PA v Department of Communities, Child Safety and Disability Services

[2013] QCAT 274

CITATION: PA v Department of Communities, Child Safety and Disability Services  [2013] QCAT 274

PARTIES:	PA (Applicant)
v
Department of Communities, Child Safety and Disability Services   (Respondent)

APPLICATION NUMBER: CML102-13

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 21 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application for review is dismissed

CATCHWORDS:

CHILD PROTECTION – where children not in the guardianship of department – where no jurisdiction to review decision – where another application for review lodged

Child Protection Act 1999 sections 87 & 247 and schedules 2 & 3
Queensland Civil and Administrative Tribunal Act 2009 section 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. PA is the mother of four children ranging in age from 16 to 10 years of age.  Her children do not live with her.  The three older children are subject to child protection orders under which guardianship has been granted to CM and JM.  The youngest child, PR, is subject to a child protection order under which guardianship has been granted to the Chief Executive of the Department of Communities, Child Safety and Disability Services.  PR does not live with CM and JM. 

2. PA has contact with her four children during school holidays.  For this purpose she travels to Queensland and has in the past exercised some of her contact time at the house where her three older children live.  She has stayed overnight at that house on occasions. 

3. In May 2013 an officer of the department notified PA that she could no longer have contact with her children at the M house and she would have to arrange her own accommodation when she visited the children.  PA has sought to review this decision as she wants to be allowed to have continuing contact with her children at the M house. 

4. No letter was issued containing this information prior to PA filing an application for review in QCAT.  She sought a decision that would permit her to have contact with her children at the M house.

5. Subsequent to the filing of the application for review, the department issued a letter containing a decision changing the terms of PA’s contact with PR which may have the effect of restricting or imposing conditions on her contact with her son.  That subsequent decision is now the subject of another application for review by PA in CML117-13.

6. A person aggrieved by a decision made by the department can review that decision at QCAT.  However not all decisions can be reviewed: only decisions that are defined as reviewable decisions under the Child Protection Act 1999.[1] Reviewable decisions are set out in schedule 2 of that Act. One category of reviewable decision is a decision which refuses to allow, restricts or imposes conditions on contact between a child and the child’s family under section 87. A child or a family member has a right to seek review of such a decision.

   [1]        Section 247 and schedule 3 of the Child Protection Act 1999.

7. The department has submitted that QCAT has no jurisdiction to consider a review of contact issues about the three oldest children of PA as those children are not within the guardianship of the Chief Executive of the department.  That part of the Child Protection Act which gives power to QCAT to review contact issues only applies if the Chief Executive has custody or guardianship of a child.  No other section gives power to QCAT to determine applications by family members seeking to review contact issues involving children in the guardianship of persons other than the Chief Executive. 

8. In view of this limited role provided by the Act, QCAT does not have power to determine the application brought by PA seeking to review contact issues involving her three oldest children. The application by PA to review any issues involving restrictions on contact between PA and her three oldest children is outside the jurisdiction of QCAT. The application involving the three oldest children must be dismissed. Section 47 of the QCAT Act permits the tribunal to bring an end to a proceeding at an early stage when there is no substance to that proceeding. It is appropriate to dismiss that part of the review application brought by PA that relates to her three oldest children on that basis.

9. QCAT would have jurisdiction to review a decision of the department which purports to restrict or impose conditions on contact between PA and her youngest child, PR as that child is under the guardianship of the Chief Executive.   However at the time that PA commenced her review it was unclear whether there had been a reviewable decision made as PA indicated in her application that she was expecting to receive a case plan for PR that would further restrict her contact with that child.  At the time she filed her review application, some verbal statements had been made about where she may or may not be able to stay when having future contact and a case plan was being prepared.  A case plan was subsequently provided to QCAT.

10. What had been the focus for PA’s objection to the verbal statements was the change of arrangements whereby PA may have no longer been able to stay at the M house when having contact with PR. The department submitted that it could not compel CM and JM to allow PA to stay at their house as this arrangement was at the discretion of CM and JM. Despite the verbal statements and certain email and written correspondence between the department and persons on behalf of PA, it was difficult to ascertain the existence of a decision of the department that would be reviewable in terms of section 87.

11. However, the letter of the department dated 17 June 1013 clearly set out a reviewable decision about contact between PA and PR.  PA has subsequently commenced a review of that decision (CML117-13).  The application for review in this earlier proceeding (CML102-13) as to any purported reviewable decision about PR has been superseded by the later application.  The earlier application must be dismissed as the issues in dispute, namely the terms of contact between PA and PR, will be effectively dealt with by QCAT in CML117-13.