FZM & FZO v Secretary, Department of Communities and Justice

[2024] NSWCATAD 360

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FZM & FZO v Secretary, Department of Communities and Justice [2024] NSWCATAD 360

Hearing dates:

23 October 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Principal Member

Decision:

The application for administrative review is dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – review of decision to remove child from authorised carer – final orders made by Children’s Court after Tribunal hearing concluded – practical utility in proceeding to determine application – summary dismissal

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Civil and Administrative Tribunal Act 2013

Cases Cited:

Davis v NSW Minister for Health [2023] NSWCATAP 211

Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOD 59

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FZM & FZO (Applicants)

Secretary, Department of Communities and Justice (Respondent)

Representation:

First Applicant (Self Represented)
Second Applicant (Self Represented)

Crown Solicitor (Respondent)

File Number(s):

2023/00299218

Publication restriction:

The disclosure of the name of the applicants is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. On 19 September 2023 the Tribunal received an application from FZM and FZO about the removal of a child who was in their care. Some jurisdictional issues arose early in the proceedings but by the time the matter was heard by the Tribunal it was clear that the Tribunal’s jurisdiction to deal with the application had been enlivened.

2. The matter was heard by the Tribunal, differently constituted, over several days in March and April 2024. On the last hearing day, 11 April 2024, orders were made for the filing of further material including submissions and the decision was reserved. The last of the additional material was filed in June 2024. The decision remains reserved.

3. The Secretary, Department of Communities and Justice (the respondent) states there are two reviewable decisions under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), before the Tribunal. The first decision is the decision made to remove from FZM and FZO responsibility for the daily care and control of a child in their care. The second is a decision not to grant FZM and FZO the responsibility for the daily care and control of the child, that is, to deauthorise FZM and FZO as relative kinship carers. I note, however, that there is in fact no formal application before the Tribunal for review of the second decision.

Background

4. FZO is the maternal uncle of the child and FZM is his maternal aunt by birth. The child has two biological sisters who are one and two years older than him. His sisters are under the guardianship of FZM and FZO. The respondent assumed the care of the child shortly after he was born and he was subsequently placed with an authorised carer, Ms D. He was later restored to the care of his mother by orders of the Children’s Court. He was again removed about 17 months later and placed with FZM and FZO. The child was removed from FZM and FZO in June 2023 because of concerns about his treatment while in their care. He was again placed with Ms D and has remained in her care.

5. While the matter has been before the Tribunal there have been proceedings in the Children’s Court involving the child. Final Orders were made by the Children's Court on 4 October 2024 allocating parental responsibility to the Minister for Families and Communities until the child attains the age of 18, on the basis of a permanency plan that stipulates the child is to remain in a long-term placement with Ms D.

Dismissal application

6. The respondent has brought an application seeking dismissal of the proceedings primarily on the basis that the proceedings lack utility given the child’s permanency plan, which does not involve the applicants. FZM and FZO argue that the matter should still be determined and a decision made as the outcome of these proceedings would have an impact on any future care arrangements which could involve themselves should the current placement for the child break down. They also state that the child’s parents have had another baby and they are concerned the new baby will not be placed with family if he was to be removed from his parents and the applicants are not authorised carers. I note that FZM and FZO strongly dispute the circumstances which led to the removal of the child from their care.

7. The dismissal application came before me for hearing on 23 October 2024. Both parties had provided written submissions in respect of the application and appeared at the hearing.

Should the matter be dismissed?

8. Section 245 of the Care Act relevantly provides:

245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993—

…

(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.

9. I accept the submissions of the respondent that a permanency plan for the child has been approved by the Children’s Court. That does not automatically mean, however, that in this case the Tribunal no longer has jurisdiction to decide the substantive application because of s 245(1B)(b) of the Care Act. In my view, taking into account s 66(2)(b) of the Administrative Decisions Review Act 1997 (ADR Act) which concerns the date of effect of an administrator’s decision, the Tribunal still has jurisdiction to review the decision to remove the child from the daily care and control of the applicants, as the reviewable decision was not made 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, in circumstances where at the time of the reviewable decision, there were no such orders in force.

10. The respondent argues, however, that now that final care orders have been made by the Children’s Court, it is open to the Tribunal to form one or both of the following views in relation to the substantive application:

1. Section 245(1B)(b) of the Care Act imposes an implicit limitation on the Tribunal making decisions “in relation to the enforcement of a permanency plan”, and therefore, the Tribunal does not have jurisdiction to vary or set aside the reviewable decision, pursuant to s 63 of the ADR Act; and / or

2. The decision of the Children's Court to implicitly approve the permanency plan in its final care orders “overtakes” the reviewable decision, and thus the proceedings challenging the decision under review are inutile and are therefore lacking in substance and should be dismissed (see, e.g. Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOD 59).

11. There is some force to the argument in (a) above. Leaving that to one side, it is clear in my view that in the current circumstances the proceedings lack practical utility. This gives rise to a question whether the review application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) on the basis that it is lacking in substance.

12. The respondent refers to Zeitoune v Commissioner of Police, NSW Police Force [2024] NSWCATOD 59 a decision in which I dismissed an application for review of a security licence which had been revoked in circumstances where the licence had expired while the matter was before the Tribunal. In that matter, after considering a range of decisions of the Tribunal and the Appeal Panel including Davis v NSW Minister for Health [2023] NSWCATAP 211, at [38] I concluded that the expiry of Mr Zeitoune’s licence and the lack of any remedy available in the Tribunal proceedings to affect that licence meant that the proceedings lacked practical utility. In addition, Mr Zeitoune had not raised any broader issues of principle which would lead to a conclusion that there was utility in continuing with the proceedings. While, as here, the decision in that case was of great personal interest to Mr Zeitoune, that did not outweigh the lack of utility in the proceedings continuing and the significant resources which would need to be allocated to the matter, notwithstanding the lack of utility. I therefore dismissed the application.

13. Importantly, the Appeal Panel in Davis said that, given the breadth of the Tribunal’s jurisdiction, the type of proceedings that are the subject of a dismissal application may be relevant in considering the meaning of the phrase “lacking in substance”. At [53] the Appeal Panel stated that a range of findings could potentially justify a conclusion that proceedings are “lacking in substance”, including that the proceedings “would be of no practical effect”, or that the initiating application was based on an “untenable proposition of fact or law” or was “not reasonably arguable”. Furthermore, the Appeal Panel held that, having found that proceedings are lacking in substance, in considering the exercise of the discretion to dismiss the proceedings, the Tribunal is obliged to consider whether permitting the proceedings to continue facilitates “the just, quick and cheap resolution of the real issues in the proceedings” as set out in the guiding principle in s 36(2) of the NCAT Act.

14. I understand the importance of the matter to FZM and FZO in that they wish to establish that the basis upon which the child was removed had no foundation. If that finding were to be made by the Tribunal they believe that any future arrangements concerning the child (and now his new sibling) could be affected. I am particularly cognisant that they wish to preserve familial relationships. The applicants also hope that the Tribunal decision will highlight deficiencies in the decision making processes of the respondent.

15. The finalisation of the Children’s Court proceedings prior to the Tribunal matter means that events have overtaken the circumstances which pertained at the time of the Tribunal hearing. Of course, it is not known what the Tribunal outcome might have been and the applicants may not have been successful in any event.

16. It is clear, however, that the orders of the Children’s Court and the permanency plan which has been established overtake any prior placement of the child with the applicants. In effect, the child will not be returned to their care in the current circumstances even if the Tribunal finds he should not have been removed.

17. Should circumstances change it would be open to the applicants to apply to be authorised carers for the child. That application can then be considered in light of all the material and the circumstances pertaining at the time a new decision would be made. The resources of the Tribunal should a decision not be favourable to the applicants, would be better allocated to a live dispute rather than one where the decision would amount to an advisory opinion only. As was stated in Davis at [45], applying what was said in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299:

It is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited. That would be an improper use of the Tribunal’s limited resources.

18. In my view the lack of any remedy available in these proceedings to affect the outcome of the decision under review to remove the child from the applicants means that these proceedings in relation to that decision lack practical utility and they are therefore lacking in substance and should be dismissed.

19. In relation to the decision to deauthorise the applicants as relative kinship carers, as noted above there is in fact no formal application before the Tribunal seeking review of that decision. (I note that such a decision is reviewable under s 245(1)(b) of the Care Act.) The respondent took the position before the Tribunal as constituted to conduct the hearing that the deauthorisation decision was “practically” before the Tribunal as it was factually linked to the removal decision. As there is no formal review application before the Tribunal in relation to the deauthorisation decision and as I have dismissed the substantive review application, the Tribunal has no independent or inherent jurisdiction to review that decision.

Order

1. The application for administrative review 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: 03 December 2024