NZ & OA v DG, Dept of Community Services

[2009] NSWADT 231

CITATION:	NZ & OA v DG, Dept of Community Services [2009] NSWADT 231
DIVISION:	Community Services Division
PARTIES:	APPLICANT NZ & OA RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	094024
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 July 2009
DATE OF DECISION:	9 September 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Jurisdiction
LEGISLATION CITED:	Community Services (Complaints, Reviews and Monitoring) Act 1993 Children and Young Persons (Care and Protection) Act 1998 Administrative Decisions Tribunal Act 1997
CASES CITED:	The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48
REPRESENTATION:	APPLICANT In person RESPONDENT S Clarke, solicitor
ORDERS:	The application to review the decision to remove the subject child is dismissed for want of jurisdiction

REASONS FOR DECISION

1 The applicants, who are authorised carers, apply to the Tribunal for a review of the decision to remove from their care a two year old child who had been in their care for over 12 months. According to the applicants the removal placed the child at risk as he was subsequently placed with a person who had a history of sexually abusing children.

2 In this matter, the Director-General of the Department of Community Services asserts that the Tribunal has no jurisdiction to entertain the application for review brought by the applicants or, if the Tribunal has jurisdiction, that it should not be exercised.

3 The applicants have provided detailed submissions and evidence much of which goes to the merits of the decision they seek to have reviewed. Before that material can be considered I must determine whether it is within the Tribunal’s power to review the decision.

Background

4 According to an affidavit prepared by senior DoCS officer, Ms Anne Radburn, the subject child was born in 2006 and due to his mother’s mental health problems, was taken into care by the Department of Community Services on 22 May 2008. He was placed temporarily with the applicants pending further decisions by the Children’s Court. The following day the Director-General commenced care proceedings in the Children’s Court seeking an order that the Minister be given parental responsibility and for the day to day care of the child to be given to the child’s maternal grandmother.

5 The applicants sought leave from the magistrate to be joined to the proceedings but were refused.

6 It appears that one of the main reasons that the applicants took a very close interest in the proceedings was a concern held by them that the child may be put at risk of abuse by his grandfather if placed with his maternal grandmother. It is to be noted that the care plan formulated by DoCS and endorsed by the Children’s Court provides that the grandfather, who is separated from the grandmother, is not to have contact with the subject child except in the company of the grandmother.

7 According to Ms Radburn’s affidavit, the reason that the child was removed from the applicants’ care was the Department’s fear that his welfare would be adversely affected because of concerns held about the mental health of NZ and the emotional state of both NZ and OA, as well as their alleged interference in the Children’s Court proceedings. In addition it was considered that it would be in the child’s interests that he be placed nearer his mother and grandmother in the Hunter region.

8 For these reasons, on 25 May 2009, the Director-General applied for and was granted an order pursuant to s 48 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act) by the Armidale Children’s Court. That order directed the removal of the child from the applicants’ care.

9 On 9 June 2009, the Children’s Court made a final order placing the child under the parental responsibility of the Minister.

10 The applicants deny that the Director-General had a proper basis for her delegate’s decision to seek an order removing the child. They also contend that the decision has caused the child to suffer and will expose him to further suffering. By their application they seek the reversal of the placement of the child with his maternal grandmother and his placement with them.

Does this Tribunal have jurisdiction?

11 In essence, the Director-General contends that because the Children’s Court has made orders removing the child, and because this Tribunal does not have jurisdiction to review decisions of that court, there are no valid grounds upon which the Tribunal may exercise jurisdiction.

12 It is also argued that even if some ground of jurisdiction may be found, because the merits of the Director-General’s decision have been considered by the Children’s Court, and orders have been made by it, the Tribunal cannot be placed in a position where it becomes a de facto court of appeal.

13 Third, the Director-General argues that even if some ground of appeal is available against her decision, the Tribunal has no power to overturn or depart from a care plan endorsed by the Children’s Court. She contends that these proceedings are, therefore, futile.

14 The applicants contend that the decision to remove the child was in fact made by the Director-General’s delegate and that that decision pre-dated the Children’s Court decision. Accordingly they contend the decision is reviewable by this Tribunal.

15 The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal has a duty to decline to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48.

16 Section 36(1)(b) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) gives the Tribunal the power to review ‘reviewable decisions’. A ‘reviewable decision’ is defined in section 8 to mean a ‘decision of an administrator that the Tribunal has jurisdiction under an enactment to review’. (See also section 38 of the Tribunal Act.)

17 The Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act) sets out the parameters of the Tribunal’s jurisdiction in the community services area. Not all decisions by the Director-General of the Department of Community Services or her delegate’s are reviewable by this tribunal. Section 28 of that Act provides that applications may be made in relation to various decisions listed in section 245 of the Care and Protection Act. These include:

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 (s 245(1)(c)) [emphasis added]

18 Section 245(2) provides that for the purpose of that section, relevant decision-maker, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children’s Court.

19 It is not denied by the Director-General that her delegate made a decision to seek an order pursuant to s 48 of the Care and Protection Act from the Children’s Court removing responsibility for the child’s day-to-day care and control from the applicants. Section 48 provides:

48 Removal of child or young person pursuant to order of Children’s Court

On the making of a care application in respect of a child or young person:
(a) the Children’s Court may make an order for the removal of the child or young person from any one or more premises or places specified or described in the order, and
(b) the Director-General or a police officer may, pursuant to the order, enter any premises or place so specified or described, search the premises or place for the presence of the child or young person and remove the child or young person from the premises or place.

20 The Care and Protection Act provides a number of mechanisms by which a child may be removed from a situation of harm or potential harm to him or her. Section 39 provides that while a child’s situation is being investigated or assessed the Director-General may exercise any of her functions under the Act ‘if, in the Director-General’s opinion, it is necessary or desirable to do so having regard to the safety, welfare and well-being of the child or young person concerned’. Such a function may include the removal of a child from his or her residence. Section 43 enables the Director-General or her delegate or the police to remove children at risk from their homes. Sections 41 and 151 enable the Director-General to provide temporary care for children at risk.

21 The Care and Protection Act also enables the Director-General to seek orders from the Children’s Court: s 40.

22 If the Director-General makes a decision under ss 39 or 43 to remove a child from the care of an authorised person, this Tribunal would certainly have jurisdiction to review that decision.

23 If, however, the Director-General’s decision is to seek the Children’s Court’s order that a child be removed from a person, under s 48 that is a different type of decision. Although the intended result may be the same, the process is different. In such a case, the Director-General does not exercise the ultimate power of disposition but submits to the order of the court. In other words, the Director-General’s decision to remove (if that is how it is to be characterised) is contingent upon the Children’s Court accepting the arguments in favour of that outcome. The Children’s Court is an independent court. It must assess the merits of an application put before it and make a decision accordingly.

24 A Children’s Court is, of course, obliged to act fairly and to afford natural justice to the parties before it. Whether or not the applicants ought to have been granted standing is not an issue that this Tribunal can consider here or comment upon. If the applicants are dissatisfied with the Children’s Court’s decision regarding standing they have no appeal to this Tribunal but may seek relief from the Supreme Court. Without standing, the applicants have no rights of appeal to the District Court against the magistrate’s decision. (Whether the District Court would grant them standing to appeal is another question which the Tribunal is unable to determine because it is beyond the scope of the Tribunal’s jurisdiction.)

25 There is nothing to suggest that the delegate went to the Children’s Court for a section 48 order to thwart an anticipated application to the Tribunal by the applicants. That is clear from that Ms Radburn’s affidavit in which she states that on 26 May she had sent a letter to the applicants informing them that her decision could be reviewed by the Tribunal.

26 In my view, when the Director-General’s delegate decided that, rather than exercise the powers of removal delegated to her under the Care and Protection Act, she would place the question of removal of the child in the hands of the Children’s Court and seek its order under s 48, she was making a decision that was not reviewable by this Tribunal. Nor, of course, is the Children’s Court’s decision reviewable by this Tribunal.

27 It follows that whatever the merits of the applicants’ substantive argument that the best interests of the child was not served by his removal from them, this Tribunal is without the power to review that decision.

28 The application must accordingly be dismissed.

1. The application to review the decision to remove the subject child is dismissed for want of jurisdiction.