Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AMS and AMT v Department of Family and Community Services [2013] NSWADT 140 Hearing dates: 2 May 2013 Decision date: 02 May 2013 Jurisdiction: Community Services Division Before: P H Molony, Judicial Member Decision: The Tribunal has jurisdiction to review the decision of the Director-General. Catchwords: Children & Young Persons (Care and Protection) -decision not to grant care and control to authorised carers - review - jurisdiction - whether permanency plan embodied or approved in Children's Court order Legislation Cited: Administrative Decisions Tribunal Act 1997 Children & Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 Cases Cited: NV & OA v Department of Community Services [2009] NSWADT 209 PR v Department of Community Services [2009] NSWADT 277 Category: Interlocutory applications Parties: AMS and AMT (Applicants) Director-General, Department of Community Services (Respondent) AQY and AQZ (Joined respondents) R Pollock, (Guardian ad litem) Representation: Counsel : P Braine (Applicant) Mr Harper (Respondent) E Pender (Joined Respondent) McCabes Lawyers (Respondent) Winn Legal (Joined Respondent) File Number(s): 124031 Publication restriction: s.126 Administrative Decisions Tribunal Act 1997 reasons for decision Background 1On 5 October 2011 the Children's Court at Broadmeadow made final orders, under s 79(1)(d) of the Children & Young Persons (Care and Protection) Act 1998, granting the Minister parental responsibility a child. The order made by the Children's Court were - FINAL ORDERS Final order as per Minute of Care Order:- Parental Responsibility Order 1. Pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988, parental responsibility (all aspects) for the child ...is allocated to the Minister for Family and Community Services until the child attains the age of 18 years. 2. S 82 Report to be provided at 11 months form today. 2Following that order the child was placed in the day to day care and control of AQY and AQZ, who are authorised carers. 3AMS and AMT (the applicants), as authorised carers, later applied to the Director-General of the Department of Family and Community Services for the day-to-day care and control of the child. The child's sister, and his half sister (AMS' daughter) live with them. A decision was made not to grant them the day-to-day care and control of the child. 4The applicants then applied to the Tribunal to review an internally reviewed decision of the Department of Family and Community Services (the Agency) not grant AMS and AMT, as authorised carers, the daily care and control of a young boy, who is now 22 months old. Their application was made in reliance on s 245 of the Children & Young Persons (Care and Protection) Act 1998 which relevantly provides - (1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal: (a) ... (c) 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, ... (1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to: (a) the preparation of a permanency plan, or (b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court. 5Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 provides, inter alia, that a person may apply to this Tribunal for review of "a decision that is a reviewable decision under section 245 of the Children and Young Persons (Care and Protection) Act 1998," 6At a directions hearing held on13 December 2012 the Tribunal made procedural directions for the filing of s 58 documents and other evidence. It appointed a guardian ad litem (GAL) to represent the child in these proceedings. Subsequently, on 25 February 2013, the Tribunal made orders with respect to the filing of an experts report prepared for the Agency by Ms O'Neil. 7There is no dispute that Ms O'Neil's expert report contained a recommendation that favoured placing the child in the daily care and control of the applicants. As a consequence, at a directions hearing held on 2 May 2013, the Tribunal made the following order - On or before 22 April 2013 the respondent to advise informally the legal representative of the applicants and the GAL as to whether it accepts the recommendation of Ms O'Neil that the child be placed in the day to day care of the applicants. 8The matter was next listed for directions on 2 May 2013 before me. At that time the Agency had advised AMS and AMT that it accepted Ms O'Neil's recommendation. The Agency had also advised the authorised carers who then had the care and control (AQY and AQZ) of that acceptance. 9AQY and AQZ appeared at the directions hearing on 2 May 2013 and applied to be joined as parties to the review proceedings. Section 67 of the Administrative Decisions Tribunal Act 1997 relevantly provides with respect to reviewable decisions that - (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69-the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings. ,,, (4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 10Neither the Agency nor the GAL opposed their joinder application. The applicants acknowledged that AQY and AQZ had a real and legitimate interest in the welfare of the child, and in the outcome of these proceedings. They opposed the joinder application on discretionary grounds, relating to the age of the child and the need for a placement decision to be made without further delay. 11I determined to join AQY and AQZ as I considered they ought to be joined as parties to the proceeding. While I accept that their joinder would result in the present proceedings being prolonged, had the Agency proceeded to make a placement decision in favour of the applicants, a review of that decision by AQY and AQZ would take longer. It seemed to be both necessary and sensible that they be joined so that they could be heard in this proceeding. 12Having been joined as parties to the proceedings AQY and AQZ then questioned the Tribunal's jurisdiction to hear and determine the review application. They did so on two grounds - * That the orders made by the Children's Court approved or embodied in them a permanency plan prepared by the Director-General, under which the child was placed in the long term care and control of AQY and AQZ, and, as a consequence, s 90 of the Children and Young Persons (Care and Protection) Act 1998 provided that any application to vary that care plan be made to the Children's Court. (A permanency plan is enforceable only to the extent in which it is approved or embodied in those orders: s 83(8)). * That the Tribunal did not have jurisdiction under s 245 of the Children and Young Persons (Care and Protection) Act 1998 to review a decision not to grant the applicants day to day care and control of the child. 13The other parties submitted that the Tribunal does have jurisdiction. 14I found that the Tribunal does have jurisdiction to hear and determine the application for review, but reserved my reasons for reaching that conclusion. These are those reasons. Consideration Is the permanency plan embodied in the Children's Court orders? 15The Tribunal considered this question in a different case, PR v Department of Community Services [2009] NSWADT 277. Higgins JM (as she then was) wrote, AT [17 - 23] 17 The real issue for determination is whether the long term placement of the child with his current carers, as proposed by the respondent in the 3rd amended care plan, has been 'embodied in' or 'approved by' the Children's Court in the order it made (see paragraph 5 above). If the long term placement of the child has been 'embodied in' or 'approved by' the Children's Court in its order, I agree with the contentions of the respondent that the Tribunal has no jurisdiction to hear and determine this application. 18 In my opinion, the expression 'embodied in', as used in ss78(4) and 83(8) of the Children and Young Persons (Care and Protection) Act 1998, connotes the relevant plan having formed part of the order that was made by the Children's Court. That is, it is expressly included in part or whole in the terms of the order. 19 In this application, the first thing to note is that the order of the Children's Court does not make any specific mention of the long term placement of the child. Accordingly, it cannot be said that the placement of the child as proposed by the respondent in its care plan was 'embodied' in the order of the Court. A reason for this may be the fact that the order expressly states that 'all aspects of parental responsibility' were granted to the Minister (see s.81(1)(b) of the Children and Young Persons (Care and Protection) Act 1998). This would include decisions as to the long term placement of the child. An order of this nature would be appropriate as all aspects of parental responsibility for the child was granted to the Minister until the child was 18 years of age. At the time the order was made, the child was only 3 years old. In such circumstances, decisions about the placement of the child on a day to day basis are understandably better left to the Minister, through the respondent, so as to deal with any changes that may arise. 20 On the other hand an order made under s79(1)(a)(ii) of the Act may require the Court to expressly include, or 'embody' in its order, pursuant to s79(2), the specific aspects of parental responsibility that is allocated to each of the persons named in the order. 21 In my opinion, the order of the Children's Court cannot be construed as having 'approved' the proposed placement as set out by the respondent in its 3rd amended care plan. What it has done is to 'note' the contents of that plan. This notation in my opinion is no more than the Court indicating that it had 'considered' the care plan before it made its final order as required under s79(1) of the Children and Young Persons (Care and Protection) Act 1998. 22 Having regard to the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998, I agree with the respondent that a care and placement plan is of primary importance in the Children's Court exercising its discretion to make a care order under s79(1) of the Act. However, there is no requirement for the Court to formally approve it or to 'embody' the provisions in the plan into its order. This does not mean it cannot do so - it is a matter entirely for the Court depending on the circumstances of each individual application for a care order. 23 Accordingly, in my opinion, the order of the Children's Court in regard to the child the subject of this application is not such that it ousts the jurisdiction of the Tribunal to review the decision of the respondent to place the child into the day to day care of his current carers. The decision of the Children's Court may, however, form a basis on which the Tribunal could decline to hear or determine the application under s32 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. However, this is not a matter that has been raised by the respondent or addressed by the applicant for the purpose of this preliminary issue. 16I agree with that reasoning and think it equally applicable in the present circumstances. A reading of the Children's Court order in this case reveals no reference to a permanency plan. Any permanency plan was not embodied in or approved by that order. 17Ms Pender who appeared for AQY and AQZ submitted that the Children's Court must have approved the permanency plan in making the order. I do not accept this proposition for the reasons given by Mrs Higgins in PR. There is no requirement that when making an order of the Children's Court embody or approve the permanency plan in its order. Does the Tribunal have jurisdiction to review a decision not to grant the applicants day to day care and control of the child? 18At the heart of the argument concerning this issue is the wording of s 245(1)(c) of the CCYP(C&P) Act which gives the Tribunal jurisdiction to review "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." 19Ms Pender submitted that the decision under review is not a decision to grant or remove care from an authorised carer, but a decision not to grant care of a child to an authorised carer. 20Mr Braine, who appeared for the applicants, referred me to the decision of Deputy President Britton (as she then was) in NV & OA v Department of Community Services [2009] NSWADT 209. In that case Britton DP found that this Tribunal had jurisdiction to review a decision "not to grant to the applicants the responsibility for the day to day care and control of the subject children." 21As is the situation in the present case, the authorised carers had made an application to the Director-General to have children placed in their care, so that siblings could be united. The Director-General decided not to grant that application. On review the Director-General made submissions questioning the Tribunal's jurisdiction to review that decision. Britton DP found that the Tribunal did have jurisdiction. She explained, at [6-14] - 6 In my view, [the Director-General's] 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. 22That decision has since been followed by the Tribunal in a number of instances. Ms Pender submitted that the decision in NV & OA v Department of Community Services was wrong, arguing that the interpretation adopted by Britton DP was not available in the light of the clear wording of s 245(1)(c) which limited the Tribunal's jurisdiction to decision to grant to, or remove a child from, the care of authorised carers. 23It is clear that in reaching her decision Britton DP took a purposive approach to the interpretation of s 245 as required by s 38 of the Interpretation Act 1988, and reached a conclusion that is consistent with the objects and purposes of the scheme for merits review of decisions under the Community Services (Complaints, Reviews and Monitoring) Act 1993, and of the applicable legislation. She did so having regard to the wording of s 254, and the ambiguity associated with it in the context of the legislative scheme. 24Her decision is one which I think I should follow. Conclusion 25As a consequence I am satisfied that the Tribunal has jurisdiction to review the decision of the Director-General. ********** 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. Decision last updated: 14 June 2013