H v Minister for Community Services

[2001] NSWADT 33

CITATION:	H -v- Minister for Community Services [2001] NSWADT 33
DIVISION:	Community Services Division
PARTIES:	APPLICANT H RESPONDENT Minister for Community Services
FILE NUMBER:	004015
HEARING DATES:	26/02/2001
SUBMISSIONS CLOSED:	02/26/2001
DATE OF DECISION:	03/01/2001
BEFORE:	Hennessy N (Deputy President); Gelin B - Member; Mason J - Member
APPLICATION:	Guardianship - refusal to terminate guardianship of a ward
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Community Services (Complaints, Appeals and Monitoring) Act 1993
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Smith, solicitor
ORDERS:	1. The Tribunal declines to hear this applcation.

Introduction

1 On 13 November 2000, Ms H applied to the Tribunal for a review of a decision of the Minister of Community Services (the Minister) to refuse to terminate the guardianship of her son who had been made a ward on 15 June 1999.

2 The Tribunal held a preliminary conference on 5 December 2000. At that stage, Ms H had already lodged an application with the Children’s Court for a variation and/or rescission of the wardship order. Because the substance of Ms H's applications to the Children’s Court and the Tribunal were virtually identical, I explained to Ms H at the preliminary conference that the Tribunal may consider declining to hear her application unless she withdrew her application before the Children’s Court.

3 Ms H wrote to the Tribunal on 7 December 2000 advising that she had decided to continue her application with the Tribunal. She added that: “I also will be stopping the rescission order at the Court.”

Conduct of the hearing

4 The hearing was conducted by teleconference. The Minister was given leave to be legally represented under s 45 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. A support person for Ms H participated in the teleconference.

Issue and legislation

5 Because the Children’s Court formally refused Ms H's application to for a variation and rescission of the wardship order, the Minister submitted that the Tribunal should decline to hear the matter pursuant to s 44 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. Section 44(1) states that:
(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.

Evidence

6 The documentary evidence before the Tribunal consisted of:
• Ms H's application to the Tribunal with a bundle of correspondence attached;
• the transcript of proceedings before the Children’s Court on 15 December 2000;
• letter from Ms H to the Tribunal dated 5 January 2001 with bundle of documents attached;
• letter from T Dalla solicitor to Director, Legal Services, Department of Community Services dated 18 December 2000; and
• submissions on behalf of the Minister from D Smith, senior solicitor, Department of Community Services.

7 Ms H said she was under the impression from speaking to registry staff of the Tribunal that she could proceed with her application for a variation of the wardship order in the Children’s Court and still preserve her right to be heard in the Tribunal.

8 The transcript of proceedings before the Children’s Court on 15 December 2000 and her submission to the Court, show that Ms H intended to withdraw her application for a rescission but proceed with her application for a variation of the wardship order. The Children’s Court did not appreciate that Ms H intended to withdraw the rescission application and refused both applications on the basis that the original order for wardship had been made in June 1999 and insufficient time had expired to justify a review of that order. The Magistrate noted that, “The application in effect is an appeal against the findings made by the court on 15 June 1999 by Mr Scarlett.”

9 Ms H's objective is to have her son restored to her care. She submitted that the Children’s Court made the wrong decision when they made orders for wardship in 1999. She said that 90% of her evidence was in support of her submission that the wardship order should not have been made. The other 10% relates to circumstances which have arisen since that time. Ms H maintains that she has always been a loving and capable parent and that her son should be with his natural family in their home environment.

Reasons and decision

10 The Tribunal’s jurisdiction in relation to this application is conferred pursuant to s 112(1)(e) of the Children (Care and Protection) Act 1987 and s 38 of the Administrative Decisions Tribunal Act 1997. Under s 112(1)(e) the Tribunal has power to review a decision of the Minister “to refuse to terminate the Minister’s guardianship of a ward.” The Minister has refused to terminate the guardianship of Ms H's son on the basis that nothing has changed since the Children’s Court made the wardship order in 1999.

11 The Community Services (Complaints, Reviews and Monitoring) Act 1993 allows the Tribunal to decline to hear an application in certain circumstances. The circumstances relevant to these proceedings are set out in s 44(1)(a) and (b).

12 Whether or not Ms H is submitting that her son should never have been made or ward, or that circumstances are now such that he should be restored, the Tribunal has decided to decline to hear this application. If she is submitting that he should not have been made a ward, then the appropriate means of redress would have been an appeal to the District Court against the 1999 Children’s Court decision. An appeal to the District Court may not be open to Ms H because of time restraints or financial considerations. Even so, the Community Services Division of the Tribunal cannot be put in the position where it becomes a de facto appeal mechanism against a decision of another court.

13 If Ms H's submission is that circumstances are now such that her son should be restored to her care, then an appropriate remedy would be either an application to the Children’s Court for a variation or rescission of the wardship order or an application to the Tribunal for a review of the Minister’s decision not to terminate guardianship. Ms H proceeded with an application before the Children’s Court. The fact that Ms H did not intend to proceed with her application for a rescission of that order is not relevant. The magistrate examined the substance of both applications and refused them because of the short time since the original order was made and the lack of evidence about any significant change in circumstances.

14 On the basis of the evidence and submissions, we find that Ms H has available an alternative and satisfactory means of redress, namely an appeal to the District Court against the original wardship order and/or an application for a rescission or variation of the wardship order to the Children’s Court.

Order

15 The Tribunal declines to hear this application.