AAC v Director-General, Department of Human Services, Community Services [2010] NSWADT 319

CITATION: AAC v Director-General, Department of Human Services, Community Services [2010] NSWADT 319

DIVISION: Community Services Division

APPLICANT AAC PARTIES: RESPONDENT Director-General, Department of Human Services, Community Services

FILE NUMBER: 104034

HEARING DATES: 16 December 2010

EXTEMPORE DECISION DATE: 16 December 2010 BEFORE: Higgins S - Deputy President

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998

Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 CASES CITED: Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 Sydney Pistol Club v Commissioner of Police, NSW Police Force [2010] NSWADT 285 Williamson v Director General, Department of Transport [2000] NSWADT 165

APPLICANT In person REPRESENTATION: RESPONDENT D Wells, solicitor

ORDERS: 1.The applicant's stay application is refused. 2.The applicant's application for review is set down for directions/dismissal on 21 February 2011 at 9.30am.

Reasons for decision

1 On 8 December 2010, the applicant, AAC lodged an application seeking review of the decision of the respondent, the Director-General of the Department of Human Services Community Services, to remove a 9 year old child from her day to day care. In addition to this the applicant made an application for the decision of the respondent to be stayed pending the determination of her review application. I heard the applicant's stay application on 16 December 2010 and at the conclusion of the hearing I made an order refusing the application. The applicant has sought, as she is entitled to do, reasons for decisions in regard to the stay application. These are my reasons for decision. 2 The Tribunal's powers to grant a stay are set out in subsection 60(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) in the following terms: '(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 a determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interest of any person who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.' 3 It is well accepted that the purpose of a stay is to 'preserve the status quo' pending the hearing and determination of the application for review where the 'effectiveness' of the review may be 'jeopardized' if the decision, in the meantime, is carried into operation, or is allowed to continue to operate: see Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 at [8] and as followed in Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at [13], Williamson v Director General, Department of Transport [2000] NSWADT 165 at [12], and Sydney Pistol Club v Commissioner of Police, NSW Police Force [2010] NSWADT 285 at [6]-[7]. However, the Tribunal is only able to grant a stay where 'it is appropriate to do so' in the relevant sense, after considering the matters prescribed in paragraphs 60(3)(a) to (c). In child protection matters, such as this application, this would include having regard to the principles set out section 9 of the Children and Young People (Care and Protection) Act 1998. Circumstances of the child's removal 4 On the material before the Tribunal, the child has been in the day to day care of the applicant since she was 3 months old (i.e. since 4 October 2001). At 2 months of age she sustained a non accidental brain injury, which has affected her development. 5 On 6 December 2002, the Children's Court made orders allocating joint parental responsibility of the child, for a period of 5 years, between the Minister and the child's birth mother. The child, however, remained in the day to day care of the applicant. On 13 December 2007, the Children's Court allocated parental responsibility of the child to the applicant, with major medical and contact jointly allocated to the Minister and the applicant until the child attained the age of 18 years. 6 On 9 August 2010, a delegate of the Director-General removed the child from the applicant's premises pursuant to subsection 43(1) of the Children and Young People (Care and Protection) Act 1998 and placed her into the care and protection of the Director-General. The reasons for removal were stated to be that the child had allegedly been exposed to harmful chemicals and lab equipment pertaining to the manufacture of prohibited drugs and drug paraphernalia. These allegations were made following a police raid on the applicant's property, on 6 August 2010, where police found evidence of the manufacturing of prohibited drugs in premises (occupied by the applicant's son) located on the property. 7 The applicant's son was charged and arrested in regard to what had been found by police during their raid and he remains in custody as of today. The applicant has however, not had any charges laid against her. 8 As a result of having removed the child, the Director-General, as she was required to do under section 45 of the Children and Young People (Care and Protection) Act 1998, commenced proceedings before the Children's Court. On 23 August 2010, the Children's Court made an interim order placing the child under the parental responsibility of the Minister, pending further order. 9 It is the understanding of the Tribunal that the Department is seeking an order placing the child under the parental responsibility of the Minister until she reaches 18 years of age. These proceedings are ongoing and the applicant is a party to those proceedings. The applicant's case in regard to her stay application 10 The applicant explained that she has at no time been charged in regard to what was found by police on the day they raided her property. She said that the premises on which her son resided was completely separate to the premises in which she resides with the child. She said she had no knowledge of what had been found by police when they raided her property. Her son lived separately from her and she has never exposed the child to any drugs. She went on to explain that her son was now in custody. 11 The applicant explained that, other than this incident, there has never been any complaint about the manner in which she cared for the child. And as far as she was aware the police have no intention of charging her in regard to what they found in her son's premises. 12 The applicant explained that the child was very traumatised by her removal and was not happy in the care of her current carers, who the applicant believed were not able to meet the child's special needs. Through her regular telephone and other contact with the child since her removal, the child has said on a number of occasions that she wanted to come home. The respondent's case in regard to the stay application 13 Mr Wells for the respondent contended that the Tribunal did not have jurisdiction to hear and determine the applicant's application for a stay or otherwise as (a) the removal of the child was pursuant to paragraph 43(1)(a) of the Children and Young Persons (Care and Protection) Act 1998, and (b) the applicant was not the authorised carer of the child. 14 The removal of the child, Mr Wells explained was pursuant to the power vested in the Director-General to remove a child from immediate risk of harm. An exercise of that power he explained invokes the jurisdiction of the Children's Court and not the Tribunal. 15 Mr Wells also explained that the applicant, although an authorised carer, was not at the time of the child's removal, the child's authorised carer: see paragraph 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998. At the time of the child's removal she was the person who had parental responsibility for the child. 16 In any event, Mr Wells submitted that his instructions were that the child had settled in well with the new carers and as indicated by the applicant there was ongoing contact between the child and the applicant. Consideration 17 Leaving aside the issue of jurisdiction, I formed the view that it was not appropriate to make a stay order on the basis of the material before the Tribunal. In this regard I note that the child has now been in the care of new carers for just over 4 months, the applicant continues to have ongoing contact with the child, and the ongoing care of the child is currently before the Children's Court, in which the applicant is a party. 18 Accordingly, the appropriate order in regard to the applicant's application for a stay is an order refusing the stay application. 19 In regard to the jurisdiction of the Tribunal, I propose to adjourn this issue until the next directions date so that the applicant can obtain some legal advice in regard thereto. Orders 1. The applicant's stay application is refused. 2. The applicant's application for review is set down for directions/dismissal on 21 February 2011 at 9.30am.