CI & CJ-v- Director General, Department of Community Services

[2002] NSWADT 85

Set aside by Appeal: Set aside by appeal on 1/11/2001

CITATION:	CI & CJ-v- Director General, Department of Community Services [2002] NSWADT 85
DIVISION:	Community Services Division
PARTIES:	APPLICANTS CI CJ RESPONDENT Director General, Department of Community Services
FILE NUMBER:	014053
HEARING DATES:	22/08/2001
SUBMISSIONS CLOSED:	10/03/2001
DATE OF DECISION:	10/23/2001
BEFORE:	Britton A - Judicial Member; Green J - Member; Gelin B - Member
APPLICATION:	Custody - decision to terminate the custody of a ward
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:
REPRESENTATION:	APPLICANTS In person RESPONDENT D Wells, solicitor
ORDERS:	The Tribunal has jurisdiction to determine the applicants' application.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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.

1 On 16 August 2001 CI and CJ the applicants) lodged an application with the Administrative Decisions Tribunal (the Tribunal) seeking a review of a purported decision made by a delegate of the Minister for Community Services (the Minister) pursuant to s.91 (l)(e) of the Children (Care and Protection) Act 1987 (the Act) to terminate their custody of four children, Child 1, Child 2, Child 3 and Child 4 (the children). On 16 August 2001 the applicants made an application to the Department for an internal review of the purported decision.

2 On 1 December 2000 the Port Kembla Children’s Court made orders declaring the children to be wards under the Act until they respectively attain eighteen years of age. In November 2000 the children were placed in the foster care of the applicants. All four children have remained in the care of the applicants since that time.

3 On 22 August 2001 the Tribunal as presently constituted heard an application for a stay of the Minister's purported decision. At that hearing the respondent challenged the jurisdiction of the Tribunal to determine the application made by CI and CJ. The issue for determination in this decision is whether the Minister in fact made a decision that is reviewable by the Tribunal as defined by s.112 of the Act.

Evidence
4 CI, CJ and Ms Francis, Acting Manager Clients Services, DOCS gave evidence to the Tribunal concerning the Minister's delegate purported decision. The applicants provided the Tribunal with a number of documents including correspondence between them and the respondent and minutes of various meetings.

5 In a letter dated 6 July 2001 addressed to Wayne Pennial, the Department’s Wollongong Area Director, the applicants advised that they intended to relocate to Tasmania due to CJ’s work commitments. In that letter they state, "we understand that there will be many factors that need to be considered in applying for this placement to continue in Tasmania".

6 In a reply to that letter dated 11 July 2001 Mr Pennial wrote, "In relation to a move to Tasmania, I understand that there is a government agency called the Department of Health and, Children's Services that is responsible for interstate transfers of guardianship. As you point out there are many factors which would need to be considered prior to any move to Tasmania, especially regards to access and supports to the children."

7 On 15 August 200 I, a meeting was held at which the applicants, departmental officers and a representative of Centacare were present. The applicants claim that at that meeting they were in effect told by the Department that a decision had been made to place the children in alternative care while the birth mother of the children addressed various issues in regards to resuming their permanent care. The Minutes of that meeting state, under the heading "Carer Plans to relocate to Tasmania":

CJ and CI indicated they intended to relocate to Tasmania so that CJ could pursue an enhanced career opportunity. They also believed this State can offer a better lifestyle for themselves and the children. They have already arranged accommodation on Tasmania and will be moving in December….

Ms Francis [Acting Manager Clients Services, DoCS] stated that the care provided by CI and CJ was appreciated. However, taking into account the parent's request for restoration and other issues such as the need to explore options for maintaining the childrens' Aboriginal identity, it would not be in the best interests of the children for the Department to support the children moving to Tasmania."

8 In a letter to the applicants dated 21 August 2001 Ms Francis wrote:
“…the decision was made that in the best interests of the children the department could not approve the request for the children to move to Tasmania. It was felt that to facilitate access to the natural parents and investigate the natural mother's request for restoration, the children, need to remain in the Wollongong area. It was also noted that the issue of the children's Aboriginal heritage needs to be considered.

Following this decision, you advised that you had a commitment to continue caring for the children but had made the decision to move to Tasmania and would not be changing this. Consequently, you requested that the children be moved from your care within a two week period as you did not want them to be unsettled by activities associated with your moving."

Submissions
9 The respondent contends that the Minister's delegate has not made a decision to terminate the placement of the children with the applicants, rather the only decision made by the Minister's delegate is to refuse to allow the children to be relocated in Tasmania. The respondent argues that the Minister's ‘decision’ was in fact a decision not to acquiesce to a decision made by the applicants. (We note that the written submissions omitted the word ‘not' but clearly the submission intended to convey non-agreement rather than agreement to the applicants' proposal.) We understand the respondent to argue that in effect the applicants have issued the Minister with an ultimatum, that she either consent to the children being relocated to Tasmania or, if such consent is not granted, that she remove the children from their care.

10 The respondent contends that the only decision of the Minister of any substance is the decision not to permit the children to be removed to Tasmania. It says that such decision is not a reviewable decision for the purpose of s.112 of the Act. The applicants by their decision to demand that the children be permitted to move to Tasmania have in effect terminated their custody of the children.

Jurisdictional Issue
11 Before dealing with the substantive application it is necessary first to determine a preliminary point of law. In dealing with the jurisdictional issue, we emphasise that we are not considering the merits of the decision but its character.

12 The respondent contends that this Tribunal has no jurisdiction to consider the application for review as the Minister or her delegate has not made a decision of the type described in s.112 of the Act. The only decision of substance made by the Minister's delegate is to refuse to allow the children to be removed to Tasmania. As such decision does not fall within the class of decisions set out in s.112 of the Act, the Tribunal is without jurisdiction to consider the application made by CI and CJ.

13 It is useful as this point to examine the relevant legislation in respect of the respective powers of the Minister and the applicants in relation to the children.

14 Section 91(1) provides:

The Minister:

a) shall provide for the accommodation, care and maintenance of wards and protected persons,

b) may make payments, ...to persons having the care of wards or protected persons,

c) may direct the removal of any ward or protected person from one place to another,

d) may ...place any ward or protected person:

(i) ...

(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister, being a person who is willing to undertake the custody of the ward or protected person,

e) may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph ( d) (i) or (ii), and

f) may direct that a ward be restored to the custody of a parent of the ward or be placed in the custody of any other person.

15 Pursuant to s.93 of the Act the Minister may direct that a ward who has, without lawful excuse, been removed from proper custody be returned to that proper custody or be placed in the custody of some other approved person.

16 The Minister retains the overall responsibility for the long-term welfare of wards until the child ceases to be a ward. She or he is, in that sense, in loco parentis. Placement of a child with foster carers does not diminish the Minister's responsibility for the child. It is not in issue that the child had been placed in the custody of the applicants pursuant to the provisions of s.91 with the Minister retaining overall responsibility for the welfare of the child.

17 Notwithstanding the fact that the Australian states have entered in reciprocal arrangements to enable the interstate transfer of wards and protected children, the Minister's powers do not have extra-territorial effect. The reciprocal arrangements would be otiose if they had.

18 The jurisdictional issue arises only because the respondent characterises the decision made by the Minister's delegate as a decision not to agree to the removal of the child in question to Tasmania in the care of the applicants, rather than a termination of the placement of the child with the applicants.

19 It is not in issue that the issue for the Minister's delegate was whether to allow the applicants to remove the child from the jurisdiction of the NSW Minister (and make the necessary arrangements for the child to be "picked up" by the equivalent Tasmanian child welfare authority.) If the decision had been taken to allow the child to be removed to Tasmania, the Minister would have had no extra-territorial power to accommodate, care for or maintain the child there. It follows that, once arrangements had been entered with the Tasmanian authority to take over the wardship, the Minister's placement of the child with the applicants would have been terminated.

20 If the applicants chose to go to Tasmania, and would not alter that decision, the delegate could also terminate the placement of the child with them but refuse to enter negotiations with the Tasmanian authority.

21 The choice for the delegate, therefore, was to terminate the placement with the applicants, with or without an arrangement with the Tasmanian authorities to enable the placement to continue. If they were leaving the jurisdiction, the Department's lack of extra-territorial supervisory powers meant that the custody placement had to be terminated one way or the other. It does not matter for the purposes of deciding the jurisdictional issue whether the choice was forced on the delegate by a "demand" or "ultimatum " or a polite request from the applicants -the choice was the same. Equally, it does not matter that it was the applicants rather than the Department who forced the issue. Once the issue was there to be decided, the delegate had to take action. Once the applicants had made it clear that they were going to Tasmania with or without the child, the delegate had no choice but to make a decision terminating the custody of the child with them in so far as the NSW Minister was concerned.

22 Section 112(h) of the Act provides that a decision of the Minister to terminate the custody of a ward is a reviewable decision. In our view, the decision of the delegate in this case falls squarely within the scope of s.112 (h) and therefore the Tribunal has jurisdiction to exercise in this case.