The applicant says that this allegation was not sustained by the reportable conduct review, despite the existence of the AVO. 3. Concerns that the applicant had used illicit drugs while caring for the child. The applicant admitted to the use of marijuana. The applicant submitted that the child did not know of the cannabis use and that she used cannabis to assist with sleeping issues and stress-related anxiety. The applicant says she was later prescribed medication for that anxiety. 4. The caseworkers experienced difficulty being able to contact the applicant by phone to organise meetings, home visits, contact visits and plan case plan meetings. This appears conceded but excusable in the view of the applicant. 5. There were concerns about the child's unsupervised contact with the applicant's former partner who had been unable to obtain a working with children check clearance. This appears accurate from the submissions of the applicant. 6. The applicant resumed a relationship with her biological child's father who had been incarcerated for armed robbery and who has significant mental health issues. That partner had been involved in a siege with police after stabbing 3 people. The child was living with the applicant at the same time as she resumed this relationship. This appears to be conceded by the applicant's submissions. 7. Concern was raised in relation to the applicant's financial ability to provide a stable environment for the child. The applicant's Centrelink payments were cancelled or reduced and was partially agreed by the applicant. 8. The applicant's partner has an extensive criminal history with affiliation to a known motorcycle gang and was either unable or unwilling to obtain a working with children check clearance. The partner continued to associate with people who have criminal histories and affiliations with gangs. 9. Concerns about the applicant's ability to support the child to maintain and grow strong family networks. 10. The applicant permitted the child to stay overnight unsupervised with her former partner's mother who did not have a working with children check clearance and was not to have unsupervised contact with the child. The applicant asked for an AVO which protected the applicant and the child from her former partner be removed. 11. The child experienced educational neglect while in her care, with considerable periods of absenteeism. The applicant denied this matter. 12. The applicant was not supporting the child to attend her medical appointments. This appears partially conceded and the reportable conduct investigation found this sustained. 1. The independent reportable conduct investigation occurred after the decision was made to place the child elsewhere. That investigation sustained the allegations that: 1. the applicant had failed to provide the child with a stable and secure environment; 2. the applicant had failed to seek medical follow-up for the child; 3. the applicant had exposed the child to people who are known to be unsafe with serious criminal histories, including histories of extreme violence. 1. It can be observed that the reviewable decision was raised similar grounds to the sustained reportable conduct allegations. The reportable conduct investigation makes sufficient findings which raise significant concern about the safety and care of the child while she was with the applicant. These findings are sufficient reasons for the reviewable decision to remain undisturbed. 2. The findings of the reportable conduct investigation also constitute multiple breaches of the Wandiyali Code of Conduct for authorised carers. 3. The applicant may as a result of these findings have her authorisation as a carer cancelled. Conclusion 1. The applicant in this matter has sought to review a decision made to place the child elsewhere and who had been in her care for a number of years prior to that change of placement. The application has been filed outside time period specified for such an application. 2. The applicant seeks an extension of time and that is opposed by the respondent. 3. There is significant and substantial delay having regard to the nature of the application in relation to the care of a young child where timely applications are required in the best interests of that child. The period of time is greater than the period of time referred to in BKW v Department of Family and Community Services and an extension of time was refused in that matter. In matters of this type even a short delay may have a significant impact upon the safety welfare and well-being of children. 4. The reasons for the delay provided by the applicant are inadequate to explain why she did not act upon the advice she received in the letter dated 10 April 2019 that she could review the decision in the Tribunal within 28 days. The fact that she was seeking legal advice is not sufficient to explain the delay. Awaiting the outcome of the reportable conduct investigation is also an insufficient reason having regard to the timing referred to in paragraphs [5]-[7] of these reasons. 5. The provisions of section 32(1)(b) of the Community Services (Complaints, Reviews and Monitoring) Act may also entitle the Tribunal to decline to hear the application if "the applicant has not made appropriate attempts to have the matter to which the application relates resolved otherwise". 6. The child has been out of the applicant's care for a significant period of time and is now living with a kinship carer. The respondent has assessed that the current placement is a viable permanent placement for the child. 7. The respondent submits that there is an unacceptable risk of harm to the child if she were to be returned to the applicant's care. 8. The respondent relies upon a significant period of substandard care and neglect as referred to in the grounds for making the reviewable decision. These are conclusions which are supported by the sustained reportable conduct findings. 9. The paramountcy principle applies to all decisions made under the Children and Young Persons (Care and Protection) Act and the objects contained in section 8 and section 134 of that Act seek to obtain a high standard of care for children in the position of this child. 10. There is consequent uncertainty for the child's placement if the extension of time is granted. It is assessed that the grant of the application for extension of time is of little utility if the applicant does not have a strong case for review or if the child's circumstances should not be changed. The child is unlikely to be moved from this placement to be returned to the care of the applicant if her current care is meeting her needs and to the requisite standard of care, as it appears would be likely to be established if the matter proceeded to a review hearing. 11. There is significant prejudice to the child caused by the delay because the child requires stability of care and a high standard of care. 12. The reportable conduct investigation makes sufficient findings which raise significant concern about the safety and care of the child while she was with the applicant to find that there is an unacceptable risk of harm for the child to be returned to the applicant's care. The reviewable decision was based on similar grounds to the reportable conduct allegations. 13. The Tribunal in the circumstances referred to previously including the motivating factors for the decision and the findings of the reportable conduct investigation, finds that there is not a fairly arguable case on the evidence and submissions provided in support of the application that the decision the subject of review is not the correct and preferred decision and should be set aside or varied. 14. If this was the applicable standard to be attained by the applicant then the Tribunal would not exercise its discretion to extend time. 15. The applicant, however, is obliged in the circumstances of this matter to demonstrate that her case has substantial merit rather than being fairly arguable and has not so demonstrated: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. That substantial merit test cannot be met since the lower standard is not able to be achieved in the circumstances. 16. The orders of the Tribunal shall be: 1. The Tribunal refuses the application to extend time for the filing of the Administrative Review application filed on 17 June 2019. 2. The application for Administrative Review filed 17 June 2019 is dismissed. ********** 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: 10 September 2019