AQY & AQZ v Administrative Decisions Tribunal of New South Wales

[2013] NSWSC 1028

Supreme Court

New South Wales

Medium Neutral Citation:

AQY & AQZ v Administrative Decisions Tribunal of New South Wales & Ors [2013] NSWSC 1028

Hearing dates:

23, 24 July 2013

Decision date:

24 July 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Declare that the permanency plan signed on 6 September 2011 concerning the subject child has not been embodied in, or approved by, the order or orders of the Children's Court of New South Wales made on 5 October 2011;

(2) Declare that the Administrative Decisions Tribunal of New South Wales has jurisdiction to hear and determine the application for review of a decision in matter number 124031 involving the parties to these proceedings;

(3) The restraining order directed to the Administrative Decisions Tribunal of New South Wales made on 23 July 2013 is dissolved;

(4) Summons dismissed;

(5) The plaintiff to pay the costs of the second defendants, otherwise each party bear his or her own costs.

Catchwords:

ADMINISTRATIVE LAW - jurisdictional error - whether Administrative Decisions Tribunal of New South Wales has jurisdiction to review decision of Director-General of Family and Community Services not to grant care and control of a child to second defendants
STATUTORY INTERPRETATION - s245 Children and Young Persons (Care and Protection) Act 1998 (NSW) - decision by Director-General of Family and Community Services not to grant care and control of a child to second defendants - whether decision is a decision in relation to the preparation of a permanency plan or the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232; 31 Fam LR 218
Re Josie [2004] NSWSC 642
PR v Department of Community Services [2009] NSWADT 277

Category:

Principal judgment

Parties:

AQY & AQZ (plaintiffs)
Administrative Decisions Tribunal of New South Wales (first defendant)
AMS & AMT (second defendants)
Minister for Family and Community Services (third defendant)
R Pollock (fourth defendant)

Representation:

Counsel:
M A Robinson S.C & E Pender (plaintiffs)
Submitting appearance (first defendant)
P Braine (second defendants)
R L Harper (third defendant)
H Graves (23/07/13); J McCaffrey, solicitor (24/07/13, am), S Gardiner (24/07/13, pm) (fourth defendant)
Solicitors:
Winn Legal (plaintiffs)
Crown Solicitors Office (first defendant)
Direct access to counsel (second defendants)
McCabes Lawyers (third defendant)
James McCaffrey & Associates (fourth defendant)

File Number(s):

2013/223060

 Decision under appeal 

Citation:

[2013] NSWADT 140

Date of Decision:

2013-05-02 00:00:00

Before:

P H Molony, Judicial Member

File Number(s):

124031

EX TEMPORE Judgment

1. Campbell J: The plaintiffs seek orders from this Court exercising its supervisory jurisdiction prohibiting the Administrative Decisions Tribunal of New South Wales from hearing and determining matter number 124031 before it. Ancillary relief of various kinds is also sought.

1. The proceedings in the Tribunal are an application for the review of a decision of the Director-General of Family and Community Services not to grant the second defendants as authorised carers the responsibility for the daily care and control of a child who has been referred to in these proceedings as the subject child.

1. The plaintiffs are the authorised carers who currently have the daily care and control of the child and have had that care and control since the child was six days old. The child turns three this week.

1. As has been said in the course of argument the jurisdiction exercised by this Court does not concern the merits of the matter before the Tribunal. The obligation and responsibility of this Court is to determine, in accordance with established legal principle, the sole question of whether or not the Tribunal has the jurisdiction which the second and third defendants have invoked. This is a strict legal question.

1. The way in which the legal question arises is that the Children's Court of New South Wales made a care order in respect of the child on 5 October 2011. The order is in the following terms:

1. Pursuant to s79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988, parental responsibility (all aspects) for [the subject child] is allocated to the Minister for Family and Community Services until the child attains the age of 18 years;

2. S 82 Report to be provided at 11 months from today.

1. In the course of his careful judgment, in its last two paragraphs, the learned magistrate said:

[87] I am satisfied that the Care Plan has adequately and appropriately addressed the issue of permanency planning for [the subject child].

[88] I propose to make orders contained in the Minute of Care Order signed by me today.

1. There was a mistake in the order originally signed by the magistrate, which was corrected later, and the final orders made by the Court were in the form I have quoted.

1. The order made by the Children's Court is referred to in the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act") as a care order. Under s83 of the Act, the Children's Court has certain responsibilities it must observe prior to making a care order. Section 83 (3) is in the following terms:

If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children's Court for its consideration.

1. Subsection 5 provides that the Children's Court is to decide whether to accept the assessment of the Director-General. I will set out subsections 7, 7A and 8 in full:

7) The Children's Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child or young person, and

(ii) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(7A) For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child's or young person's needs and how those needs are going to be met.

(8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children's Court.

1. It is clear from those parts of the section that I have quoted that restoration is a reference to the possibility of restoration of the parental responsibility of the child's natural parents and the child's return to their care. I will not detail other aspects of the legislation which are concerned with that issue, as it does not arise in this case.

1. Section 78A deals with permanency planning. Subsection 2 of that section provides that permanency planning recognises that long-term security of the child will be assisted by a permanent placement. Subsection (2)(a) mirrors, in many respects, the provisions of section 83(7A).

1. Section 79 of the Act deals with orders allocating parental responsibility. It empowers the Court to allocate that responsibility to one parent to the exclusion of the other, or to one or both parents and the Minister, inter alia, and extends to the making of an order placing the child or young person under the parental responsibility of the Minister.

1. The Court may allocate aspects of parental responsibility amongst a number of persons including the Minister, and such aspects of parental responsibility include the consideration of the residence of the child.

1. I interpolate that from the evidence tendered before me, marked exhibit A, which is a bundle of relevant documents extending beyond what might be regarded as the record of the Tribunal, there is a copy of the permanency plan signed on 6 September 2011 which was tendered in the Children's Court. That permanency plan, which is of 20 pages in length, including its formal parts, and which deals with a number of relevant matters relating to the care of a subject child including the issues raised in s78, included the proposal that the subject child remain in foster care until the child attains the age of eighteen years, and further proposed that the subject child remain with his current authorised carers who have actively been involved with the provision of care for the subject child since, as I have said, very soon after birth.

1. From the provisions of the Act I have referred to, it is clear that the consideration of permanency including permanency of placement is a significant consideration to be brought into account by the Children's Court in exercising its jurisdiction.

1. Permanent placement is defined in s3 of the Act as meaning:

a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act which provides a safe, nurturing and secure environment for the child or young person and which may be achieved by:

...

(c) long-term placement with an authorised carer...

1. That definition has six subparagraphs.

1. The provisions set out above are the statutory context in which the jurisdiction question arises for determination.

1. As I have said, the plaintiffs are the authorised carers who have had care of the subject child for all but six days of his life. The second defendants are the applicants for a grant of daily care which the Minister refused. The female second defendant is the mother of the subject child's half-sibling and also the authorised carer entrusted with the daily care and supervision of the subject child's full sibling, if I may express myself that way. As part of the permanency plan, the subject child has had contact with the family of the second defendants for the purpose of enhancing his kinship ties.

1. 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. The legal question that arises for determination is said to be simple. The question is whether the decision of the Minister that I have referred to is a decision in relation to either the preparation of a permanency plan or the enforcement of such a plan that has been embodied in, or approved by, an order or orders of the Children's Court.

1. Mr Robinson SC, who appears for the plaintiffs with Ms Pender, submits that, having regard to the express finding of the learned magistrate at [87] that I have set out above, the answer to the question is clear beyond argument; the permanency plan which includes the proposals I have referred to concerning the foster care of the subject child were referred to with approval by the learned magistrate and he expressly found that they were appropriate and adequate.

1. The purpose of the enactment of subsection 1B of s245 is to clarify and remove doubt about the respective jurisdictions of the Tribunal and the Children's Court. Learned senior counsel took me to relevant portions of the second reading speech of the parliamentary secretary responsible for this legislation upon the introduction to the lower house of Parliament of the amending bill which enacted subsection 1B.

1. Mr Robinson pointed out, by reference to the second reading speech, that there had been a perception that confusion had intruded into the operation of the legislation concerning the respective jurisdictions of the Tribunal and the Court. The minister said:

The amendment makes clear that the adequacy of a permanency plan to support long-term care orders is a matter solely for the Children's Court removing the possibility of seeking an additional review of a permanency plan by the Administrative Decisions Tribunal.

The decision in PR v Department of Community Services [[2009] NSWADT 277] highlighted a potential for direct conflict between the jurisdictions in respect to intervening and determining the adequacy of a permanency plan. The intention of the amendment is to circumvent any further conflict or confusion by making clear that the permanency plan, including whether a plan adequately addresses the permanency planning for a child, is a matter only for judicial consideration by the Children's Court in making an order to reallocate parental responsibility.

1. The question of the Tribunal's jurisdiction in this case was ventilated on 2nd May 2013 before P H Moloney JM. Sensibly, with respect, the judicial member decided to entertain the question of jurisdiction separately and in advance of embarking upon a hearing as to the merits of the application for review. The learned judicial member decided the question by reference to the decision in PR v Department of Community Services [2009] NSWADT 277 per Higgins JM, referred to in the second reading speech.

1. Learned senior counsel argued that the whole intent of the amendment was to overcome a mischief which had been introduced into the administration of the Act by that very decision.

1. Before the judicial member the plaintiffs also argued that the decision not to grant the second and third defendants daily care and control of the subject child was not covered by s 245(1)(c), but I did not understand that argument to be pressed in this Court.

1. The plaintiffs then applied, under procedures available in the Tribunal (which I will not go into because it is unnecessary for me to do so), to an Appeal Panel for an interlocutory order overturning the judicial member's decision.

1. The President of the Tribunal, in the exercise of the discretion available to his Honour in that regard, declined to entertain the application at an interlocutory stage and ruled that the matter should proceed in the normal way in the Tribunal and that any appeal could abide the outcome of the merits decision, or determination of the application.

1. In this Court the Minister has been represented by Mr Harper of counsel, the second defendants by Mr Braine of counsel, and the fourth defendant, who is the Guardian ad Litem in the Tribunal, variously by Ms Graves of counsel and Mr McCaffrey, solicitor, and now Mr Gardiner of counsel. The argument of each of the defendants was to the same effect, although each counsel highlighted somewhat different aspects of the matter.

1. I should interpolate that I have decided to give this decision on an ex-tempore basis for a number of reasons. The matter is urgent. The hearing was supposed to commence in the Tribunal today and concerns the proper care and protection of a young child. The uncertainty which accompanies delay is worse in such a case than in the normal case because the matter should not hang in the balance but should be resolved in an appropriate way having regard to the purposes of the care and protection legislation. Moreover, there should be no uncertainty about whether the Tribunal will hear this case this week or not. Such uncertainty adversely affects the Tribunal itself as well as each of the parties.

1. I apologise to the parties and those interested members of the community present in court if because of dealing with this matter in an urgent manner there is any infelicitous expression in the reasons I am giving. I apologise to counsel if I do not do justice to their careful and erudite arguments. I will attempt to deal with the substance of them.

1. Essentially, the arguments on behalf of the defendants were that if one looked at the orders actually pronounced by the Children's Court on 5 October 2011 there was no order in express terms embodying or approving of the permanency plan, or any aspect of it. Paragraph 87 did no more than discharge the magistrate's obligation under s83(7)(a).

1. Moreover, it was said that if this was a narrow approach then its correctness could be tested by reference to the uncertainty, inflexibility and unreasonableness of the result, according to counsel's arguments, of the interpretation contended for by the plaintiffs.

1. It was said that the effect of a decision which accepted the arguments of the plaintiff would be, in every case where the Children's Court had made a care order, that the Minister, or other responsible person, could not make any decision concerning aspects of care of the subject child which might vary from the detailed contents of a permanency plan without making a further application to the Children's Court under s90 of the Act. I understood this argument to be advanced as an extrinsic aid to the interpretation of subsection 1B. It seems to me that ss. 245(1)(c) and (1B), conventionally, must be interpreted in their context, extending to the context provided by the whole of the Act.

1. I was taken through the provisions of the Act in quite some detail. I have come to the conclusion, however, that the most significant context for the interpretation of s245(1)(c), (1B) and (2) which may be provided elsewhere in the legislation is s83.

1. I fully accept the argument advanced so skilfully on behalf of the plaintiffs that s245(1B) has as one of its purposes the careful delineation of jurisdiction between the Children's Court and the Tribunal. I accept fully that the enactment of subsection 1B was for the purpose of clarifying and reinforcing the line.

1. It is clear that in cases to which s83 applies, and s83 is concerned with the Children's Court's power of disposition in cases where the Director General applies for a care order for the removal of a child from his or her parents, a permanency plan must always be prepared and put before the Children's Court.

1. As I have indicated, or sought to indicate earlier, a concern of s83 is whether there is a realistic possibility of a child being restored to his or her parents. That legislative concern, if I may express myself that way, can be found in other related provisions of the Act. This possibility must always be addressed in a permanency plan, one way or another.

1. Doubtless there are many cases like this, under s83(3), where the Director-General assesses that there is not a realistic possibility of such restoration. Where that is the Director-General's assessment, the Director-General is to prepare the permanency plan for another suitable long-term placement for the child and submit it to the Children's Court for its consideration.

1. Ipp AJA (as his Honour then was) in George v Children's Court of New South Wales [2003] NSWCA 389; 59 NSWLR 232; 31 Fam LR 218 emphasised, in the similar context of s80 of the Act, that "consideration" means just that. It does not connote acceptance.

1. Section 83(5) requires a decision of the Children's Court. It is to decide whether to accept the assessment of the Director-General, or not, and that is an assessment as to the realistic possibility of restoration, one-way or the other.

1. If the Children's Court does not accept the assessment it may direct the Director-General to prepare a different permanency plan. Obviously, it is open to the Court in a case where the Director General assesses that restoration is a realistic possibility to reject that assessment and to direct a further plan be based on a different assumption. The converse must also be true.

1. I have set out the provisions of s83(7) above. A number of things arising out of the juxtaposition of subsections 7, 7A and 8 of s83 stand out in my judgment.

1. First, the Court must not make a final care order unless it expressly finds that permanency planning for the child has been appropriately and adequately addressed: s83(7)(a). That is a statutory condition which must be satisfied in all cases, that is to say, all cases whether or not restoration has been assessed as being a realistic possibility.

1. I accept Mr Harper's argument that this finding is one necessary to enliven the Children's Court's power or jurisdiction to make a final order.

1. Paragraph (b) of subs (7) adds an additional requirement in cases where restoration has been put forward as a realistic possibility. In that case it seems to me that the Court is called upon to actually approve a permanency plan involving restoration before making a final order, and may only approve that permanency plan if it has regard to the matters set out in s83(7)(b)(i) and (ii), set out above at [9].

1. Subsection 7A refers only to paragraph (a) of subs 7, that is to say, a case not being one in which restoration has been put forward as a realistic possibility.

1. Subsection 7A makes clear that the Children's Court need not be provided with details as to the exact long term placement proposed for the child. Rather, as Mr Braine argued, it is sufficient if the plan contains "further and better particulars" of "a reasonably clear plan".

1. Secondly, in my view one can see interplay between that provision and the provisions of s82 which empower the Court to require a report of implementation of the plan within a specified period of time. Such an order was made in this case. Under s82 it is important to bear in mind that if a report is provided and the Court is not satisfied with its contents, its powers are limited to inviting the parties, or a party, to make application to vary the care order involving the allocation of parental responsibility. The Court may not rescind or vary its previous order, or make a new order, on its own motion.

1. Thirdly, subsection 8 makes clear that not all permanency plans are enforceable. I emphasise that subsection 8 is concerned with the enforceability of permanency plans. It is not concerned with the enforceability of orders of the Children's Court. The orders of the Court must always be enforceable.

1. In this context subsection 8 makes clear that a permanency plan is only enforceable to the extent to which its provisions are embodied in or approved by an order or orders of the Children's Court. One sees in this provision, as in s78(4), the same language as appears in paragraph (b) of subsection 1B of s245.

1. However, it is significant to my mind that the following considerations arise out of the juxtaposition of these provisions.

1. 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. To my mind it seems clear that the legislature has contemplated and given effect to the idea that some permanency plans will be enforceable and some will not. I take "enforceable" to mean legally enforceable in the sense of being carried into legal effect by the coercive powers of a court.

1. I also accept that s79 provides relevant context. Subsection (2) of that section sets out aspects of parental responsibility that may be allocated by an order of the Children's Court if that Court decides to allocate that responsibility. One aspect is the residence of the child or young person. No doubt a question like that of the residency of the child will be a matter which would normally be considered in a permanency plan, and it has about it the same idea as the concept of placement which is used throughout the legislation.

1. Accordingly, if the Children's Court decides to allocate parental responsibility, say, between the Minister and the natural parent, it would need to make an order which said which of them had which aspects of parental responsibility. In coming to that conclusion the Court would, no doubt, have regard to the proposals contained in the permanency plan that was provided by the Director-General for the purposes of s83 of the Act.

1. In such a case it may be that the Children's Court would make an order that the parental responsibility of residence of the child is allocated to a named parent.

1. No one would argue that such an order was an order which embodied an aspect of a permanency plan. Decisions of the type referred to in s245(1)(c) that might impinge upon that order would not be decisions that were reviewable in the Tribunal. That is not however this case.

1. 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 concept of approval is perhaps different. It seems to me there may be a connection between the reference to the requirement to approve in s83(7)(b) and approval in s245(1B)(b). But I need not decide that question. For it seems to me that, properly understood, what the learned magistrate did at [87] of his decision was not to make an order approving the contents of the permanency plan, but rather to make a finding in accordance with s83(7)(a).

1. The decision I have made is broadly consistent with the principles discussed by Levine J in Re Josie [2004] NSWSC 642. Although the context was somewhat different, his Honour said at [38]-[39]:

[38] When one considers s 79(2) and s 81 and the order I have found in fact to have been made, namely that parental responsibility has been allocated to the Minister without any qualification, exception or joint responsibility, then that parental responsibility solely to be exercised by the Minister includes residence, and the Children's Court has no jurisdiction to interfere with the exercise by the Minister of that sole responsibility which includes residence in any way, let alone by the constraint sought to be imposed by the order under challenge.

[39] On my construction of the legislation and taking into account what I will describe as the important policy matters dealt with in [George v Children's Court of New South Wales (2003) 31 Fam LR 218], the Children's Court, having even on an interim basis allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister's power to exercise it.

1. Although the context is different, in that case his Honour decided that an order of the Children's Court that the child reside with an aunt was beyond jurisdiction. His Honour found that that order was beyond jurisdiction because, as [38] makes clear, the previous order of the Children's Court had allocated all aspects of parental responsibility to the Minister. In that event, the Minister was entitled to exercise the obligations of parental responsibility in all respects on a day-to-day basis. The same order was made here.

1. For these reasons, I am of the view that the Tribunal has jurisdiction to entertain application number 124031. In my judgment, the decision of Maloney JM was correct in law. As I said at the outset, and I repeat now, the decision I have been called upon to make is a strictly legal one. It in no way suggests anything about how the Tribunal should exercise its jurisdiction in deciding the merits of the application properly brought before it.

1. I make the following orders:

(1)   Declare that the permanency plan signed on 6 September 2011 concerning the subject child has not been embodied in, or approved by, the order or orders of the Children's Court of New South Wales made on 5 October 2011.

(2)   Declare that the Administrative Decisions Tribunal of New South Wales has jurisdiction to hear and determine the application for review of a decision in matter number 124031 involving the parties to these proceedings.

(3)   The restraining order directed to the Administrative Decisions Tribunal of New South Wales made on 23 July 2013 is dissolved.

(4)   Summons dismissed.

1. Some of the successful defendants make application for costs. I must say the Minister - very properly in my view, given the allocation of parental responsibility for the child to her - has refrained from making any application. Mr Braine, who appears on direct access instructions from the second defendants, makes an application for costs, and Mr Robinson advances - quite properly as well - no reason why, in that regard, costs should not follow the event in accordance with the usual practice of the Court.

1. Mr Gardiner applied for costs on instructions. I think his position is a little different from that of the second defendants. The Guardian ad Litem is a statutory appointment under the Administrative Decisions Tribunal Act 1997 (NSW). The lawyers who give of their time acting for the Guardian ad Litem are funded by Legal Aid. That is not a reason not to grant a costs order in an appropriate case, but it puts things in context. One might have envisaged that the Guardian, and I make no criticism, could have given consideration to filing a submitting appearance, given that the only question before the Court was purely legal.

1. Whilst the submissions advanced on behalf of the Guardian were, may I say with respect to those who advanced them, helpful and pertinent, they only added weight of numbers to the submissions that had been advanced on behalf of the Minister and the second defendants. I did accede to an application over the objection of Mr Robinson that the Guardian be joined as an additional defendant. I consider that it had a legitimate interest in being here, but its involvement was, I think, in the nature of an intervention. For those reasons, I would "otherwise order" in respect of the costs of the fourth defendant and not allow him his costs. The orders I make are the plaintiff to pay the costs of the second defendants, otherwise each party bear his or her own costs.

**********

Decision last updated: 02 August 2013