CW and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2015] WASAT 43
•21 APRIL 2015
CW and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2015] WASAT 43
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 43 | |
| CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) | |||
| Case No: | CCS:1/2015 | 15 APRIL 2015 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 21/04/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for an order that the proceedings be dismissed is upheld Application under CCS 1 of 2015 is dismissed | ||
| B | |||
| PDF Version |
| Parties: | CW DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT |
Catchwords: | Children Interim protection order Review of decisions Proceedings misconceived Jurisdiction of Tribunal Order for proceedings to be dismissed |
Legislation: | Administrative Appeals Tribunal Act 1975 (Cth) Children and Community Services Act 2004 (WA), s 37, s 38, s 45, s 91, s 93(6)(a), s 93(6)(b), s 94 State Administrative Tribunal Act 2004 (WA), s 47(2) |
Case References: | Laurent and Commissioner of Police [2009] WASAT 254 |
Orders | On the application heard before Deputy President, Judge Sharp on 15 April 2015, it is ordered that:,1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to consider the application. |
Summary | The Department for Child Protection and Family Support made an order to place CW's children in 'provisional protection and care'. CW applied to the Tribunal for a review of that decision. The Department in turn applied to the Tribunal for an order that CW's application should be struck out on the basis that the Tribunal does not have the jurisdiction to review the decision in question.,When the strike out application came before the Tribunal, CW argued that the State Administrative Tribunal has a broad function to review all administrative decisions. She considered that the order to place her children in provisional protection and care was such a decision and that it should be reviewed accordingly.,The Department submitted that the Tribunal's power of review under the Children and Community Services Act 2004 (WA) is limited to a review of decisions concerning care plans for children who are the subject of protection orders. Responsibility for making protection orders rests with the Children's Court. ,Following the making of a provisional protection and care order, the CEO of the Department must immediately apply to the Children's Court for a protection order or return the child into the care of the parent. Accordingly, it is for the Children's Court to decide whether or not the children should be made the subject of a protection order, not the Tribunal.,The Tribunal upheld the Department's application to strike out CW's application and dismissed that application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) CITATION : CW and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2015] WASAT 43 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 15 APRIL 2015 DELIVERED : 21 APRIL 2015 FILE NO/S : CCS 1 of 2015 BETWEEN : CW
- Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Children Interim protection order Review of decisions Proceedings misconceived Jurisdiction of Tribunal Order for proceedings to be dismissed
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth)
Children and Community Services Act 2004 (WA), s 37, s 38, s 45, s 91, s 93(6)(a), s 93(6)(b), s 94
State Administrative Tribunal Act 2004 (WA), s 47(2)
Result:
Application for an order that the proceedings be dismissed is upheld
Application under CCS 1 of 2015 is dismissed
Summary of Tribunal's decision:
The Department for Child Protection and Family Support made an order to place CW's children in 'provisional protection and care'. CW applied to the Tribunal for a review of that decision. The Department in turn applied to the Tribunal for an order that CW's application should be struck out on the basis that the Tribunal does not have the jurisdiction to review the decision in question.
When the strike out application came before the Tribunal, CW argued that the State Administrative Tribunal has a broad function to review all administrative decisions. She considered that the order to place her children in provisional protection and care was such a decision and that it should be reviewed accordingly.
The Department submitted that the Tribunal's power of review under the Children and Community Services Act 2004 (WA) is limited to a review of decisions concerning care plans for children who are the subject of protection orders. Responsibility for making protection orders rests with the Children's Court.
Following the making of a provisional protection and care order, the CEO of the Department must immediately apply to the Children's Court for a protection order or return the child into the care of the parent. Accordingly, it is for the Children's Court to decide whether or not the children should be made the subject of a protection order, not the Tribunal.
The Tribunal upheld the Department's application to strike out CW's application and dismissed that application.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Ms I Petersen
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Laurent and Commissioner of Police [2009] WASAT 254
Introduction
1 On 4 March 2015, CW filed with the Tribunal both an application and an interim application under s 94 of the Children and Community Services Act 2004 (WA) (CCS Act) seeking a review of a decision made by the Chief Executive Officer (CEO) of the Department for Child Protection (Department) to place CW's children in 'provisional protection and care'.
2 On 27 March 2015, the respondent applied to strike out that application on the basis that the Tribunal had no jurisdiction to review that decision.
3 The strike out application was heard before the Tribunal on 15 April 2015. At the end of the hearing I announced my decision and endeavoured to provide my reasons for that decision. However, because of the emotional nature of the subject matter of the application and a number of other distractions both for me and for CW at the hearing, I am not certain that the applicant fully understood my reasons. It is therefore necessary and appropriate that I provide them in writing and these are those reasons.
Background
4 On 3 March 2015, the Department wrote to CW in the following terms:
As a result of an assessment by authorised officers of the Department for Child Protection and Family Support, it is believed that there is an immediate and substantial risk to the wellbeing of your children [A and R] in accordance with s 37 of the Children and Community Services Act (2004).
An application for a protection order may be made to the Children's Court within two working days. The first court appearance is likely to be held within three working days of the application being filed in court. You will be provided with formal notice of this, advising you of the date, time and address for you to attend. Any decision not to proceed with the application for a protection order and return your child/ren to you will be discussed with you in the next two working days.
Until the hearing of the Protection Application, [A and R] is/are being placed in provisional protection and care. This means that [A and R] is/are now in the care of the Chief Executive Officer (CEO) of the Department for Child Protection and Family Support. Unless otherwise ordered by the Court, the CEO is able to make decisions about the daytoday care, welfare and development [A and R]. This includes decisions about any medical or dental examination, treatment or procedure.
5 The letter then goes on to advise CW that officers of the Department would be happy to meet with CW to discuss planning for her children's needs.
6 The Department also encouraged CW to seek legal advice and provided her with some contact details of organisations that might be able to assist her.
7 On 4 March 2015, CW filed an application with the Tribunal under s 94 of the CCS Act for a review of the Department's decision. The application did not include a copy of the Department's decision but it set out in some detail CW's reasons for considering that the Department's decision was incorrect. It is sufficient for the purposes of these reasons to say that CW considers that her children are safe in her care and that she sees no reason why her children have been placed in provisional protection and care.
8 CW also lodged on the same day an interim application seeking an order from the Tribunal in the following terms:
1. Return the Children to the Mother immediately as the children are not in any immediate or substantial risk or harm.
2. [The Department] can file the Children's Court for an order to be made if there is any risk or harm to the children. Without any Immediate and Substantial harm to the children, without any evidence, without a court order to remove the children when they are not in immediate and substantial risk or harm is not supported by s 37 [of the CCS Act].
9 The application was served on the Department some days later. On 27 March 2015, the Department made a formal application to the Tribunal under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) 'that this matter be dismissed or struck out on the ground that the proceeding is misconceived in that the Tribunal lacks jurisdiction'.
10 The matter first came before me on1 April 2015. CW did not appear. I was informed by the Department's solicitor that CW was currently appearing in the Supreme Court on a related matter and that she was seeking an adjournment of the hearing in the Tribunal.
11 The hearing was accordingly adjourned for seven days to 8 April 2015. CW subsequently requested by email to the Tribunal a further adjournment of that hearing but the hearing proceeded nonetheless. CW did not appear. Through the Department's solicitor, CW explained that she was still fully occupied with the proceedings in the Supreme Court.
12 I adjourned the matter once more to 15 April 2015.
13 CW was in attendance at the hearing on 15 April. A few moments before the hearing commenced, CW advised the Tribunal that she required the assistance and services of an interpreter at the hearing. CW insisted that she had previously advised the Tribunal of her requirement in this regard but there is no record of her so doing.
14 Nonetheless, the services of an interpreter were obtained, although in the circumstances the interpreter had to attend by telephone which I did not consider to be entirely satisfactory. In any event, apart from interpreting, at my request, some of my opening remarks, the interpreter's services were not required. CW made her oral submissions herself in English and did not appear to be encountering any language difficulties. The interpreter remained on hand throughout the course of the hearing.
15 I had originally intended that the purpose of the hearing would be to program the Department's application under s 47(2) of the SAT Act for a hearing on that point. However, the Department's submissions in support of its application were clear. CW was ready and prepared to argue the jurisdiction point and had before her what appeared to be written submissions, along with accompanying statutory authority for those submissions. I therefore decided to proceed.
16 CW addressed the Tribunal confidently and in the most part quite clearly.
The Department's application
17 In essence, the Department's contention is that the Department's decision to place the children in provisional protection and care is not a reviewable decision by the Tribunal. The Department says that the Tribunal's review jurisdiction under the CCS Act arises only under s 94 and its powers of review are therefore limited to a review of decisions made by the CEO under s 93(6)(a) or (b) of the CCS Act. In other words, a decision of the CEO which is reviewable by the Tribunal is the CEO's decision to:
a) confirm, vary or reverse a care planning decision; or
b) substitute another decision for the care planning decision.
18 The Department says that the decision of which CW is seeking a review is not a reviewable decision and that therefore her application should be dismissed.
CW's submissions in respect of the strike out application
19 CW's submission, as I understood it, is that because the review she is seeking is not a 'question of law', the Supreme Court and the Children's Court have no jurisdiction to conduct the review. The decision to be reviewed is an administrative decision and it is the function of the Tribunal to review administrative decisions. Therefore it is the Tribunal and only the Tribunal that can hear her application.
20 I endeavoured to explain to CW that, while she is quite correct, as a generality, that a function of the Tribunal is to review administrative decisions, the Tribunal's review jurisdiction only arises if the SAT Act or an 'enabling Act', in this case the CCS Act, confers that jurisdiction.
21 CW was adamant that this is not a correct statement and cited certain sections from the Administrative Appeals Tribunal Act1975 (Cth) as her authority for her argument. She submitted that the Tribunal has, in effect, unlimited power to review any administrative decisions.
My decision and my reasons for that decision
22 At the conclusion of the hearing, I dismissed CW's application and interim application under s 47(2) of the SAT Act, on the basis that the proceedings are misconceived.
23 I agree with the Department that the Tribunal's only power of review under the CCS Act is under s 94 and is therefore confined to a review of decisions made by the CEO under s 93(6)(a) or (b) of the CCS Act.
24 Sections 93(6)(a) and (b) of the CCS Act concern 'care planning decisions' in relation to a child. Care planning decisions are defined under s 91 of the CCS Act to mean decisions set out in a care plan for a child.
25 Care plans only apply to children who are the subject of protection orders. Responsibility for making protection orders rests with the Children's Court; s 45 of the CCS Act. Accordingly, questions of the long-term care, and parental responsibility, in respect of a child fall within the jurisdiction of the Children's Court.
26 The decision of which CW is seeking a review is a decision made by an authorised officer of the Department under s 37 of the CCS Act. That section relevantly provides that an authorised officer of the Department may at any time take a child into provisional protection and care if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing.
27 Consistent with my earlier observation that questions of parental responsibility in respect of a child fall within the jurisdiction of the Children's Court, under s 38 of the CCS Act, if a child is taken into provisional protection and care under s 37, the CEO must within two working days make a protection application to the Children's Court or return the child into the care of the parent. Accordingly, oversight of a decision to take a child into provisional protection under s 37 rests with the Children's Court, not the Tribunal.
28 A proceeding is 'misconceived' where it is based on a misunderstanding of legal principle; Laurent and Commissioner of Police [2009] WASAT 254 at [23]. In my opinion, the proceedings initiated by CW are misconceived. The Tribunal's jurisdiction under the CCS Act is limited to the review powers conferred on it by s 94 of the CCS Act and the Tribunal does not have the power to review a decision made under s 37 of the CCS Act.
Order
1. The application is dismissed on the basis that the Tribunal does not have jurisdiction to consider the application.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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