SAR v Department of Communities (Child Safety Services)
[2011] QCAT 193
•21 April 2011
| CITATION: | SAR v Department of Communities (Child Safety Services) [2011] QCAT 193 |
| PARTIES: | SAR |
| v | |
| Department of Communities (Child Safety Services) |
| APPLICATION NUMBER: | CML071-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 21 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for review and a stay of decision is dismissed. |
| CATCHWORDS: | CHILD PROTECTION – application to review decision about removal of child from the care of a carer – no decision made –application has no substance – early end to the proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 20 April 2011 SAR lodged an application seeking a review of a decision made by the Department of Communities (Child Safety Services). SAR did not provide a written copy of the decision to be reviewed but she gave the following description of the decision: “to send TC whom is a 13 year old girl back to her mother despite TC repeatedly telling a number of people that she does not want to go home to live with her mother.”
SAR described herself as a foster carer and she sought to bring the application for review on behalf of TC who had been placed in the care of SAR by the Department.
On 21 April 2011 the tribunal was informed by the Department that TC was subject to a short term protection order which was due to expire on 26 April 2011. The Department stated that there was not sufficient current evidence for the Chief Executive of the Department to seek a further protection order from the Children’s Court on 26 April 2011.
The Department had not made any decision to remove TC from the care of SAR but rather the authority of the Department to make decisions about TC’s care would expire on 26 April 2011. The Department would be required to return TC to the custody of her parents.
The Department submitted that no decision was made that was able to be reviewed by the tribunal under the Child Protection Act 1999. Under section 247 of that Act the tribunal is given jurisdiction to review decisions which are described as reviewable decisions. Schedule 2 of that Act sets out the category of decisions that are reviewable decisions. Included in the category of reviewable decisions are decisions under section 89 in Division 4 of the Act to remove a child from the care of the child’s carer.
Section 81 states that the sections in Division 4 apply if the chief executive of the Department has custody or guardianship of a child under the Act. If a child is not in the custody of the chief executive of the Department then there is no power by which the Department can make decisions about that child.
The tribunal finds that the Department did not make a decision under section 89 of the Act to remove TC from the care of her foster carer. It appears that what was done was that the Department informed relevant parties that the Chief Executive would not seek to continue the short term custody order after 26 April 2011. The effect of that position meant that the placement of TC with SAR made while the child protection order had been in place could not continue.
The application for review accordingly lacked substance as there was no reviewable decision to bring the jurisdiction of the tribunal into play.
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.
[10] The tribunal has an obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick. This review application is lacking in substance as there is no reviewable decision made by the Department about TC. To continue with the review would be an abuse of process. It is appropriate to bring an early end to the review application under section 47.
[11] The review application must be dismissed in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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