Smith v Minister for Community Services

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: Smith & anor v Minister for Community Services [2004] NSWADT 98

PARTIES: APPLICANTS
Saras Smith and Edward Smith
RESPONDENT
Minister for Community Services

FILE NUMBERS: 034034

HEARING DATES: 19/04/2004

SUBMISSIONS CLOSED: 19/04/2004

DECISION DATE: 25/05/2004

BEFORE: Britton A - Judicial MemberGroth D - Non Judicial MemberMonaghan-Nagle L - Non Judicial Member

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:

APPLICATION: Jurisdiction

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT
M Darke, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
D Wells, solicitor

ORDERS: Application is dismissed

Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(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

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

The Applicants in this matter apply to the Administrative Decisions Tribunal to review two decisions said to have been made by the Respondent, the Minister for Community Services (“the Minister”). The first was a decision made on or about 1 April 2003 to remove three foster children from their care. They assert that the second reviewable decision was made on 28 July 2003. On the face of it, that “decision” appears to have been a recommendation by the NSW Department of Community Services (“DoCS”) to the Minister that no further children be placed in their care. The Respondent contends it was only a recommendation but the Applicants argue that it effectively crystallised into a decision due to the conduct of the Respondent in acting upon it.
The Tribunal’s jurisdiction to review the decision or decisions (as the case may be) is challenged by the Respondent and this is the issue to be decided here.

Background

On 23 April 2001, the Applicants were approved as foster carers by DoCS. They attended a foster-carer-training course in July 2001.
On 30 January 2002 three siblings were placed in the Applicants’ care pursuant to a temporary care arrangement made by Director-General of DOCS (“the D-G”) under s 151(1) of the Children and Young Persons (Care & Protection) Act 1998 (“the 1998 Act”). This was for an initial term ending on 30 February 2002 but appears to have been extended subsequently.
On 17 April 2002, the Director-General of DoCS assumed care and protection of the children under s 44 of the 1998 Act. That order prevented the removal of the children without the written approval of an authorised officer. On the same day, DoCS applied to the Children’s Court for an emergency care and protection order under s 46 of the 1998 Act. The application sought an order that the children remain in the care and protection of the D-G for a period of 14 days and an extension of 14 days to enable DoCS to bring a care application under s 60 of the 1998 Act. On that day, the Children’s Court adjourned the application to 23 April 2002 and ordered that the children remain in the D-G’s care and protection for 14 days.
On 9 July 2002, the Children’s Court made orders that the Minister take sole parental responsibility for each of the children. The care applications were then stood over a number of times between July 2002 and 20 May 2003.
On 17 December 2002, the Children’s Court vacated the order that the Minister bear parental responsibility for the children but substituted an order that the children remain in the care of the Director-General.
On 1 April 2003, the first of the challenged decisions was made i.e. the decision to remove the children from the care of the Applicants.
On 28 July 2003, the Applicants were sent a letter by DoCS notifying them that a recommendation had been made to the Minister that no further children be placed in their care.

Does the Tribunal have jurisdiction?

The decision of 1 April 2003

Whether the Tribunal has jurisdiction concerning this decision is a question of some complexity. In essence, the Applicants’ submission is that the three children were placed in their care by an exercise of the Minister’s power under s 91(1)(d)(ii) of the Children (Care and Protection) Act 1987 (“the 1987 Act”). They contend that the Minister’s decision of 1 April 2003 to remove them from the care of the Applicants was a decision made under s 91(1)(e) of that Act and is a reviewable decision because it comes within the scope of s 112(h) of the 1987 Act, s28(1)(b) and cl.12(b) of Schedule 1 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (“the CSCRM Act”) and ss 36(1)(b) and 38 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
It is common ground that s 112(h) of the 1987 Act makes a decision under s 91(1)(e) reviewable by the Tribunal. However, the Respondent’s submission is that the decision is not reviewable because there had been no decision made under s 91(d) to place the children in the Applicants’ custody and therefore there was no decision under s 91(e) to remove them.
The relevant parts of s 91(1) provide:
The Minister:
(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:
(i) in the custody of a person in charge of a non-Government organisation, or
(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister,
being a person who is willing to undertake the custody of the ward or protected person, [and]
(e) may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph (d) (i) or (ii).
To determine whether the Applicants’ or the Respondents’ argument is correct it is, unfortunately, necessary to follow a convoluted path through the relevant legislation.
The initial placement of the children on 30 January 2002 was made under s 151(1) of the 1998 Act. It provides:
(1) The Director-General may make a temporary care arrangement in respect of a child or young person if the child or young person is, in the opinion of the Director-General, in need of care and protection.
The assumption of care responsibility by the Director-General on 17 April 2002 was an application of s 44 of the Act, which provides:
(1) If the Director-General:
(a) suspects on reasonable grounds that a child or young person is at risk of serious harm, and
(b) is satisfied that it is not in the best interests of the child or young person that the child or young person be removed from the premises in which he or she is currently located,
the Director-General may, instead of removing the child or young person from the premises under a power of removal conferred by or under this Act, assume the care responsibility of the child or young person by means of an order in writing, signed by the Director-General and served on the person (whether or not a parent of the child or young person) who appears to the Director-General to be in charge of the premises.
(2) An order under this section does not cease to have effect merely because the child or young person to whom it relates is transferred to different premises.
On the same day, an emergency care and protection order was made under s 46 of the Act. Section 46 provides:
(1) The Children’s Court may make an order for the emergency care and protection of a child or young person if it is satisfied that the child or young person is at risk of serious harm.
(2) The order, while in force, places the child or young person in the care and responsibility of the Director-General or the person specified in the order.
(3) The order has effect for a maximum period of 14 days, unless the order is extended in accordance with subsection (4).
(4) An order under this section may, while the order remains in force, be extended once only for a further maximum period of 14 days.
It appears to be common ground that the s 46 application was an application for a “care order” as defined by s 60 of the 1998 Act. Section 62 of the 1998 Act provides “a care order may be made as an interim order or a final order”, except as provided by Part 2 of Chapter 5 of the Act. Section 69(1) provides that “the Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.” Section 70 provides that “the Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.” While this oddly-drafted section is headed “other interim orders”, the section itself does not reflect that apparent intention. We presume that what the section is meant to convey is that the Children’s Court is not restricted to the menu of interim orders sought by the Director-General but can make other orders on its own motion.
On 23 April 2002, the application under s 46 was first mentioned and the court record indicates that the matter was adjourned by consent without further hearing. It appears that consent orders were made that the children remain in the care of the Director-General for the following 14 days. However, the Magistrate’s notes on the record are sparse and there is no transcript of what passed between the parties and the bench. Fourteen days later, on 6 May, the matter was again adjourned by consent until 9 July 2002. Obviously, no further order was made under s 46 but an interim order was substituted granting parental responsibility to the Minister in the intervening period together with an assessment order.
The Applicants submit that the orders made by the Children’s Court placing parental responsibility on the Minister were not interim care orders made pursuant to ss 69 or 70 of the 1998 Act but rather were orders made under s 76 of the 1998 Act.
We cannot agree with that argument. The order must have been made pursuant to either s 69 or s 70 (most likely the latter) because s 79, which deals with the granting of parental responsibility to the Minister and other parties, is clearly expressed in the legislation to refer to an order made after a determination of the care application, that is, after a determination that the child in question is in need of care and protection pursuant to the 1998 Act.
We are uncertain whether the reference to s 76 in the written submissions made by counsel for the Applicants was intended to refer s 79 but, for the same reasons, we cannot see that s 76 could have been applied by the Children’s Court. Section 76 refers to an order for supervision by the Director-General after an inquiry has satisfied the Court that the child is need of care and protection. At the time that the order was made on 6 May 2002, no such inquiry had taken place: that is clear, if for no other reason, because the matter was adjourned for an assessment to 9 July 2002. It is evident from the fact that the matter is on-going that the court has not yet formally reached a determination or satisfied itself that the children are in need of care and protection and thus ss 76 and 79 have not yet been triggered. The interim orders providing that the Minister have parental responsibility remained in force until 17 December 2002. After that the court ordered that the children remain in the care of the Director-General. That is, the children were no longer under the parental responsibility of the Minister. Moreover, it appears from the scheme of Part 2 that ss 60-62 are, as it were, definitional in intent. Sections 63-70A deal with evidentiary issues and interlocutory proceedings. Sections 71-89 appear to relate mainly to matters to do with the final determination of care applications and consequential orders. Section 70 appears to give the Children’s Court very wide scope as to the types of interim orders it may make and we agree with the Respondent’s submission that there is no inconsistency between ss 62 and 69-70. This strengthens the Respondent’s argument, in our opinion, that the orders concerned were of an interim kind only.
It follows from this, in our view, that there was no order made under s 79. We cannot agree with the Applicants argument that cl 22 of the Children and Young Persons (Savings and Transitional) Regulation 2000 when read in combination with ss.72(1)(c)(iii), 90, 91(d)(ii) and 91(e) of the 1987 Act mean that the children had been placed and removed under s 91. Wardship orders under s 72(1)(c)(iii) could only have been made if the Children’s Court had inquired into the matter following a care application and had been satisfied that the children were in need of care. Until the Court made this decision, there could not have been a placement by the Minister of the children under s.91. Therefore there could have been no removal of them under s 91(1)(e) of the 1987 Act.
From all of this, it appears to us that the Respondent’s contention that the Tribunal does not have jurisdiction to review the decision to remove the children is correct.

Was a reviewable decision made by the Minister on 28 July 2003?

The letter of 28 July 2003 notified the Applicants that DoCS had recommended to the Minister that no further children by placed in their care. This letter raises two separate issues. First, whether it can be inferred from all the circumstances that a decision has been made at all and, second, if so, whether it is a reviewable decision.
The Applicants argue that the absence of any further notification from the Minister or DoCS concerning the recommendation made on 28 July 2003 implies that a final decision has been made. They say, therefore, that s 245 of the 1998 may be invoked to give the Tribunal jurisdiction.
Section 245(1)(a) provides:
(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:
(a) a decision of the relevant decision-maker to authorise or not to authorise a person as an authorised carer, to impose conditions of an authorisation, or to cancel or suspend a person’s authorisation as an authorised carer.
One of the difficulties in deciding if a final decision has been made by the Respondent concerning the placement of children with the Applicants is that there the Children’s Court has not decided the status of the children. The reasons that the recommendation was made on 28 July 2003 were that the Applicants had not adequately explained “non-accidental” injuries sustained by the children in their care, nor had they identified the person(s) who had inflicted the injuries and that one of the children in their care had shown a “failure to thrive”. Clearly, DoCS had serious concerns relating to the quality of care being provided by the Applicants but, as the Applicants assert, there may be innocent explanations for the problems which arose with the children. Presumably, these will be ventilated in the Children’s Court.
It may be – and we have no evidence one way or the other – that the final decision about whether other children may be placed with the Applicants in the future depends upon the outcome of the Children’s Court proceedings. If that is the case, however, it is difficult to understand why this Tribunal and the Applicants have been left in the dark to speculate about what has happened concerning the recommendation that no further children by placed in the Applicants’ care. If no final decision has been made, we cannot understand why there is a delay in making a decision and why the Applicants have not been told if it has been decided not to place any more children with them. If DoCS is in fact hiding a decision behind a euphemistic form of words, that would not only be grossly unfair to the Applicants but it would be misleading the Tribunal. We are not prepared to make such a finding on the scant evidence before us. However, the situation is highly unsatisfactory and lacks transparency.
In any event, the Minister contends that s 245(1)(a) has no application here because the Applicants were not at the relevant time, namely 1 April 2003, “authorised carers.” Section 137(1)(c) of the 1998 Act defines an authorised carer to be “a person who, in accordance with the regulations, is otherwise authorised as an authorised carer”. The relevant regulation is the Children and Young Persons (Savings and Transitional) Regulation 2000 (“the Regulation”).
Clause 22D of the Regulation deems certain persons to authorised carers for the purposes of s 137 of the 1998 Act. Clause 22D commenced on 11 July 2003. Those persons include persons “in whose care a child or young person was placed by, or with the written approval of, the Minister or the Director-General under the old Act and who, immediately before the commencement, had the care of that child or young person” (Cl.22D(1)(d)) and persons “in whose custody a ward or protected person was placed by the Minister under section 91 (1) (d) or (f) of the old Act and who, immediately before the commencement of this clause, had the custody of that ward or protected person” (Cl.22D(1)(e)).
As we previously concluded, there was no placement of the children by the Minister pursuant to s 91(d) of the 1987 Act because the Children’s Court had not made an order placing them under the parental responsibility of the Minister. Clause 22D(1)(e) therefore is irrelevant here.
In our opinion, it cannot be said that the children were, immediately before 11 July 2003, in the Applicants’ care because the children had been removed from their care some three months earlier. Therefore, the Applicants were not authorised carers and so they have no right to review of the Minister’s decision (if a decision has in fact been made) pursuant to s 245.

Decision

The Tribunal has no jurisdiction in either of these matters. The application is accordingly dismissed.

[2004] NSWADT 98

25 May 2004