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Editors --- "Minister, Community Services v Mrs A (CSD) - Case Summary" [2003] AUIndigLawRpr 3; (2003) 8(1) Australian Indigenous Law Reporter 45

Court and Tribunal Decisions - Australia

Minister, Community Services v Mrs A (CSD)

New South Wales Administrative Decisions Tribunal Appeal Panel (Kelly T, Deputy President; Britton A, Judicial Member; Houlahan L, Member)

29 August 2002

[2002] NSWADTAP 32

Children (Care and Protection) Act (1987) (NSW) — Community Services (Complaints, Reviews and Monitoring) Act (1993) (NSW) — jurisdiction of the Administrative Decisions Tribunal — reviewable decisions — s 13 Children and Young Persons (Care & Protection) Act (1998) (NSW) — legislative objective of reunion of Aboriginal children with their family or Aboriginal community — relevance of carers attitude to child’s Aboriginality to custody decisions

Facts:

On 28 August 1998 a six-month old child, K (of an Indigenous mother and non-Indigenous father) was taken into care by the Department of Community Services and placed in the short term care of Mrs A (non-Indigenous) to enable her father to undertake treatment and pending a court decision. On 6 February 2001 the Minister's delegate determined that K should be placed in the care of Mr and Mrs L (Indigenous) who were presently caring for K’s two siblings. On 12 February 2001 Mrs A lodged an application with the Community Services Division of the Administrative Decisions Tribunal (the ‘Tribunal’) for review of the Minister's decision terminating the applicant's custody of K. On 23 February 2001, the Tribunal, by majority, ordered that the decision to terminate custody be set aside (Jones v Minister, Community Services [2001] NSWADT 192).

The Notice of appeal filed by the Minister relied on four main categories of legal error. First, the Tribunal lacked jurisdiction to review the decision to remove K from Mrs A. Second, the Tribunal exceeded its powers by taking account of, and in effect reviewing, the decision of the Minister to place K with alternate carers. Third, the Tribunal misdirected itself and failed to take account of the legislative prescriptions concerning the reunion of Aboriginal children with their family and/or community contained in s 13 of the Children and Young Persons (Care & Protection) Act (1998) (NSW). And finally, the Tribunal erred by failing to have proper regard to all relevant considerations including Mrs A's purported lack of insight into K’s Aboriginality.

Held, dismissing the appeal:

1. Sub-sections 112(1)(h) of Children (Care and Protection) Act (1987) (NSW) (the ‘1987 Act’) and 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act (1993) (NSW) provide for an appeal against a decision of the Minister to terminate custody of a ward or protected person under s 91(1)(e) of the 1987 Act. These sections specify the decision to place the ward or protected person in custody must have been made under s 91(1)(d) of the 1987 Act. The Minister contended that there was no reviewable decision because K had not been placed in the care of Mrs A pursuant to s 91(1)(d)(i) or (ii) of the 1987 Act because K was not a ward or ‘protected person’ (and therefore under the care of the Minister) under the legislation at the relevant time. However, while K was originally placed in the care of Mrs A by the Director-General, all the relevant circumstances including the lapse of time from October 1998, when the child became a ward pursuant to s 72 of the 1987 Act (and was thus placed under the care of the Minister) and the decision by the Minister’s delegate to terminate the custody in February 2001 as well as the provision of financial support to Mrs A, necessitate the inference that the Minister decided, after assuming responsibility for the child, to adopt the Director-General's placement of K with the applicant as her own. The only distinction was that once K had become a ward, her placement was so the applicant could provide foster care rather than temporary care as were the terms of the original placement: [10]-[12], [24], [34]-[35]. McGlory v Director-General of the Dept. of Community Services (Sup Ct Unreported Brownie J 25 June 1998) distinguished.

2. When reviewing a decision of the Minister to terminate custody, the Tribunal can consider matters that overlap with factors that the Minister might take into account in a decision to place a ward in custody. In this case the Minister decided to terminate custody because the Minister's delegate concluded that it was in K's best interests that she be placed in the care of Mr and Mrs L. The decision to place K in the custody of Mr and Mrs L is thus interrelated with the decision to terminate the custody of Mrs A and therefore must be seen as relevant to a review of that decision. The Tribunal did not stray into reviewing an unreviewable decision in considering these factors: [45], [46].

3. The contention that s 13(6) of the 1987 Act should be construed as providing that, where an Aboriginal child is placed with a non-Aboriginal carer, the ‘fundamental objective’ is the reunion of the child with her family or the Aboriginal community cannot be sustained as the opening words of s 13(6) make it clear that the objective of reunion is ‘subject to the best interests of the child.’ Therefore, in determining that it was in the best interests of K to remain in the care of Mrs A despite the option of placing her with Indigenous carers (primarily because of the strong attachment formed in the three years of care), the Tribunal did not misinterpret s 13 or misapply it to the facts of the case as contended by the Minister: [54]

4. The Tribunal considered the evidence of Mrs. A’s purported negative characterisation of K’s Aboriginality in some detail observing that the evidence was in conflict. It formed the view that the lack of appreciation of K’s Aboriginality could be attributed, in part, to her fear that K would be removed from her care. It considered that statements by staff at K’s pre-school to the effect that Mrs A was supportive of developing K’s Aboriginal identity were evidence of that view. It formed the opinion that once K was securely in Mrs A’s care, there would be no need for her to question K's Aboriginality with the Department thus clearing the way for ‘[Mrs A] to embrace and nurture [K's] cultural identity to the best of her ability’: [96].

5. The Tribunal's conclusion that K's interests would be best served by remaining in the care of Mrs A, in spite of her attitudes towards K's Aboriginality, was a finding open to the Tribunal: [73], [74].