TJ v Department of Human Services, Community Services

[2010] NSWADT 178

CITATION:	TJ v Department of Human Services, Community Services [2010] NSWADT 178
DIVISION:	Community Services Division
PARTIES:	APPLICANT TJ RESPONDENT Department of Human Services, Community Services
FILE NUMBER:	104005
HEARING DATES:	15 April 2010
SUBMISSIONS CLOSED:	15 April 2010
EXTEMPORE DECISION DATE:	15 April 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Dismissal - application misconceived and lacking in substance
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
REPRESENTATION:	APPLICANT In person RESPONDENT Ms Selwood, solicitor
ORDERS:	Application dismissed under s.73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997on the grounds that the application is misconceived and lacking in substance.

REASONS FOR DECISION

1 The applicant, TJ, is the mother of 4 children in regard to which the Children’s Court made final orders, under s79 of the Children and Young Persons (Care and Protection) Act 1998, granting parental responsibility for each child to the Minister for Community Services (the Minister), until the child reaches 18 years of age. These orders were made on 18 June 2008 and 30 July 2008.

2 On 22 March 2010, the applicant lodged an application for review of a decision of the respondent Department. In her application, the applicant described the decision for which she sought review as follows:

‘I [name of the applicant] the mother of my children [names of the 4 children] to be removed from Blue Mountain and transfer in my relative home rather than suffering …’

3 The applicant went on to state that she had written a letter to the respondent on 23 January 2010, to which she had not received a decision and that she spoke to the ‘head office’ and was advised to go to the Tribunal. Attached to the applicant’s application was a copy of her letter dated 23 January 2010.

4 The application came before me on 15 April 2010 for directions. The applicant appeared by telephone and participated with the assistance of an acholi language interpreter.

5 Ms Selwood, solicitor, appeared at these directions hearings on behalf of the respondent. It was her contention that the respondent had made no decision that was reviewable by the Tribunal and on this basis the applicant’s application should be discontinued. In this regard she relied on a letter that Mr Derek Smith, A/Director Legal Services of the respondent had written to the applicant on 8 April 2010. In that letter Mr Smith noted that the applicant was seeking to have her children restored to her care and that in light of ‘final orders’ having been made in relation to her children by the Children’s Court these were not orders the Tribunal could review. He went on to say that if the applicant wished to have the orders of the Children’s Court reviewed or rescinded then she needed to obtain legal advice and he provided her with the contact details of 2 Legal Aid Offices that were close to where the applicant resided.

6 After hearing short oral submissions from the applicant and Ms Selwood on behalf of the respondent, I made a decision, together with some brief oral reasons, that the applicant’s application was misconceived and lacked substance and I made an order that her application be dismissed under s.73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (the ADT Act).

7 Subsequently, the applicant made a request for written reasons for decision under s89 of the ADT Act. These are my reasons for decision in accordance with that request.

The applicant’s letter of 23 January 2010

8 It is convenient to begin with the applicant’s letter to the respondent dated 23 January 2010.

9 The applicant’s letter is addressed to the caseworkers, employed by the respondent, having responsibility for overseeing the placement of the applicant’s children with their foster carers. The letter is written in English but is disjointed in language and concepts. The applicant does however clearly state that the respondent and their authorised foster carers were not following the order made in the Children’s Court in regard to her children. She asserted that the foster carers were destroying the ‘culture traditional heritages values and activities’ of her children and that they were suffering mentally, emotionally and physically. Of particular concern to the applicant was the loss of the children’s culture (including values), heritage and language. The applicant gave some examples of her perceptions as to how this loss had or may manifest itself in her children’s behaviour.

10 The applicant ended her letter by stating that the respondent ‘must return my children into my care, their mother.’ She explained that she had been allocated a 4 bedroom house in which she could care for her children and that the respondent could monitor her and her children.

11 Attached to the applicants letter was a further 13 page document about the applicant’s contact with her children and the concerns she had in regard to these. Her concerns were numerous including not being provided with more information about the children’s health. She also sought greater access to her children and asserted that she did not have ‘a mental sickness’ and needed to have her children restored to her.

12 At the directions hearing Ms Selwood, on behalf of the respondent, informed the Tribunal that the respondent was having ongoing discussions with the applicant about more supervised visits between the applicant and her children. She advised that no final decision had been made in this regard. She also informed the Tribunal that the applicant had been advised to seek legal advice in regard to her desire to have the children returned to her care.

The issues

13 That the applicant cares about and is concerned for her children was not questioned.

14 What was in issue was whether, the applicant’s requests of the respondent, as set out in her letter, included a request in respect of which the respondent made a decision, which was reviewable by the Tribunal.

Is there a decision of the respondent that is reviewable by the Tribunal?

15 Administrators, including the respondent, can make ‘decisions’ on matters they are authorised to make by statute or otherwise.

16 It is well accepted that a ‘decision’ includes those circumstances where an administrator, authorised to make a decision on a specific matter, refuses to make a decision or fails to make a timely decision: see section 6 of the ADT Act.

17 The Children and Young Person (Care and Protection) Act 1998 (the Care and Protection Act) makes provision for the respondent to make a number of decisions in regard to children or young persons who are in need of care and protection. This includes a decision to assume the care responsibility of a child or young person in particular circumstances: see sections 43 and 44 of the Care and Protection Act. However, within 72 hours of making and implementing such a decision the respondent is also required to commence care proceedings before the Children’s Court: see section 45 of the Care and Protection Act.

18 Care proceedings include proceedings for interim care orders and final parental responsibility orders for the child or young person in need of care and protection: see sections 69 and 79 of the Care and Protection Act. As mentioned above, in 2008, the Children’s Court made final orders in regard to the applicant’s children that the Minister be granted parental responsibility of the applicant’s children until they reached the age of 18 years. This was a decision of the Children’s Court and not a decision of the respondent. Furthermore, it is a decision that is expressly not reviewable by the Tribunal: see section 38(1) of the ADT Act, section 28 of the Community Service (Complaints, Reviews and Monitoring) Act 1993 and section 245(2) of the Care and Protection Act.

19 The essence of the applicant’s request that her children be returned to her care was a request for the orders of the Children’s Court to be reviewed. This, as I explained to the applicant at the directions hearing, was not a matter falling within the jurisdiction of the Tribunal.

20 Where the Children’s Court makes an order placing a child or young person into the care of the Minister, decisions as to who is to have responsibility for the daily care and control of that child or young person rests with the respondent. That responsibility is to be given to a carer that is authorised under the Care and Protection Act: see Chapter 8 of the Care and Protection Act. As mentioned above, in her letter the applicant requested that her children be removed from their current authorised carer. However, integral to that request was that they be placed into her care, in her capacity as their mother and not as an authorised carer. For the reasons I have already indicted, in light of the orders of the Children’s Court, these are orders over which the Tribunal has no jurisdiction.

21 Decisions that the Tribunal does have jurisdiction to review are decisions of the respondent ‘to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person’: see paragraph 245(1)(c) of the Care and Protection Act. This review jurisdiction does not however, extend to the Tribunal reviewing day-to-day decisions (i.e. decisions about where a child is to be educated) of a child or young person in out of home care.

22 On the basis of the material before me at the directions hearing and for the reasons set out above, I was satisfied that the respondent did not make any decision nor had it refused to make a decision, falling within the terms of paragraph 245(1)(c) of the Care and Protection Act.

23 On explaining this to the applicant, through the interpreter, the applicant requested that the number of access visits she had with her children each month be increased. I again stressed that the applicant should explore this further with the relevant case officers of the respondent. At the same time I urged Ms Selwood to liaise with the persons who had instructed her and advise them of the concerns expressed by the applicant during the hearing and encourage them to endeavour to resolve matters that are of concern to her. I also re-iterated the information the respondent had given the applicant about places where applicant might be able to obtain legal advice about what action, if any, might be available to her in regard to the orders made by the Children’s Court and also about other matters of concern to her about the day to day care of her children.

Conclusions

24 In light of my findings of no evidence of the respondent having made or refused to make a decision that was reviewable the Tribunal, I concluded that the applicant’s application was misconceived and lacking in substance. Accordingly, I ordered that the applicant’s application be dismissed under sub-paragraph 73(5)(g)(ii) of the ADT Act.