DRD v Secretary Department of Family and Community Services

[2019] NSWCATAD 22

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DRD v Secretary Department of Family and Community Services [2019] NSWCATAD 22
Hearing dates:	17 January 2019
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The Tribunal decides to deal with the applicant’s application pursuant to s 55(4) of the Administrative Decisions Review Act 1997. (2)   The application for administrative review filed 13 December 2018 is dismissed because the Tribunal does not have jurisdiction. (3)   The stay application is dismissed because the Tribunal does not have jurisdiction.
Catchwords:	ADMINISTRATIVE LAW- whether administratively reviewable decision – where decision to change contact regime for child in authorised care – where internal review has not occurred or been sought in relation to the decision sought to be reviewed – where no jurisdiction to review challenged decision.
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) Evidence Act 1995 (NSW)
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 DON v Key Assets NSW Ltd [2018] NSWCATAD 252 DMG v Barnardos Australia [2018] NSWCATAD 154 IO v Department of Family and Community Services (CSD) [2012] NSWADTAP 42 IO v Director-General Department of Community Services [2008] NSWADT 267 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DRD (Applicant) Secretary Department of Family and Community Services (Respondent)
Representation:	Advocates: DRD(Self Represented) (Applicant) J Smith (Respondent)   Solicitors: Care Legal (Respondent)
File Number(s):	2018/00384014
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant seeks a review of a decision made in relation to contact with other family members for a child who has been placed in her care. The child is under the parental responsibility of the Minister for Family and Community Services until the age of 18 by reason of orders made in the Children’s Court. The applicant also seeks a stay of the decision referred to in the application. The respondent seeks that the application be summarily dismissed because the decision it is argued is not an administratively reviewable decision and therefore is not within the jurisdiction of the Tribunal.

2. The Tribunal has jurisdiction to hear administratively reviewable decisions by reason of subsections 245(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW).

3. The original application was filed on 13 December 2018. The applicant was notified on 3 December 2018 that there was a new contact schedule in place in relation to the child’s contact with siblings, the biological grandmother, and other family members during the first half of 2019.

4. There has been no internal review of the challenged decision sought by the applicant because of the urgency with which this application should be heard.

5. In DON v Key Assets NSW Ltd [2018] NSWCATAD 252 it was decided that the Tribunal does have jurisdiction to review a decision to place children in “respite care” as opposed to a decision expressed in more definite language. I respectfully agree with Dr Lucy’s reasons for arriving at the conclusion in that decision. That is not the type of decision which has been made in this matter.

6. However, in the application before the Tribunal the applicant argues that the decision of the respondent was a decision to “impose conditions” on her authorisation, or in addition or alternatively, the decision is one which removes from an authorised carer “the responsibility for the daily care and control of the young person”. The applicant submits that the decision falls within sub-sections 245 (1) (a) and (c) of the Children and Young Persons (Care and Protection) Act. The child remains in the applicant’s daily care but different contact arrangements have been considered and are in the near future to be implemented.

7. The child was placed with the applicant in September 2013 after being assumed into care in Hospital at his birth in August 2013.

8. A person who is entitled to seek an internal review of an administratively reviewable decision, is not entitled to apply to the Tribunal unless the person has applied for an internal review and the review is taken to have been finalised: Administrative Decisions Review Act, s 55(3). A review is “taken to have been finalised” if the applicant is notified of the outcome of the review or if the applicant is not notified of the outcome of the review within 21 days after the application was made: Administrative Decisions Review Act, s 53(9). There was no internal review conducted at that time because there is some urgency in the review of the new contact regime.

9. The applicant is not entitled to apply to the Tribunal on the date she did by operation of s 55(3), however the Tribunal may deal with the application in these circumstances 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 . . . “(Administrative Decisions Review Act, s 55(4).

10. I am satisfied that it is necessary to deal with the application in order to protect the applicants’ interests for the following reasons. The respondent is arguing that there is no jurisdiction in the Tribunal because there is no administratively reviewable decision which has been made. If there has been an administratively reviewable decision made then it will be necessary to protect the applicant’s interests by hearing her application as soon as possible. An internal review will delay the ultimate determination and if the respondent asserts that this is not a reviewable decision then there will be no internal review which can validly be undertaken. I am also satisfied that the application was made within a reasonable time.

11. The matter was set down on 17 January 2019 for hearing and to allow the applicant to respond to the arguments of the respondent as to jurisdiction. In the event that the Tribunal has jurisdiction then the stay application is pressed.

12. For the reasons which follow I am not satisfied that the Tribunal has jurisdiction to hear this matter.

Legislative provisions in relation to the application

13. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.

14. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.

15. The Tribunal may hear an administrative review of decisions made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act because of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993 (NSW). These requirements are in issue in this application.

16. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:

“As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides:

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

...

(c)   a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person

...

(1B)   For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:

(a)   the preparation of a permanency plan, or

(b)   the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.

(2)   In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.”

17. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter, where the provisions of the care plan were not obviously embodied in the order made by the Children’s Court but were considered as part of the process of exercising the Court’s jurisdiction to make a care order. His Honour Justice Campbell stated at [54]:

“In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court.”

18. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held:

“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.”

19. The meaning of “decision” is contained in section 6 (1) of the Administrative Decisions Review Act 1997 and includes the following:

“(a)   making, suspending, revoking or refusing to make an order or determination,

(b)   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c)   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d)   imposing a condition or restriction,

(e)   making a declaration, demand or requirement,

(f)   retaining, or refusing to deliver up, an article,

(g)   doing or refusing to do any other act or thing.”

20. Section 9 of the Administrative Decisions Review Act provides:

“9 When administrative review jurisdiction is conferred

(1)   The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation.

(2)   If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

(3)   A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

(a)   a decision made by a person to whom the function of making the decision has been delegated,

(b)   if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c)   a decision made by any other person authorised to exercise the function of making the decision.

(4)   If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:

(a)   the person for the time being holding or performing the duties of that office or appointment, or

(b)   if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies.

(5)   Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.”

21. It is correct to say that the Tribunal has no power to enquire at large into matters that take its interest but over which it has no jurisdiction. There is a duty not to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48.

22. Section 32 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 provides:

“32 Additional powers of Tribunal

(1)   The Tribunal may decline to hear or determine an application if, in the opinion of the Tribunal:

(a)   the applicant has available an alternative and satisfactory means of redress, or

(b)   the applicant has not made appropriate attempts to have the matter to which the application relates resolved otherwise, or

(c)   the ground for the application is unacceptable having regard to the frequency of applications previously made by or on behalf of the appellant in respect of the same subject-matter.

(2)   In giving its decision on an application, the Tribunal may make recommendations for consideration by the person who made the decision concerned or the relevant Minister, if the decision was made by a service provider and, if any recommendations are made, the parties affected by the decision are entitled to be informed:

(a)   of any action taken in relation to the recommendations, or

(b)   that it is not proposed to take any such action.

(3) Nothing in this section limits the powers of the Tribunal under Division 3 (Powers on administrative review) of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.”

23. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act.

24. The objects contained in section 8 of the Children and Young Persons (Care and Protection) Act are:

“The objects of this Act are to provide:

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)   recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)   that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

25. The objects of Chapter 8 of the Children and Young Persons (Care and Protection) Act, which specifically relates to out of home care, contained in section 134 are:

“The objects of this Chapter are:

(a)   to create a high standard in the provision of out-of-home care, and

(b)   to provide a model for the organisation of out-of-home care, and

(c)   to clarify the roles and responsibilities of those involved in the provision of out-of-home care.”

26. The Tribunal, in an application to review primary decisions, is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

27. The objectives and principles contained in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act embody protective measures to ensure that the child’s safety welfare and well-being is given primacy.

28. The provisions of section 60 of the Administrative Decisions Review Act are as follows:

60 Operation and implementation of decisions pending applications for administrative review

(1)   Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2)   On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3)   The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a)   the interests of any persons who may be affected by the determination of the application, and

(b)   any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c)   the public interest.

(4)   While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

29. In other words, the application for review does not act as a stay of the decision under review. The question to be resolved in this matter is whether the decision is an administratively reviewable decision. If it is not such a decision then the issue of a stay does not arise. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review. The respondent opposed the application for a stay or interim order on the basis that there is no reviewable decision and no jurisdiction in the Tribunal to hear the application.

Evidence relied upon

30. The parties relied upon the following documents which have all been read:

1. Application for Administrative Review filed 13 December 2018: Exhibit A1;

2. Application for stay or interim order filed 13 December 2018: Exhibit A2;

3. Summary of Legal Arguments on behalf of the respondent filed 19 December 2018: Exhibit R1

4. Summary of Legal Arguments on behalf the applicant filed 3 January 2019: Exhibit A3;

5. Bundle of records of the applicant on 3 January 2019: Exhibit A4;

6. Affidavit of manager casework of the respondent filed on 11 January 2019: Exhibit R2;

7. Summary of Legal Arguments on behalf of the respondent filed 11 January 2019: Exhibit R3.

The Issue

31. The applicant seeks to stay the decision of the respondent and to review the decision of the respondent which institutes a regime of contact for the child who is placed with the applicant and who has been living with her nearly his entire life.

32. The respondent argues that the jurisdiction of the Tribunal to review administrative decisions does not encompass the decision which has been made.

33. If the Tribunal does not have jurisdiction to review the administrative decision there is little utility in considering whether to grant a stay of the decision. Indeed, there is no legitimate basis to proceed further if there is no jurisdiction to review the decision. A stay, in some circumstances, may be granted while the Tribunal determines whether it has jurisdiction. Since the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application, if there is no reviewable decision, there is no appropriate basis to secure the effectiveness of the determination of the application.

Considerations and the Evidence

34. As previously referred to, the issue the Tribunal is to decide what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the respondent if this is an administratively reviewable decision: section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

35. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong in relation to an administratively reviewable decision: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

36. The applicant agrees that the issue whether the decision is administratively reviewable depends upon the interpretation of section 245 of the Children and Young Persons (Care and Protection) Act.

37. The applicant argues that the decision of the respondent regarding the contact arrangements for the child with his biological family is administratively reviewable because:

1. the decision is one which imposes conditions on her authorisation which brings the decision within section 245 (1) (a) of the Children and Young Persons (Care and Protection) Act; and

2. the decision is one which removes from the applicant the “responsibility for the daily care and control” of the child within the meaning of section 245 (1) (c) of the. Children and Young Persons (Care and Protection) Act.

38. The applicant also argued that a procedural error occurred when the decision was made resulting in an unfair outcome for the child.

Events prior to the application

39. The child was assumed into care at the hospital in which he was born. A few weeks later he was placed in the care of the applicant and has remained there ever since. The child is now aged 5 years.

40. Orders were made in the Children’s Court allocating parental responsibility to the Minister in June 2014 and again in May 2018 after an application for rescission or variation of those orders under section 90 of the Children and Young Persons (Care and Protection) Act.

41. All aspects of parental responsibility are held by the Minister. This includes parental responsibility in relation to contact. There were no contact orders made in 2014. There were no contact orders made in 2018. Instead undertakings were sought from various parties in relation to facilitating contact. In particular the applicant has recently given undertakings to the Children’s Court as part of the orders made in 2018 to make the child “available for contact as directed by Family and Community Services.”

42. In IO v Director-General Department of Community Services [2008] NSWADT 267 the applicant who was an authorised carer sought administrative review of a decision made by Family and Community Services to vary contact arrangements between a child and her natural mother. The former Deputy President of the Tribunal held that such a decision did not fall within section 245 (1) (a) or within section 245 (1) (c) of the Children and Young Persons (Care and Protection) Act.

43. That decision is clearly contrary to the arguments made by the applicant in this matter.

44. In IO v Department of Family and Community Services (CSD) [2012] NSWADTAP 42 the applicant carer unsuccessfully contended that the discretionary decision of the delegate of the Minister, whether or not to provide financial assistance to a carer, constituted the imposition of conditions on his carer authorisation. The President of the Appeal Panel of the Tribunal at [23]-[24], held that the provision of financial assistance did not constitute the imposition of conditions on the carer authorisation and was a separate and distinct subject matter. It was identified that the subjects of authorisation and financial assistance are contained within separate sections of the Children and Young Persons (Care and Protection) Act. This reinforced the view that they are separate from each other.

45. In DMG v Barnardos Australia [2018] NSWCATAD 154 the Tribunal found at [35] that a Children’s Court order requiring the Secretary, Department of Family Community Services to prepare a report outlining the progress in implementing the care plans, approved the care plans implicitly within section 245 (1B) (b) of the Children and Young Persons (Care and Protection) Act. That means section 245 (1) (c) of that Act 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 of the Children’s Court, and such enforcement includes the provisions in relation to contact.

46. In this matter there was such a report under section 82 Children and Young Persons (Care and Protection) Act required pursuant to the order by the Children’s Court in 2013. The report was to specifically address details of contact between the child and other family members, and details in relation to the implementation of the care plan. There were also extensive notations in relation to face-to-face contact between the child and other family members. The 2018 orders also required a report pursuant to section 82 at 3, 6, 9 and 12 month intervals dealing with contact arrangements between the child and other family members, and the compliance with the undertakings by the parties, including the applicant, amongst other things, to make the child available for contact as directed by Family and Community Services. Therefore AQY & AQZ v Administrative Decisions Tribunal of New South Wales applies and the Tribunal has no jurisdiction in relation to a decision to enforce those matters which have been embodied in or approved by the orders of the Children’s Court.

47. The respondent submitted that there have been no conditions imposed on the applicant’s carer authorisation, in writing, in relation to contact arrangements. Contact arrangements as part of the exercise of parental responsibility in relation to contact by the Minister’s delegate do not form part of the conditions imposed on an authorised carer’s carer authorisation. The applicant’s carer authorisation which is attached to the affidavit of the Manager Casework has no written conditions imposed upon it. There has been no delegation to the applicant concerning contact arrangements for this child. This aspect of parental responsibility is retained by the Minister’s delegate.

48. The applicant argues that the effect of changing the contact arrangements to significantly increase the contact between the child and his family members has the effect of disrupting his behaviour while he is with the applicant. The applicant says that this results in removing from her capacity, and therefore the responsibility, for his care and control. While there may be some impact upon the child and his behaviour, and the capacity of the applicant to manage the behaviour, by contact arrangements decided by the Minister’s delegate, that does not remove from the carer any aspect of the daily care and control of the child because the Minister by order of the Court retains the control in relation to contact.

49. The applicant makes it clear in her submissions that she is not opposed to contact between the child and his family, and has advocated for reasonable and appropriate contact taking into account the child’s age and developmental stage in order to meet his cultural and identity needs. The applicant is clearly concerned that the impact of contact may well be a disruption to the stability of care that this child has received for the last 5 years.

50. In BXS v Department of Family and Community Services [2015] NSWCATAD 269 the Tribunal confirmed that the conditions of authorisation within clause 34 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) include a requirement that the authorised carer must comply with the Code of Conduct for authorised carers. Failure to comply with the Code of Conduct that may lead to suspension of the carer’s authorisation. The applicant argues that she is expected to maintain the rights of the child as set out in the Charter of Rights for Children and Young People in Out-Of-Home Care in New South Wales as well as participate in the development, implementation and review of case plans for the child in her care. The carer also says that the contact decision seriously impacts on the right of the child to have a stable transition to school and will interfere with his extracurricular activities. The carer participated in a case planning meeting which preceded the decision being made. The carer says there was a procedural error because the decision which she believed was made at the meeting was different to the decision which was ultimately made, which she asserts resulted in an unfair outcome for the child. Unfortunately, the decision which was made is one which the Minister’s delegate ultimately makes whether that decision was foreshadowed at a case planning meeting or not. In those circumstances, there was no procedural unfairness or error because participation does not equate to decision-making power. There is no breach of the code of conduct by the carer which can be identified in the circumstances of a decision by the delegate of the Minister.

Conclusion

51. The applicant in this matter is an advocate for the child’s rights and interests. The applicant has been a diligent carer who has developed a strong attachment to the child placed in her care. It is presumed that the child has developed an equally strong attachment to her. If contact arrangements are too disruptive for the child there will be an impact upon that attachment relationship. The applicant is concerned to prevent this from happening.

52. The section 82 Report to the Children’s Court dated 10 August 2018 identifies that the extended family are insisting on increased visits while the carer feels that this increase, although ultimately in the child’s best interests, needs to be managed slowly, over time. In addition, the emotional value to the child of his carer family group appears to be given less recognition or acknowledgement than it is due, and perceived by the applicant to be attributed lower value than interaction with the biological family. There has been active engagement with a psychologist in sessions to try to resolve the conflicts between the carer and the extended biological family group. The birth family have withdrawn from any further sessions with the psychologist. It is recognised in that report that the child receives a high level of care and nurturance with the applicant. The report identifies that further work is required in relation to the development of trust surrounding the contact issues.

53. The applicant filed an application under section 90 of the Children and Young Persons (Care and Protection) Act in September 2018 seeking to vary care orders which had been made earlier in 2018 on the basis of an alleged breach of the undertakings of one of the other parties. The applicant in that application sought sole parental responsibility for the child (presumably in all aspects), including in relation to contact arrangements. Through her legal representative the applicant sought to withdraw that application when it was ascertained through sworn evidence that the undertakings had not been breached. The Children’s Court granted the applicant leave to withdraw the application.

54. The applicant may bring further proceedings seeking leave to vary or rescind the orders in the Children’s Court if she is dissatisfied with the contact arrangements organised by the delegate of the Minister. Section 32 of the Community Services (Complaints, Reviews and Monitoring) Act permits the Tribunal in its discretion to decline to hear or determine an application if, in the opinion of the Tribunal the applicant has available an alternative and satisfactory means of redress. If the Tribunal is not correct in its determination that there is no jurisdiction to review this decision, then it is the opinion of the Tribunal that the more appropriate and satisfactory means of addressing this issue is through the Children’s Court by way of application in relation to contact orders under section 86 of the Children and Young Persons (Care and Protection) Act, or in relation to seeking variation or rescission of parental responsibility orders under section 90 of the Children and Young Persons (Care and Protection) Act.

55. For the reasons which have been identified earlier, the Tribunal considers that the decision concerning contact arrangements is an exercise of parental responsibility by the Minister’s delegate. The Tribunal has no jurisdiction in relation to a decision to enforce those matters which have been embodied in or approved by the orders of the Children’s Court. The section 82 reports and the provisions of the Children’s Court orders are part of the approved permanency plan for this child.

56. The Tribunal in these circumstances has no jurisdiction to review the decisions made by the delegate of the Minister in relation to contact. There is no administratively reviewable decision and therefore the application for review and the application for stay of the decision must be dismissed.

Orders

57. The order of the Tribunal shall be:

1. The Tribunal decides to deal with the applicant’s application pursuant to s 55(4) of the Administrative Decisions Review Act 1997.

2. The application for administrative review filed 13 December 2018 is dismissed because the Tribunal does not have jurisdiction.

3. The stay application is dismissed because the Tribunal does not have jurisdiction.

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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: 31 January 2019