Druett v Secretary, Department of Family and Community Services
[2002] FCA 614
•15 MAY 2002
FEDERAL COURT OF AUSTRALIA
Druett v Secretary, Department of Family & Community Services [2002]
FCA 614SOCIAL SECURITY – family allowance – withdrawal of payment of family allowance – application for review of decision of Federal Magistrates Court – Federal Magistrate affirmed decision of Administrative Appeals Tribunal, which in turn affirmed decision of Social Security Appeals Tribunal, that appellant was not a “person whose interests are affected” by decision to withdraw family allowance – s 44 Administrative Appeals Tribunal Act 1975 (Cth) – no reviewable error disclosed – no question of principle
ADMINISTRATIVE LAW – appeal from Federal Magistrates Court seeking judicial review of a decision to affirm decision of Administrative Appeals Tribunal not to grant an extension of time – appellant sought an extension of time before Administrative Appeals Tribunal in respect of a decision to remove appellant’s children from parental custody – decision to remove children from custody made by NSW Department of Family & Community Services – Administrative Appeals Tribunal decided it had no jurisdiction in respect of a decision of a State Department – no reviewable error disclosed – no question of principle
ADMINISTRATIVE LAW – Newstart allowance – appeal from Federal Magistrates Court seeking judicial review of a decision to affirm decision of Administrative Appeals Tribunal not to grant an extension of time – appellant sought extension of time before Administrative Appeals Tribunal in respect of a decision by Social Security Appeals Tribunal that was favourable to the appellant – the AAT found that there was no utility in granting an extension of time – no reviewable error disclosed – no question of principle
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) s 142
Administrative Appeals Tribunal Act 1975 (Cth) s 27(1), 44, 44AA
Children (Care & Protection) Act 1987 (NSW)GARRY DRUETT v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
N 83, N 187 AND N 188 OF 2002
HELY J
15 MAY 2002
BRISBANE VIA VIDEO LINK (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 83, N 187 AND N 188 OF 2002
BETWEEN:
GARRY DRUETT
APPELLANTAND:
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
RESPONDENTJUDGE:
HELY J
DATE OF ORDER:
15 MAY 2002
WHERE MADE:
BRISBANE VIA VIDEO LINK (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1. The appeals be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 83, N 187 AND N 188 OF 2002
BETWEEN:
GARRY DRUETT
APPELLANTAND:
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
RESPONDENT
JUDGE:
HELY J
DATE:
15 MAY 2002
PLACE:
BRISBANE VIA VIDEO LINK (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
There are three appeals before the Court in matters N 83, N 187 and N 188 of 2002 from three judgments of Raphael F M, each given on 5 February 2002. On 15 February 2002 the Chief Justice determined pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeals should be determined before a single judge.
N 83 of 2002
The appellant is a married man with four children. In 1998 the appellant’s wife, Mrs Kirrily Druett, was receiving family allowance in respect of their four children pursuant to Part 2.17 of Chapter 2 of the Social Security Act 1991 (Cth).
On 9 January 1998 the NSW Department of Community Services removed the children from Mr and Mrs Druett’s care without their consent. At this time, both the Commonwealth and the State of NSW had Departments of Family & Community Services, but the removal was effected by the NSW Department under the provisions of the Children (Care & Protection) Act 1987 (NSW).
After the removal of the children, the Commonwealth Services Delivery Agency determined that Mrs Druett was no longer qualified to continue to receive the family allowance for the children. She received the last payment of the family allowance on 13 August 1998.
Mrs Druett applied pursuant to the Social Security (Administration) Act 1999 (Cth) to the Social Security Appeals Tribunal (“the SSAT”) concerning the cancellation of her family allowance. On 20 May 1999 Mrs Druett withdrew this application for review.
On 21 July 1999 Mrs Druett provided a letter to the SSAT. The letter stated that Mrs Druett gave permission for her husband, the present appellant, to pursue the matter of the cancellation of her family allowance before the SSAT.
On 14 October 1999 a Stipendiary Magistrate of the NSW Children’s Court made the four children wards of the State. The appellant unsuccessfully appealed to the District Court from those orders and the matters were subsequently agitated unsuccessfully before the NSW Court of Appeal and before the High Court.
On 13 February 2001 the appellant applied to the SSAT for a review of the decision of the Authorised Review Officer (“ARO”) which reviewed the original decision to cancel Mrs Druett’s family allowance. Mr Druett was only entitled to make an application to the SSAT in that regard if he was a person whose interests were affected by the decision: Social Security (Administration) Act 1999 (Cth) s 142.
On 2 April 2001 the SSAT made telephone contact with Mrs Druett. She stated that she had not had the children in her care since their removal by the NSW Department of Community Services in January 1998. She further stated that she did not wish to apply for review by the SSAT of the decision to cancel her family allowance as she accepted the correctness of the original decision. Mrs Druett also told the SSAT that she did not give authority to the appellant to apply to the SSAT on her behalf. The SSAT reported that:
“Instead, Mrs Druett desires that her estranged husband would accept that she was not qualified to continue receiving the allowance once the children ceased to be in their care and subsequently, ceased to have legal responsibility for the children by order of the court.”
On 24 April 2001 the SSAT decided that the appellant was not, as at the date he applied to the SSAT for review, a person whose interests were affected by the review undertaken by the ARO. The appellant was at that time living separately and apart from Mrs Druett and she had not consented to have him act on her behalf as a representative of her interests.
On 24 May 2001 the appellant applied to the Administrative Appeals Tribunal (“the AAT”) for a review of that decision. Attached to the application for review was a handwritten document dated 23 May 2001 which noted:
“To whom it may concern
I, Kirrily Druett give my husband Garry Druett consent for him to pursue the Family Allowance on behalf of myself and our children.
Yours sincerely
Kirrily Druett”The AAT enquired into the circumstances under which Mrs Druett had apparently given an authority to the appellant to pursue the matter of the cancellation of her family allowance before the SSAT and the AAT as well as the status of the appellant as a person affected by the SSAT decision.
On 4 October 2001 the AAT dismissed the application for an order of review because it did not consider that the appellant is a person whose interests are affected by the SSAT’s decision in terms of subs 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The AAT found as a matter of fact that Mrs Druett does not, and did not, wish to pursue the matter of the cancellation of her family allowance before the AAT or the SSAT. In addition, the AAT found that the handwritten letter of 23 May 2001 was written under duress and did not, and does not, reflect Mrs Druett’s true view on the matter. In par 31 of its reasons the AAT concluded as follows:
“In Mr Druett’s case, he is living separate and apart from his wife under the same roof. Mrs Druett, whose interests are directly affected, does not wish to pursue the matter of the cancellation of her Family Allowance nor the decision of the SSAT, nor does she wish her husband to do so on her behalf. In all these circumstances, the Tribunal finds that in relation to Mr Druett’s application for review to this Tribunal, pursuant to s 27 of the Administrative Appeals Tribunal Act 1975, Mr Druett is not a person whose interests are affected by the decision to cancel Mrs Druett’s Family Allowance. Accordingly, the Tribunal finds that it does not have jurisdiction to deal with Mr Druett’s application for review.”
The appellant “appealed” from that decision to the Federal Court under s 44 of the AAT Act. The “appeal” was referred to the Federal Magistrates Court under s 44AA of the AAT Act. On 5 February 2002 Raphael F M dismissed the appeal as the AAT did not err in law in coming to the conclusion that the appellant was not a person affected by the relevant decision.
Raphael F M said that whilst he could see circumstances in which it might be possible that a father who was not in receipt of family allowance might be interested in the decision to cease payment of that allowance (because, for example, it would affect his own maintenance payments for the children) no evidence of that type was advanced before the AAT, or before the Federal Magistrate. The appellant’s interest in the matter flowed from the authority given by Mrs Druett, and once that authority was revoked there was no other foundation for a conclusion that the appellant was a person interested in the decision.
The appellant has appealed from that decision. The grounds of appeal, as described in the notice of appeal, are as follows:
“That my children and I are affected by decisions of Family and Community Services.
That my 4 children were taken by Family and Community Services 3 Federal Road, Seven Hills a Federal Department on the 9th of January 1998. That financing the State Government and withdrawing family allowance for Chloe Druett in February 1998 and for Gregory, Nicole and Bernice Druett in August 1998 before issues canvassed in State Children’s Court prejudiced our chances to have any Children returned.”
Under the heading “Orders sought” the following appears:
“That my Children be returned and Family Allowance be restored”
The appellant appeared for himself on the hearing of the appeal. At the commencement of his submissions, the appellant handed me a document which reads as follows:
“Submissions for the Full Bench of The Federal Court.
I Garry Druett respectfully submit to the Federal Court of Australia that my applications to the Superior Court in relation to Human Rights, Work Place Relations, Trade Practices, Consumer Protection etc comes under the Civil Jurisdiction of Federal Law.
That there is collusion with Company’s & Corporations e.g
Telstra.
I also respectfully submit that the Federal Court can review Decisions regarding Social Security, Immigration and Taxation and seek orders for the restoration of the Family payment for my 4 Children.”This appears to be an attempt to invoke the original jurisdiction of the Court, whereas my function is to determine the appeal lodged by the appellant from the decision of the Federal Magistrate.
The appellant’s submissions were largely incoherent. He said:
·that his problems were caused by his unfair dismissal from the Department of Transport in 1979;
·his children had been kidnapped and there is “some sort of a conspiracy there” which is why he cannot get his children back; and
·he applied to the Ombudsman about the alleged conspiracy but “he has no evidence about it, just concerns”.
The appellant appears to believe that restoration of the family allowance in his favour is the first step in a process which would result in the eventual return of the four children to his care.
No attempt was made in the appellant’s submissions to identify any error on the part of the Federal Magistrate in reaching his decision. No such error is apparent on the face of the decision. This appeal should be dismissed.
N 187 of 2002
On 5 April 2001 the appellant applied to the AAT for an extension of time in which to seek review by the AAT of a decision made on 9 January 1998 by the NSW “Department of Family and Community Services” concerning the custody of his children.
On 19 July 2001 the AAT decided that the extension of time sought should not be granted. The decision sought to be reviewed was a decision made by a state authority (the NSW Department of Family & Community Services) under a state statute (Children (Care & Protection) Act 1987 (NSW)), hence the AAT had no jurisdiction to embark upon a review of that decision. In those circumstances, there was no merit in an application for an extension of time, when the decision sought to be reviewed was one which the AAT had no jurisdiction to review.
On 5 February 2002 Raphael F M dismissed an “appeal” pursuant to s 44 of the AAT Act from that decision. The appeal was dismissed because, in the opinion of Raphael F M, the AAT had correctly concluded that it had no jurisdiction in respect of a decision made by a state authority under a state Act.
The appellant appeals to the Federal Court from the judgment of Raphael F M. The grounds of appeal, as contained in the Notice of Appeal, are as follows:
“That my children an I are affected by decisions of Family and Community Services.
That the removal of my 4 Children without warrant by Family and Community Services 3 Federal Road, Seven Hills on the 9th of January 1998, was done in conjunction with the Federal Government.”
Five documents are “Enclosed for the attention of the Federal Court”.
Under the heading “Orders sought” the following appears:
“That my Children be returned and Family Allowance be restored.”
Again, the appellant’s submissions did not come anywhere near identifying any error in the decision of the Federal Magistrate. The appellant referred to conspiracies and to supposed connections between the Commonwealth Department of Family & Community Services, and the equivalent Department in the NSW State Government, but the references led nowhere.
The documents enclosed with the Notice of Appeal do not expose any error on the part of the Federal Magistrate. The appellant’s submissions did not identify any such error, nor is any error apparent on the face of the decision. This appeal must also be dismissed.
N 188 of 2002
The appellant was in receipt of a Newstart Allowance, an unemployment benefit. On 16 May 2000 a “decision to breach” was made because of some alleged default on the part of the appellant which led to an 18 per cent reduction in his allowance for a period of 26 weeks. The sum involved was $161.60.
On 6 December 2000 the appellant lodged an appeal to the SSAT against the decision to impose the breach and “to cancel his former partner’s family allowance”. The SSAT referred the family allowance matter back to Centrelink for an ARO review. That appears to be the review referred to in par 8 above.
The SSAT then embarked upon a consideration of the decision to breach. The SSAT’s decision on the matter of the breach was as follows:
“14.On 12 January 2001 the tribunal decided to set aside the decision and substitute a new decision that no breach occurred on 16 May 2000. This means the appeal is successful.”
Implementation of the SSAT’s decision was delayed through administrative error, as a result of which the appellant was owed arrears on his Newstart Allowance, but arrears due to him in accordance with the SSAT decision were eventually paid.
Although successful before the SSAT, the appellant applied to the AAT for an extension of time within which to lodge an application for review of the SSAT decision.
On 19 July 2001 the AAT refused to grant an extension of time within which to lodge an application for review of the SSAT’s decision as there was no utility in granting an extension of time for review of a decision which had produced the most favourable result for the appellant.
The appellant “appealed” to the Federal Court pursuant to s 44 of the AAT Act from that decision.
On 5 February 2002 Raphael F M dismissed that appeal as, in his opinion, there was no utility in granting an extension of time in which to review a decision which was favourable to the appellant and in respect of which he could obtain no additional benefit.
The appellant appeals from that judgment. The grounds of appeal, as stated in the notice of appeal, are as follows:
“That my Children and I are affected by decisions of Family and Community Services.
That the removal of my 4 Children without a warrant by Family and Community Services 3 Federal Road, Seven Hills on the 9th of January 1998, was done in conjunction with the Federal Government.”
Five documents are said be “enclosed for the attention of the Federal Court”.
Under the heading “Orders sought” the following appears:
“That my children be returned and family allowance be restored.”
The documents “enclosed for the attention of the Federal Court” are the same documents which were enclosed with the Notice of Appeal in N 187/2002. They do not expose any error on the part of the Federal Magistrate in relation to his decision in this matter.
Again, the appellant’s pursuit of this appeal appears to be based on a misconceived belief that some order could and should have been made by the AAT and/or the Federal Magistrate which would lead to the children being restored to his custody.
The appellant told me in the course of his submissions that he appealed from the SSAT decision on the matter of the breach so as to canvass the cancellation of the payment of the family allowance. He said that this allowance was partially and temporarily restored for two weeks commencing on 2 February 2001.
I have no material before me in relation to any partial or temporary restoration of the family allowance. All that emerges is that the SSAT referred that matter back to Centrelink for an ARO review. Review by an ARO is a precondition to the jurisdiction of the SSAT under s 142 of the Social Security (Administration) Act 1999 (Cth). It was that review which was the subject of the SSAT’s decision of 24 April 2001, referred to in par 10 above.
No error in the decision of the Federal Magistrate has been shown. Accordingly, this appeal must also be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate:
Dated: 15 May 2002
The appellant appeared in person Solicitor for the Respondent: Mr G Peek, Australian Government Solicitor Date of Hearing: 6 May 2002 Date of Judgment: 15 May 2002
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