Druett v Director-General, Department of Community Services [CSD]

[2003] NSWADTAP 6

Pending Appeal:

Appeal Panel - Internal

CITATION:	Druett -v- Director-General, Department of Community Services [CSD] [2003] NSWADTAP 6
PARTIES:	APPELLANT Garry Keith Druett RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	029042
HEARING DATES:	11/12/2002
SUBMISSIONS CLOSED:	12/11/2002
DATE OF DECISION:	03/11/2003
DECISION UNDER APPEAL:	Druett -v- Director-General, Department of Community Services [2002] NSWADT 184
BEFORE:	O'Connor K - DCJ (President); Gelin B - Member; Green J - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	024009
DATE OF DECISION UNDER APPEAL:	09/26/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Appeals and Monitoring) Act 1993
CASES CITED:	Director-General, Department of Community Services -v- Priddle & Holmes (CSD) [2002] NSWADTAP 14
REPRESENTATION:	APPELLANT In person RESPONDENT D Ward, solicitor
ORDERS:	1. The appeal is dismissed.

1 On 21 February 2002 the appellant, Garry Keith Druett, lodged with the Tribunal two applications for review of decisions made by the Department of Community Services, which he described in the application forms respectively as ‘refusal to consider applications to terminate guardianship of some of my children’ and as ‘refusal to allow contact to my children’. The Community Services Division of the Tribunal declined to hear the application: see decision reported as Druett -v- Director General, Department of Community Services [2002] NSWADT 184.

2 The appellant has four children. They were removed on 9 January 1998 from their parents’ care by the Department, acting pursuant to s 60 of the Children (Care and Protection) Act 1987.

3 The appellant has already made a number of applications to the Children’s Court to have the children returned to his care. The immediate background to the application was a decision ‘to suspend access arrangements until you participate in a drug and alcohol assessment and a psychiatric assessment’ (letter to Mr Druett from Minister referring to decision, dated 2 January 2002).

4 In response to the application, the Department raised two questions: one, whether there had been a decision which was reviewable by the Tribunal; and two, whether, if the Tribunal had jurisdiction it was a case where the Tribunal should exercise its power to decline to hear the application because the applicant has an alternative and satisfactory means of address (the Children’s Court).

5 The Tribunal’s jurisdiction in respect of decisions relating to the care and protection of children is conferred by the Community Services (Complaints, Reviews and Monitoring) Act 1993 (‘CRAMA’), s 40(1) read in conjunction with the Children (Care and Protection) Act 1987 (‘the Care and Protection Act’), ss 60 and, relevantly, 112(g). The relevant provisions are set out by the Tribunal in the decision under appeal.

6 After initially expressing doubt that the Tribunal had any jurisdiction to entertain either of the applications, the Department conceded that in respect of the ‘review of termination’ application a pre-condition to jurisdiction (an application to the Minister) had been made, at least in respect of two of the children. In these circumstances it accepted that the jurisdiction conferred on the Tribunal - s 112(1)(g) - may have been enlivened. Section 112(1)(g) confers jurisdiction to review ‘a decision of the Minister to refuse to terminate the Minister’s guardianship of a ward under section 90(2)’. Section 90(2) provides: ‘The Minister may terminate the Minister's guardianship of a ward.’

7 The Department then applied to the Tribunal for it to decline jurisdiction. Such a power is given by CRAMA s 32, as follows:

‘ 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 review) of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 .
(4) (Repealed)’.

8 The Tribunal noted that s 90 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act) empowered it to consider, with leave, applications for rescission and variation of a care order. The basis for granting leave is set out in sub-s (2): ‘if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.’

9 The Department referred the Tribunal below to the appellant’s history of litigation in relation to the original care orders. The Department’s care application was heard by the Children’s Court in 1998. The Court made orders in respect of all four children. The appellant appealed to the District Court which confirmed the orders. There was further litigation in the Supreme Court, the Court of Appeal and, ultimately, the High Court which refused to give leave. Moreover in the 12 months prior to the date of these submissions (April 2002), the Department stated that the appellant had brought two separate applications before the Children’s Court seeking leave to commence proceedings to rescind or vary the care orders. In the first of these cases the Court declined to grant leave, and in the second dismissed the matter for want of prosecution.

10 In light of the submissions and after considering the submissions of Mr Druett, the Tribunal exercised its power to decline to entertain both applications for review. It proceeded on the basis that it was dealing with the ‘review of termination’ application. (As to the ‘review of denial of access’ application, our view is that there is no jurisdiction. As an Appeal Panel has explained in another decision, the Tribunal is given review jurisdiction over ultimate decisions relating to guardianship but not the day-to-day decisions connected with the administration of the affairs of a child in care: Director-General, Department of Community Services -v- Priddle & Holmes (CSD) [2002] NSWADTAP 14.)

11 The Tribunal below noted at [15] of its reasons the various specialist features that the Children’s Court could bring to issues of this kind, which made it a better forum to consider a case for ‘rescission’, which raised the same issues as would arise in considering whether to ‘terminate’ care.

12 At the appeal hearing the Department noted that the 1998 Act had not at that time been proclaimed in full. One of the unproclaimed provisions provided that the Tribunal would have no jurisdiction to hear and determine applications for review of refusals to terminate.

13 The concurrent jurisdiction would then end.

14 Mr Druett in his submissions referred to what he saw as a number of shortcomings and errors in the full hearings that had occurred at the Children’s Court and the District Court in relation to the Department’s original care application. He said that he wanted to have the matter heard in the Tribunal, as he was not able to get a fair hearing in the Children’s Court.

15 The Appeal Panel asked for information regarding the District Court hearing, particularly the judgment of the Court which was provided by the Department. The judgment records that the case, a rehearing, took place over 12 days. The judgment deals comprehensively with the family circumstances, the disabilities possessed by a number of the children, the history of the parents and the appellant’s view that he was the victim of a ‘conspiracy’ by a number of bodies to take the children away from him. The judgment concluded with the Judge noting that the Department had acted ‘responsibly and commendably’ in taking the action that it did.

16 The jurisdiction of the Appeal Panel is governed by s 113 of the Administrative Decisions Tribunal Act 1997, which, relevantly, provides:

‘ 113. Right to appeal appealable decisions
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. ...’.

17 In this instance Mr Druett has not identified any errors of law on the part of the Tribunal below. The Tribunal proceeded to exercise a discretion available to it, and did so, we consider, by having regard to relevant considerations. The exercise of discretion was not affected by any manifest error.

18 Mr Druett was essentially seeking another hearing of the merits. As there was no error of law, it is not appropriate or proper for us to give leave to extend this appeal to the merits.

19 Accordingly, the appeal is dismissed.