DLK v Department of Communities (Child Safety Services)

[2011] QCAT 144

CITATION: DLK v Department of Communities (Child Safety Services) [2011[ QCAT 144

PARTIES:	DLK
v
Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CML200-10

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 21 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Application for review is dismissed.

CATCHWORDS: 

CHILD PROTECTION – review sought of decision about children in care – not a reviewable decision – early end to proceedings

Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in accordance with section 32(2) of the Civil and Administrative Tribunal Act 2009. 

REASONS FOR DECISION

1. On 6 December 2010 DLK lodged an application with the tribunal seeking a review of a decision made by the Department of Communities (Child Safety Services) to relocate her children out of Queensland. 

2. The children are in the long term care of the Chief Executive of the Department and in August 2005 they were placed with an approved foster carer.  That carer intends to move to New South Wales and DLK was informed of the proposed relocation of her children and was sent a letter dated 16 December 2011 informing her that the Department had placed conditions around contact with her children.  

3. The Department has applied to the tribunal to dismiss the review application on the grounds that the decision sought to be reviewed is not reviewable under the Child Protection Act 1999.It is submitted by the Department that the decision about in whose care the children are placed was made in 2005 and no subsequent decision on that issue has been made.  The action taken by the Department to permit the foster carer and children to relocate to New South Wales is not a new decision about in whose care the children are placed.  It was submitted by the Department that the tribunal has no jurisdiction to review where the children move to when they remain in the care of their foster carer.

4. On 10 February 2011 the Department made a new contact decision which places conditions on the contact that DLK has with her children.  That decision can be reviewed by DLK.

5. On 23 March 2011 the tribunal sent a letter to DLK informing her that the Department had applied for the review application to be dismissed on the grounds that the tribunal lacked jurisdiction to review the circumstances of the relocation of the children to New South Wales.  DLK was asked to respond to the dismissal application within 14 days.

6. On 20 April 2011 the tribunal received a letter from DLK in which she requested more time to respond to the dismissal application.  She stated that she had moved house since she first lodged the review application and she had difficulty completing paperwork about the dismissal application.  She stated that she was gathering some support letters and documents from the past few years.

7. A staff member from the tribunal registry spoke with DLK on 21 April 2011.  The staff member sought to clarify some issues about the review application.  DLK told the staff member that by bringing the review application she wanted to stop her children from moving to New South Wales.  DLK was informed that she could lodge a review application about the contact decision made by the Department if she so wished.  

8. The tribunal is not prepared to allow DLK any more time to respond to the dismissal application.  She has had almost four weeks to respond to that application and she has provided some material which supports the changes made in her life over the past year.  None of this material however responds to the dismissal application.  The tribunal does not consider that it is reasonable to provide any further time for DLK’s response.  

9. Under section 247 of the Child Protection Act 1999 a person aggrieved by a reviewable decision may apply to the tribunal to have the decision reviewed. Schedule 2 of the Act sets out the categories of decisions that specified persons can seek to review about children in the care of the Chief Executive of the Department. Of relevance to this matter, a parent of a child can seek a review of a placement decision after the Department has decided in whose care to place a child.

[10]  Decisions made by the Department about children in care that are not set out in Schedule 2 of the Act are not reviewable.  The tribunal only has power to review decisions that are reviewable decisions made under the Child Protection Act 1999.The tribunal does not have a general power to review all decisions made by the Department about children in care. 

[11]  The tribunal finds that the actions of the Department in permitting the children to relocate to New South Wales are not actions that can be reviewed by the tribunal.  There is no reviewable decision involved in this case.  The Department is responsible for ensuring that arrangements are made about children in its care where the safety, wellbeing and best interests of the children are paramount. 

[12]  It is not the role of this tribunal to oversee the actions of the Department in relation to every decision that is made.  The statutory system in the Child Protection Act 1999 has restricted the role of the tribunal to specified decisions only. Review applications that seek the tribunal to review decisions outside its powers are misconceived and have no substance.

[13] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.

[14] The tribunal has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick. For the reasons set out in paragraphs 9 to 12, this review application is lacking in substance as there is no reviewable decision made by the Department. To continue with the review would be an abuse of process. It is appropriate to bring an early end to the review application under section 47.

[15] The review application must be dismissed in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009.

[16]  DLK can of course lodge a fresh application about the contact decision made by the Department if she chooses to do so.