DAQ v Secretary, Department of Family and Community Services

[2017] NSWCATAD 274

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DAQ v Secretary, Department of Family and Community Services [2017] NSWCATAD 274
Hearing dates:	On the papers
Date of orders:	13 September 2017
Decision date:	13 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member D Crowley, General Member
Decision:	The respondent’s decision to transfer the child protection order applying to the applicant’s son to Queensland is set aside and, in substitution for that decision, it is decided that the respondent has no power to transfer that child protection order to Queensland.
Catchwords:	ADMINISTRATIVE LAW – Child Protection – Where Children’s Court made order allocating parental responsibility for applicant’s son to the Minister -Where Secretary decided to transfer child protection order to Queensland – Where applicant did not consent – Whether Secretary had power to transfer child protection order to another jurisdiction in absence of parental consent – Finding that Secretary did not have power   ADMINISTRATIVE LAW – Requirement to seek internal review before applying for Tribunal review – Circumstances in which applicant may apply to Tribunal without having applied for internal review – Whether it is necessary to deal with the application in order to protect the applicant’s interests – Whether application to Tribunal made within a reasonable time
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection Act 1999 (Qld) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Category:	Principal judgment
Parties:	DAQ (Applicant) Department of Family and Community Services (Respondent)
Representation:	Solicitors: Applicant in person Department of Family and Community Services (Respondent)
File Number(s):	2017/00108277
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings. The publication or broadcast of the names of and identifying information about certain persons is prohibited by operation of s 65(2).

REASONS FOR DECISION

1. These proceedings concern the question of whether the Secretary of the Department of Family and Community Services (“the Secretary”) has power to transfer a child protection order to another State where the child’s parent does not consent to the transfer.

2. We have found that the Secretary does not have any power to transfer a child protection order to another State without parental consent.

Background

3. The applicant’s son is aged four years old. He is the subject of an order of the Children’s Court allocating parental responsibility for him to the Minister until he attains the age of 18 years.

4. The applicant’s son is residing in Queensland in a kinship placement with his paternal aunt.

5. On 3 March 2017, a delegate of the Secretary wrote to the applicant informing her that the delegate had made a decision to pursue transferring the care order for her son to the Queensland Department of Communities, Child Safety and Disability Services.

6. On 22 March 2017, the applicant wrote to the delegate requesting him to “hold off on a transfer to QLD child protection for 18 months”. The applicant anticipated that, before the end of that time, she would apply for the rescission or variation of the care order under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”).

7. On 28 March 2017, the applicant commenced these proceedings in the Tribunal.

Failure to apply for internal review

8. The applicant did not apply for an internal review of the delegate’s decision before making her application to the Tribunal.

9. The applicant was entitled to apply for an internal review under s 53(1) of the Administrative Decisions Review Act 1997 (NSW). An applicant who is entitled to apply for internal review of a decision is generally not entitled to apply to the Tribunal until he or she has applied for internal review and that review is finalised: Administrative Decisions Review Act, s 55(3). However, the Tribunal may allow the application if “it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned”: Administrative Decisions Review Act, s 55(4)(b).

10. We are satisfied that it is necessary to deal with the application in order to protect the applicant’s interests. The applicant is currently undergoing rehabilitation treatment for drug addiction and, in the Tribunal’s view, does not appear to be functioning well enough to manage the making of an internal review application and the subsequent making of another application to the Tribunal (if necessary). We are also satisfied that the application to the Tribunal was made within a reasonable time after the delegate’s decision.

11. The respondent consented to the Tribunal proceeding to determine the matter in the absence of an internal review.

Hearing on the papers

12. Shortly before the date set down for the hearing of these proceedings, the applicant applied to vacate the hearing for personal reasons. The respondent proposed that the matter be determined on the papers and the applicant agreed to this course.

13. We were satisfied that the issues for determination could be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 50(2)). Accordingly, we made an order dispensing with a hearing.

Jurisdiction

14. The Tribunal has jurisdiction to hear and determine these proceedings for the following reasons.

15. Under s 245(1)(f1) of the Care Act, “a decision of the Secretary to transfer a child protection order to a participating State under Division 1 of Part 2 of Chapter 14A” is “an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993”.

16. We are satisfied that the decision of the delegate of the Secretary of FACS is a decision “to transfer a child protection order to a participating State under Division 1 of Part 2 of Chapter 14A”. The care order applying to the applicant’s son is a “child protection order” being a final order made under the Care Act giving a Minister of the Crown in right of New South Wales responsibility in relation to the parental or care responsibility for, supervision of, or contact with, the child or young person (Care Act, s 231B(1)). Queensland is a “participating State” being a “a State in which an interstate law is in force” (Care Act, s 231B(1)). An “interstate law” is “a law of another State that, under an order in force under [s 231B(3)], is declared to be an interstate law for the purposes of” Chapter 14A of the Care Act, or “a law of another State that substantially corresponds to” Chapter 14A (Care Act, s 231B(1)). There is no evidence as to any declarations made. However, we are satisfied that Chapter 7 of the Child Protection Act 1999 (Qld) substantially corresponds to Chapter 14A.

17. Section 28(1)(a) provides, relevantly, that a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision that is an administratively reviewable decision under section 245 of the Care Act. That is what the applicant has done in this case.

18. The Tribunal has jurisdiction pursuant to s 9(1) of the Administrative Decisions Review Act and s 30 of the NCAT Act.

Construction of Transfer Provisions

19. Section 231C(1) of the Care Act provides:

231C When Secretary may transfer order

(1) The Secretary may transfer a home order to a participating State if:

(a) in his or her opinion a child protection order to the same or a similar effect as the home order could be made under the child welfare law of that State, and

(b) the home order is not the subject of an appeal to the District Court, and

(c) the relevant interstate officer has consented in writing to the transfer and to the terms of the proposed interstate order, and

(d) any person whose consent to the transfer is required under section 231D has so consented, and

(e) the child or young person who is the subject of the order has not given written notice of opposition to the decision to transfer the order in accordance with section 231F(3)(b) and the Secretary certifies in writing that he or she made all reasonable efforts to ensure that the child or young person had an opportunity to seek legal advice in relation to the decision.

20. Section 231D of the Care Act provides:

231D Persons whose consent is required

(1) If the home order is an order granting parental responsibility wholly or partly to the Minister, an order granting care responsibility to the Secretary, or an order for supervision, consent to a transfer under this Division is required from:

(a) the parents of the child or young person, and

(b) any other person who is granted contact with the child or young person under the order, and

(c) any person who holds, solely or jointly, any aspect of parental responsibility for the child or young person.

(2) However, if any of the persons referred to in subsection (1) (a), (b) or (c) is residing, or intending to reside, in the relevant participating State, consent to the transfer is not required from that person or from any other of the persons referred to in those paragraphs who consents to the child or young person residing in that State.

21. After reviewing the parties’ submissions, the Tribunal wrote to the parties indicating that it had formed a preliminary view that the Secretary has no power to transfer a “home order” to a participating State unless the parents of the child have consented, due to the operation of ss 231C(1)(d) and 231D(1)(a) of the Care Act. A “home order” is a child protection order made in New South Wales (Care Act s 231B(1)). The child protection order applying to the applicant’s son was made in New South Wales.

22. The Tribunal invited submissions from the parties about its preliminary view.

23. The respondent wrote to the Tribunal indicating that the respondent did not wish to file any further written submissions. The submissions it had filed earlier did not deal with this issue and assumed that the Secretary did have power to transfer the care order to Queensland.

24. The applicant did not provide any submissions in response to the Tribunal’s invitation.

25. Chapter 14A of the Care Act, entitled “Transfer of Child Protection Orders,” provides for the transfer of a child protection order to another State by administrative transfer (Division 1 of Part 2) or judicial transfer (Division 2 of Part 2). The administrative transfer provisions authorise the Secretary to transfer a child protection order to a participating State if certain criteria are met, including if “any person whose consent to the transfer is required under section 231D has so consented” (Care Act, s 231C(1)(d)). Section 231D(1)(a) provides, relevantly, that if “the home order is an order granting parental responsibility wholly or partly to the Minister,” consent to an administrative transfer is required from the child’s parents.

26. The child protection order applying to the applicant’s son grants parental responsibility to the Minister. Accordingly, under s 231D(1)(a), consent to the transfer is required from the applicant, being the child’s parent. She does not consent. It follows that the condition precedent in s 231C(1)(d) of the Care Act to the Secretary transferring the child protection order to another state is not satisfied. The Secretary does not have power to effect the transfer.

27. This construction flows from the natural meaning of the statutory language. It is also consistent with the statutory scheme, which provides for administrative transfers if parents’ consent, and transfers by the Children’s Court where parental consent is not necessary (see Care Act, s 231G).

28. The correct and preferable decision is therefore to set aside the respondent’s decision and to decide to make no order to transfer the child protection order applying to the applicant’s son to Queensland (Administrative Decisions Review Act, s 63(3)(c)).

Orders

1. The respondent’s decision to transfer the child protection order applying to the applicant’s son to Queensland is set aside and, in substitution for that decision, it is decided that the respondent has no power to transfer that child protection order to Queensland.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 September 2017