FWY v Biripi Aboriginal Corporation Medical Centre [2024] NSWCATAD 70

FWY v Biripi Aboriginal Corporation Medical Centre [2024] NSWCATAD 70

The correct and preferable decision was to set aside the removal decision because the Tribunal found the Comparative Assessment unreliable and gave it no weight, found no unacceptable risk to the children in remaining with FWY, accepted that FWY had provided a loving and caring home with no ROSH reports or immediate safety concerns, and considered that maintaining the placement with FWY was the least intrusive course consistent with the children's safety, welfare, wellbeing and cultural and family connections.

Jurisdiction
Australia
Judgment Date
13 March 2024
Procedural Posture
Application for Administrative Review of a Decision to Remove Two Children From the Care of an Authorised Carer / Principal Judgment After Hearing
Outcome
The decision of the first respondent made on 11 July 2023 to remove two children from the care of the applicant was set aside.
Legal Topics
['review of Administratively Reviewable Decision' 'removal of Children From Authorised Carer' 'correct and Preferable Decision' 'aboriginal Children in Out of Home Care' 'kinship Placement' 'cultural Assessment' 'unacceptable Risk of Harm' 'reliability of Comparative Assessment Report']
['administrative Law' 'child Protection' 'out of Home Care'] ['review of Administratively Reviewable Decision' 'removal of Children From Authorised Carer' 'correct and Preferable Decision' 'aboriginal Children in Out of Home Care' 'kinship Placement' 'cultural Assessment' 'unacceptable Risk of Harm' 'reliability of Comparative Assessment Report']

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Procedural Posture

Application for Administrative Review of a Decision to Remove Two Children From the Care of an Authorised Carer / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the decision of Biripi Aboriginal Corporation Medical Centre to remove two children from the daily care and control of FWY was the correct and preferable decision.' "Whether the children remaining in FWY's care involved an unacceptable risk to their safety, welfare and wellbeing." 'Whether the Best Interests Comparative Assessment relied on by Biripi was reliable, independent and culturally competent.' 'Whether removal from FWY and placement with Peter and Louise would accord with the Care Act principles, including the Aboriginal and Torres Strait Islander Children and Young Persons Principle.']

Ratio Decidendi

The correct and preferable decision was to set aside the removal decision because the Tribunal found the Comparative Assessment unreliable and gave it no weight, found no unacceptable risk to the children in remaining with FWY, accepted that FWY had provided a loving and caring home with no ROSH reports or immediate safety concerns, and considered that maintaining the placement with FWY was the least intrusive course consistent with the children's safety, welfare, wellbeing and cultural and family connections.

Court Disposition

The decision of the first respondent made on 11 July 2023 to remove two children from the care of the applicant was set aside.

Orders

  • ['The decision of the first respondent made on 11 July 2023 to remove two children from the care of the applicant is set aside.' 'The Applicant shall file and serve any submissions and evidence on the question of costs no later than seven days after publication of these reasons.' 'The Respondents shall file and...