C v Minister of Community Services [2000] NSWADT 179 (5 December 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: C -v- Minister of Community Services [2000] NSWADT 179

PARTIES: APPLICANT

C

RESPONDENT

Minister of Community Services

FILE NUMBERS: 994019

HEARING DATES: 24/11/2000

SUBMISSIONS CLOSED: 24/11/2000

DECISION DATE: 05/12/2000

BEFORE: Hennessy N (Deputy President)Brennan JWF - Judicial MemberNorman C - Member

LEGISLATION CITED: Children (Care and Protection) Act 1987

CASES CITED: M v Minister, Department of Community Services [2000] NSW ADT 49

APPLICATION: Application for dismissal for lack of jurisdiction

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

H Ginges, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

D Wells, solicitor

ORDERS: The application is dismissed for lack of jurisdiction.

Reasons for Decision:

Introduction

1 This is an application by C, a foster carer, for a review of a decision to remove a child, D, from her care. D was placed in C's care in March 1998. D was subsequently made a ward of the state in June 1998. D remained in C's care until November 1999 when a decision was made at a case conference attended by officers from Wesley Mission Dalmar Child and Family Care Nepean Services (Wesley Dalmar) and the Department of Community Services, to remove D from C's care.

2 A preliminary issue arose in these proceedings, namely whether the Tribunal has jurisdiction to hear this application. The Tribunal decided a similar matter, M v Minister, Department of Community Services [2000] NSW ADT 49, on 5 May 2000. In the circumstances of that case, the Tribunal found that it did not have jurisdiction to review the decision to remove a child from the care of a foster carer because the carer did not have "custody" of the child. The Tribunal has come to the same conclusion in this case, although the circumstances are slightly different. Our reasoning is set out below.

Jurisdiction

3 The Tribunal has power under s 38 of the Administrative Decisions Tribunal Act 1997, to review a decision "if the enactment provides that applications may be made to it for a review of any such decision made by an administrator." The enactment in this case is the Children (Care and Protection) Act 1987 (the Act). Section 112(h) of that Act states that:

For the purposes of section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, 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 section 91(1)(e).

4 Under section 91(1)(e):

The Minister 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).

5 Under s 91(d) the Minister:

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.

6 The parties agreed that given these provisions, the Tribunal does not have jurisdiction to hear this case unless the Minister has placed D in the custody of the applicant for the purpose of being fostered.

Evidence

7 The documentary evidence in this case consisted of:

· letter from Joanne Rees, manager Wesley Dalmar, to C dated 3 March 1998;

· letter from Joanne Rees to C dated 5 January 2000;

· Placement Agreement between Department of Community Services and Wesley Dalmar for the period 5 March to 20 March 1998, dated 13 March 1998;

· Placement Agreement between Department of Community Services and Wesley Dalmar for the period 20 March 1998 to 23 March 1998, dated 20 March 1998;

· Placement Agreement between Department of Community Services and Wesley Dalmar for the period 23 March 1998 to 24 April 1998, dated 31 March 1998;

· Placement Agreement between Department of Community Services and Wesley Dalmar for the period 24 April 1998 to 12 June 1998 dated 27 April 1998;

· Placement Agreement between Department of Community Services and Wesley Dalmar for the period 12 June 1998 for the long term dated 9 July 1998; and

· Legal Rights of Removal of Child under Children (Care and Protection Act 1987 dated 5 March 1998l.

Oral evidence

8 C gave oral evidence. She said that she was accepted as a foster carer with Wesley Dalmar on 3 March 1998. She was phoned by a staff member from Wesley Dalmar two days later and asked if she would foster D in the short term. Two officers from the Department brought D to her home. C said that officers from Wesley Dalmar visited her once every three or four weeks to check on D. C also had contact with Departmental officers. C was told by officers of Wesley Dalmar that any important decisions relating D should be cleared through the Department. These were decisions such as taking D interstate, taking her for medical treatment and enrolling her in swimming lessons.

Minister's submissions

9 Mr Wells, on behalf of the Minister, submitted that since 26 June 1998 when D was made a ward, custody of D has been with Wesley Dalmar pursuant to s 91(d)(i) of the Act and not with the applicant pursuant to s 91(d)(ii). Mr Wells maintained that the applicant had care of the child, but not custody.

10 Mr Wells submitted that the Minister transferred custody to Wesley Dalmar through documents entitled "Placement Agreement between Department of Community Services and the Principal Officer Wesley Dalmar Hawkesbury Nepean"

11 In Mr Well's view, the letters to C from Wesley Dalmar dated 3 March 1998 and 5 January 2000 show that she was on their register of carers. He conceded that although those letters refer to an "authority to foster", C did not have such an authority which can only be provided by the Minister. (See Schedule 1, Clause 3 of the Act.) There was no evidence that C had ever been assessed by the Department of Community Services as a carer. She was assessed and approved by Wesley Dalmar.

12 Mr Wells said that despite the applicant's submission to the contrary, the placement of D with C was not a direct placement by the Minister to C but was a placement to Wesley Dalmar, who, in turn, placed D with C. If C had been recruited by the Department as a foster carer and the Minister had placed D directly with C for the purposes of fostering, then C would have had custody of D.

13 Although the Placement Agreements do not transfer custody on their face, Mr Well's submission was that after the Children's Court made a wardship order in relation to D, Wesley Dalmar had custody of D. Prior to that time, Wesley Dalmar only had the care of D.

Applicant's submissions

14 Mr Ginges submitted that there were no documents evidencing the relationship between the Department of Community Services and the applicant or Wesley Dalmar and the applicant. In Mr Ginges' submission, it is clear from C's evidence that there was a direct relationship between C and the Department of Community Services. C came to the attention of the Department as a potential foster carer because she did the training offered by Wesley Dalmar but C was under the impression that D had been placed with her by the Department, and not by Wesley Dalmar.

15 Mr Ginges submitted that the issue was whether D had been placed in C's "care" or in her "custody". C must meet the description in s 91(d)(ii) as a person approved by the Minister. He urged the Tribunal to give the widest possible interpretation to the word `custody" in the Act. Not to do so would render any decision made by Wesley Dalmar or the Minister in relation to C as non-reviewable. This would be unfair to C, especially if a foster carer directly authorised by the Minister would be able to seek review of a decision to remove a child from his or her custody.

Tribunal's reasoning and decision

16 The facts of this case are substantially the same as those in M v Minister, Department of Community Services [2000] NSW ADT 49 and we adopt the legal analysis set out in that case.

17 Despite using the words "authority to foster" in correspondence from Wesley Dalmar to the applicant dated 3 March 1998 and 5 January 2000, C was never given such an authority. Under Schedule 1, Clause 3 of the Act only the Minister can grant such an authority and there is no evidence that she has done so on this occasion.

18 We are satisfied on the basis of the evidence that D was placed with Wesley Dalmar and not directly with the applicant. Although we cannot find on the basis of the documentation that the Minister formally transferred custody of D to Wesley Dalmar, she clearly did not transfer custody to C. As Mr Ginges pointed out, there is no documentation which suggests that custody was transferred to C. It would require more than a broad interpretation being given to the word "custody" to make a finding in favour of C. There is simply no evidence that custody, as distinct from day to day care of D, was transferred to C.

19 On the basis of the evidence and submissions we have heard we are satisfied that the Minister has never placed D in the custody of the applicant under s 91(d)(ii). Consequently the Minister cannot have made a decision to terminate C's custody of D under s 91(1)(e) of the Act and the Tribunal does not have jurisdiction to determine this matter under s 112(h).

20 For these reasons, the application is dismissed as the Tribunal does not have jurisdiction to hear it.