O and S v Department of Communities, Child Safety and Disability Services - [2013] QCAT 599

CITATION:

O and S v Department of Communities, Child Safety and Disability Services [2013] QCAT 599

PARTIES:	O and S (Applicants)
V
Department of Communities, Child Safety and Disability Services (Respondent)

APPLICATION NUMBER:

CML143-13

MATTER TYPE:

Childrens matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

4 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave is granted to extend the time to 28 October 2013 to commence a review of the decision of the respondent dated 22 August 2013.

CATCHWORDS:

CHILD PROTECTION – where application for review not filed within 28 days – where request for extension of time to commence review – where request was opposed

Queensland Civil and Administrative Tribunal Act 2009 ss 33(3) and 61(1)

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

O and S are foster carers. On 26 June 2013 the Department informed them of a decision to remove two children from their care on the grounds that the children were at risk of harm if they remained in their care. O and S sought a review of that decision by QCAT.
A compulsory conference was arranged for 2 September 2013 but before that date the tribunal was informed that a further decision had been made by the Department to refuse the renewal of the carer’s certificate held by O and S. As the children could not be returned to O and S while they did not hold a carer’s certificate, the tribunal cancelled the compulsory conference and by letter dated 27 August 2013 the tribunal registry informed O and S that they could file an application to review this latest decision. In that way, both review applications could be heard together.
By an email sent on 23 September 2013, the Department noted that the 28 day period for the commencement of a review of the decision to refuse to renew the carer certificates had expired.[1] As no review had been commenced, it was argued that the application to review the removal decision no longer had any substance as the children could not be returned to O and S regardless of the outcome of that review.
[1] QCAT Act s 33(3).
The Department submitted that it was appropriate that the tribunal should dismiss the review of the removal decision under section 47 of the QCAT Act. A copy of the submissions of the Department was sent by the tribunal registry to O and S for their comments. The registry informed O and S that the tribunal will consider dismissing the review application of the removal decision after 18 October 2013.
O and S were also informed by the registry that if they wanted to review the decision to refuse to renew their carer certificates, they must file an application for review of that decision and an application seeking an extension of time to commence that review by 18 October 2013.[2]
[2] Ibid s 61.
On 17 October 2013 the tribunal registry received from O and S a new application for review dated 8 September 2013 supported by some documentation. In that application O and S referred to the decision made on 26 June 2013 (the removal decision) and did not specify the decision dated 22 August 2013 (refusal to renew decision). However in their application received on 17 October 2013 they did state that they wanted to be re-instated as carers. That statement had not been part of the relief sought in their original application for review as at the time of the filing of the original application, they still had the formal status as approved carers.
A copy of the documents filed by O and S was provided to the Department. In the meantime the tribunal registry sought to obtain clarification from O and S that they were seeking to review the decision to refuse renewal of their carer certificates. This confirmation was received on 28 October 2013 when another version of an application for review was filed together with an application seeking an extension of time in which to commence that review.
Despite the confusion arising from a duplication of the review application forms filed in QCAT, it is likely that the application to review the decision of the respondent dated 22 August 2013 had in fact been commenced by the filing of an application form on 17 October 2013. It was however not a valid application unless an extension of time was granted for the review to commence more than 28 days after the decision was received by O and S.
I note that O and S had not revealed the grounds on which they sought to support the application for an extension of time apart from writing the following words in the form: “O seeks to have this matter sorted out and be reinstated as a carer without other carers who keep interfering with the children in our care.” These words are not particularly helpful in support of an extension of time request.
It is a reasonable inference to draw in my opinion from the duplication of filed forms and from the somewhat muddled state of the information provided by them that O and S had become confused by the various letters sent by the tribunal registry. They had tried in several documents to state their case which intertwined both reviews in a confusing manner. This is understandable as the issues to be determined are naturally related and common to both applications.
The application to extend time was opposed by the Department. It was argued that the information given to O and S by way of correspondence from the tribunal on 27 August 2013 and the submissions of the Department dated 23 September 2013 had made it very clear and plain as to what was required of O and S. It was argued that they have not responded with the proper applications resulting in a frustration of the tribunal’s process.
The Department further argued that O and S had been notified at the earliest point by the decision maker as to their review rights of the decision made on 22 August 2013. They took no action in response to the notice from the decision maker. It was submitted that the application for review was made in excess of 9 weeks after the decision was made and more than 5 weeks out of time. It was submitted that the actions of the applicants had frustrated the Tribunal’s processes and in that context, the tribunal should preserve the integrity of the time limit of 28 days in which to commence the review.
I was not persuaded by the submissions of the Department to refuse the extension of time. While departmental staff may consider that correspondence from the Department and from the Tribunal contain information and messages that are clear and plain, I have generally experienced that that position is not universally the case with persons who come before the Tribunal as applicants.
I am satisfied that O and S always intended to do what was necessary to seek to have the children returned to their care and they did their best to put those intensions into action. However their best efforts were not good enough as they ended up failing to lodge an important part of the strategy necessary for the return of the children to them: namely the review application of the decision to refuse to renew their carer certificates.
O and S appear to have completed that review application form on 8 September 2013 but did not lodge the application until 17 October 2013 by which time they were some 4 weeks out of time to commence a review. I am satisfied that they should be permitted to proceed with the review of the decision to refuse to renew their carer certificates as part of the necessary process to have the opportunity to continue seeking the relief they sought from the outset in July 2013 for the return of the children to their care.
They could have continued solely with the review of the decision made on 26 June 2103 but that would have been meaningless while they are without departmental approval as carers. To refuse an extension of time to review the decision made on 22 August 2013 would essentially prevent O and S from continuing with their original review. That result would unfairly limit their rights of review in circumstances where O and S always intended to look to QCAT for the return of the children to their care.
The statutory objects of QCAT require QCAT to deal with matters in a way that is accessible and fair. It would be contrary to those objects to unduly limit in this case the rights given to O and S to seek to have the tribunal make a decision that could result in the children being returned to the care of O and S. The applicants had correctly started the review process in July 2013 and would have been in sight of having a hearing date allocated if a subsequent decision of the Department had not intervened. For QCAT’s processes to be properly accessible to all persons, reasonable extensions of time must be made from time to time to excuse strict compliance with statutory time limits. This is one such case.
To remove any doubt about the validity of the review application, I granted leave to extend time to 28 October 2013 to commence a review of the decision of the Department dated 22 August 2013. This would permit either the form filed on 17 October 2013 or 28 October 2013 to serve as the application form.