Director General, Department of Community Services v Priddle & Holmes (CSD)

[2002] NSWADTAP 14

Appeal Panel

CITATION:	Director General, Department of Community Services -v- Priddle & Holmes (CSD) [2002] NSWADTAP 14
PARTIES:	APPELLANT Director General, Department of Community Services RESPONDENTS Suzanne Priddle Gary Holmes
FILE NUMBER:	019017
HEARING DATES:	01/11/2001
SUBMISSIONS CLOSED:	11/01/2001
DATE OF DECISION:	11/01/2001
DECISION UNDER APPEAL:	Priddle & Holmes -v- Director General, Department of Community Services [2001] NSW ADT
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Groth D - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	014053
DATE OF DECISION UNDER APPEAL:	10/23/2001
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:	Priddle & Holmes -v- Director General, Department of Community Services [2001] NSWADT (23 October 2001)
REPRESENTATION:	APPELLANT M Anderson, barrister RESPONDENTS In person
ORDERS:	The appeal is upheld and the decision under appeal is set aside.

Reasons delivered ex tempore

1 The question before the Appeal Panel is whether or not there is a reviewable decision which founds the application for review. The Tribunal at Divisional level found that there was a ‘reviewable decision’ conferring jurisdiction on it to hear the application: Priddle & Holmes -v- Director General, Department of Community Services [2001] NSWADT (23 October 2001). The Director General has appealed against that decision.

2 Because of the urgency that surrounds the matter it has been necessary to deal with the appeal very quickly, because the substantive proceedings before the Division are due to resume tomorrow. We have had helpful submissions from the Department and helpful submissions from Ms Priddle today in relation to the facts and circumstances that surround this matter.

3 The administrative decision in issue is a refusal to give approval for four children who are wards of the State to move to Hobart with Ms Priddle and Mr Holmes who are their approved custodians under a foster care agreement with the Department.

4 During the proceedings before the Appeal Panel and before the Tribunal, the communication from the Department, which has been focused upon as to whether or not there is a reviewable decision, has been the letter of 21 August 2001. That letter in fact postdates the application for review by a few days. The more accurate position, as we see it, is that the relevant ‘decision’ was communicated orally on 15 August (the day before the application for review was filed); see further para [8] of these reasons.

Relevant Legislation

5 The relevant legislation is the Children (Care and Protection ) Act 1987 (the Act). Section 90 of the Act provides that the Minister is the guardian of a child that is made a ward of the State and that her role as guardian is an exclusive one unless it is terminated or the child attains the age of 18 years. That section provides:

‘s 90 (1) The Minister is the guardian of a ward, and, subject to this Act, has the custody of a ward to the exclusion of any other person, until:

(a) the ward attains the age of 18 years,

(b) the guardianship of the Minister:

(i) is terminated by the Minister under subsection (2), or

(ii) is terminated by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children, or

(c) the ward ceases to be a ward by virtue of any other provision of this Act, whichever first occurs.

(2) The Minister may terminate the Minister's guardianship of a ward.

(3) Where the Minister terminates the Minister's guardianship of a child who is a ward, the child ceases to be a ward.

(4) The guardianship of a child who has ceased to be a ward shall be determined as if the child had never been a ward.’

6 The functions of the Minister, in her capacity as guardian, are set out in s 91 of the Act. These functions include duties in relation to the management of the day-to-day affairs and circumstances of wards (for example accommodation, support payments to carers) as well as the power to terminate an approved custody arrangement. This section so far as it is relevant provides:

‘s.91 (1) The Minister:

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

(b) may make payments, at such rates as may be prescribed by the regulations, 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, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:

(i) in the custody of a person in charge of a non-Government organisation, or

(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.

(2) …’

7 Section 112 of the Act sets out those decisions of the Minister or the Director General which are reviewable by the Tribunal. In this case the relevant paragraph is:

‘112 For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal:

(a) …

(g) a decision of the Minister to refuse to terminate the Minister’s guardianship of a ward under section 90(2),

(h) a decision of the Minister to terminate the custody of a ward or protected person under section 91 (1) (e),

(i) ….’

8 The Tribunal found that the refusal to approve the relocation of the children constituted in terms of s 112 a decision of the Minister to terminate the custody of a ward under s 91(1)(e); and thus was a ‘reviewable decision’.

9 The question raised by the appeal is whether the Tribunal mischaracterised the evidence in such a way as to give rise to an error of law.

10 It would appear from the history of the documentation that the communication from the Department that activated Ms Priddle and Mr Holmes to lodge their application for review is recorded in the minutes of a case conference of 15 August 2001 held between the Department’s case manager and Ms Priddle and Mr Holmes. The following dot points appear at the foot of the memo under the heading, Action:

· Ms Francis of the Department stated a letter would be sent to Ms Priddle and Mr Holmes confirming the decision by the Department not to support the children re-locating to Tasmania with them and, secondly,

· Ms Francis stated that she would discuss the children's change of placement with the relevant manager case work after which Ms Hodgson would contact Ms Priddle and Mr Holmes to discuss the proposed arrangements.

11 The second dot point needs to be read in the context of the memo as a whole and the detailed discussion that went on between Ms Priddle and Mr Holmes on the one hand and the Department on the other over the intention of the Ms Priddle and Mr Holmes to move to Tasmania.

12 In the submissions that we have heard today the appeal panel has been assisted in gaining a fuller understanding of the role of the Minister, and officers of the Department responsible for exercise of the Minister’s powers. It is clear that the Minister's role as guardian of wards of the State includes responsibility for making decisions in respect of matters of residence. That explains why the carers were dealing with the Department over their intentions with respect to residence: see generally, the Act s 91(1)(a), (b) and (c). As we understood the submissions today, it was accepted that there will sometimes be circumstances where the relevant Departmental officers acting on behalf of the Minister may form the view that a particular proposal as to change of residence does not fit with the paramount interests of the children.

13 Regrettably from the point of view of Ms Priddle and Mr Holmes that is the situation they face. We are satisfied that a decision not to support a proposal in respect of residence is clearly not a “decision to terminate the custody” of the carers within the meaning of s 112(b). Mr Holmes has a job open to him in Hobart. He wants to take it up. He and Ms Priddle do not wish to lose the children as a consequence. The communication of 15 August 2001 was, we consider, wrongly characterised by the Tribunal below, giving rise to an error of law. It constituted the Department’s response to the possibility of removing the children to Tasmania. It remained open to the Priddle/Holmes’s to reconsider their position. It did not, at that point, purport to be an exercise of the Minister’s power under s 91(1)(e).

14 In fact we have been informed that as at today the carers remain responsible for the custody of the children. Consequently, we disagree with the conclusion of the Tribunal to the effect that a decision to terminate custody has at this point been made by the Minister’s delegate.

15 However, the discussion that we have had has been helpful in that, as we understand it, the Department acknowledges that were it to take the step of notifying Ms Priddle and Mr Holmes that the children were to be removed or more dramatically, the Department immediately took physical possession of the children, then those would be circumstances that would constitute an act of termination of the custody of the children. In those circumstances, clearly the Tribunal would have jurisdiction to deal with the question that surround that decision.

16 The other possibility (which as we read the case conference material of 15 August was recognised then) is that for quite understandable and humane reasons, it may be that carers apprised of a negative attitude on the part of the Department to the relocation of the children may decide voluntarily to relinquish the children. That state of affairs might be described as “surrender” or “relinquishment”. In our view, that does not amount to a set of circumstances that can be said to involve the Minister formally terminating the custody. We recognise that from the point of view of Ms Priddle and Mr Holmes, that there may not be to them much substance in that distinction (carer-surrender versus Ministerial-termination) as the consequences are the same - they have lost their relationship with the children.

17 As we see the legislative scheme, there is a clear delineation made between, on the one hand, final Ministerial decisions (for example, termination of custody (s 91(1)(e)) or refusal of termination of wardship (s 90(2))); and, in contrast, all the antecedent management decisions that are necessarily made in respect of significant aspects of the daily care of children in wardship.

18 As we understand the legislation the Parliament saw a need to place under review by this Tribunal only the final decisions to which we have referred. The rest are not reviewable by this Tribunal. Caution must be shown by the Tribunal in asserting jurisdiction. The Tribunal must avoid bringing within its purview decisions connected with the day to day management of wards in custody, such as those decisions listed in s 91(1)(a), (b) and (c). That does not foreclose the possibility that those other decisions are reviewable in other places such as the Supreme Court's guardianship jurisdiction or the Supreme Court by way of judicial review.

19 So our decision, contrary to the decision of the Tribunal below, is that there is no jurisdiction in the Tribunal to consider this application for review.

20 As I have indicated earlier today, if there is either a formal notice cast in terms of a termination of custody or alternatively the step is taken of removal of the children by Departmental notice then that may well entitle the applicants to come back to the Tribunal with an application. We will, obviously, seek to give any such application speedy consideration mindful of the surrounding circumstances.

Order

1. The appeal is upheld and the decision under appeal is set aside.