NV & OA v Director-General, Department of Community Services [2009] NSWADT 209 (7 August 2009)

Last Updated: 25 September 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
NV & OA v Director-General, Department of Community Services [2009] NSWADT 209


DIVISION:
COMMUNITY SERVICES DIVISION

PARTIES:
APPLICANT
NV & OA

RESPONDENT
Director-General, Department of Community Services



FILE NUMBERS:
094022

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
1 July 2009



DATE OF DECISION:
7 August 2009

BEFORE:
Britton A - Deputy President





LEGISLATION CITED:
Community Services (Complaints, Reviews and Monitoring) Act 1993
Children and Young Persons (Care and Protection) Act 1998
Administrative Decisions Tribunal Act 1997

CASES CITED:


TEXTS CITED:


APPLICATION:
Jurisdiction; stay

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
P Braine, barrister
RESPONDENT
D Wells, solicitor


ORDERS:
1.The Tribunal has jurisdiction to review the decision not to grant to the applicants the responsibility for the daily care and control of the subject children
2.The application for a stay is refused
3.The matter is listed for directions on 20 August 2009 at 10:30am


Reasons for Decision:

REASONS FOR DECISION

1 The applicants are the authorised carers of two children from the same family who were placed in their care in 2002. The elder is now 19 years old, the younger will be 17 in September this year. The children have four younger siblings, the two youngest now being seven and two years old.

2 Some time after the births of the two youngest children, the applicants sought to have them placed in their care so that the siblings could be united. An exact chronology is difficult to discern from the material placed before me, but that will not materially affect my decision. The applications were refused. By letter dated 4 May 2009, the Director-General of the Department of Community Services, notified the applicants that an internal review of a decision not to place the two children with them, had recommended that it be affirmed. The Director-General accepted that recommendation and confirmed the original decision.

3 The Applicants now seek a review of the Director-General’s decision. The Department denies that the Tribunal has jurisdiction to entertain such an application. The applicants also seek a stay of the Director-General’s decision. I will return to consider whether the decision the subject of the stay application, is the same decision as that identified in the substantive application.

Does the Tribunal have jurisdiction?

4 It is common ground that the Tribunal’s jurisdiction, if it exists, to deal with the application arises under s 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 which makes a decision ‘of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person’ a decision reviewable by the Tribunal.

5 The Director-General’s submission to the Tribunal is that ‘the provision clearly does not provide for the situation in which it is decided not to place children with particular authorised carers’. (Emphasis added.) It is argued for the Director-General that ‘it would take an amendment of the section to achieve the position the Applicants would ask the Tribunal to adopt’. The submission made for the Director-General therefore contends that the principal application should be dismissed by reason of being beyond the Tribunal’s power to entertain.

6 In my view, these submissions are incorrect. It is a long-standing principle of statutory interpretation that a discretionary power to do something implies also the power not to exercise the power in that way. This is stated explicitly in s 9(1) of the Interpretation Act 1987.

7 The reviewable decisions referred to in s 245(1)(c) derive from a power of the Director-General’s the source for which is ultimately s 34 of the Children and Young Persons (Care and Protection) Act 1998 which provides that if the Director-General is of the opinion that a child is in need of care, she is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person. Section 34 grants the Director-General wide powers to effect these aims. To ensure a child’s safety, welfare and wellbeing, the Director-General may place a child or young person with an authorised carer, pursuant to other provisions, such as ss 140 and 151.

8 In considering whether to place a child or young person with a particular authorised carer, the Director-General must, first and foremost, give paramount consideration to the safety, welfare and well-being of the child or young person. A decision may be made to grant that authorised carer responsibility for that child or not. One decision is the converse of the other.

9 It would be strangely anomalous if Parliament’s intention, as expressed in s 245(1)(c), had been to make the decision to grant responsibility for day to day care a reviewable decision but the decision not to, a non-reviewable decision.

10 The objects of the Children and Person (Care and Protection) Act and the Community Services (Complaints, Reviews and Monitoring) Act 1993 ought be considered together.

11 In the former case, the objects, as outlined in s 8 are:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

12 In the latter case the objects include the fostering, ‘in community services and programs, and in related services and programs, an atmosphere in which complaints and independent monitoring are viewed positively as ways of enhancing the delivery of those services and programs’ (s 3(1)(a)) and the observation that ‘the paramount consideration in providing a service for a person must be the best interests of the person’: s 3(2)(a).

13 Given the beneficial or remedial nature of the two Acts, it would seem that, where there is an ambiguity, they should be given a liberal interpretation. Section 33 of the Interpretation Act 1987 requires that a construction promoting the objects of the Act or rule be given to legislation. A purposive construction of them suggests that it was not the Legislature’s intention to restrict the scope of the Tribunal’s jurisdiction as the Director-General’s submission contends but to bring both options of the decision about granting responsibility within the scope of s 245(1)(c). This is because the review procedure by the Tribunal is considered, ultimately, to promote decisions which are in vulnerable children’s best interests.

14 In my opinion, therefore, the Tribunal has jurisdiction to consider the applications.

Nature of the reviewable decision

15 Before considering the application for a stay it is necessary to examine the nature of the subject decision. As the Director-General correctly points out, the subject decision identified in the ‘Application for Review of Decision’ is different to that identified in the ‘Application for Urgent Stay’. In the former it is identified as the decision of the Director-General not to place the subject children in the care of the applicants; in the later it is identified as the decision of the Director-General ‘to place the subject children in an alternate long term placement’.

16 While not altogether clear from the chronology that I have been provided, I understand the applicants to believe that a decision has recently or is about to be made, to remove the subject children from their current respective placements (see par [21] of OA’s affidavit, 30 May 2009). If correct, that decision is reviewable and providing the applicants can establish to the satisfaction of the Tribunal that they have a genuine concern in the subject-matter of the decision, they can apply to the Tribunal for review of that decision: s 29 of the Community Services (Complaints, Reviews and Monitoring) Act.

Stay application

17 As noted, the applicants have made an application for a stay of the Director-General’s purported decision to place the two children in long term alternate care on the grounds that ‘it would be potentially abusive of the children to move them to a new household and, if the applicants are successful [in their substantive application], to move the children again to the applicants’ home’.

18 Section 60(2) of the Administrative Decisions Tribunal Act 1997 provides:

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

19 As noted, the purported decision the subject of the stay application is related to but not the same as, the decision the subject of the substantive review application. Accordingly, it is not open to the Tribunal to make an order under s 60 staying the decision to remove the children from their current carers, if indeed such decision has been made, as an application for a review of that decision has not been made. As plain from the wording of s 60, the power to stay a reviewable decision can only be exercised where an application for review of that decision has been made.

20 In the interests of completeness I note that if the stay application had identified the relevant decision as the decision not to place the subject children in the applicants’ care, an order under s 60 would be of little utility, as what the applicants are seeking in relation to that decision is a change to the status quo, not a ‘stay’ of the circumstances that existed before that decision was made.

21 For these reasons the stay is refused.

Orders

1. The Tribunal has jurisdiction to review the decision not to grant to the applicants the responsibility for the daily care and control of the subject children.

2. The application for a stay is refused.

3. The matter is listed for directions on 20 August 2009 at 10:30am.