QW and QX v Director-General, Department of Community Services

[2005] NSWADT 141

CITATION:	QW and QX v Director-General, Department of Community Services [2005] NSWADT 141
DIVISION:	Community Services Division
PARTIES:	APPLICANTS QW & QX RESPONDENT Director-General, Department of Community Services JOINED PARTY QY
FILE NUMBER:	054014 and 054016
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/16/2005
DATE OF DECISION:	06/24/2005
BEFORE:	Britton A - Judicial Member; Smyth M - Judicial Member; Moss J - Non Judical Member
APPLICATION:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2000 Community Services (Complaints, Reviews and Monitoring) Act 1993 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
REPRESENTATION:	APPLICANTS S Hodges, solicitor RESPONDENT V A Harstein, solicitor JOINED PARTY K Rutkowska, solicitor
ORDERS:	1. Application for summary dismissal of application refused; 2. Matter to be set down for directions on 1 July 2005 at 10.30 am. at Level 15, 111 Elizabeth Street, Sydney

(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 December 2004 a delegate of the Director-General of the Department of Community Services removed two children from the care of their foster parents with whom they have lived since 1994. The children are siblings aged nine and thirteen. The stated reason for the removal was reports of violence in the home. On 22 March 2005 the foster parents were told that a decision had been made not to return the children to their care. The following day they lodged applications in the Administrative Decisions Tribunal seeking a review of that decision. The Director General now moves that that application be dismissed. These reasons address the dismissal application.

2 While strictly speaking the applicant in these proceedings we will refer in these reasons to the Director General as the respondent and the foster parents as the applicants. Because of the sensitivity of this matter we have decided not to publish, in these reasons, any details that may identify the applicants or the children the subject of the review. In these reasons we refer to the foster parents as [Mr] QW and [Mrs] QX and the child the subject of the application QY.

3 The Legal Aid Commission has been appointed to represent the youngest of the two children, QY.

4 All parties consent to this application being determined ‘on the papers’. The applicants and the respondent each made written submissions. The Legal Aid Commission has advised that it supports the respondent’s dismissal application.

Background

5 The background to this application can be briefly stated.

6 On 23 March 2005 the applicants applied to the Tribunal to stay and review the decision to remove the children from their care. In that application they indicated they were seeking the return of the youngest child, QY and not his sister. We understand the applicants’ position to be that they will respect the reported views of QY’s sister who has stated she does not wish to return to their care.

7 The stay was listed for hearing on 4 April 2005. By consent that hearing was adjourned. The stay and substantive application were then set down for a three day hearing commencing on 30 May 2005. On 23 May 2005 Anglicare Child and Family Services notified the applicants that a decision had been made to cancel their carer’s authorisation.

8 On the first day of hearing the applicants applied for an adjournment to allow them to make an application through DoCS for a carer’s authorisation. That application was granted over the respondent’s objection. On 2 June 2005 the applicants submitted an application to become authorised carers to DoCS.

9 The matter was re-listed for directions on 6 June 2005. At that hearing the respondent announced that it moved under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) for the application for review to be dismissed.

Relevant legislation

Jurisdiction

10 Removal of children It is not in issue that the decision to remove the children from the daily care and control of the applicants is reviewable by the Tribunal: s 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act) read in conjunction with s 38 of the Tribunal Act and s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993.

11 Authorised carer Section 136(1) of the Care and Protection Act provides that out-of-home care (defined in s 135) may only be provided for a child or young person by an ‘authorised carer’. Section 137(1)(b) defines an ‘authorised carer’ to mean a person who, is authorised as an authorised carer by a designated agency. Anglicare Child and Family Services is a designated agency pursuant to s 139(1)(b). Section 140 provides that the designated agency that places a child or young person in the out-of-home care of an authorised carer has a responsibility to supervise that placement. In certain circumstances a designated agency may cancel the authorisation of an authorised carer (s 31 of the Children and Young Persons (Care and Protection) Regulation 2000).

12 Section 245(1)(a) of the Care and Protection Act makes a decision to cancel a carer’s authorisation reviewable by the Tribunal.

13 Interests of children paramount The principles to be applied in the administration of the Care and Protection Act are set out in s 9:

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.
14 Correct and preferable decision : When reviewing a reviewable decision, the Tribunal is required to determine whether the decision made by the administrator (in this case, the Department acting on delegation of the Director - General) was the correct and preferable one: the Tribunal Act, s 63. The Tribunal may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing.

15 On review the Tribunal may decide under s 63(3):

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16 The Tribunal is ‘obliged to conduct the review without any presumption as to the correctness of the decision under review’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

Respondent’s submissions

17 The Respondent contends that the proceedings bought by the applicants are now frivolous and lacking in substance and that the best interests of the children demand that they be dismissed. The respondent points out that the orders sought by the applicants, namely the return of QY, cannot be granted because they no longer hold a carer’s authorisation.

18 The respondent submits that the applicants would not be prejudiced should their application be dismissed. It contends that the applicants have a number of other avenues open to them to seek the return of QY. For example, if their application to Anglicare to have their carer’s authorisation is successful, they could then request that QY be returned to their care. Similarly, if Anglicare declines that request, that decision is reviewable. Alternatively, if their application to DoCSs for a carer’s authorisation is declined, it is open to the applicants to seek a review of that decision. If that application is successful, the applicants may request that QY be placed in their care, and if that request is declined, the applicants may seek a review of that decision.

19 The respondent asserts that the uncertainty surrounding these proceedings has already impacted on the ability of DoCS to find a suitable, permanent placement not only for QY, but for his sister as well. It is claimed that DoCS has encountered difficulty in arranging suitable long-term care for both children, as Departmental workers cannot indicate to foster care agencies whether a placement is required for one child (QY’s sister) or for a sibling group of two. In addition it is claimed that foster care agencies contacted to date have indicated an unwillingness to accept referrals whilst legal proceedings are on foot.

Applicants’ submissions

20 The applicants assert that the respondent’s own evidence reveals that DoCS officers encouraged Anglicare to cancel the status of the applicants as authorised carers and misrepresented certain facts to induce Anglicare to make that decision. They argue that these steps, taken on the eve of the hearing to determine the substantive application, represent an attempt by the respondent to derail these proceedings for the purpose of denying them the right to have the decision to remove the children reviewed.

21 The applicants contend that the legislative framework in which DoCS operates makes clear that the legislature intended that decisions such as the one made by the respondent, the subject of these proceedings, is reviewable by this Tribunal.

22 It is submitted that it would not be in accord with equity, good conscience and the substantial merits of the case for the Tribunal to allow its jurisdiction to be hijacked by acts that are contemptuous of the Tribunal and/or are the result of collusion between the respondent and Anglicare.

23 The applicants point out that they have now lodged an application with the Tribunal for review of the decision of Anglicare. They advise that they will seek to have these related proceedings heard together. Once that is done, it is argued it will no longer be the case that “there is no order which can be made by the Tribunal that can be given effect to”.

Findings and Conclusions

24 The issue to be determined is whether the application to review the decision to remove the children from the care of the applicants should be dismissed. Section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 provides that the Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.

25 Once a valid application for review of a reviewable decision has been made, the Tribunal is required to “decide what the correct and preferable decision is having regard to the material then before it” (s 63(1)). The respondent’s proposition is that, because of Anglicare’s decision to remove the applicants’ authority, there is, effectively, no substantial or justiciable issue for the Tribunal to determine and that, therefore, the application is now frivolous and lacking in substance.

26 The first thing to be observed is that the two relevant decisions appear on the face of it to be connected. There is a degree of artificiality in an argument suggesting that the first decision ought not be reviewed because the second decision has rendered the first otiose. The applicants’ case is that the second decision was consequential upon the making of the first decision and that the evidence in relation to the second is effectively the same as for the first and that, therefore, the two matters ought be dealt with together. In general terms, that seems an unexceptionable argument.

27 The second point to make is that even if there is no direct order that the Tribunal could make concerning the return of the children until a review of the Anglicare decision is complete, the question of whether the correct or most preferable decision had been made is one of considerable significance to the applicants whether or not the children are ultimately returned to them. In any given case a review may find that an incorrect or poor decision was made in the first instance but nevertheless affirm it because of the passage of time and a change in circumstances.

28 Questions of justice and fairness, as well as of administrative efficiency, are at stake when decisions are reviewed. In Osmond v Public Service Board of NSW [1984] 3 NSWLR 447, Kirby P (as he then was) remarked (at 467), “The overriding duty of public officials who are donees of statutory powers is to act justly, fairly and in accordance with their statute.”

29 It is also well understood that public officials must, in the course of undertaking their official duties, act reasonably and lawfully. In this State, most decisions of public officials and agencies are subject to the scrutiny of the Ombudsman and if found to be “unreasonable, unjust, oppressive or improperly discriminatory” or based on “improper motives, irrelevant grounds or irrelevant considerations” the Ombudsman may make a report to the responsible Minister and to Parliament. (See ss 26 and 31 Ombudsman Act 1974). The criteria applied by the Ombudsman reflect general principles of natural justice and administrative accountability. Where there is significant criticism made of public decision-making it is in the public interest to determine whether or not that criticism is justified. This review would have a real purpose on that ground alone.

30 There is another important consideration to take into account. When decisions of the kind the applicants seek to have reviewed in these proceedings are made, not only are the financial and other material interests of the parties concerned adversely affected but so too are important intangible interests such as reputations and self-respect. One of the major developments in Australian administrative law in the past generation has been a recognition of the importance to ordinary citizens of a right to correct official records and to have their complaints concerning the public agencies properly reviewed and, where appropriate, investigated by independent bodies such as the Tribunal and the Ombudsman. Freedom of Information legislation in the Commonwealth and State jurisdictions has specifically created rights to apply to amend public records. (See s 39 Freedom of Information Act 1989 (NSW) and s 48 Freedom of Information Act 1982 (Cth)). This legislation was not introduced, however, merely for “feel-good” reasons: it was also recognised by the legislators that it would tend to improve public decision-making and promote confidence in public administration.

31 In this case it is self-evident that the applicants are distressed by the implication (as they perceive it to be) that in some vague and unspecific way they have been labelled, stigmatised and condemned as unfit to care for children in need of foster care. They have an obvious interest in having the respondent’s decision reviewed because that goes as much to the question of restoring their reputations as it does to the issue of the restoration of the children to their care, perhaps even more so. Further, and without prejudging the issue, it is also probably the case that there is a wider public interest in assessing whether this decision was properly made.

32 Section 9 of the Care and Protection Act instructs us that when making any decision under that Act the interests of the children must be the paramount consideration. It is uncontroversial that the best interests of the children demand that the substantive application be determined at the earliest opportunity. It does not follow however that the application for review is either ‘frivolous’ or ‘lacking in substance’ and accordingly can be struck out on that basis.

33 For these reasons we disagree with the contention that the application is frivolous and insubstantial and reject the application to dismiss the proceedings summarily.

Orders

1. Application for summary dismissal of application refused

2. Matter to be set down for directions on 1 July 2005 at 10.30a.m. at Level 15, 111 Elizabeth Street, Sydney.