Jones v Minister, Community Services

CITATION:	Jones -v- Minister, Community Services [2001] NSWADT 192 revised - 30/09/2002
DIVISION:	Community Services Division
PARTIES:	APPLICANT Lucy Jones RESPONDENT Minister, Department of Community Services
FILE NUMBER:	014009
HEARING DATES:	09/04/2001, 10/04/2001, 18/09/2001
SUBMISSIONS CLOSED:	09/18/2001
DATE OF DECISION:	11/19/2001
BEFORE:	Hennessy N (Deputy President) at 1; Monoghan-Nagle L - Member at 99; Gelin B - Member at 1
APPLICATION:	Custody - decision to terminate the custody of a ward
MATTER FOR DECISION:	Principal matter
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:	B. and R. and the Separate Representative 1995 127 FLR 438 the Full Court of the Family Court Torrens v Fleming (1980) FLC 90-840
REPRESENTATION:	APPLICANT In person RESPONDENT M O'Brien, barrister GUARDIAN AD LITEM J Smith
ORDERS:	The decision of the Minister to terminate the applicant’s custody of Cathleen is set aside.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides:
(1A) ...
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.

The Tribunal is divided in opinion in this matter. Under section 78(1) of the Administrative Decisions Tribunal Act 1997 if the Tribunal is constituted by more than one member and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.

The names of the applicant, children and foster carers used in this decision are not their real names.

Reasons of Nancy Hennessy and Ben Gelin

Introduction
1 This application concerns a child, Cathleen, who is three and half years old. She is of Aboriginal descent and has been made a ward of the state until she turns 18 years old. Cathleen is currently in the care of Mrs Jones, a 54 year old woman who is not of Aboriginal descent. The Minister for Community Services (the Minister) decided to remove Cathleen from Mrs Jones’s care and place her with two of her older siblings, Tim and Kellie. These children are currently in the care of Aboriginal foster…