KS v Department of Communities (Child Safety Services)
[2010] QCAT 415
•27 August 2010
CITATION:
PARTIES:
APPLICATION NUMBER: MATTER TYPE:HEARING DATE: HEARD AT: DECISION OF:DELIVERED ON:DELIVERED AT:ORDERS MADE:
CATCHWORDS :
KS v Department of Communities (Child Safety
Services) [2010] QCAT 415 KS v Department of Communities (Child Safety Services)
CML027-10 Childrens matters 27 August 2010 Brisbane C Endicott senior member 27 August 2010 Brisbane Application for review dismissed
CHILD PROTECTION – Child Protection Act 1999 – schedule 2 reviewable decisions –early end to proceedings – section 47 of Queensland Civil and Administrative Tribunal Act 2009 -no substance to proceeding
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 12 February 2010 KS filed an application to review a decision of the Department of Communities (Child Safety Services) (the department) about four children who had been in her care as a foster carer.
KS described the decision she sought to review as a decision that the children were in danger of emotional and physical harm. She sought a review so that she had an opportunity to clear her name and expose the neglect of the Redcliffe office of the department. She stated that the decision had been made in October 2009.
Attached to the application to review form was a copy of a letter of the department dated 30 July 2009 which set out the outcome of an investigation into a notification of concern about the children in her care. The letter stated that the matter of concern had been substantiated.
Also attached to the application to review form was a copy of a letter from the department dated 15 October 2009 informing KS of a decision to remove the children from her care. KS was informed in that letter that she had the right to seek a review of that decision and that an application for review had to be lodged with the then Children Services Tribunal within 28 days of the receipt of the letter containing the decision to remove the children from her care.
An application seeking to review the decision to remove the children from KS’s care was not filed in the Children Services Tribunal before 30 November 2009.
From 1 December 2009 the Queensland Civil and Administrative Tribunal (QCAT) has replaced the Children Services Tribunal as a result of the Children Services Tribunal being abolished by the Queensland Civil and Administrative Tribunal Act 2009.
On 22 February 2010 a case manager from QCAT wrote a letter to KS informing her that the decision to substantiate a matter of concern was not one of the reviewable decisions set out in schedule 2 of the Child Protection Act 1999.
In that letter the case manager also informed KS that if she had intended to seek review of the decision of the department to remove the children from her care, she had lodged her application out of time and she needed the permission of QCAT to extend time. The letter enclosed an application form KS could complete to seek an extension of time.
No response was received from KS to the letter dated 22 February 2010.
10.On 11 May 2010 the case manager from QCAT wrote a letter to KS providing her with an opportunity to address the matters raised in the earlier letter from QCAT by 28 May 2010. KS was informed that should no response be received, the matter would be referred to the Tribunal for determination.
11.No response was received from KS to the letter dated 11 May 2010.
12.Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives QCAT 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.
13.The application filed by KS primarily appears to seek a review of the decision made by the department to find that the matters of concern raised against her had been substantiated.
14.Section 247 of the Child Protection Act 1991 provides that if KS is aggrieved by a reviewable decision of the department, she has the right to apply to have the decision reviewed. Definitions of aggrieved person and reviewable decisions are set out in schedule 2 to that Act.
15.The reviewable decisions set out in schedule 2 of that Act do not include decisions made by the department to find that matters of concern have been substantiated. On that basis, the decision made on 30 July 2009 to find that the matters of concern raised against KS were substantiated was not able to be reviewed either by the Children Services Tribunal or since 1 December 2009 by QCAT.
16.An application lodged about that decision has no substance and is misconceived and should be dismissed under section 47 of the
Queensland Civil and Administrative Tribunal Act 2009.
17.A decision to remove children from a foster carer is a reviewable decision and an application for review had to be lodged within 28 days of receipt of the decision by the aggrieved person.1
18.In the event that KS was intending to seek a review of the decision of the department of 15 October 2009 to remove the children from her care, her application on that basis appears to have been lodged more than 28 days after receipt of that decision by her although there is a statement in her application that the decision sought to be reviewed was received by her in January 2010.
19.No explanation is contained in her application to explain the incongruity of the date on the letter (15 October 2009) with the alleged date of receipt (January 2010), The letter of 15 October 2009 was addressed to the same residential address in which KS still resided by the time she lodged her application with QCAT. In the absence of any explanation from KS, the Tribunal considers that it is entitled to reach a presumption that KS received the department’s letter in the normal course of the post in October 2009.
20.As the application for review has been lodged out of time, and no request has been made for an extension of time by KS, QCAT (which has assumed the jurisdiction of the former Children Services Tribunal) has no jurisdiction to consider a review of the decision of 15 October 2009.
21.There is accordingly no substance to the application by KS if she seeks to review the decision to remove the children from her care and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application should be dismissed.
1 Section 58(3)(a) of the Children Services Tribunal Act 2000 (since repealed) and now section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009
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