Appeal Panel - Internal CITATION: Department of Human Services v RA [2010] NSWADTAP 23 APPELLANT Department of Human Services FIRST RESPONDENT RA PARTIES: SECOND RESPONDENT RB THIRD RESPONDENT TH FILE NUMBER: 109008 HEARING DATES: 29 March 2010 SUBMISSIONS CLOSED: 29 March 2010 DATE OF DECISION: 12 April 2010 BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Foreman P - Non-Judicial Member CATCHWORDS: APPEAL – jurisdiction – decision to remove from authorised carer responsibility for the daily care and control of a child – Children's Court orders DECISION UNDER APPEAL: RA and RB v Department of Community Services, unreported, 9 December 2009 FILE NUMBER UNDER APPEAL: 094035 DATE OF DECISION UNDER APPEAL: 12/09/2009 Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Community services (Complaints, Reviews and Monitoring) Act 1993 CASES CITED: PR v Department of Community Services [2009] NSWADT 277 Applicant S 1494/2003 v Minister for Immigration and Citizenship 2008 FCA 286; 166 FCR 474 APPELLANT M Allars, counsel REPRESENTATION: FIRST and SECOND RESPONDENT R Lancaster, senior counsel THIRD RESPONDENT S Leis, counsel for independent child's lawyer ORDERS: Leave granted to appeal against interlocutory decision.Appeal dismissed. REASONS FOR DECISION Introduction 1 TH is an 11 month old child. Soon after she was born the Director General of the then Department of Community Services assumed responsibility for her and placed her in the care of a married couple, RA and RB. On 29 September 2009 the Children's Court made a final order with the consent of TH's natural parents, placing TH under the parental responsibility of the Minister until she turns 18: Children and Young Persons (Care and Protection) Act 1998 (Care Act), s 79. The care plan which the Department of Human Services (the Department) presented to the Children's Court proposed, among other things, that TH be placed with her three year old brother J in Queensland if J's carer is approved to care for TH. J's carer was approved. On 2 October 2009 the Department wrote to RA and RB advising them that a decision had been made to move TH permanently to live with J and his carer. 2 On the same day, but before RA and RB had received the Department's letter, RA and RB applied to the Tribunal for a review of the Director General's decision to remove TH from their day-to-day care. The Department submitted that the Tribunal did not have jurisdiction to hear that application. The Tribunal decided that it did have jurisdiction. In its reasons for decision, the Tribunal followed its previous decision in PR v Department of Community Services [2009] NSWADT 277 and found that the Children's Court had not expressly made an order adopting the care plan nor had it embodied or approved the provisions of the care plan in its orders. The Department has appealed against the Tribunal's decision on a question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. Is the Tribunal's decision interlocutory and if so, should leave be granted? 3 If the Tribunal's decision that it has jurisdiction to hear the application is an interlocutory decision, leave is required before an appeal can proceed: ADT Act, s 113(2A). While 'interlocutory decision' is not defined in the ADT Act, s 24A defines 'interlocutory function' to mean the making of any order or other decision by the Tribunal in proceedings with respect to certain matters including 'summary dismissal of proceedings' and 'any other interlocutory issue before the Tribunal'. The question of whether a decision about jurisdiction is an interlocutory decision was discussed in Applicant S 1494/2003 v Minister for Immigration and Citizenship 2008 FCA 286; 166 FCR 474. In the course of that decision, Reeves J raised the question of whether a dismissal on the basis of a lack of jurisdiction is a final or an interlocutory order and noted that the Full Court of the Federal Court had held that such an order is an interlocutory order 'at least where the order does not necessarily finally dispose of the rights of the parties': Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 at [6]. In this case the Tribunal's orders did not finally dispose of the rights of the parties. The Tribunal has not yet carried out a review of the Department's decision. Consequently the decision is an interlocutory decision and leave is required before the appeal can proceed. 4 RA and RB submitted that leave should not be granted because the determination by the Tribunal is not attended by sufficient doubt to warrant the granting of leave to appeal and no substantial injustice would be caused to the Director General if leave is refused. While we agree with those propositions, the jurisdiction question raised by the appeal has not previously been considered by the Appeal Panel and it is a question of sufficient significance to justify the granting of leave notwithstanding the other factors which militate against leave being granted. Tribunal's jurisdiction 5 The Tribunal has jurisdiction to review a decision of 'a relevant decision maker' 'to grant to or remove from an authorised carer the responsibility for the daily care and control of the child': Care Act, s 245(1)(c) and Community services (Complaints, Reviews and Monitoring) Act 1993, s 28(1)(a). A relevant decision maker means 'the person authorised by the Care Act to make the decision, not being the Children's Court': Care Act, s 245(2). Issues 6 The Department's appeal relies on the Appeal Panel accepting at least one of the following three propositions: a) that on 29 September 2009 the Children's Court made an order in the terms of the care plan; b) that on 29 September 2009 the Children's Court made an order which embodied or approved the provisions of the care plan; c) that on 2 October, when RA and RB filed their application for review with the Tribunal, the Director General had not made a decision to remove TH from their daily care and control. 7 Either of the first two propositions, if proved, would mean that the Children's Court, rather than the Director General of the Department, has made the decision. Because a decision of the Children's Court is not reviewable by the Tribunal, it follows that the Tribunal would not have jurisdiction: Care Act, s 245(2). If the third proposition were proved, then RA and RB would have applied to the Tribunal for a review of a decision which had not been made. If that were the case, the Tribunal would not have jurisdiction. 1st proposition: the Children's Court made an order in the terms of the care plan 8 The Department submitted that during the Children's Court hearing when Magistrate Reimer said that he would make orders 'in terms of that care order' he intended to refer to the care plan. Alternatively, the words 'care order' is an incorrect transcription of the words 'care plan'. While the context in which the words were spoken is not particularly illuminating we set it out below: MULHERIN: Your Honour I seek (not transcribable) to the court, a minute of care order which is that the long term order as proposed in the Department's care plan, be made. BENNETT: . . . I've had some difficulty reaching my client as has Mr Bell, I'm instructed by Mr Mulherin however that they've signed the care plan. HIS HONOUR: I believe they have. BENNETT: Yes that's correct, I can see that they have signed your Honour. HIS HONOUR: All right. I make orders in terms of that care order. (Transcript at p 8 line 22 and following.) 9 Having read the entire transcript, in our view there was no 'incorrect transcription' nor did Magistrate Reimer intend to refer to the care plan, rather than the care order. That conclusion is supported by the fact that both the application for the care order and the order itself were in terms of s 79(b) of the Care Act, placing the child under the parental responsibility of the Minister. The reference by the Magistrate to 'that care order' was a reference to the order that the Department requested be made pursuant to s 79(b). The order itself states that: Pursuant to s 79(1)(b) of the Children and Young Person's (Care and Protection) Act 1998 parental responsibility in relation to [TH] is allocated to the NSW Minister of Community Services until the child attains eighteen (18) years of age. 10 There is no reference to the care plan in that order. For the reasons given we do not accept the Department's submission that the transcript contains an error or that Magistrate Reimer intended to refer to the care plan. The Department has not made out the first proposition. 2nd proposition: the Children's Court embodied or approved the provisions of the care plan in its order 11 Before making a final order allocating parental responsibility to the Minister, the Children's Court must consider the care plan: Care Act, s 80. A care plan must make provision for 'the kind of placement proposed to be sought for the child including how it relates to permanency planning': Care Act, 78(2)(b)(i). Permanency planning is 'the making of a plan that aims to provide a child . . . with a stable placement that offers long term security': Care Act, 78A(1). The Court 'must not make a final care order unless it expressly finds that permanency planning for the child . . . has been appropriately and adequately addressed': Care Act, s 83(7)(a). The care plan, including any permanency plan, is 'only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children's Court': Care Act, s 78(4) and s 83(8). 12 The Department's submission was that the 'decision' to remove TH from the care of RA and RB and place her in the care of J's carer was a provision of the care plan which had been 'embodied in or approved by' orders of the Children's Court. That was the case, it was said, either because the Children's Court conveyed that intention in the transcript or because a finding that 'permanency planning' for the child has been 'appropriately and adequately addressed' is equivalent to an order of the Court. We do not accept these submissions for several reasons. 13 The transcript does not record that the Children's Court made an express finding that the permanency planning for TH had been appropriately and adequately addressed. Even if it had, the Court's orders did not embody or approve either that finding or any of the provisions of the care plan. The order was made in terms of s 79(1)(b) placing TH under the parental responsibility of the Minister. Furthermore, the transcript of the proceedings before the Children's Court reveals that embodiment or approval of the provisions of the care plan in the Court's orders was never requested or discussed. Because TH's natural parents had consented to the order, the only issue in contention before the Children's Court was an application by RA and RB to be joined as parties to the proceedings. When addressing the Court in relation to that application, the Department's representative said: And I would suggest that the foster carers have an avenue available to them, if they disagree with where the child is to be placed, that's not an issue for the court anyway in terms of the final order that would be sought. But if they have a disagreement with where the Department wishes to place the child, the avenue is the Administrative Decisions Tribunal, which is still open to them and where they can still make the application. (Emphasis added.) 14 While this statement does not confer jurisdiction on the Tribunal if it does not have jurisdiction, it is material because it discloses that the Department's understanding of the issue before the Children's Court was not where TH should reside but whether RA and RB should be joined as parties. Magistrate Reimer refused the joinder application on the ground that any further delay would not be in the interests of TH: HIS HONOUR. . .this child has only been there for five months or so and there is this opportunity which is fully endorsed and supported on the evidence here, that the child should join with a sibling in a very suitable – apparently very suitable household placement – and in all those circumstances if there is going to be a big delay, this is going to be contrary to the interests of the child and the interests of the child has to be paramount to every other consideration. And accordingly, the application to join is refused. (Transcript p 8, lines 15-20.) 15 The care order was made by consent. It did not embody or approve any provision of the care plan including the permanency plan. The only contentious issue raised in the Children's Court hearing was an application for joinder. That application was refused. The Department has not made out the second proposition. 3rd proposition: when RA and RB filed their application the Director General had not made a decision to remove TH from their daily care and control of TH 16 The Department's third proposition was that when RA and RB applied to the Tribunal, the Director General of the Department had not made a decision to remove TH from their daily care and control. The highest it can be put, according to the Department, was that RA and RB sought a review of the Department's conduct in preparing a care plan and that conduct is not a reviewable decision. On 17 September 2009, about 2 weeks before the Children's Court hearing, the Department wrote to RA and RB. That letter said, in part, '... as discussed, it has been assessed that [TH] is in need of care .. . [her] care plan is directed by this Department's Policy which states that siblings need to be placed together in care. . . If the assessment of [J's] foster carers from the Department of Child Safety Queensland is positive, we will discuss a transition plan with you.' The letter concludes with the following words: We acknowledge and thank you for your good care of [TH]. We understand this process has been difficult for you and thank for continuing to work with us. 17 In their application to the Tribunal RA and RB referred to the letter of 17 September as being 'the decision' about which they were seeking review. During the course of the hearing in the Children's Court on 29 September, the Department's representative told Magistrate Reimer that they had obtained an assessment of J's placement in Queensland which suggests that 'everything in the current placement with [J] is fine and that's where this child should go because she would be with her brother'. (Transcript, p 5, line 20.) Following the making of the Children's Court orders, the Department wrote to RA and RB on 2 October 2009 confirming what they already knew, that is that a decision had been made to remove TH from their day to day care. That letter is headed 'Decision to remove [TH] to live with her sibling, [J] and states, in part: In line with various discussions we have had with you over several months, we wish to advise you of the above decision and the following reasons for the decision . . . 18 In the letter the Department acknowledged that they had been advised that RA and RB had filed an application with the Tribunal and agreed to temporarily suspend the plan to move TH to J's carer. 19 We do not accept the Department's submission that the only potentially reviewable decision impliedly communicated in the 17 September letter is that the Director General engaged in the conduct of making a care plan. The 17 September letter is evidence of a decision of the Department to remove TH from the care of RA and RB provided that the assessment of J's foster carers is positive. By the time the Children's Court made its order on 29 September, a positive assessment had been received. As of that date, there was no barrier to the Department implementing its decision to remove TH. When RA and RB lodged their application with the Tribunal the Director General had made a decision to remove TH from their daily care and control. That conclusion is unequivocally supported by the content of the 2 October letter. It is not fatal to their application that RA and RB had not received that letter at the time of making the application or that they relied only on the content of the 17 September letter when identifying the decision. The Department has not made out the third proposition. Conclusion 20 The Department has not established any of the three propositions on which it relied to submit that the Tribunal has no jurisdiction. We are satisfied that the Tribunal has jurisdiction to review the Director General's decision to remove from RA and RB the responsibility for the daily care and control of TH. The Department's 2 October 2009 letter acknowledged that RA and RB had applied for an internal review of the Department's decision. Despite making that application, it does not appear that an internal review was completed within the 21 days allowed. If that is the case the review is taken to have been finalised and there is no bar to the Tribunal hearing the application even though no internal review has been conducted: ADT Act, 55(1)(b). Costs 21 If RA and RB and/or TH wish to apply for costs, that application should be filed and served within 21 days of the date of these reasons. Any reply should be filed and served within a further 21 days. The issue will be determined 'on the papers' pursuant to s 76 of the ADT Act. Order The appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.