Goode v Minister for Community Services - [2004] NSWADT 107

No judgment structure available for this case.

CITATION: Goode v Minister for Community Services [2004] NSWADT 107

DIVISION: Community Services Division

PARTIES: APPLICANTS
Heather Goode and Geoffrey Goode
RESPONDENT
Minister for Community Services

FILE NUMBER: 034051

HEARING DATES: 7/05/2004

SUBMISSIONS CLOSED: 05/07/2004

DATE OF DECISION:
06/03/2004

BEFORE: Britton A - Judicial Member; Moss J - Non Judical Member; Norman C - Non Judicial Member

APPLICATION: Custody - decision to terminate the custody of a ward

MATTER FOR DECISION: Jurisdiction

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, Reviews and Monitoring) Act 1993

CASES CITED: Minister, Community Services v Mrs A (CSD) [2002] NSWADTAP 32
M -v- Minister, Department of Community Services [2000] NSWADT 49

REPRESENTATION: APPLICANTS
M Darke, barrister
RESPONDENT
D Wells, solicitor

ORDERS: 1. The Tribunal has jurisdiction to determine the application for review; 2. Within 14 days of the date of these reasons the Respondent is to lodge with the Tribunal any or all documents as required bys 58(1)(b) of the Administrative Decisions Tribunal Act 1997; 3. The matter to be set down for further directions on Tuesday 22 June 2004 at 12.30pm.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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

1 In this matter, the applicants seek review of a decision by an officer of the Department of Community Services (“DoCS”) made on 17 March 2003 not to return two foster children to their care. The preliminary issue is whether the Tribunal has jurisdiction to review that decision.

BACKGROUND

2 Some time before 12 September 1997 the two children the subject of this application, together with their brother, were removed from their natural mother by an authorised officer or a police officer pursuant to either s 60 or s 61 of the Children (Care and Protection) Act 1987 (“the Act”). On the same day the Director-General of DoCS made care applications to the Children’s Court in respect of each child.

3 In December 1997 and January 1998, before care applications had been determined by the court, the Director-General placed the children in the care of Wesley Mission Dalmar Child and Family Services at Nepean (“Wesley”). It is not clear from the material before us precisely how this was achieved but it seems to have been as a result either of an interim order of the Children’s Court or pursuant to a combination of ss 62(3)(b) and 77(1) of the Act.

4 On 19 June 1998, Wesley notified the applicants that it had approved them as foster carers.

5 On about 17 July 1998, Wesley advised DoCS, by way of undated letter, that it accepted the referral for a long-term placement of the children. It notified DoCS that it would commence seeking “suitable carers”.

6 On 17 July 1998, the care applications were determined by the Children’s Court and each child was, pursuant to s 72(1)(c)(iii) of the Act, declared a ward for two years. At this point, pursuant to s 90(1) of the Act, the Minister became the legal guardian of the two children.

7 On 2 September 1998, by a written placement authority, the children were placed with the applicants by the Director-General. The “placement authority” stated that the children had been removed from premises pursuant to ss 60 and 61 and placed in the Director-General’s care and that the Director-General was then placing them in the applicants’ care. No reference was made in that document to any order of the Children’s Court, to the fact that the children had been declared wards of the Minister or that the Minister had guardianship of the children.

8 On 18 August 2000, the Children’s Court, on the application of the Minister, extended the wardship order for a further three years.

9 In March 2003, the children were removed from the applicants. The decision to remove the children was reviewed internally by DoCS and the applicants were notified of that decision on 20 October 2003. That review confirmed the original decision.

10 On 1 December 2003, Wesley notified DOCS that it was unable to provide another placement for the children and had no objection to their being removed to other carers.

JURISDICTION

11 Section 38 of the Administrative Decisions Tribunal Act 1997 (“the Tribunal Act” gives this Tribunal jurisdiction to review a decision if an enactment so provides. Section 40 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 makes a decision by the Minister to terminate the custody of a ward pursuant to s 91(1)(e) of the Act a reviewable decision.

12 The respondent argues that the decision in this case to remove the children is not reviewable. It is common ground that the decision in question is only reviewable if it was a decision which falls within the scope of s 112(h) of the Act. That sub-section provides:

(h) a decision of the Minister to terminate the custody of a ward or protected person under section 91(1)(e).

13 It is also common ground that for the Minister to have terminated the custody of the children, they must have been placed in the applicants’ custody by the Minister pursuant to s 91(1)(d)(ii) of the Act. There is no doubt that the children were placed in the custody of either Wesley or the applicants pursuant to s 91(1)(d). That is not contested. The real question to be resolved, is whether, under s 91(1)(d), the Minister gave custody of the children to Wesley or the applicants.

14 The respondent’s position is that the children were never placed in the custody of the applicants pursuant to s 91(1)(d)(ii). Rather the children were placed in the custody of Wesley under s 91(1)(d)(i) which then placed them in the day-to-day care of the applicants but never relinquished custody of the children.

15 The applicants, on the other hand, contend that the only power under which the children could have been lawfully placed with her was pursuant to s 91(1)(d)(ii).

16 Section 91(1)(d) provides:

(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:

(i) in the custody of a person in charge of a non-Government organisation, or

(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister,

being a person who is willing to undertake the custody of the ward or protected person.

17 It is apparent that from a reading of this section that the Minister may place a ward in the custody either of a person in charge of a non-Government or a person approved by the Minister, not both.

18 “Custody” of a child has not been helpfully defined in the Act. Section 3 merely tells us that it “means custody of the child to which a person is entitled by law”. “Custody” of children has a wider meaning in the general law. It is ordinarily taken to mean the charge, care and control of a child including the right to make all major decisions such as education, religious upbringing, training, health and welfare. In short, it implies notions of guardianship (in a general rather than a strictly legal sense – the Minister remained the legal guardian of the wards in this case.) Custody, without qualification, usually refers to a combination of physical custody and legal custody.

19 The evidence does not tell us what decisions concerning the upbringing, schooling, health and welfare of the children are said to have been delegated to the applicants and what (if any) remained the exclusive province of the Minister, as legal guardian, or Wesley (if it had custody of the children). The documentation of the chronology of events is scanty.

20 Section 11 of the Act enables the Minister to delegate her decision-making powers concerning the care and custody of wards to the Director-General.

21 The respondent argues that custody of the children was granted to Wesley by the Minister’s delegate. The documentary evidence shows that on 30 December 1997 a “placement agreement” was reached between DoCS and Wesley in respect of one child. On 19 June 1998, Wesley wrote to the applicants congratulating them on being approved as foster carers “initially with the short term program with a view to a future long term placement.”

22 In the undated letter of about July 1998 from Wesley to DoCS referred to above, Wesley wrote that it was “accepting the referral for a long term placement” and was looking for “suitable carers”.

23 On 2 September 1998, a document entitled a “placement authority”, referring to the two children, was given by DoCS to the applicants. It stated: “This letter is to confirm that the above named children have been removed from premises under the authority of Section 60/61 of the Children (Care and Protection) Act 1987 and placed in the care of the Director-General, Department of Community Services, and have been placed in your care [BP] from 5/9/98, [JP] from 12/9/98 until further notice. That document was signed by an officer DoCS, Moira Cunningham.

24 From that time forward, until 2003, there appears to have been no documentation of any placement or decision by the Minister or her delegate to place the children in the custody either of Wesley or the applicants.

25 From what is before the Tribunal it seems reasonable to infer that Wesley is a “private fostering agency” as defined in s 3 of the Act, namely an organisation which “performs (whether or not for fee, gain or reward) private fostering services with respect to children (disregarding any children who are related to the person).” The “private fostering service” referred to is defined in s 3 to mean “the activity of conducting negotiations or making arrangements with a view to the placement of children for fostering.”

26 Wesley obviously undertook the activities of “conducting negotiations” and “making arrangements with a view to the placement” of the children in this case for fostering. It seems to have assessed the applicants’ suitability as foster carers, placed the applicants on its books and recommended to DoCS that the children be placed with them.

27 The children were removed from their natural mother pursuant to ss 60 or 61 of the Act (once again, the documentation provided does not enable us to tell). That having been done, it seems apparent that, pending the outcome of the care application, the children immediately went into the care of the Director-General pursuant to s 62 and were then placed, firstly, with Wesley, in December 1997 pursuant to s 63(3)(b) of the Act and then, apparently a few weeks later with a Departmental carer until at least 6 May 1998 and in September 1998 with the applicants. There things appear to have lain quietly until the children were removed from the applicants in 2003. [The evidence is somewhat unclear as to what happened in the period 6 May 1998 to September although it seems that the children may have remained with the Department carer during that period. (See letter from DoCS to the children’s natural mother 23 July 1998).]

28 There is no documentation of any decision by the Minister to convert DoCS’s placement of the children either with Wesley or the applicants into custody, pursuant to s 91(1)(d). It is not clear to us whether there was some sort of administrative oversight in this regard or whether the papers which would document the decision have been lost. It would appear that Wesley is not able to produce any relevant papers either because one would have expected DoCS to have obtained copies either, informally or by way of the Tribunal’s summons procedures.

29 It is, however, inconceivable that no decision was made. Section 91(1)(a) provides “The Minister shall provide for the accommodation, care and maintenance of wards and protected persons.” Once the children became wards, the Minister was obliged to accommodate them and maintain them. Moreover, the temporary care arrangements under s 63 necessarily and by definition ceased, because a determination had been made by the Children’s Court.

30 It is submitted for the respondent that the approach taken by the Appeal Panel in Minister, Community Services v Mrs A (CSD) [2002] NSWADTAP 32 provides useful guidance in this matter. There the Director-General made a decision to place the child, K, the subject of the decision, with Mrs A. That placement was made prior to wardship orders being made. Shortly after that placement the child was made a ward and remained with Mrs A. There was no documentation that the Minister had granted custody to Mrs A. Three years later a decision was made to remove the child.

31 On appeal it was asserted for the Minister that the Tribunal was without power to review the decision to remove K as she had not been placed with Mrs A pursuant to s 91(1)(d)(ii) of the Act. The Appeal Panel rejected that argument:

35 The fact that there is no documentation of the decision is unfortunate. This may indicate that the decision-making process undertaken in respect of K was not as regular as might be expected. However it should not necessarily be inferred that the Minister negligently failed to make a decision for nearly three years about placing this child to be fostered. Again, such a scenario is implausible. The provision of financial and other support to the applicants, in our view, implies the opposite. That is, the Minister recognised the need to provide foster care to the child and decided that the applicants, who had had the temporary care of the child, was to continue providing foster care to the child until this arrangement was lawfully terminated. In our view it must be inferred from the circumstances that the Minister decided, after assuming responsibility for the child, to adopt the Director-General’s placement of K with the applicant as her own. The distinction was that once K had become a ward her placement was so the applicantscould provide foster care to the child.

32 The respondent contends that that approach should be followed in this matter. That is, it should be inferred that as no decision was made to “remove” the children from Wesley after wardship orders were made, that the temporary care placement in effect converted to a custodial placement under s 91(1)(d)(i). This argument overlooks a critical difference in the facts of Minister, Community Services v Mrs A and this matter. Here, the children had not been in the continuous care of Wesley in the period following their initial placement in December 1997 and the later placement with the applicants in September 1998, which spanned the date when the wardship orders were made. On the evidence before us it is not clear whether Wesley resumed care of the children prior to their placement with the applicants.

33 If no explicit, documented decision was made, the clear inference must be (presuming the Minister to have acted in pursuance of her lawful obligations, and there is no reason to suggest otherwise) that a decision was taken to place the children in the custody of someone under s 91(1)(d).

34 The Minister had no power, except under s 91(d), to place the children with either Wesley or the applicants. As far as the record shows, Wesley’s only involvement with the applicants and the children was to organise the temporary care placement. That is, it provided a “private fostering service”. As conceded for the respondent, there is no record of Wesley ever taking custody of the children.

35 The respondent relies on the evidence of DoCS’ officers given in these proceedings to support its contention that the decision to place the children with the applicants was not a decision made under s 91(1)(d)(ii). Mary Jensen who at the relevant time was the Assistant Manager, of the DoCS’s Penrith office and had supervisory responsibility for the placement of the children the subject of these proceedings, claimed in evidence that several months before the wardship orders were made Wesley and DoCS had been working together “so that Dalmar [Wesley] could take post wardship custody of the children and place the children with carers who had been assessed and approved by Dalmar [Wesley]”. While Ms Jensen no doubt genuinely believed that it was proposed that custody would pass to Wesley after the wardship orders were made her subjective opinion is not evidence that this plan was acted upon. Ms Jensen does not assert that the children were in fact placed in the custody of Wesley.

36 Reliance is also placed by the respondent on court reports tendered by DoCS in the course of the wardship proceedings. Having carefully examined those documents we see nothing to support the assertion that there had been an understanding or agreement that the children would be placed in the custody of Wesley if wardship orders were made. Not surprisingly the focus of these reports is the capacity and ability of the children’s natural mother to care for them. To the extent that Wesley is mentioned at all it is in the context that it had been in the process of assessing a suitable family for the children (see for example Court Report, 18 December 1997).

37 DoCS’s internal e-mail correspondence of 3 December 2003 in relation to the placement authority of 9 September 1998 is both confusing and somewhat alarming. At 8.28am Mr David Wells e-mailed Mr Paul Hulbert [DoCS officer] to find out whether DOCS would give a carer a “placement authority” when an agency such as Wesley was being used. The answer eventually came back that Wesley’s practice was to ask for a placement authority for carers used by it so that the carers have a document to show Centrelink, schools and so forth. It went on to say, “We also give this authority to our carers as part of the process of placing a child…”

38 We say alarming because it appears that in December 2003 DoCS was still trying to figure out the status of a placement made prior to the determination by the Children’s Court. Not only, for the reasons we have given above, does this seem to be irrelevant but it shows, first, that DoCS’s records were apparently in very poor order and, second, that there was great confusion within the Department itself as to the true status of the children and their carers.

39 The respondent argues that the children were never placed in the custody of the applicants and relies on the wording of the placement authority given to the applicants in which reference is made only to the children being placed in her “care”. Not only, as we have said, does this seem to be irrelevant because that authority postdated the determination by the Children’s Court but, even if the argument was relevant, it would not be supported by s 3(8) of the Act which provides:

(a) a reference to a person who has the care of a child is a reference to a person who has the care of the child, whether or not the person has the custody of the child, and

(b) a reference to a child who is or has been placed in the care of a person includes a reference to a child who is or has been placed in the custody of the person. (Emphasis added.)

40 Thus it is clear that the reference to “care” in the placement authority does not necessarily exclude the possibility that the applicants obtained custody of the children.

41 The final argument raised by the respondent is that the facts of this case are substantially the same as those in M -v- Minister, Department of Community Services [2000] NSWADT 49 where it was held that the Tribunal was without jurisdiction to review a decision to remove a ward as the foster carer did not have custody of the child. The respondent urges us to follow that approach. In our view this submission overlooks a critical difference in these two matters: in M -v- Minister, Department of Community Services the Tribunal made a finding that the Minister had intended to give the person in charge of Burnside custody of the child. In this matter we have not found that the Minister intended or did in fact place the children in the custody of Wesley. But in any event even if as asserted by the respondent, the facts of M -v- Minister, Department of Community Services were on all fours with those before us, in the absence of authority of a superior court we are entitled to reach our own conclusion as to the proper interpretation of the Act. M -v- Minister, Department of Community Services has persuasive force only.

Conclusion

42 In our opinion, the only way rationally and regularly to interpret or characterise the relationship between the children and the applicants in 2003 was that the applicants had the custody of the children as a result of a constructive decision by the Minister’s delegate to place the children with them pursuant to s 91(1)(d)(ii). In reaching this conclusion we note that the evidence does not support a finding that the Minister had placed the children with Wesley under s 91(1)(d)(i).

Was the decision to remove the children made under s 91(1)(e)?

43 In written submissions the respondent contended that the decision to remove the children was not made under s 91(1)(e) of the Act. In oral submissions this was not pressed but in the interests of completeness we briefly address this point.

44 The facts in relation to the removal are not in dispute. On 8 March 2003 the children were removed from the applicants following an allegation of abuse. Representatives of DoCS and Wesley met and made a unanimous recommendation that the children not be returned. On 17 March 2003 DoCs decided not to return the children to the applicants.

45 Interestingly in an undated letter notifying the applicants of the outcome of the internal review, DoCS advised that the decision to remove the children was reviewable by the Administrative Decisions Tribunal.

46 In our view the facts put beyond doubt that a decision was made on behalf of the Minister to terminate their custody of the children under s 91(1)(e) of the Act.

Decision

47 The decision to remove the children was a decision pursuant to s 91(1)(e) of the 1987 Act and therefore is reviewable by this Tribunal.

Orders/Directions

2. Within 14 days of the date of these reasons the Respondent is to lodge with the Tribunal any or all documents as required bys 58(1) (b) of the Administrative Decisions Tribunal Act 1997.

3. The matter to be set down for further directions on Tuesday 22 June 2004 at 12.30pm.

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Citations

Goode v Minister for Community Services [2004] NSWADT 107

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Minister, Community Services v Mrs a (CSD) [2002] NSWADTAP 32

M v Minister, Department of Community Services [2000] NSWADT 49

CITATION:	Goode v Minister for Community Services [2004] NSWADT 107
DIVISION:	Community Services Division
PARTIES:	APPLICANTS Heather Goode and Geoffrey Goode RESPONDENT Minister for Community Services
FILE NUMBER:	034051
HEARING DATES:	7/05/2004
SUBMISSIONS CLOSED:	05/07/2004
DATE OF DECISION:	06/03/2004
BEFORE:	Britton A - Judicial Member; Moss J - Non Judical Member; Norman C - Non Judicial Member
APPLICATION:	Custody - decision to terminate the custody of a ward
MATTER FOR DECISION:	Jurisdiction
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, Reviews and Monitoring) Act 1993
CASES CITED:	Minister, Community Services v Mrs A (CSD) [2002] NSWADTAP 32 M -v- Minister, Department of Community Services [2000] NSWADT 49
REPRESENTATION:	APPLICANTS M Darke, barrister RESPONDENT D Wells, solicitor
ORDERS:	1. The Tribunal has jurisdiction to determine the application for review; 2. Within 14 days of the date of these reasons the Respondent is to lodge with the Tribunal any or all documents as required bys 58(1)(b) of the Administrative Decisions Tribunal Act 1997; 3. The matter to be set down for further directions on Tuesday 22 June 2004 at 12.30pm.