AAC v Director-General, Department of Human Services, Community Services (No 2)
[2011] NSWADT 235
•10 October 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AAC v Director-General, Department of Human Services, Community Services (No 2) [2011] NSWADT 235 Hearing dates: On the papers Decision date: 10 October 2011 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: The Tribunal has no jurisdiction to hear and determine this application
Catchwords: Jurisdiction - removal of child - whether decision to remove the child was reviewable by the Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993Category: Interlocutory applications Parties: AAC (Applicant)
Department of Human Services, Community Services (Respondent)Representation: AAC (Applicant in person)
Department of Human Services, Community Services (Respondent)
File Number(s): 104034 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act 1997 applies
REasons for decision
Introduction
On 8 December 2010, the applicant, AAC, lodged an application seeking review of the decision of the respondent, the Director-General of the Department of Human Services Community Services, to remove a 9 year old child from her care. In addition to that application the applicant sought a stay of the decision of the respondent pending the determination of her review application.
On 16 December 2010, I heard the applicant's application for a stay. At the conclusion of hearing oral submissions, I made an order refusing the applicant's stay application. At the same time I gave some brief oral reasons for decision in regard to the applicant's stay application.
During the hearing of the applicant's stay application, the respondent raised an issue about the Tribunal's jurisdiction to hear and determine this application. This issue was formally raised at the directions hearing on 21 February and 3 March 2011. I made orders for the respondent to file and serve written submissions on this issue and gave the applicant an opportunity to respond to these. On 3 March I indicated to the parties that on the material provided I was not persuaded that the Tribunal had jurisdiction to hear and determine this application. However, I would formally publish a decision and reasons for decision as the jurisdictional issue raised in this matter is an important one. The parties also agreed that the Tribunal was to determine this issue on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act).
Relevant legislation
Subsection 38(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) sets out the Tribunal's jurisdiction to review a decision of an administrator. That section relevantly provides as follows:
38 Conferral of jurisdiction to review reviewable decisions
(1)Conferral of review jurisdiction
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decisions (or classes of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.
Section 5 of the ADT Act defines the word 'enactment' to mean: '(a) in relation to a reviewable decision - an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or (d) in any other case - an Act (other than this Act).'
Accordingly, in order for a decision of an administrator to be reviewable by the Tribunal, the decision must be a decision made under an Act, other than the ADT Act, in which that other Act provides the Tribunal may review the decision.
Part 5 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (the Reviews Act) sets out those decisions which are reviewable by the Tribunal. This includes a decision under section 245 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act).
Section 245 of the Care and Protection Act sets out the decisions, made under that Act, which are reviewable by the Tribunal for the purposes of section 28(1) and (a) of the Reviews Act. These decisions include 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': see paragraph 245(c) of the Care and Protection Act. The term 'relevant decision-maker' is defined in subsection 245(2) to mean the person or body authorised by or under the Care and Protection Act or the Regulations to make the decision, not being the Children's Court. That is, the Tribunal cannot review a decision made by the Children's Court.
Chapter 8 of the Care and Protection Act makes provision for out-of-home care by an 'authorised carer'. Section 137, in Part 1 of Chapter 8 defines the term 'authorised carer' to mean '(a) the principal officer of a designated agency, or (b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designed agency, or (c) a person who in accordance with the regulations, is otherwise authorised as an authorised carer.' It is the 'authorised carer' who provides out of home day-to-day care for the child. The type of out-of-home care and these are defined in section 135 of the Care and Protection Act. That section relevantly provides as follows:
135 Definition and types of 'out-of-home care'
(1)For the purpose of this Act out-of-home care means residential care and control of a child or young person that is provided:
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.
(2)There are 3 types of out-of-home care for the purposes of this Act, as follows:
(a) Statutory out-of-home care - see section 135A,
(b) Supported in out-of-home care - see section 135B,
(c) Voluntary out-of-home care - see section 135C.
(3)For the purposes of this Act, out-of-home care does not include:
(a) daily care and control of a child given by a person in the person's capacity as a licensed provider of children's services, or
(b) any care provided by a relative of a child or young person unless:
(i) the Minister has parental responsibility for the child or young person by virtue of an order of the Children's Court or
(ii) the child or young person is in the care of the Director-General, or
(iii) it is provided pursuant to a support out-of-home care arrangement as referred to in section 153, or
(c) ...
Consideration
The child, the subject of the applicant's application was born in July 2001. She was removed from her birth parents in September 2001. In December 2002, the Children's Court made a care order placing the child under the joint parental responsibility of child's mother and the Minister for a period of 5 years with a view to restoration to the mother at the conclusion of that period. That order was made pursuant to section 79 of the Care and protection Act. That section is contained in Chapter 5 of the Care and Protection Act, which deals with Children's Court Proceedings. As mentioned above, the Tribunal has no jurisdiction to review decisions of the Children's Court made under this Chapter.
Shortly after the child was removed from her birth parents, she was placed into the care of the applicant. She remained in the care of the applicant until 5 August 2010 when she was removed by the respondent. During this period however, the child was in the care of the applicant on 2 different basis. Initially, from October 2001 to December 2007, the child was in the care of the applicant in the applicant's capacity as an 'authorised carer' under Chapter 8 of the Care and Protection Act.
On 5 December 2007, by consent, the Children's Court placed parental responsibility for the child primarily to the applicant under subsection 79(2) of the Care and Protection Act. The Children's Court gave the Minister parental responsibility for the child only to the extent of making decisions, in conjunction with the applicant, in regard to the child's medical needs and contact. Again, these orders were made under Chapter 5 of the Care and Protection Act.
Accordingly, by reason of the Children's Court proceedings, from 5 December 2007 until the date of the child's removal on 5 August 2010, the applicant was in effect the child's parent: see section 3 of the Care and Protection Act. That is, the child was not placed with the applicant in her capacity as an 'authorised carer' for the purpose of out-of-home care under Chapter 8 of the Care and Protection Act.
Hence the decision to remove the child from the applicant's care in August 2010 was not a decision based on the applicant being the 'authorised carer' of the child. It was based on the applicant being the parent and the respondent exercising its powers under subsection 43(1) of the Care and Protection Act (i.e. being satisfied, on reasonable grounds, that the child was at risk of serious harm). The respondent's right of removal under this subsection is also contained in Chapter 5 of the Care and Protection Act.
There is no dispute that the respondent decided to remove the child following a police raid on the applicant's property, on 6 August 2010, where police found evidence of the manufacturing of prohibited drugs in premises (occupied by the applicant's son) located on the property. The applicant's son was arrested and charged by police as a result of what had been found. No charges were laid against the applicant who co-operated with the police.
As a result of having removed the child, the respondent, as she was required to do under section 45 of the Care and Protection Act, immediately commenced proceedings before the Children's Court, seeking an interim care order placing the child under the parental responsibility of the Minister, pending further order. The Court made the orders sought on 23 August 2010. Again, this order was also made under Chapter 5 of the Care and Protection Act.
Having commenced proceedings, the respondent has proceeded with its substantive application for a care order again placing parental responsibility of the child with the Minister until she reaches 18 years of age. The applicant is a party to those proceedings.
While I can understand the applicant's concern, on the material before the Tribunal, in this application, the decision to remove the child from the applicant is not a decision that is reviewable by the Tribunal as it is not a decision made on the basis of the child being in the day-to-day care of the applicant as an 'authorised carer' under Chapter 5 of the Care and Protection Act. However, it is noted that the applicant, as a party to the proceedings before the Children's Court is able to raise her concerns before that Court.
For the reasons set out above, I find that the Tribunal does not have jurisdiction to hear and determine the applicant's application for review. Accordingly, the applicant's application is dismissed.
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Decision last updated: 10 October 2011
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