DHJ v Secretary, Department of Family and Community Services
[2018] NSWCATAD 46
•05 February 2018
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 46 Hearing dates: 5 February 2018 Date of orders: 05 February 2018 Decision date: 05 February 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. DIB is joined as a party.
2. DID is joined as a party.
3. The publication or broadcast of the names of the joined parties is prohibited.Catchwords: ADMINISTRATIVE LAW – Child Protection – Where respondent made reviewable decision to remove foster child from care of authorised carer – Where child being transitioned to care of grandparents - Application by grandparents to be joined as parties – Relevant principles Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)Cases Cited: Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 Category: Consequential orders (other than Costs) Parties: DHJ (Applicant)
Secretary, Department of Family and Community Services (First respondent)
DIH (Second respondent)
DIB (Third respondent)
DID (Fourth respondent)Representation: Counsel:
Solicitors: Applicant (self-represented)
Department of Family and Community Services (Legal) (First respondent)
Mr W Hoyles (Guardian ad litem for DIH, the Second respondent)
DIB and DID (Third and Fourth respondents) in person
File Number(s): 2018/00016123 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the applicant, any child referred to in these proceedings and the joined parties is prohibited.
reasons for decision
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These are proceedings for review of the decision of a designated agency to remove a foster child from the care of an authorised carer. The agency had also decided that the child would live with her grandparents, and the child was living with them at the time the applicant brought these proceedings.
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The grandparents applied to be joined as parties to the proceedings. The applicant opposed their joinder.
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I decided to grant the grandparents’ application and I have joined them as parties to the proceedings.
Background
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The background is set out in my earlier decision concerning the applicant’s stay application, DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 45.
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The foster child (DIH) is three and a half years old. She has been in the care of the applicant (the foster mother, DHJ) since she was 12 days old. The foster child experiences speech difficulties and is cognitively delayed.
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The foster child has been visiting her maternal grandparents on a regular basis since she came into the applicant’s care. The foster child’s two older half-siblings live with the grandparents (DIB and DID).
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In mid-December 2017, the applicant advised her case worker that she wanted the foster child to transition to living with her grandparents. The grandparents agreed to have the foster child in their care and the process of transitioning her to their care began.
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On 31 December 2017, the applicant emailed the Department of Family and Community Services (“Department”) indicating that her decision to relinquish care of the foster child was the wrong one and that she wished to retain care of the foster child.
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On 5 January 2018, the Department informed the applicant that it had decided to change the placement for the foster child.
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On 10 January 2018, the Department removed the foster child from the applicant’s care. A Departmental officer decided that she was to live instead with her grandparents on a permanent basis.
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The applicant applied to the Tribunal for a review of that decision on 16 January 2018.
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On 23 January 2018, I granted the applicant’s application for a stay of the respondent’s decision. The effect of the stay is that the foster child has been returned to the applicant’s care, pending the outcome of these proceedings.
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The grandparents have made an application to be joined as parties to the proceedings.
Non-publication order
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At the stay hearing on 23 January 2018, I made an order prohibiting the publication or broadcast of the name of the applicant and any child referred to in these proceedings (Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 64(1)(a)). I was satisfied that it was desirable to do so to protect the identity of the foster child and her siblings.
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I am also satisfied that it is desirable to make an order prohibiting the publication or broadcast of the names of each of the grandparents, pursuant to s 64(1)(a) of the NCAT Act. This is desirable because, if their names were published or broadcast, this may have the effect of disclosing the identity of the foster child or her siblings.
Joinder application
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The first respondent supported the grandparents’ application to be joined as parties. The guardian ad litem for the foster child, Mr Hoyles, informed the Tribunal that he had no objection to the grandparents being joined. The applicant opposed the application.
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The Tribunal has a broad discretion, under s 44(1) of the NCAT Act, to determine whether or not to join a person as a party. It may do so if it “considers that the person should be joined as a party” (NCAT Act, s 44(1)).
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The following propositions emerge from the decision of the New South Wales Court of Appeal in Commissioner of Police New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 about the operation of s 44(1) of the NCAT Act:
The power of joinder conferred by s 44(1) is to be read in conformity with the power of removal so that a party who is a "proper or necessary party" ought to be joined in the proceedings (at 11 [38]);
A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings (at 11 [39]);
The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere intermeddler would neither be a necessary nor proper party (at 11 [40]);
In administrative review proceedings, an application for joinder should be considered in the context of the Tribunal's statutory review power and persons who are parties to the application before the decision-maker are proper parties before the Tribunal (at 12 [45]-[46]);
whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case (at 14 [57]).
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The grandfather said that he and the grandmother were directly affected by the decision to remove the foster child from the applicant’s care. This is because the Department had decided that she would live with them instead of the applicant and she had commenced doing so. The grandfather’s evidence, which I accept, was that they had made changes within the house, such as purchasing a bed for the foster child, and that the grandmother had modified her work hours so she could look after the foster child.
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Dr Nguyen, for the first respondent, submitted that the test for joinder in child protection proceedings was less stringent than it may be in many other kinds of proceedings in the Tribunal. He referred to s 29(1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), which provides that “[a]n application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.” Dr Nguyen said that a person with an interest in the proceedings, who should be joined, did not have to have a legally enforceable interest.
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The applicant submitted that the review of the decision to remove the foster child from her care was a matter between her and the Department. She said that prospective foster carers were never joined to proceedings for review, even when the child had been with new carers for several months. She said it was irrelevant to the review where the foster child might be placed, if not placed with her.
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I accept Dr Nguyen’s submission that s 29(1) of the Community Services (Complaints, Reviews and Monitoring) Act is relevant to the power of joinder in s 44(1) of the NCAT Act, where proceedings are brought under that provision (as they were in this case). In Commissioner of Police New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327, the Court recognised that the particular statutory context, and the circumstance that the proceedings in question were merits review proceedings, were both relevant factors when exercising the power under s 44(1).
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I am satisfied that each of the grandparents is a proper party to the proceedings. It is true, as the applicant submits, that the decision to place the foster child with the grandparents is a separate decision from the decision to remove the foster child from the applicant’s care. It may also be true, in many cases, that it is not relevant, when reviewing the decision to remove a foster child from the care of an authorised carer, to consider where the child might be placed if the decision is affirmed. However, this does not mean that the grandparents do not have a “genuine concern” in the subject-matter of the proceedings, nor does it mean that their interests are not affected by the decision under review.
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After the applicant had informed the Department that she wanted to transition the foster child into the grandparents’ care, and before a decision had been made to remove the foster child from the applicant’s care, the grandparents were consulted and agreed to take the foster child. The grandparents then began making arrangements to have the foster child live with them, including by the grandmother changing her work commitments. Implementation of the transition plan began. In these circumstances, the grandparents’ interests are clearly affected by the decision to remove the child from the applicant’s care.
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The grandparents also have a genuine concern in the living arrangements for their granddaughter, because they care for her. It is not in dispute that they have had an ongoing relationship with her, and have had contact visits with her, since shortly after her birth. They cannot properly be described as “intermeddlers.” They have an interest in the welfare of their granddaughter.
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For these reasons, I consider that each of the grandparents should be joined as a party to these proceedings.
Orders
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I make the following orders:
DIB is joined as a party.
DID is joined as a party.
The publication or broadcast of the names of the joined parties is prohibited.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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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: 16 February 2018
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