K (No. 2) -v- Minister for Community Services [2000] NSWADT 101

CITATION: K (No. 2) -v- Minister for Community Services [2000] NSWADT 101 DIVISION: Community Services Division APPLICANT K PARTIES: RESPONDENT Minister for Community Services FILE NUMBER: 004003 HEARING DATES: 21 July 2000 SUBMISSIONS CLOSED: 07/21/2000 DATE OF DECISION: 07/31/2000

BEFORE: Hennessy N (Deputy President); Gelin B - Judicial Member; Monoghan-Nagle L - Member APPLICATION: Guardianship - refusal to terminate guardianship of a ward MATTER FOR DECISION: Reusal to terminate guardianship of a ward LEGISLATION CITED : Children (Care and Protection) Act 1987 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Smith, solicitor ORDERS: The decision made by the delegate of the Minister for Community Services under s 112(1)(e) of the Children (Care and Protection) Act 1987, to refuse to terminate the Minister's guardianship of F K, is affirmed.

History of application 1 This is the second application to this Tribunal by Mr K for review of a decision by the Minister for Community Services not to terminate the guardianship of F, Mr K's 11 year old daughter. K first applied to the Community Services Appeals Tribunal (which subsequently became a Division of the Administrative Decisions Tribunal) on 3 September 1998. That application was heard on 31 March 1999. The Tribunal's decision was to affirm the Minister's decision. This meant that F remained a ward and was not returned to her father's care. The reasons for this decision were handed down on 28 April 1999. The current application concerns a second decision by the Minister, made on 11 February 2000, not to terminate the guardianship of F. Powers of the Tribunal 2 There was no dispute about the power of the Tribunal to hear and determine this application. Those powers are derived from s 40(1)of the Community Services (Complaints, Reviews and Monitoring) Act 1993, s 112(h) of the Children (Care and Protection) Act 1987 and s 8 of the Administrative Decisions Tribunal Act 1997 (ADT Act). 3 The process for reviewing decisions and the Tribunal's powers are set out in Chapter 5, Part 3 of the ADT Act. The Tribunal has to consider all the material available to it and determine what the correct and preferable decision is. This process is often described as the Tribunal "standing in the shoes of the decision maker." After hearing an appeal the Tribunal may: affirm the decision; vary the decision; or set aside the decision (ADT Act s 63(3)). 4 One aspect of this case deserves comment before proceeding with the substantive issues. Ms Hartwell, Senior District Officer, and Ms Daniel, Assistant Manager of the Central Coast Substitute Care Team, wrote to Mr K on 11 February 2000. That letter was in response to a request by Mr K that F be returned to his care. The letter said that they were "unable to accede to your request to care for your daughter." The letter went on to say that: As you are aware, the reasons for this were outlined at the Community Services Appeals Tribunal last year. It was felt that you are unable to respond to F's emotional needs; she is a complex child and needs a great deal of understanding and patience. Because of these high needs there are concerns about your ability to provide adequate parenting to F. It was felt that your method of discipline, as documented in Departmental records, could place F at risk of further abuse. 5 Under s 48 of the ADT Act, an administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice in writing of the decision and the right of the person to have the decision reviewed. In this case, while the Departmental officers gave Mr K notice in writing of the decision, they did not advise him of his right to have the decision reviewed. Although any contravention of s 48 does not affect the validity of the decision, it is obviously desirable for officers of the Department of Community Services to conform to the requirement set down in the legislation. Because the officers in this case did not advise Mr K of his right to have the decision reviewed, an internal review of the decision, pursuant to s 53 of the ADT Act, was never requested or provided. 6 We can only review a decision if an internal review is taken to have been finalised (s 55(1)(b)) unless we are satisfied that it is necessary to deal with the application in order to protect the interests of the applicant and the application was made within a reasonable time following the decision of the administrator. In this case we are satisfied that we should proceed to hear this matter, as provided in s 55(2)(c), despite the absence of an internal review.