Im v Department of Communities (Child Safety Services)

[2012] QCAT 101

CITATION: IM v Department of Communities (Child Safety Services) [2012] QCAT 101

PARTIES:	IM (Applicant)
v
Department of Communities (Child Safety Services) (Respondent)

APPLICATION NUMBER: CML230-11

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 8 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application for review of a decision made on 11 November 2011 is dismissed.

CATCHWORDS:

CHILD PROTECTION – where review sought by parent of child in care of contact arrangements – where existing review of contact addresses same issue – where QCAT has no jurisdiction to decide issues about schooling and custody – where review is an abuse of process or where misconceived and lacking in substance – where early end to proceedings warranted

Child Protection Act 2009, schedule 2
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

1. FB is 17 years of age and is in the long term guardianship of the Chief Executive Officer, Department of Communities (Child Safety Services) until he turns 18 years of age.  A decision was made prior to July 2011 that contact between FB’s father, IM, and FB was to be supervised by departmental staff. 

2. IM had sought a review of a decision made by the Department to place conditions around his supervised contact with FB and that review is currently before QCAT in application CML156-11 in which QCAT will decide what contact arrangements should be in place for FB and his family. 

3. On 11 November 2011 IM sent an email to the Department which included the following passage: “It would also be in the best interests of FB to have some unsupervised time with his lifelong bonded family, without the severe restrictive practices your department are using against FB regarding contacts and lack of family contact.”   

4. A Departmental staff member sent back an email to IM on 11 November 2012 as follows: “FB’s contact will continue to be supervised while he is subject to a Child Protection Order.”      

5. IM has sought a review of what he states was a decision made on 11 November 2011 to not allow FB to have unsupervised contact with his parents and siblings.  It is not clear from the documents given to QCAT whether any decision was in fact made about contact on 11 November 2011 as all the Department appears to have done on that day was to communicate the status quo about contact to IM.  However, because of the matters discussed below, it does not become necessary to determine whether a reviewable decision was made on 11 November 2011.

6. The Department made submissions on 3 February 2012 that the conditions around contact between FB and his family are already the subject of a review application at QCAT in application CML156-11.  After a compulsory conference in September 2011 in the review application CML156-11 contact with FB continued to occur within the family home but contact was on a supervised basis until QCAT made a decision in the review.

7. The review application CML156-11 is scheduled to be heard in QCAT on 29 March 2012.  The issue to be determined at that hearing is what contact arrangements will be in the best interests of the child, including whether contact should be supervised or not.  That is the same issue that IM is seeking to have reviewed in CML230-11.  There is no benefit to either FB or to IM to have two review applications about contact in existence at the same time when the issues about contact to be addressed in CML156-11 are the same issues about contact to be addressed in CML230-11.  It is unnecessary and an abuse of process to have the same issues considered by QCAT in multiple applications. 

8. IM also seeks an order from QCAT that FB is allowed to attend a specified school outside Queensland.  IM also seeks an order that FB should be returned to the custody of his parents.  The Department has submitted that QCAT has no jurisdiction to consider these issues.  That submission has merit.

9. QCAT’s jurisdiction to review decisions made by the Department in child protection matters is set out in schedule 2 of the Child Protection Act 1999. The jurisdiction is limited to the reviewable decisions specified in that schedule.  The schedule does not include as a reviewable decision by QCAT any decision about the school attended by a child in care.  An application to review a decision about the school attended by a child in care is outside the jurisdiction of QCAT.

10. IM stated on 23 January 2012 that the review application is also an application for custody of FB.  The Child Protection Act 1999 has not given any jurisdiction to QCAT to decide the custody of children. 

11. QCAT has jurisdiction to review a decision made by the Department under section 86(2) of the Child Protection Act 1999 about in whose care a child is placed when the child in question is already in the custody or guardianship of the Chief Executive of the Department under a child protection order.  IM did not identify any specific decision about the placement of FB that he was seeking to review.  To the contrary, IM sought to review the decision which took FB out of the custody of his family.  That decision was made by the Children’s Court and is not reviewable by QCAT. 

12. It is not the role of this tribunal to oversee the actions of the Department in relation to every decision that the Department makes about children in its care.  The statutory system in the Child Protection Act 1999 has limited the role of the tribunal to certain 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 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 is misconceived or is lacking in substance or is otherwise an abuse of process. I am satisfied for the reasons set out in the preceding paragraphs that the review application brought by IM in this proceeding is misconceived, is lacking in substance and is 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.  To continue to hearing with a review of contact when this issue is already before the tribunal in another application would not be fair to the parties who would have to duplicate, for no tangible benefit, the preparation of their cases.  It would also not be an economical use of the resources of the tribunal. 

15. To continue with the review application on issues about the custody of FB and about what schooling he has, in circumstances where QCAT has no jurisdiction, would be an abuse of process. It is appropriate to bring an early end to the entire review application under section 47.

16. The review application is dismissed in accordance with section 47 of the QCAT Act.