Byrnes v Minister for Community Services

[2004] NSWADT 243

CITATION:	Byrnes and Anor v Minister for Community Services [2004] NSWADT 243
DIVISION:	Community Services Division
PARTIES:	APPLICANTS Sue Byrnes and Barry Byrnes RESPONDENT Minister for Community Services
FILE NUMBER:	034047
HEARING DATES:	06/05/2004
SUBMISSIONS CLOSED:	09/04/2004
DATE OF DECISION:	10/27/2004
BEFORE:	Britton A - Judicial Member; Dobell D - Non Judicial Member; Moss J - Non Judical Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT M Rush, Barrister RESPONDENT E Sadlier, solicitor
ORDERS:	The application is dismissed for want of jurisdiction.

1 This is an application by foster carers for a review of a decision to remove children from their care. The issue for determination at this point in the proceedings is whether the Tribunal has jurisdiction to entertain the application.

2 It is common ground that the two principal factual disputes are, first, whether the applicants completed an “Application to foster” or an “Application for fostering authority” so as to come within the scope of s.112(a) of the Children (Care and Protection) Act 1987 (“the 1987 Act”) and, second, whether the applicants had “custody” of the children so as to fall within the scope of s.112(h) of that Act.

Was an application for fostering authority completed and submitted?

3 The evidence in relation to this question is in conflict. Ms Byrnes swears in her Statutory Declaration of 29 June 2004 that she completed a form which was similar to an “Application for Foster Authority”. She does not have a copy of the document but based her evidence solely on her recollections.

4 The Department states simply that a search of its records reveals no such document. It, however, has an Application to Foster on its file. It submits that the combination of the absence of a documentary application for fostering authority and the presence on its file of an application to foster gives rise to a strong inference that an application for fostering authority was not, in fact, completed by the applicants.

5 In response, the applicants contend that there is no reason to doubt the truthfulness or reliability of Ms Byrnes’s evidence. Moreover, they submit that no evidence has been called from other witnesses who attended the foster parenting course completed by the applicants. That is said to be an important evidentiary lacuna in the respondent’s case because the evidence such witnesses could have given might reasonably be expected to relate to the forms issued by DOCS to the attendees on the course and the practice in relation to completion of them. Neither have the documents filled out by those others who attended the course been tendered (even in a form which protects the identity of those persons). The applicants therefore assert that there is a reasonable likelihood that such evidence would not support the respondent’s case.

6 The Jones v Dunkel argument that other attendees ought to have been called by the respondent appears to us to be misconceived. Of course such witnesses could have been called but the question is whether they could reasonably have been expected to be called. A party may seek to prove its case in the fashion it chooses. If material witnesses are not called by one party or another, the argument made by the applicants will generally have some validity (although there may come a point at which a halt to the procession of witnesses telling the same story ought be called). It would certainly have assisted to have some evidence called from one or more witnesses as to the documentation handed out to, and completed by, the attendees at the course but we do not think that there is a general expectation in these circumstances that those witnesses ought to have been called nor that the reason they were not was because their evidence was likely to be adverse to the respondent. That it too bold a conclusion to draw in the circumstances.

7 We think that the evidence concerning the completion of the Authority document is very evenly balanced. No filing system is infallible. It is perfectly conceivable that the relevant document has gone missing in a department as large as DOCS. There is no particular reason to doubt the truthfulness of Ms Byrnes evidence. The significant question concerning her is whether, absent any documentation or copies of records in her possession or the Department’s, her recollections are reliable. Her evidence, naturally enough, is self-serving but that does not necessarily derogate from her truthfulness or reliability: all parties give self-serving evidence because that is the nature of litigation.

8 Nevertheless, given that it is clear that the applicants completed an “Application to Foster Children” it appears to us that it is more probable than not that they did not also complete an Application for Fostering Authority. The two documents serve different purposes. The former is used when applicants apply to be foster carers “for the Department of Community Services” and the latter when people apply to foster a child privately. The Department approved the applicants to act as foster carers for it but holds no records (that it can locate) relating to an application for fostering authority. The applicants did not need a fostering authority to become foster carers for DOCS. The inferential evidence therefore appears weightier on the respondent’s side of the balance. In our view, it is more probable than not that Ms Byrnes’s recollections on this point are mistaken.

9 It appears to us that the decision sought to be reviewed was one to terminate the applicants’ approval as foster carers. That being the case, the decision is not reviewable because it was made before the commencement of s.245 of the Children and Young Persons (Care and Protection) Act 1998 (“the 1998 Act”). That section, which specifies those decisions reviewable by the Tribunal under the 1998 Act, did not commence and therefore grant jurisdiction to the Tribunal, until 15 July 2003, whereas the decision in question was made on 17 February 2003.

Were the children placed in the applicants’ “custody” as wards or protected persons?

10 Pursuant to s.112(h) of the 1987 Act, a decision of the Minister to terminate the custody of a ward or protected person under s. 91 (1)(e) of that Act is reviewable by the Tribunal. The jurisdictional questions, then, is whether, at the relevant time, the applicants had custody of a ward or protected person because it is self-evident that, if the applicants ever had custody of the children, that custody was terminated.

11 A short chronology of events is as follows. On 8 August 2001, DOCS notified Mr and Mrs Byrnes that they had been approved as short-term or respite carers. On 30 March 2001, two children were placed in their care until 12 April 2001. These, the Family A children, were returned to the care of the applicants on 5 June 2001. In May 2002, a decision was made by the respondent’s delegate to remove the Family A children from their care. In early September 2002, the children were removed from the applicant’s care on a transitional basis to another placement and were finally removed on 20 December 2002.

12 On 27 November 2001, a care application was filed with the Children’s Court in respect of three children (“the Family B children”). They were placed with the applicants pending a court hearing. On 11 December 2001, pursuant to ss 69 and 70 of the 1998 Act, the Children’s Court made interim orders that the children be given into the care of the Minister. The children remained with the applicants until September 2002 when a decision was made by DOCS to remove them to another placement. That transition began on about 7 September 2002. The Family B children finally left the applicants on 11 January 2003. On 3 December 2002, the Children’s Court made final orders granting parental responsibility for the Family B children to the Minister for five years with a restoration plan to be developed and implemented within the first 12 months.

13 On 9 January 2003, Mrs Byrnes wrote a letter to the natural mother of the Family A children. That letter was provided to DOCS on about 14 February 2003. Among other things, Mrs Byrnes stated that “[one of the children] is the biggest trouble maker God ever put breath in. It took 6 months for me to get rid of them and thank God they have gone.” About three days after receiving a copy of this letter, and following a meeting with the applicants to discuss it and other issues, DOCS made the decision to withdraw approval of the applicants as foster carers. They were notified in writing of the reasons on 31 March 2003. Following a request from the applicants for further information, another letter confirming the decision was sent by DOCS to the applicants on 14 May 2003.

14 It is submitted by the respondent the decision is not reviewable because the Family B children were never in the “custody” of the applicants and that therefore there was no custody to terminate. It is also contended by DOCS that the children were not placed with the applicants pursuant to s.91(1)(d) of the 1987 Act (which may have provided an alternative avenue to review).

15 The interim order, made by the Children’s Court on 11 December 2001, pursuant to ss.69 and 70 of the 1998 Act, was that the children be placed in the care of the Minister pending final orders being made. The children were not declared wards or “protected persons” for the purposes of the Act at that stage. The respondent contends that parental responsibility had not passed to the Minister at that stage nor by the stage that the applicants’ foster care status was terminated.

16 The definition of “care order” as enunciated in s.60 of the 1998 Act, is that it is an order under Chapter 5 “for or with respect to the care and protection of a child or young person”. Basing their argument on this definition, the applicants contend that “it cannot be doubted that by ‘care’ the Children’s Court meant an order pursuant to s.79 allocating parental responsibility to the Minister… On any view of the evidence the Department had parental responsibility”.

17 With respect, this argument is incorrect in a number of ways. First, when, on 11 December 2001, the Children’s Court exercised its jurisdiction and made interim orders it did not purport to determine an issue of parental responsibility. That is clear on the face of its order. The matter was adjourned with the children to be placed in the care of the Minister. Parental responsibility remained at that stage with the parents of the children and would do so until further order of the court.

18 The court never purported to exercise any jurisdiction under s.79 making an order that the Minister have parental responsibility. Moreover, even if it had, the court would have been acting beyond its power because s.79(3) specifically prohibits such an order being made until certain pre-conditions are met. Sub-section (3) provides that “The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9(d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.”

19 It is self-evident that the court had not given particular consideration to the principle that, “in deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development” because there had been no hearing on the merits of the application before it as at 11 December 2001. There is nothing on the court record to show that it was satisfied that no other order would suffice, nor could there be because the issue simply had not been argued. Section 79 is therefore irrelevant to our considerations of what was done by the Children’s Court in December 2001. No order concerning parental responsibility was made until December 2002. The real question in regard to s.112(h) is whether the children were in the custody of the applicants as a ward or “protected person”. If so, the decision to remove the children from that custody is reviewable.

20 The respondent argues that the children were not placed with the applicant pursuant to s.91(1)(d) of the 1987 Act as they were neither wards nor protected persons for the purposes of s.91(1). To understand the argument we must examine the legislation.

21 Section 91 deals with the functions of the Minister in relation to wards and protected persons. There is no suggestion that the Family B children were wards at the relevant time but the definition of “protected person” is relevant to our considerations. Section 3 of the 1987 Act defines a “protected person” as:

(a) a child who is a ward of the Supreme Court and of whom the Minister or the Director-General has the custody or care pursuant to an order of the Supreme Court,

(a1) a child who is under the guardianship of the Director-General pursuant to section 34 (Guardianship of child awaiting adoption) of the Adoption of Children Act 1965 ,

(b) a child of whom the Minister or the Director-General has the custody or guardianship pursuant to an order in force under the Family Law Act 1975 of the Commonwealth,

(c) a non-citizen child in respect of whom the Director-General exercises the functions of a guardian pursuant to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth, or

(d) a child who, having been a child referred to in paragraph (a), (b) or (c), is in the custody of a person referred to in section 91 (1) (d) (i) or (ii).

22 In our view, none of these sub-definitions applies to the Family B children and they were not “protected persons” for the purposes of s.91. It is unnecessary to recite here the terms of sub-sections 91(1)(d) and (e) as they relate only to wards and protected persons and the Minister’s power to place them and terminate placements in accordance with various conditions. Accordingly, no placement could lawfully have been made by the Minister pursuant to s.91(1) and therefore there was no placement made under s.91(1)(d) to terminate pursuant to s.91(1)(e).

23 The applicants have made extensive submissions concerning “custody” and the nature of the care relationship which existed between them and the children. Interesting as those arguments are, they are irrelevant unless the children were placed with the applicants either as wards or “protected persons” as defined by s.3. In our view, they were neither and the argument fails.

24 Once again we conclude that the Tribunal has no jurisdiction to review the decision complained of.

Orders

25 The application is dismissed for want of jurisdiction.