SM v Department of Communities (Child Safety Services)

[2011] QCAT 297

CITATION: SM v Department of Communities (Child Safety Services) [2011] QCAT 297

PARTIES:	SM
v
Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CML043-11

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 24 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Application for review is dismissed.

CATCHWORDS:

CHILD PROTECTION – decision to impose conditions on carer’s certificate – joint carer certificate had expired – no renewal of joint carer certificate sought – no reviewable decision – no grounds for review – dismissal sought

Child Protection Act 1999, ss 133(6), 138, 247, sched 2
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 in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. SM has sought to review a decision made by the Department of Communities (Child Safety Services) to amend a foster carer’s certificate to include conditions which limit the number of children to be placed with her to two children, which require the children not to be placed in the downstairs area of her home and which limited children placed with her to those children not assessed as “complex”.

2. A letter setting out the decision dated 16 August 2010 and addressed to SM and SR was sent by the Department.  SM and SR had been the holders of a joint foster carer’s certificate until 30 July 2010 when that joint certificate expired.  There was no application made to renew that joint certificate as SM had separated from SR prior to 30 July 2010.

3. The Department could not on 16 August 2010 place conditions on the joint foster carer’s certificate as that certificate had expired on 30 July 2010. SM had lodged an application for a sole foster carer’s certificate on 4 July 2010. The decision actually made by the Department intended to place conditions under section 133(6) of the Child Protection Act 1999 on the carer’s certificate issued in the sole name of SM. 

4. The Department’s letter dated 16 August 2010 stated that SM could seek a review of the decision to place conditions on the carer’s certificate.  The Department now submits that the information contained in the letter was wrong as the expired certificate in the joint names of SM and SR had expired and the holders of the joint certificate had not sought renewal of the certificate.  The Department submits that it was a mistake to inform SM that she had a right to seek a review of the decision. 

5. Under section 138 of the Child Protection Act 1999 the Department can amend an existing carer’s certificate by placing conditions on that certificate and a decision made under section 138 can be reviewed by this tribunal as it is a reviewable decision under section 247 of the Child Protection Act 1999.  If SM and SR had sought to renew their joint certificate and conditions were imposed on that renewed certificate, they would have had the right to seek review to the tribunal. 

6. However a decision to place conditions on a new certificate issued in the sole name of SM under section 133(6) of the Child Protection Act 1999 is not one of the category of decisions that are reviewable decisions under that Act.  The tribunal accepts the submissions made by the Department that this tribunal has no jurisdiction to review the decision to place conditions on the new certificate issued to SM. 

7. 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 misconceived or is lacking in substance. The application by SM to review the decision to place conditions on her carer’s certificate under section 133(6) of the Child Protection Act 1999 is without substance as the tribunal has no jurisdiction to review that category of decision.    

8. The tribunal considers that the application for review by SM should be dismissed under section 47 of that Act.