IJP & ICR v Department of Communities, Child Safety and Disability Services - [2013] QCAT 531

CITATION:

IJP & ICR v Department of Communities, Child Safety and Disability Services [2013] QCAT 531

PARTIES:	IJP & ICR (Applicants)
v
Department of Communities, Child Safety and Disability Services (Respondent)

APPLICATION NUMBER:

CML011-12, CML028-12, CML026-13

MATTER TYPE:

Childrens matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

27 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The applications for review are dismissed.

CATCHWORDS:

CHILD PROTECTION – where reviews sought of decisions about children in care – where outcome sought no longer able to be achieved – where applications not progressed – where early end to proceedings appropriate

Queensland Civil and Administrative Tribunal Act 2009 s 47

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

IJP & ICR are the grandparents of four children who are in the care of the Executive Director of the Department of Communities, Child Safety and Disability Services. Two of the grandchildren in care, J and P, were living with IJP & ICR until the children were removed by the Department in August 2011 and placed into respite care while an investigation took place into alleged breaches of the standards of care by IJP & ICR. A decision was made by the Department on 16 September 2011 to remove J and P from the care of IJP & ICR.
An application (CML011-12) was filed in QCAT by IJP & ICR seeking a review of the decision to remove the children. The application was filed more than 28 days after receipt by IJP & ICR of the letter containing the removal decision so an application seeking an extension of time in which to commence the review was filed with QCAT. No formal decision was issued extending time but as the tribunal conducted directions hearings and a compulsory conference about the review application, time had been in fact extended to allow the review to proceed.
The outcome being sought in the review was the return of J and P to the care of IJP & ICR. As long as IJP & ICR were approved kinship carers, that outcome was a possible outcome of the review. However on 8 December 2011 their carer approval was cancelled by the Department. No application was brought by IJP & ICR to review the decision to cancel their approval. In any event, the carer approval would have expired on 2 March 2012 if not previously cancelled.
At a directions hearing held on 16 May 2012 IJP & ICR were told that until they were approved carers, the outcome sought in their review application could not be provided to them. Subsequently IJP & ICR applied to the Department seeking approval as carers and in December 2012 their application for approval as carers was refused.
IJP & ICR have not sought to review the decision made in December 2012 to refuse their carer approval application.
The Department has sought dismissal of the application to review the removal decision made on 16 September 2011. IJP & ICR were provided with a copy of the submissions filed by the Department in support of the dismissal request. They have not responded.
QCAT can in a review deliver several outcomes: can confirm or amend the decision, can set the decision aside and substitute its own decision or can set aside the decision and return the matter for reconsideration to the original decision maker. QCAT must apply the law in accordance with Child Protection Act 1999 and has all the functions of the decision maker when conducting the review. That being the case, even if QCAT were to be satisfied that the decision to remove J and P from the care of IJP & ICR should be set aside, the children could not be returned to their care unless IJP & ICR had a current carer approval authority.[1]
[1] Child Protection Act 1999 s 82.
As the outcome sought by IJP & ICR could not be achieved, the review application has lacked substance since December 2011. The tribunal kept the review application on foot to allow IJP & ICR an opportunity to regain their carer approval but they have not been able to gain that approval. The request made by the Department to dismiss the review application must be considered.
Section 47 of the QCAT Act 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. As the review application lacks substance, it is appropriate to bring an early end to the application.
IJP & ICR have been informed during three directions hearings and a compulsory conference of the barriers in the path of a successful outcome to the application to review the removal decision and they have had an adequate opportunity to consider their options. They have failed to put forward any opposition to the request made to dismiss this review. I can find no grounds on which to keep the review on foot. The application for review in CML011-12 is dismissed.
IJP & ICR had filed a second application for review on 16 February 2012 (CML028-12). Confusingly this application sought a review of the removal decision that was already the subject of application CML011-12. Following discussions at one of the directions hearings attended by IJP & ICR, this second application was taken to seek a review of a decision made on 22 September 2011 that restricted their contact with two other grandchildren in care. A formal extension of time was granted for the commencement of a review of that decision.
A compulsory conference took place in CML028-12 but the parties were unable to resolve their differences and the application was set for a directions hearing. No orders were made at the directions hearing on 18 February 2013 as IJP & ICR had told the tribunal that they intended to file an application seeking a review of the decision to refuse them a carer’s authority. It was appropriate to wait until that application was on foot before directions were made towards having all the matters set for hearing.
On 4 March 2013 the tribunal registry was informed that IJP & ICR wanted their applications put “on hold” while they discussed the issues in those applications with the Department. On 16 May 2013 the tribunal registry wrote to IJP & ICR asking them to inform the tribunal within three weeks whether they wanted to proceed with their applications. No response was received from IJP & ICR.
The Department has requested that the review application CML028-12 is dismissed together with the other applications filed by IJP & ICR. A copy of the departmental submissions in support of the dismissal request was sent to IJP & ICR and no response to the dismissal request has been received from them. The Department submits that IJP & ICR have failed to comply with their statutory requirement to act quickly in any dealing relevant to a proceeding. I agree with that submission.
Despite what was said at the directions hearing on 18 February 2013, IJP & ICR did not file an application seeking to review the decision to refuse their carer’s authority application as a pre-condition to proceeding further with the other review applications. Instead they asked the tribunal to take no further steps in the matters then pending before the tribunal and did not respond to an enquiry about progressing their matters made by the registry in May 2013. IJP & ICR have not taken any active steps to proceed with review application CML028-12 since February 2013 and they have failed to put forward any challenge to the request for dismissal.
The Department submits that the failure of IJP & ICR to progress the applications amounts to an abuse of process. I agree with this submission. It is a reasonable inference to draw that IJP & ICR have lost interest in proceeding further with the review application in CML028-12 as they wanted the application put on hold and then failed to respond to an enquiry about progressing that application. They have an obligation to act quickly and they have demonstrated a failure to do so.
It is appropriate that the review application in CML028-12 is brought to an end under section 47 of the QCAT Act as IJP & ICR have made no recent efforts to proceed with that application. It is an abuse of process in those circumstances to leave the application unresolved with some sense of uncertainty over the contact arrangements for the children. The application in CML028-12 is dismissed.
The third application for review filed by IJP & ICR (CML026-13) is about a decision made on an unknown date to refuse IJP & ICR contact with certain of their grandchildren. The application suggests that the decision to be reviewed was made in about August 2011. An officer from the tribunal registry informed IJP on 4 March 2013 that an application for an extension of time would be required before this latest review could proceed. No application for an extension of time has been filed.
An application to review a decision must be made within 28 days after the applicant is notified of the decision. It is clear from the application filed by IJP & ICR that they had been notified of the decision that they want to review well before the start of 2013. They are well out of time to commence a review of a decision made in 2011. It is not clear whether the decision is the same decision as the decision under review in CML028-12 or a separate decision. In any event, IJP & ICR were told that they would need an extension of time to commence a valid review and they have failed to seek that extension.
They have been provided with a copy of the submissions made by the Department supporting a request to dismiss that third review application and they have put forward no response to that request. In view of the unexplained delay in filing an application to review a decision about contact made in 2011, the tribunal is not prepared to allow the application for review in CML026-13 to proceed. It is misconceived and is an abuse of process to bring a review application 18 months after the relevant decision is made and then to fail to seek formal approval from the tribunal to enable the review to proceed. This review application must be dismissed under section 47 of the QCAT Act.