ML & VF v Department of Communities (Child Safety Services)
[2010] QCAT 658
•17 December 2010
| CITATION: | ML & VF v Department of Communities (Child Safety Services) [2010] QCAT 658 |
| PARTIES: | ML & VF |
| v | |
| Department of Communities (Child Safety Services) |
| APPLICATION NUMBER: | CML110-10 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 17 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 17 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Extension of time to commence application to review a decision to cancel foster carer authority is refused. Application to review decision to remove children from the applicants’ care is dismissed |
| CATCHWORDS : | CHILD PROTECTION – where children removed from foster carers – where foster carers’ authority subsequently cancelled – where foster carers had not sought to review cancellation within time- where carers sought to extend time to commence review under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 – where application to review removal of children lacked substance - early end to proceedings under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 11 June 2010 the Department of Communities (Child Safety Services) sent a letter to ML and VF informing them of a decision made by the department to remove A and J from the care of ML and VF. On 30 June 2010 ML and VF commenced an application in the tribunal seeking a review of that decision.
Notice of the review application was given to the department. On 28 July 2010 the department notified the tribunal that ML and VF had been notified by letter dated 26 July 2010 that the department proposed to cancel their carers’ authority and that ML and VF had been given 28 days to provide a response as to why their authority should not be cancelled.
On 29 July 2010 a staff member in the registry of the tribunal telephoned ML to inform her that the tribunal would not proceed further with the review application until their position as foster carers had been resolved.
On 31 August 2010 the department sent a letter to ML and VF informing them that a decision had been made to cancel their carers’ authority. On 9 September 2010 a staff member from the tribunal registry sent a letter to ML and to VF referring to the new decision and enclosing an application for review form should they wish to seek a review of that new decision.
No response was received from either ML or VF and no application seeking review of the decision to cancel their carers’ authority was lodged with the tribunal. On 5 October 2010 the department lodged an application in the tribunal seeking the dismissal of the application for review of the decision to remove the children from the care of ML and VF.
On 5 October 2010 a staff member from the tribunal registry sent a letter to ML and to VF enclosing a copy of the department’s dismissal application and asking for their comments on the dismissal application within two weeks. No response was received by the tribunal from ML or from VF.
On 9 November 2010 a letter was sent to ML, VF and to the department informing the parties that a hearing would be held at the tribunal on 22 November 2010 to consider the dismissal application.
ML attended the hearing on her own behalf and on behalf of VF. A representative of the department attended the hearing. ML indicated that she and VF wanted to seek a review of the decision to cancel their carers’ authority and they wanted to proceed with the original application to review the decision to remove the children from their care. Directions were made that ML and VF were to apply for an extension of time in which to commence a review of the decision made on 31 August 2010.
On 30 November 2010 ML and VF lodged an application for an extension of time in accordance with the directions. ML and VF stated in the application that after they had been told that they were unable to have any more children in their care, they had decided not to pursue the matter any further. Subsequently they decided that they would like to renew their foster carer authority.
10. The tribunal concludes from the statements contained in their application that ML and VF had decided not to seek a review of the decision to cancel their carers’ authority but had changed their minds at some point prior to 22 November 2010. They do not contend that they did not receive the department’s letter dated 31 August 2010 and they do not contend that they were unaware that they had only 28 days from their receipt of that letter in which to apply to the tribunal for a review of that decision.
11. The department opposes an extension of time for the commencement of the review of the decision to cancel the carers’ authority of ML and VF. The department provided evidence from Anna Ibrahim, senior case officer from Foster Care Queensland, that she and another officer from that organisation had discussed with ML and VF on 9 August 2010 the proposal to cancel their carers’ authority. Ms Ibrahim had provided an independent explanation about the matter and had explained the need for ML and VF to provide a response to that proposal.
12. The department provided evidence from Karen Bell of Foster Care Queensland that she had discussed with ML on 12 August 2010 the tribunal’s process. Ms Bell gave evidence that on 20 August 2010 ML had told her that she and VF had decided not to pursue an application with the tribunal but rather would pursue the matter via a complaints process with the department. On 30 August 2010 during a further conversation with ML, Ms Bell was told that ML and VF did not want to continue with the tribunal process.
13. The department also provided evidence from Lisa Newell and Hayley Toon of Spiritus Care Services TRACC Logan that they had discussed and explained the proposed cancellation of their carers’ authority with ML and VF on 29 July 2010. The last contact with ML or VF took place on 2 August 2010 when it was confirmed that TRACC would cease involvement with them if they were no longer registered carers and that Foster Care Queensland would provide advice on their next course of action.
14. The evidence provided by the department is mainly consistent with the statements in the application by ML and VF. The tribunal finds that ML and VF had received letters from the department dated 26 July 2010 and 31 August 2010. The tribunal finds that ML and VF were made aware by the letter dated 31 August 2010 that their carers’ authority was cancelled and that they could seek review of that decision from the tribunal. The tribunal finds that ML and VF were made aware that any such review had to be commenced within 28 days of receipt of the letter containing the cancellation decision. The tribunal finds that ML and VF had originally decided not to seek a review of that decision instead choosing to pursue other avenues with the department.
15. Under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 the tribunal can extend a time limit for the start of a proceeding even if the time for complying with the relevant time requirement has passed. The tribunal cannot extend time if to do so would cause prejudice or detriment to a party or potential party that cannot be remedied by an order for costs or damages. Otherwise the tribunal has unlimited discretion in considering extension of time applications.
16. In the view of the tribunal ML and VF have not provided satisfactory grounds to convince the tribunal to exercise its discretion in their favour. Their sole ground for this application is that they have changed their minds since September 2010 and they now want to review the decision to cancel their carers’ authority. They acknowledge that they had been in the wrong on some issues raised by the department but they contend that they would undergo training and would do whatever else is requested by the department.
17. Those submissions do not raise even on a prima facie basis a case for an extension of time to enable a review of the cancellation decision to proceed. Time limits for the commencement of review applications have a real purpose: it is in the public interest as well as the interest of parties that administrative decisions can be acted on with confidence and not be considered as merely provisional decisions that can be challenged at times quite distant from when the decisions were made.
18. The right of a person to challenge administrative decisions must be balanced against the right of parties and the public to rely on those decisions and that balance is usually achieved by placing a time limit on the commencement of a review process. Time limits can be extended if good reasons are shown. In the absence of good reasons to extend the time limit, the original decision should stand.
19. ML and VF have not provided good reasons for the extension of time in this case. They had decided against reviewing the decision in circumstances where they had obtained advice at the relevant time from independent and appropriate advisors and then two months later changed their minds merely because they want another opportunity to foster children once they receive some training. Their submissions do not suggest any basis on which a review would be likely to succeed.
20. The tribunal has not been satisfied that its discretion should be exercised to commence a review. An extension of time will not be granted to ML and VF to commence a review of the decision to cancel their carers’ authority.
21. As ML and VF have not been approved carers since 31 August 2010, the tribunal considers it is appropriate to go on to consider the application lodged by the department on 5 October 2010 to dismiss the review of the decision made on 11 June 2010 to remove the children from the care of ML and VF. The department submitted that the tribunal no longer has jurisdiction to provide the relief being sought by ML and VF, namely the return of the children to their care, in the absence of any relevant carer status being held by them.
22. The tribunal stands in the place of the department when making decisions in review applications. The tribunal must decide the review in accordance with the provisions of the Child Protection Act 1999. In making a decision about this review, the tribunal cannot grant relief that is inconsistent with that Act. In particular in this case, section 82 provides that a child in the care of the chief executive of the department may be placed into the care of specified persons including kinship carers and foster carers. There is no provision in that section for children to be placed with persons who have no recognised statutory authority to care for children in the care of the department.
23. The tribunal would be unable to make an order directing the children to return to the care of ML and VF while they do not have any carer authority status. The relief being sought in the review application is not able to be granted and as such the review application has been without substance since 31 August 2010 when the carer authority was cancelled.
24. 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.
25. The tribunal has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick. The review application is lacking in substance and to continue with that review would be an abuse of process. It is appropriate to bring an early end to the review application under section 47.
26. The review application must be dismissed in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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