Druett v Dept of Family & Community Services [2002] FMCA 14 (5 February 2002)

Last Updated: 30 April 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRUETT v DEPT. OF FAMILY & COMMUNITY SERVICES (NO. 3)

[2002] FMCA 14

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal seeking judicial review of a decision not to grant extension of time - whether the Tribunal made an error of law - removal of parenting allowance - affect on non custodial parent - proper form of application where standing is in issue - s.44(2) AAT Act.

Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44AA

Children (Care and Protection) Act 1987 (NSW) s 60

Brown v Repatriation Commission [1985] FCA 194; (1985) 60 ALR 289

Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673

D-G Social Services v Cheney [1980] FCA 87; 31 ALR 571

Appellant:

GARRY DRUETT

Respondent:

DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File No:

SZ 809 of 2001

Delivered on:

5 February 2002

Delivered at:

Sydney

Hearing Date:

14 January 2002

Judgment of:

Raphael FM

REPRESENTATION

The Appellant appeared in person.

Solicitors for the Respondent:

Mr G Peek Australian Government Solicitor

ORDERS

(1) The appeal be dismissed.

(2) The appellant pay the respondent's costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 809 of 2001

GARRY DRUETT

Appellant

And

DEPARTMENT OF FAMILY & COMMUNITY SERVICES (COMMONWEALTH)

Respondent

REASONS FOR JUDGMENT

1. In This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Senior Member Bullock (in AAT matter

N 2001/676) made on 4 October 2001.

2. The matter was referred to the Federal Magistrates Court under s 44AA by order of Whitlam J on 23 November 2001. The applicant attached to his notice of appeal a document containing three headings, "Questions of Law", "Grounds" and "Orders Sought" and annexed a number of photographs and letters from his children as well as a summary of argument which was identical in form to that filed in relation to an application for appeal to the High Court of Australia from a decision of the New South Wales Court of Appeal.

3. In paragraph 1 of her decision, Senior Member Bullock sets out the nature of the application that was before her:

1. This matter involves the Administrative Appeals Tribunal ("the Tribunal") determining whether or not it has jurisdiction to consider an application for review to the Tribunal by the applicant, Mr Garry Druett. Mr Druett seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 24 April 2001. The SSAT decided that Mr Druett is not a person who may apply to that tribunal under s 142 of the Social Security (Administration) Act 1999, as at the date he applied to the SSAT on 13 February 2001, he was not a person whose interests are affected by the review that was undertaken by an authorised review officer ("ARO") of the original decision to cancel Ms Kirrily Druett's family allowance.

4. In Butterworths' "Australian Administrative Law" service, Ed. D C Pearce, the learned authors deal with the question of an appeal under

s 44 of the AAT Act. They cite Brown v Repatriation Comm (1985)

[1985] FCA 194; 60 ALR 289 as authority for the proposition that a question of law alone is the subject matter of the appeal and that "the ambit of the appeal is confined to it". They also cite Neal v Department of Transport [1980] FCA 45; (1979) 3 ALD 97, where Franki J noted at 100:

"There is no appeal to this Court on anything other than a question of law and the Court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to, but only with the question whether the Tribunal erred in law."

5. In her decision, Senior Member Bullock sets out the relevant legislation and then provides by way of background certain facts, some of which were incontrovertible and some of which were the subject of evidence before her. Among the incontrovertible statements were the following:

* In 1998, Mr Druett's wife Mrs Kirrily Druett, was receiving Family Allowance in respect of their children Chloe, Gregory, Nicole and Bernice;

* On 9 January 1998, the New South Wales Department of Community Services removed the children from Mr and Mrs Druett's care without their consent;

* The Commonwealth Services Delivery Agency determined that Mrs Druett was no longer qualified to continue to receive the Family Allowance for the children, and on 13 August 1998, Mrs Druett received the last payment of the Family Allowance;

* On 14 October 1999, a Magistrate of the New South Wales Children's Court made Chloe Druett a ward of the State for a period of 5 years. The other children were made wards of the State until they reached the age of 18 years;

* Having made an application for review to the SSAT concerning the cancellation of her Family Allowance, Mrs Druett then withdrew the application for review on 20 May 1999.

6. Items which may well have been in contention but on which findings were made by the SSAT and by the AAT included:

* The circumstances under which Mrs Druett gave an authority to Mr Druett to pursue the matter of the cancellation of her Family Allowance before the SSAT;

* The status of Mr Druett as a person affected;

* The status of Mrs Druett's application dated 24 May 2001 to the AAT and the letter of 23 May 2001consenting to Mr Druett pursuing the matter on her behalf and on behalf of the children.

7. After hearing evidence from Mrs Druett and Mr Druett, the Tribunal at para 30 came to the following conclusion:

"30. Given Mrs Druett's unambiguous evidence to the Tribunal, the Tribunal does not consider that Mr Druett is a person whose interests are affected as dealt with under subs 27(1) of the Administrative Appeal Tribunal Act 1975. Such interests do not have to be pecuniary interests or even specific legal matters. The question is to be determined by looking at whether Mr Druett has interests "which a person other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed" (Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 as discussed in US Tobacco Company v Minister for Consumer Affairs (1988)

[1988] FCA 213; 20 FCR 520).

31. In Mr Druett's case, he is living separate and apart from his wife under the same roof. Mrs Druett, whose interests are directly affected, does not wish to pursue the matter of the cancellation of her Family Allowance not the decision of the SSAT, nor does she wish to do so on her behalf. In all these circumstances, the Tribunal finds that in relation to Mr Druett's application for review to this Tribunal, pursuant to s 27 of the Administrative Appeal Tribunal Act 1975, Mr Druett is not a person whose interests are affected by the decision to cancel Mrs Druett's Family Allowance. Accordingly, the Tribunal finds it does not have jurisdiction to deal with Mr Druett's application for review."

8. Mr Druett, in his submissions to this Court, says that he is a person affected. However, he did not tie the affects that he alleged to the action which he sought to review. He cited a more general affect which attached to him as the father of children who had been taken into care.

9. I have no doubt whatsoever that Mr Druett is affected by any decision which would remove or keep his children away from him. The decision which is here being considered is a decision to cease paying to his wife Family Allowance in respect of children who are no longer within her care. The allowance was not being paid to Mr Druett and the Senior Member accepted that he was living separately and apart from his wife.

10. In his submissions to me, Mr Druett said words to the following effect, "I wasn't a bad father, I may have made a few mistakes. I can pass the test with one child, I can't with four. Maybe the children could have more contact between themselves." These submissions clearly relate to the original New South Wales decision to remove the children, which was the subject of a hearing at the Children's Court and a lengthy appeal to the District Court. Mr Druett then sought to agitate the same matters before the Court of Appeal and the High Court. As Mr Peek submitted, "this is a misconceived attempt to agitate the original decision to remove the children against the Commonwealth of Australia, which has no jurisdiction in relation to the matter".

11. Mr Druett has not sought to provide submissions or authority to persuade me that, in coming to her decision on the factual question whether or not Mr Druett was a person interested, Senior Member Bullock had erred in law. Notwithstanding this, I have made my own examination of the decision and I have also had regard to the matters discussed by Ms Bullock at paras 26-29 thereof and the cases which she cites.

12. The ratio of that decision appears to be as follows:

(i) The family allowance was being paid to Mrs Druett;

(ii) The family allowance was terminated;

(iii) Mr Druett sought review of that decision "on behalf of his wife";

(iv) Mrs Druett withdrew any authority she had given to Mr Druett;

(v) Mr Druett did not assert any other basis upon which he sought to have the decision changed;

(vi) The Tribunal was satisfied that he had no authority from Mrs Druett;

(vii) Mr Druett's sole interest in the matter came through the authority and once that was revoked he had no further interest in the matter and therefore the Tribunal had no jurisdiction to review.

13. I believe that in the absence of any case being made by Mr Druett that he was an interested party for reasons other than the alleged authority being given to him that the Tribunal adopted the appropriate procedures. I am not sure whether it was necessary for the Tribunal to go into the question of whether or not the effect of the SSAT and AAT reviews was to affirm the original decision which was to cease the payments. I would prefer to describe the original decision as being untouched by the review process because the review process was not open to this particular applicant.

14. When the matter came before this court it should properly have been described as an application under s.44(2) [appeal on a question of standing]. The legislation clearly separates this type of application out from all other applications which are covered in s.44(1) and it would seem to follow that the court's decision under this section is limited to the question of standing and does not in any way affect the original decision. In D-G Social Services v Cheney [1980] FCA 87; 31 ALR 571 at 593 Dean J clearly differentiated between an appeal under s.44(1) and 44(2) when he said:

"The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effected decision or determination of the application for review...The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision..."

15. In my view this court would be limited to deciding that particular question and if it decided the question in the affirmative in favour of the applicant, to referring the matter back to the original decision maker for consideration in accordance with law on the basis that the applicant was an interested party.

16. However, I have heard nothing from the applicant which would lead me to the conclusion that the Tribunal erred in law when it came to the conclusion that Mr Druett was not a person affected. Mr Druett's assertion that he was affected because the payment related to his children and that if the payment was restored it might lead in some way to the return of those children to himself has emotional, but not legal, strength. Whilst I can see circumstances in which it might be possible that a father who is not in receipt of family allowance (now called parenting allowance) might be interested in the decision to cease payment of that allowance (because, for example, it would affect his own maintenance payments for the children) no evidence of this type was advanced before the Tribunal or before myself.

17. In all the circumstances I find that there was no error of law in the decision made by the Tribunal and I dismiss the application and order that the applicant pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that the respondent was entitled to an advocate pursuant to Part 21.15.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: