S v Director General, Department of Community Services

[2001] NSWADT 181

CITATION:	S & anor -v- Director General, Department of Community Services [2001] NSWADT 181 revised - 26/11/2001
DIVISION:	Community Services Division
PARTIES:	APPLICANTS Mrs and Mr S RESPONDENT Director General, Department of Community Services
FILE NUMBER:	014044
HEARING DATES:	On papers
SUBMISSIONS CLOSED:	08/21/2001
DATE OF DECISION:	11/21/2001
BEFORE:	Britton A - Judicial Member; Monoghan-Nagle L - Member; Houlahan L - Member
APPLICATION:	Custody - decision to terminate the custody of a ward - Jurisdiction
MATTER FOR DECISION:	Juridiction
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:	McGrory -v- Director-General of the Department of Community Services (Sup Ct unreported Brownie J, 25/06/92)
REPRESENTATION:	APPLICANTS In person RESPONDENT L Broune, solicitor
ORDERS:	This matter to be set down for a directions hearing at a date to be fixed by the Registrar.

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.

1 This is an application by Mrs Mr S for review of a decision by the Minister for Community Services ("the Minister") pursuant to s.91(1)(e) of the Children (Care and Protection) Act 1987 ("the Act") to terminate the foster placement of three children, T, L and G Hand ( not their real name) with them, and to place the children elsewhere.

Background
2 On 6 September 2000, G was placed with other foster carers. On 8 September 2000, T and L Hand were placed in the applicants’ care pending initiation of Care proceedings. All the children were subsequently placed under the care of the Director-General ("the Director-General") of the Department of Community Services ("the Department") under an Interim Order pursuant to s.77 of the Act.

3 On 3 October 2000 the Children’s Court in Cootamundra adjourned the Care proceedings to 4 December, and ordered that the children remain in the care of the Director-General, be assessed in various ways, and that the Department file and serve a placement report by 1 December 2000. On 4 December 2000, the children were made subjects of wardship orders until they attained the age of 16 years.

4 On 19 February 2001, a meeting was held at which the applicants, departmental officers, a representative of the Foster Care Association and T Hand were present. At the meeting, the applicants were told that T and L did not wish to stay with the applicants. On 10 April 2001, G was placed with the applicants. On 30 April 2001, the Minister’s delegate decided to terminate the placement. A meeting was held on that day at which the delegate’s decision was related to the applicants. On 25 May 2001, the children were removed from the applicants’ care.

5 According to the Minister’s legal representative, it was always the Minister’s intention that these placements be short-term, and were considered only temporary, pending the arrangement of long-term placements for the children. The Minister, through her legal representative, also asserts "at no time were the Smiths ever recommended or approved for the long-term placement of the Hand children, nor were they ever informed that this was the case."

6 In a letter dated 25 June 2001, addressed "To whom it may concern", the applicants state that "In December 2000 the children were placed in the care of the Director-General and we were asked to provide long term care. As we had managed [a previous] long term placement we agreed." They did, however, concede that the placement of G was an "emergency placement."

7 In a letter dated 17 April 2001, however, the applicants wrote to the Department in Cootamundra requesting that it consider them as long term foster carers for L and T.


Jurisdictional Issue
8 Before dealing with the application to review the decision it is necessary first to determine a preliminary point of law. The Minister contends that this Tribunal has no jurisdiction to consider the applications for review of her delegate’s decision in relation to T and L, and that it should decline to exercise jurisdiction in relation to G.

9 It is submitted that the Tribunal is bound by the decision in McGrory -v- Director-General of the Department of Community Services (Sup Ct unreported Brownie J, 25/06/92). In that case, a child was removed from his mother, placed in temporary care for a number of months and was made the subject of a wardship order. The effect of a wardship order is, of course, to make the Minister the child’s guardian. The plaintiffs in that matter did not contest the making of wardship orders, but sought the care, custody and control of the child. The Director-General opposed the application. The Children’s Court held that once it had made wardship orders, it had no further powers or functions to exercise. Nor had the District Court as it had power only to exercise the powers of the Children’s Court. They unsuccessfully appealed to the Community Welfare Appeals Tribunal. It dismissed the appeal on the basis that it had no jurisdiction to exercise.

10 Brownie J held in the Supreme Court that this decision was correct. He concluded that the plaintiffs had no remedy but to apply to the Supreme Court once an order declaring a child a ward is made by the Children’s Court, a gap in the legislation which he regarded as most regrettable, but nonetheless real.

11 The Minister submits that the cases of T and L are on all fours with McGrory. It is submitted that this Tribunal is the successor of the Community Welfare Tribunal and has exactly the same jurisdiction (or lack of it) as had that Tribunal in McGrory.

12 The Children and Young Persons (Care and Protection) Act 1998 did not come into effect until 18 December 2000. The orders made by the Cootamundra Children’s Court were made on 4 December 2000 under the 1987 Act. The transitional provisions of the 1998 Act provide that any proceedings commenced prior to 18 December 2000 were to continue under the provisions of the 1987 Act (which had been considered by Brownie J.) It follows, goes the submission, that notwithstanding the subsequent enactment and commencement of the 1998 Act, the 1987 Act applies to this case and it cannot, therefore, be distinguished from McGrory.

13 The Minister’s submission also seeks to distinguish W and B v Minister for Community Services [1999] NSWADT 90 in which this Tribunal exercised jurisdiction in relation to a short term foster placement decision.

14 The child in question was a ward in the care of the applicants on a short-term placement. The Minister approved a recommendation that the child be moved from that placement to a long-term placement. The applicants sought an urgent stay of the decision pending a review in the Tribunal.

15 In that case, the Tribunal clearly purported to exercise jurisdiction under s.112 of the Children (Care and Protection) Act 1987. Because the decision merely asserts "the Tribunal has jurisdiction to hear such an application" without providing any reasons or analysis, or indeed any reference to McGrory, it is not clear whether there was any objection taken to that exercise by the Minister, or argument on the jurisdictional issue. As the matter was an urgent stay application, it would appear that the jurisdictional issue was not argued at all or, if so, with little preparation and was accordingly a truncated discussion.

16 In any event, the Minister says that it is to be distinguished on the basis that the child in question was already a ward at the time of the Ministerial delegate’s decision, whereas L and T were made wards after the decision to place them with the applicants. It is submitted that if the Tribunal has jurisdiction it is only in respect of G who was placed, on a temporary basis with the applicants, after he was made a ward.


Conclusions
17 Section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act1993 provides that: "A person may apply to the Tribunal for a review of a decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision".

18 Section 112 of the Children (Care and Protection) Act 1987 provides:

For the purposes of Section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act1993 any of the following decisions are reviewable by the Administrative Decisions Tribunal: …
(h) a decision of the Minister to terminate the custody of a ward or protected person under s. 91(1)(e).
19 Section 91(1)(e) of the Children (Care and Protection) Act 1987 provides that the Minister may terminate the custody of a ward placed in the custody of a person "approved by the Minister, being a person willing to undertake custody of the ward".

20 On the face of it, the combined effect of these sections of the two Acts would appear to give the Tribunal jurisdiction to review the Ministerial delegate’s decision to terminate the custody of the children placed with the applicants.

21 Apart from referring to the simple assertion made by Brownie J that the conclusion of the Community Welfare Appeals Tribunal was correct, we have been given no assistance as to the reasoning which his Honour seemingly adopted. Apart from the argument that McGrory binds this Tribunal, we have not been told why the Tribunal has no jurisdiction despite the provisions of s. 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act1993 and s.112 of the Children (Care and Protection) Act.

22 McGrory was decided in 1992 and it would seem to us that the effect of s.40(1)(a), which was enacted in 1993, is to supersede that decision. In any event it is only the ratio of a superior court decision which is binding on inferior courts and tribunals. It is clear from the fact that Brownie J did not give reasons for his conclusion that the Community Welfare Appeals Tribunal had no jurisdiction that this expression of legal opinion did not form part of the ratio decidendi of the case. That part of his judgement was obviously obiter dicta and there was no intention on his part to settle the law or bind inferior courts or tribunals in that respect of it.

23 For these reasons we are of the view that the respondent’s submission is mistaken and conclude that the Tribunal has jurisdiction to review the decision in respect of T and L provided that this was, indeed, a decision to terminate the custody of the children. The question whether the children were in the custody of the applicants is therefore the threshold jurisdictional issue.

24 In this context, "custody" means the charge and control of a child including the right to make all major decisions such as education, religious upbringing, training, health and welfare. It goes beyond mere physical control over the child, especially if that care of the child is granted only on a temporary basis. Some degree of long-term control is implied. Most importantly, the critical aspect of custody is the custodian’s responsibility for making decisions for the welfare of the child.

25 The preliminary question for determination is, then, whether or not T and L were in the applicants’ custody. This is a question of fact. The respondent asserts that the children were placed with the applicants only on a short-term basis, pending a long-term placement of the children being arranged. The applicants, on the other hand, claim that in December 2000, they had reached an agreement with the Department that they would care for T and L on a long-term basis. The applicants do not expressly state whether these alleged discussions took place after the relevant wardship orders were made [4 December 2000]. If the applicants’ claim is accepted, it appears to us that they were given the custody of the children and the Tribunal has jurisdiction accordingly. Conversely, if the respondent Department’s assertion is accepted, the applicants never became custodians of the children and the Tribunal may not hear the application.

26 We understand the respondent to concede that the Tribunal may have jurisdiction in respect of the application relating to G but should decline to do so. Whether the decisions concerning T and L are within jurisdiction remains to be determined.

27 In our view, before deciding that issue we should hear oral evidence and submissions from both parties on the question of whether or not the placement of T and L was on a long or short-term basis and whether any decision was made after the children were made wards.


Directions
This matter to be set down for a directions hearing at a date to be fixed by the Registrar.