M v Minister, Department of Community Services [2000] NSWADT 49 (5 May 2000)

Last Updated: 24 July 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: M -v- Minister, Department of Community Services [2000] NSWADT 49

PARTIES: APPLICANT

M

RESPONDENT

Minister, Department of Communbity Services

FILE NUMBERS: 004006

HEARING DATES: 06/04/00

SUBMISSIONS CLOSED: 06/04/2000

DECISION DATE: 05/05/2000

BEFORE: Hennessy N (Deputy President)Norman C - MemberMonoghan-Nagle L - Member

LEGISLATION CITED: Children (Care and Protection) Act 1987

CASES CITED: McGrory -v- Director General of the Department of Community Services, Brownie J, unreported 25 June 1992

Brittain -v- Minister for Family and Community Services, McLelland J, 23 December 1991

Talbot -v- the Minister for Community Services and Ors, Young J, 25 June 1993, unreported

APPLICATION: Review of decision to terminate the custody of a ward

MATTER FOR DECISION: Interim order

APPLICANT REPRESENTATIVE: APPLICANT

P Braine, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

D Wells, solicitor

ORDERS: 1. Application dismissed.

Reasons for Decision:

REASONS FOR DECISION

Background

1 This is an application by M for an interim order to affect the decision of the Minister for Community Services to terminate the custody of a child.

2 On 25 May 1995 the Children's Court made a child, (born on 13/10/94) a ward of the Minister for Community Services for two years. (In these reasons, the child will be referred to as "B" to preserve anonymity.) The court extended this period in July 1997 until the child's 18th birthday. B resided with Ms M until 29 March 2000 when he was removed by Burnside, a non-government agency which was supervising B's placement with Ms M.

Jurisdiction

3 A preliminary issue arose in this matter as to whether the Tribunal has jurisdiction to hear this application.

4 Section 60(2) of the Administrative Decisions Tribunal Act 1998 (ADT Act) allows the Tribunal to stay or otherwise affect the operation of the decision under review. The sub-section states that:

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

5 The parties agreed that the only possible "decision under review" in this case is the decision set out is s 112(h) of the Children (Care and Protection) Act 1987 (the Act). That paragraph 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)

6 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).

7 Under s 91(d) 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.

8 Given these provisions, the Tribunal does not have jurisdiction to hear this case unless the Minister has placed B in the custody of the applicant for the purpose of being fostered.

Minister's submissions

9 The Minister's submission on this point was that custody of the child was with Burnside pursuant to s 91(d)(i) and not with the applicant pursuant to s 91(d)(ii). Mr Wells, solicitor for the Minister, maintained that the applicant had care of the child, but not custody. He pointed to several examples in the legislation where the concept of custody is distinguished from the concept of care.

10 Section 90 of the Act provides that the Minister is the guardian of a ward and, subject to the Act has the custody of the ward to the exclusion of any other person. Section 90 states that:

(1) The Minister is the guardian of a ward, and, subject to this Act, has the custody of a ward to the exclusion of any other person, until:

(a) the ward attains the age of 18 years,

(b) the guardianship of the Minister:

(i) is terminated by the Minister under subsection (2), or

(ii) is terminated by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children, or

(c) the ward ceases to be a ward by virtue of any other provision of this Act, whichever first occurs.

11 The words "subject to this Act" in s 90 include the provision of s 91(d) which give the Minister a discretion to place a child in the custody of a person specified in s 91(d)(i) or (ii).

12 Custody is defined in s 3 as follows:

custody, in relation to a child, means custody of the child to which a person is entitled by law.

13 Section 7 of the Act deal with the power to place a child in the care of a person:

A power conferred by this Act to place a child in the care of a person does not, except in so far as the context or subject-matter otherwise indicates or requires, include the power to grant custody of the child to the person.

14 Mr Wells submitted that the Minister transferred custody to Burnside through a document entitled "Placement Agreement for Residential Care/Group Home." That agreement states in part that:

2. The Minister for Community Services and the Agency agree to the placement of B, having the following status:

a) Ward of the Minister for Community Services.

3. Whilst the Agency has the day to day care of B the Agency agrees to observe the following:

(a) The Minister is the guardian of every ward to the exclusion of any other person (s 90 of the Children (Care and Protection) Act, 1987.

7. The specific responsibilities of Department, and/or Agency, and/or other parties not specified above:

(d) In the event of a placement disruption, or any other matter involving a change of case plan for B the Agency agrees to convene a case conference which appropriate Departmental representatives are to attend.

15 Although this document appears to "place" the child in the day to day care of the Agency (Burnside), the solicitor for the Minister submitted that the intention of this document was to transfer legal custody to the Burnside. He submitted that the document was unclear on this point because it had not been drafted by lawyers.

16 The Department also tendered a "Contract Between Burnside and Foster Carers" signed by the applicants and representatives from Burnside, which states in part that:

This is a contract outlining the prospective agreement between Burnside and M for the provision of foster care services for the children placed in your care.

1.4 Burnside will always listen carefully to your views, but at the end of the day Burnside and the Department of Community Services jointly have the responsibility for making the decisions regarding the making of placements, placement changes or discharges.

Burnside agrees

2.11 To provide a thorough explanation for removing a child from the carer home when this is necessary in the child's best interests, and to provide an opportunity for the carer to help prepare the child for the separation wherever possible.

17 The Minister pointed to Cl 54 and 59 of the Children (Care and Protection) Regulation 1996 (the Regulation) in further support of their submission that the applicants do not have legal custody of the child. These clauses state that:

54. An agency must not place a child in foster care otherwise than:

(a) at the written request of a person who is entitled to the custody of the child, or

(b) at the written request of the Director-General, or

(c) in accordance with an order made by a court having jurisdiction to make orders with respect to the care and custody of children.

57. If the principal officer of an agency is of the opinion that it is in the interests of a child whom it has placed in the care of foster parent that the placement be terminated, the principal officer must arrange for the child to be removed from the care of the foster parent and:

(a) must place the child in the care of another foster parent, or

(b) must make alternative arrangements fro the care of the child.

18 Mr Wells representing the Minister submitted that although Burnside's Private Fostering Authority under s 44 of the Act has expired, they still had the relevant licence because under Clause 5 of Schedule 1 of the Act, if an application for renewal is received prior to the expiry of the licence, the period of the licence is extended until the new application is dealt with. Mr Wells advised the Tribunal that Burnside had telephoned the Department to apply for an extension of the licence within the relevant time period.

Applicant's submission

19 Mr Braine on behalf of the applicant submitted that while the Minister has guardianship, the Placement Agreement between the Minister and Burnside does not pass custody to Burnside. He submitted that one should be cautious in implying that custody had been transferred to Burnside pursuant to that agreement.

20 Mr Braine urged the Tribunal to adopt a common law view of custody, that is "day to day care and control" of the child. Since Ms M has had day to day care and control of the child for the last five years it is logical to assume that she has had custody of the child.

21 Mr Baine queried the relevance of Cl 54 of the Regulations quoted above because the Chief Executive Officer of an agency is not a person separate from the agency.

Tribunal's reasoning and decision

22 On the basis of the evidence and submissions we have heard we are satisfied that the Minister has never placed B in the custody of the applicant under s 91(d)(ii). Consequently the Minister cannot have made a decision to terminate Ms M's custody of the child under s 91(1)(e) of the Act and the Tribunal does not have jurisdiction to determine this matter under s 112(h). The reasoning behind this conclusion is set out below.

23 Under s 90 of the Act the Minister has guardianship and custody, subject to the Act. Under s 91(1)(d) the Minister may place a ward in the custody of a person in charge of a non-government organisation or, for the purpose of being fostered, in the custody of a person approved by the Minister. Section 91(1)(d) allows the Minister to terminate the custody of a ward who has been placed with either category of person.

24 Mr Wells submitted that the Minister had placed B in the custody of the person in charge of Burnside, a non-government organisation pursuant to s 91(1)(d)(i). There is some doubt about this given the documentation and the fact that the term of Burnside's Private Fostering Agreement had expired. However, we accept that the Minister intended to give the person in charge of Burnside custody of B pursuant to s 91(1)(d)(i) of the Act. It is not necessary for us to be satisfied that custody was lawfully transferred to that person because the issue is whether the Minister ever placed B in the custody of the applicant.

25 Section 91(1)(d)(i) and (ii) are expressed in the alternative. The Minister can place a child in the custody of a person in charge of a non-government organisation or in the custody of a person for the purposes of fostering. Given that the Minister intended to place B in the custody of Burnside (whether or not her actions had this legal effect) it would not have been open to the Minister to also place the child in the custody of the applicant. The drafting of the Act and common sense suggest that Burnside and the applicant cannot both have custody of B.

26 In McGrory v Director General of the Department of Community Services, Brownie J (25 June 1992, unreported, Supreme Court decision) held that the Act distinguishes between the concepts of wardship, guardianship and custody. (See also Brittain v Minister for Family and Community Services, McLelland J, 23 December 1991.) Several sections of the Act were quoted by Mr Wells which demonstrate that custody has a legal meaning in the Act which is distinct from guardianship and from care. The contract between Burnside and the Ms demonstrates that the Ms were given care of the child, not custody. There was no other documentation in evidence which established that the Minister had placed B in the custody of the applicant.

27 We do not accept Mr Braine's submission that we should adopt the common law meaning of custody. The meaning of the word "custody" in the Act was considered by the Supreme Court in Talbot v the Minister for Community Services and Ors Young J, 25 June 1993, unreported. His Honour observed when examining s 91(1)(f) which allows the Minister to restore a ward to the custody of a parent, that:

Custody under section 91(1)(f) is a difficult concept. It does not denote the same concept as the right to custody of a child had at common law or under general equitable principles. (at p 4).

28 In an earlier decision in the same case (22 April 1993, unreported) Young J said at p 14:

If "custody" in section 91(1)(f) has its defined meaning, then there is not other way one can make the whole statute operate than to say that the Minister's custody under section 90(1) is subject to anything else that happens under the Act such as the Minister's actions under s 91(1)(f). This would then leave the Minister as the guardian and able to fund the children and supervise them whilst a person with custody would make the day to day decisions as to the lifestyle of the children."

29 In this case the Minister intended to place B in the custody of the person in charge of Burnside. In turn, Burnside has placed B in the care of the applicant. By virtue of s 7, the power to place a child in the care of a person does not generally include the power to grant custody of the child to that person.

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

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR