DMG v Barnados Australia

[2018] NSWCATAD 154

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMG v Barnados Australia [2018] NSWCATAD 154
Hearing dates:	5 July 2018
Date of orders:	18 July 2018
Decision date:	18 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	1. A hearing of the respondent’s summary dismissal application is dispensed with.  2. The applicants’ application to the Tribunal for a review of the respondent’s decision to remove from them the responsibility for the daily care and control of children in their care is dismissed.
Catchwords:	ADMINISTRATIVE LAW - Where respondent made decision to remove from authorised carer the responsibility for the daily care and control of children - Tribunal’s jurisdiction to review decision – Whether decision was in relation to the enforcement of a permanency plan that was approved by an order of the Children’s Court
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 PR v Department of Community Services [2009] NSWADT 277
Category:	Consequential orders (other than Costs)
Parties:	DMG (First Applicant) DMH (Second Applicant) Barnados Australia (Respondent)
Representation:	Solicitors: Applicants in person Care Legal (Respondent)
File Number(s):	2018/00187699
Publication restriction:	The publication or broadcast of the names of certain persons is prohibited by operation of s 65 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. These proceedings concerned an application for review of a decision of the respondent (“Barnados”) to remove two young children from the care of the applicants. The applicants, who are authorised carers, were given care of the children on a short term basis. The purpose of the removal is to place them with carers on a long term basis, with a view to adoption.

2. I have decided that the Tribunal has no jurisdiction to review Barnados’s decision because it relates to the enforcement of a permanency plan that was approved by the Children’s Court. Such decisions are specifically excluded from the Tribunal’s review powers.

3. Accordingly, I have dismissed the applicants’ application to the Tribunal.

Background

4. Barnados is a designated agency within s 139 of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”).

5. The applicants have three children of their own who are teenagers. On 20 January 2017, Barnados authorised the applicants as authorised carers pursuant to s 137(1)(b) of the Care Act and cl 30 of the Children and Young Persons (Care and Protection) Regulation 2012. The letter of authorisation stated:

“I am pleased to confirm your authorisation as Barnados short term and crisis foster carers with the [Suburb] Temporary Family Care program based at Barnados [Suburb] Children’s Family Centre. You are approved to care [sic] up to 2 children aged between 0 and 5 years.”

6. One child, who is now nearly one year and eight months old (“the girl”), was placed with the applicants on a temporary basis when she was four months old. Her brother (“the boy”) was placed with the applicants on the same basis shortly after his birth. He is now nine months old. For various reasons, mostly involving the length of proceedings in the Children’s Court concerning the children, the children stayed with the applicants for longer than was originally contemplated.

7. In a case review conducted by Barnados on 16 January 2018, it was noted that the Barnados’s Find a Family Program had identified a couple who would be a good match as long term carers for the children. It was noted that, if final orders were granted by the Court, Barnados would transition the children to their long term carers.

8. On 19 February 2018, the foster mother told Barnados that she had considered changing to being a long-term carer but that they were not in a position to do that “any time soon.”

9. On 22 March 2018, an amended care plan for the girl was filed with the Children’s Court by Family and Community Services. The amended care plan included the statement: “Barnados [Suburb] have identified a long term placement for [the boy] and [the girl] to reside in on a long term basis. This placement will offer the children stability and for their sibling relationship to be close. The children can be transitioned to the placement once there are Final Orders made at Court. [The girl] will remain with her current short term foster care placement until her permanent care arrangements are identified so as to minimise the disruptions in her attachments.” The care plan also made some comments about the background of the proposed carers and Barnados’s assessment of them.

10. On 5 April 2018, the foster mother said to a caseworker that the prospect of giving up the children made her feel like she was giving her own children up.

11. On 27 April 2018, an amended care plan for the boy was filed with the Children’s Court by Family and Community Services. The care plan included a statement in almost identical terms to the statement in the girl’s amended care plan, set out above, except that, where the girl’s plan referred to the girl, the boy’s plan referred to the boy.

12. On 1 May 2018, final care orders were made by the Children’s Court in relation to the children, placing each of them under the parental responsibility of the Minister until the age of 18 years. The second order (the only order which referred to their care plans) was as follows:

“Pursuant to section 82 the Secretary, Family and Community Services shall prepare and file a report within four (4) and eleven (11) months of making final orders outlining:

a.   The progress in implementing the care plans, including the progress towards achieving a permanent placement;

b.   The children’s progress within their interim placement and their permanent placement once they are settled there;

c.   Details of contact between [the girl], [the boy], their mother, father, siblings and extended family members;

d.   [The children’s] medical and general developmental progress.”

13. On 3 May 2018, Barnados telephoned the foster mother to tell her that the final orders had been made and that the children would transition to their long term carers in four to eight weeks. The foster mother asked if there was anything they could do to keep them, then said she did not intend on asking to care long term at this late stage but felt that it was better for the children to stay with her.

14. On 7 May 2018, the foster mother informed Barnados that “with a heavy heart” they had decided to leave things as they were.

15. Barnados approved the placement with the couple referred to in the children’s care plans on 8 June 2018. It was noted that the placement would be permanent care with a view to adoption.

16. On the same day (8 June 2018), the foster mother informed Barnados that they wished to care for the children long-term. The case manager told her that Barnados was unable to support this as she and her husband were only authorised as short-term carers.

17. On 18 June 2018, the day the transition plan was due to commence, the applicants filed in the Tribunal an application for administrative review and an application for a stay. The application for administrative review was subsequently amended to seek a review of the decision to remove the children from the applicants’ care.

18. On 22 June 2018, the foster mother had an “information session” with the manager of Barnados’s Find a Family Program as the applicants wished to be considered as long-term carers. The manager explained to the foster mother that she and her husband did not meet the program criteria for Find a Family because of the bedroom configuration available to the children. Accordingly, the manager did not leave an expression of interest pack with the foster mother.

19. Barnados has not taken any steps to remove the children from the applicants’ care, pending the outcome of the stay application.

Determination of jurisdictional issue on the papers

20. The proceedings first came before me when I heard the applicants’ application for a stay of the decision to remove the children from their care. Barnados provided detailed submissions and evidence, and a large bundle of documents under s 58 of the Administrative Decisions Review Act 1997 (NSW). The applicants also provided evidence and submissions. As there was a large volume of material which I needed to consider, I reserved my decision on the stay. Barnados asked for an opportunity to provide further submissions, so I made orders that both parties provide additional submissions within a short time frame.

21. After I had reserved, I became aware that there was an issue about the Tribunal’s jurisdiction, which is discussed below. I asked the Registrar to write to the parties, informing them of this issue. Barnados addressed the issue in its further submissions, contending that the Tribunal does not have jurisdiction to determine the application. Barnados also submitted that the application should be dismissed, pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

22. I held a directions hearing, which the parties attended by telephone, to ensure that the applicants understood the jurisdictional issue, and to determine whether a further hearing of the summary dismissal application was necessary. Once the jurisdictional issue had been explained to her, the foster mother asked for a further opportunity to make submissions. I made orders for the applicants to provide further submissions on this issue within a short time frame, and for the respondent to provide any submissions in reply the following day. The parties complied with these orders.

23. The parties also consented to the jurisdictional issue (the subject of the summary dismissal application) being determined on the papers.

24. I was 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, s 50(2)). Accordingly, I made an order dispensing with a hearing.

Tribunal’s jurisdiction

25. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act1993 (NSW) provides 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 s 245 of the Care Act. The Tribunal is given jurisdiction to review such decisions under s 9 of the Administrative Decisions Review Act and ss 28 and 30 of the Civil and Administrative Tribunal Act.

26. A decision of the “relevant decision-maker” to remove from an authorised carer the responsibility for the daily care and control of the child or young person is a reviewable decision for the purposes of s 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act: Care Act, s 245(1)(c). A “relevant decision maker” is, relevantly, the person or body authorised under the Care Act to make the decision (Care Act, s 245(2)). There is no dispute that Barnados was authorised under the Care Act to remove the children from the applicants’ care.

27. Section 245(1B)(b) of the Care Act provides as follows:

"For the avoidance of doubt, subsection (1)(c) does not extend to any decision in relation to ... the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court."

28. This means that, if Barnados's decision to remove the children from the applicants’ care is a decision in relation to the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court, the Tribunal has no power to review it.

29. Section 83 of the Care Act provides for the preparation of permanency plans. A permanency plan is “a plan that makes provision with respect to permanency planning” (Care Act, s 3(1)). “Permanency planning” is defined in s 78A(1) of the Care Act to mean:

“the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security and that:

(a) has regard, in particular, to the principles set out in section 9 (2) (e) and (g), and

(b) meets the needs of the child or young person, and

(c) avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.”

30. Section 83(7)(a) of the Care Act provides that the Children’s Court must not make a final care order unless it expressly finds that permanency planning for the child or young person has been appropriately and adequately addressed. Section 83(8) provides that a permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.

31. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, Campbell J said at [60] to [61]:

“60 In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here.

61 The concept of approval is perhaps different. It seems to me there may be a connection between the reference to the requirement to approve in s83(7)(b) and approval in s245(1B)(b). But I need not decide that question. For it seems to me that, properly understood, what the learned magistrate did at [87] of his decision was not to make an order approving the contents of the permanency plan, but rather to make a finding in accordance with s83(7)(a).”

32. The applicants submitted that the provisions of the permanency plans for the children had not been embodied in, or approved by, an order or orders of the Children’s Court. They said the permanency plans were therefore not enforceable under s 83(8) of the Care Act. In their further submissions, the applicants submitted as follows:

“While we understand the law, we contend that at no time did we see or were consulted about a care plan, a plan that would involve us as the temporary carers. This makes us question whether the care plan as is being described by Barnardos existed before the Final Court Orders were made.

In the course of providing respite care for another two children over a 2 week period (while we were also caring for [the girl] and [the boy]) we received clear documentation, signed by the case worker, for the two children that outlined their care plan. We did not receive any such documentation for [the girl] and [the boy] during any time when they were in our care. This made us think that there was not a care plan for [the girl] and [the boy].

Only once these proceedings commenced did we receive a “Transition Plan” for [the girl] and [the boy], and even that was marked “void” by the case worker and dated 26.6.18. This caused great uncertainty and made us think that the care plan was still not finalised.

We have also received a document titled “Report Seeking Matching Approval” dated 8 June but was not signed as approved. This lead us to believe that the approval for the matching to the proposed carers was still being sought.

Therefore, while we understand the law as saying that a permanency plan would have been embodied in the final court order, we have not seen evidence of this and thus can only conclude that while a final court order for a permanent placement would have been made, the details of which are to be reported at a later date.

Therefore, we contend that a care plan was not embodied in the final court order and as such believe we should be properly assessed as long term carers for [the girl] and [the boy], as per the wish of their Mother and recommendations by FACS.”

”

33. The reason why the applicants did not receive a care plan for the children, prior to commencing these proceedings, is explained by Barnados. Only parties to the care proceedings may be provided with copies of Children’s Court documents, unless leave is granted by the Court to provide Court documents to non‐parties. The applicants were not parties to those proceedings. I accept this explanation.

34. I have reviewed the care plans before the Tribunal and I am satisfied that these were filed on the dates stamped on the first page of each. The care plans provide some personal details of the couple who is proposed to care for the children long-term. The circumstance that the “Report Seeking Matching Approval” dated 8 June 2018 was not signed as approved is not relevant to the jurisdictional issue. What is relevant is what was contained in the care plan which was before the court, when the orders were made on 1 May 2018. I am satisfied that the new couple was identified in that care plan and that the proposal that the children move into that couple’s care on a long-term basis was included in the plan.

35. I consider that the Children’s Court order requiring the Secretary to prepare a report outlining the progress in implementing the care plans, including the progress towards achieving a permanent placement, implicitly “approves” the children’s care plans which were before it, within s 245(1B)(b) of the Care Act. Those plans included a permanency plan for each child, as referred to in paragraphs 9 and 11 above. The “permanency plan” was specifically referred to in paragraphs (a) and (b) of the Court’s second order, set out above.

36. I am satisfied, considering the text of the legislation, that the permanency plan for each child has been approved by the Children’s Court. However, I note that, in the second reading speech to the bill which introduced s 245(1B) of the Care Act, the Children and Young Persons (Care and Protection) Amendment Bill 2010 (NSW), the Minister stated:

“Clause 24 of the bill seeks to prevent forum shopping between the Children's Court and the Administrative Decisions Tribunal on the reviewability of permanency plans for a children or young persons. The amendment makes clear that the adequacy of a permanency plan to support long‐term care orders is a matter solely for the Children's Court, removing the possibility of seeking an additional review of a permanency plan by the Administrative Decisions Tribunal.”

37. In circumstances where the legislature has provided for a specialist court to make decisions about the care of children, no narrow construction of the word “approved” is warranted.

38. I find that the decision to remove the responsibility for the daily care and control of the children from the applicants is a decision “in relation to” the enforcement of a permanency plan that was approved by the Children’s Court on 1 May 2018 (Care Act, s 245(1B)(b)). For this reason, the Tribunal has no power to review that decision.

39. Accordingly, the application for review must be dismissed. This has the effect of dismissing the application for a stay.

Orders

40. The Tribunal orders:

1. A hearing of the respondent’s summary dismissal application is dispensed with.

2. The applicants’ application to the Tribunal for a review of the respondent’s decision to remove from them the responsibility for the daily care and control of children in their care is dismissed.

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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: 18 July 2018