PR v Department of Community Services

[2009] NSWADT 277

CITATION:	PR v Department of Community Services [2009] NSWADT 277
DIVISION:	Community Services Division
PARTIES:	APPLICANT PR RESPONDENT Department of Community Services
FILE NUMBER:	094031
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 October 2009
DATE OF DECISION:	6 November 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Jurisdiction
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Appeal and Monitoring) Act 1993
CASES CITED:	NV & OA v Director-General, Department of Community Services [2009] NSWADT 209
REPRESENTATION:	APPLICANT P Braine, barrister RESPONDENT D Wells, solicitor
ORDERS:	1.The Tribunal has jurisdiction to hear and determine this application 2.The application is set down for directions on 17 December 2009 at 10am.

REASONS FOR DECISION

1 The applicant seeks review of a decision of the respondent to place the child of her grandson into the care of an approved foster carer (‘the current carers’). She seeks review of the decision as she wishes to have the child placed in her care. The child is almost 4 years old. On 15 December 2008, on the application of the respondent, the Children’s Court made final orders, under s79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998, granting the Minister parental responsibility over the child and his younger half sibling. The younger half sibling is not a child of the applicant’s grandson and is not the subject of this application.

2 The respondent, as a preliminary issue, contends that the Tribunal has no jurisdiction to hear and determine the applicant’s application. In its written submissions the respondent acknowledged that a decision of the respondent to grant the daily care and control of the child to the current carers was a decision falling within s245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 and thereby giving the Tribunal jurisdiction to review that decision. However, the respondent went on to say:

‘the Tribunal could not make an order overturning the decision as the placement of the [child] with the current carers was proposed in the Care and permanency plans for the children which were before the Children’s court prior to its making final orders and that those plans being embodied in the orders of the Children’s Court are enforceable.’

3 The essence of the respondent’s argument is that the Children’s Court having noted in its orders the care and permanency plan, which provided for the day to day care and control of the child with the current carers, meant that the provisions of the plan became embodied in the final order of the Court and hence not a decision that was reviewable by the Tribunal. The argument is primarily one of construction of ss78, 83 and related provisions of the Children and Young Persons (Care and Protection) Act 1998 and the terms of the order that was made by the Children’s Court.

4 By consent, the parties sought to have this preliminary issue determined on the papers. For the reasons set out below, in my opinion, the respondent’s argument is misconceived and I find that the Tribunal does have jurisdiction to hear and determine this application.

5 It is convenient to first set out the terms of the final order made by the Children’s Court on 15 December 2008. It was in the following terms:

‘*Application by Paternal Grandmother refused.
*Father [name of the applicant’s grandson] now does not oppose P R to minister
Final Order:
Having considered the provisions of section 13 and Section 81, pursuant to Section 79(1)(b) I allocate all aspects of parental responsibility for [name of the child and date of birth], and [name of the younger half sibling and date of birth] to the Minister until each said child attains the age of 18.
I note the contents of the 3rd amended care plan.’

6 Chapter 5 of the Children and Young Persons (Care and Protection) Act 1998 deals with proceedings before the Children’s Court in regard to the emergency protection and assessment of children and young persons at risk and suspected on reasonable grounds of being in need of care and protection (Part 1) and care applications of children and young persons in need of care and protection (Part 2). The Children’s Court proceedings relevant to this application were care proceedings.

7 A ‘care application’ is defined in s60 to mean ‘an application for a care order’. A ‘care order’ is also defined in the same section to mean ‘an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.’ The latter order is not relevant to this application.

8 In this application, the respondent had made an application, pursuant to s61 of the Children and Young Persons (Care and Protection) Act 1998, to the Children’s Court for a care and protection order in respect of the child and his younger half – sibling.

9 S79(1) of the Children and Young Persons (Care and Protection) Act 1998 sets out the orders the Children’s Court may make where it finds that a child or young person is in need of care and protection. It relevantly provides as follows:

‘(a) allocating parental responsibility for the child, or specific aspects of parental responsibility:
i. to one parent to the exclusion of the other parent, or

ii. to one or both parents and to the Minister or another person jointly, or

iii. to another suitable person, or

(b) placing the child under the parental responsibility of the Minister.’

10 S79(2) of the Children and Young Persons (Care and Protection) Act 1998 makes provision for the Court to allocate specific aspects of parental responsibility in any order that it may make under s79(1). The prescribed aspects of parental responsibility include the residence of the child, the education of the child and the medical treatment of the child.

11 S62 of the Children and Young Persons (Care and Protection) Act 1998 provides that a care order may be made on an interim basis or as a final order. In this application, as I have mentioned, a final order was made by the Children’s Court on 15 December 2008.

12 Prior to making a final order under s79(1), the Court is required to ‘consider a care plan presented to it by the’ respondent: (emphasis added) see s80 of the Children and Young Persons (Care and Protection) Act 1998.

13 S78(1) of the Children and Young Persons (Care and Protection) Act 1998 requires the respondent to present to the Court ‘a care plan’ where it has made an application to the Court seeking an order for parental responsibility. S78(2) sets out what is to be contained in a ‘care plan’. It relevantly provides as follows:

‘(2) The care plan must make provision for the following:

(a) the allocation of parental responsibility between the Minister and the parents of the child ... during the duration of any period for which the child ... is removed from the care of his or her parents,

(b) the kind of placement proposed to be sought for the child ... , including:


(i) how it relates to permanency planning for the child ..., and

(ii) any interim arrangements that are proposed for the child ... pending permanent placement and the time table proposed for achieving a permanent placement,


(c) ...

(d) ...

(e) ...


(3) The care plan is to be made as far as possible with the agreement of the parents of the child ... concerned.

(4) The care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children’s Court.

(5) ...’

14 S78A(1) of the Children and Young Persons (Care and Protection) Act 1998 defines ‘permanency planning’ to mean the making of a plan that aims to provide a child stable placement that offers long-term security and which has regard to the principles in s9(f) of the Act and meets the needs of the child and ‘avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements.’ Where the respondent applies to the Court for a care order, permanency planning is also a responsibility of the respondent: see s 83 of the Children and Young Persons (Care and Protection) Act 1998. S83(8) is similar in terms to s78(4) in that a permanency plan is only enforceable to the extent to which its provisions are ‘embodied in’, or ‘approved by’, an order or orders of the Children’s Court.

15 In preparing a permanency plan the respondent is required to assess whether there is a realistic possibility of the child being restored to his or her parents. If there is such a realistic possibility, the permanency plan must be one that involves restoration: see s83(2) of the Children and Young Persons (Care and Protection) Act 1998. In this application the care plan prepared by the respondent stated that at the time there was no realistic possibility of the child being restored to his parent(s).

16 S90 of the Children and Young Persons (Care and Protection) Act 1998 provides that an application to rescind or vary a care order can only be made with the leave of the Children’s Court. And s91 of the Act provides that an appeal from a final care order lies with the District Court.

17 The real issue for determination is whether the long term placement of the child with his current carers, as proposed by the respondent in the 3rd amended care plan, has been ‘embodied in’ or ‘approved by’ the Children’s Court in the order it made (see paragraph 5 above). If the long term placement of the child has been ‘embodied in’ or ‘approved by’ the Children’s Court in its order, I agree with the contentions of the respondent that the Tribunal has no jurisdiction to hear and determine this application.

18 In my opinion, the expression ‘embodied in’, as used in ss78(4) and 83(8) of the Children and Young Persons (Care and Protection) Act 1998, connotes the relevant plan having formed part of the order that was made by the Children’s Court. That is, it is expressly included in part or whole in the terms of the order.

19 In this application, the first thing to note is that the order of the Children’s Court does not make any specific mention of the long term placement of the child. Accordingly, it cannot be said that the placement of the child as proposed by the respondent in its care plan was ‘embodied’ in the order of the Court. A reason for this may be the fact that the order expressly states that ‘all aspects of parental responsibility’ were granted to the Minister (see s.81(1)(b) of the Children and Young Persons (Care and Protection) Act 1998). This would include decisions as to the long term placement of the child. An order of this nature would be appropriate as all aspects of parental responsibility for the child was granted to the Minister until the child was 18 years of age. At the time the order was made, the child was only 3 years old. In such circumstances, decisions about the placement of the child on a day to day basis are understandably better left to the Minister, through the respondent, so as to deal with any changes that may arise.

20 On the other hand an order made under s79(1)(a)(ii) of the Act may require the Court to expressly include, or ‘embody’ in its order, pursuant to s79(2), the specific aspects of parental responsibility that is allocated to each of the persons named in the order.

21 In my opinion, the order of the Children’s Court cannot be construed as having ‘approved’ the proposed placement as set out by the respondent in its 3rd amended care plan. What it has done is to ‘note’ the contents of that plan. This notation in my opinion is no more than the Court indicating that it had ‘considered’ the care plan before it made its final order as required under s79(1) of the Children and Young Persons (Care and Protection) Act 1998.

22 Having regard to the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998, I agree with the respondent that a care and placement plan is of primary importance in the Children’s Court exercising its discretion to make a care order under s79(1) of the Act. However, there is no requirement for the Court to formally approve it or to ‘embody’ the provisions in the plan into its order. This does not mean it cannot do so – it is a matter entirely for the Court depending on the circumstances of each individual application for a care order.

23 Accordingly, in my opinion, the order of the Children’s Court in regard to the child the subject of this application is not such that it ousts the jurisdiction of the Tribunal to review the decision of the respondent to place the child into the day to day care of his current carers. The decision of the Children’s Court may, however, form a basis on which the Tribunal could decline to hear or determine the application under s32 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. However, this is not a matter that has been raised by the respondent or addressed by the applicant for the purpose of this preliminary issue.

24 For the reasons stated above, I find that the Tribunal does have jurisdiction to hear and determine this application and the matter should be listed for directions at an early date.