OO v Director-General Department of Community Services [2009] NSWADT 228 (3 September 2009)

Last Updated: 3 September 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
OO v Director-General Department of Community Services [2009] NSWADT 228


DIVISION:
COMMUNITY SERVICES DIVISION

PARTIES:
APPLICANT
OO

RESPONDENT
Director-General Department of Community Services



FILE NUMBERS:
094027

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
10 July 2009



DATE OF DECISION:
3 September 2009

BEFORE:
Britton A - Deputy President





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

CASES CITED:


TEXTS CITED:


APPLICATION:
Jurisdiction

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
R Young, solicitor


ORDERS:
1. The application lodged by the applicant on 26 June 2009 is dismissed for want of jurisdiction.


Reasons for Decision:


REASONS FOR DECISION

1 In this matter, the Director-General asserts that the Tribunal has no jurisdiction to entertain the application, made by the applicant, to review a decision concerning care arrangements for a child. The applicant is both an authorised carer and the child’s maternal grandfather.

2 The subject child is a 12-year old boy for whom the Minister of Community Services has had parental responsibility since 2002. In 2000, the child was placed in the care of the applicant and his wife on a long term basis.

3 In 2005, the applicant, and his wife separated but agreed to share the care of the subject child. In 2009, a number of events occurred that led to a significant revision of the care arrangements. In February of this year an assessment of the capacities of the carers to carry out their responsibilities to the child raised various concerns. In April the child stated that he did not wish to reside full-time with either grandparent. In June 2009, a report of domestic violence by the applicant towards his new partner was made. These and other events reported to the Department led, in June 2009, to the decision against which the applicant now seeks to be reviewed.

4 The decision in question is described by the solicitor for the Director-General at one point in her submissions as a ‘decision of a delegate of the Director-General, Department of Community Services to reduce the time [the applicant] has with his 12-year old grandchild’ and, at another, as a ‘decision to alter the shared care arrangement for [the subject child]’. Those descriptions of the decision are not disputed by the applicant.

5 It is asserted for the Director-General that this is not a decision reviewable by the Tribunal.

6 The question of definition, then, is obviously at the heart of this application by the Director-General to have the application made by the applicant, dismissed for want of jurisdiction.

7 Not all decisions made by the Director-General of the Department of Community Services, or her delegates are reviewable by the Tribunal. The Tribunal’s power to review is confined to ‘reviewable decisions’, that is, those decisions of an administrator, in this case the Director General, that the Tribunal has jurisdiction under an enactment to review (ss 8 and 36(1)(b) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act)). The relevant enactment in this case is the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act). Section 28(1)(a) of that Act provides that a person may apply to the Tribunal for review of a decision made under section 245 of the Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act).

8 Section 245 of the Care and Protection Act provides that various categories of decisions made by the Director-General or her delegates are reviewable.

9 The Director-General’s submission is that the only possible category of decision that may be relevant in this case is a decision under s 245(1)(c), namely ‘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’. I agree with that proposition: no other category listed in s 245 appears applicable to this case.

10 The argument for the Director-General is that no decision has been made to remove from the applicant the responsibility for the daily care and control of the child – he remains in a shared placement with the applicant. What has happened, so the argument goes, is that an alteration has been made to the arrangement under which the responsibility for the daily care and control of the child is shared between two carers. This has had the effect of reducing the time the applicant directly cares for his grandchild on a daily basis but does not remove his responsibility for the child’s care and control.

11 Although the applicant has not directly raised it, an argument could be made that to diminish the time he spends with his grandchild and the amount of direct responsibility he has for his care and control on a daily basis is to partially remove that responsibility and therefore makes the decision reviewable.

12 If that is his position, while it has some attractions, I nevertheless think that it fails. It is one of the first general principles of statutory interpretation that ordinary words should be given their plain and natural meanings. The online Macquarie Dictionary suggests a few relevant definitions of the word ‘remove’: ‘to displace from a position or office’; ‘to take, withdraw, or separate (from)’; ‘to do away with; put an end to’.

13 It cannot be said that the applicant has been ‘displaced’ from his position as a carer for his grandchild, although his role may have been diminished. Nor have his responsibilities as a carer been taken or withdrawn from him, although his access to the child has been reduced. His role as a carer for the child has not been done away with or ended.

14 Whatever the merits of this decision, it is apparent that it is not one that falls within the Tribunal’s jurisdiction to review. For that reason, the application is dismissed.

ORDERS

1. The application lodged by the applicant on 26 June 2009 is dismissed for want of jurisdiction.

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


REGISTRAR