SR v Department of Communities (Child Safety Services)

[2009] QCAT 5

CITATION: SR & Ors v Department of Communities (Child Safety Services) [2009] QCAT 5

PARTIES:   SR, SG and SGA

V

Department of Communities (Child Safety Services)

APPLICATION NUMBER:            CML016-09

MATTER TYPE:   Children’s matters

HEARING DATE:   23 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   23 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Application for review and for stay dismissed

CATCHWORDS: Early end to proceedings – section 47 Queensland Civil and Administrative Tribunal Act 2009 – application lacking substance

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Tribunal on 21 December 2009 by SR, SG and SGA seeking a review of a decision made by the Department of Communities (Child Safety Services) on 21 December 2009 about their contact with SJ on Christmas Day 2009.   

ISSUES AND THE LEGISLATION

1. Section 87(1) of the Child Protection Act 1999 provides that the chief executive of the Department of Communities must provide opportunity for contact between a child in the care of the department and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances.

2. Section 87(2) of the Child Protection Act 1999 provides that the chief executive may restrict contact or impose conditions on such contact if satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents or family member to have the contact. 

3. Section 247 of the Child Protection Act 1999 provides that a person aggrieved by a reviewable decision may apply to have the decision reviewed under the Queensland Civil and Administrative Tribunal Act 2009.    

4. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009  (the Act) 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.

EVIDENCE

6. The applicants contended that a decision had been made by the respondent which prevented them from having contact with SJ on Christmas day.  They stated in their application that SJ had been in the care of SR from birth until June 2009 when the child was taken into care of the respondent.    
7. The applicants stated that SJ had spent Christmas with SR for the past two years and that SJ’s mother had not sought contact with SJ until six months ago.  The applicants contended that it was unreasonable that a decision had been made for SJ to spend Christmas Day with his mother only and not for the extended family (including his grandparents) to have equal time with SJ on that day.  
8. The respondent informed the Tribunal on 23 December 2009 that contact between the applicants and SJ had been the subject of a hearing in the Tribunal on 18 December 2009.  That hearing had been adjourned by consent to 2010 to enable a meeting to take place with the family about these issues.  The respondent had disclosed at the hearing that a decision had been made to reunite SJ with his mother and SJ was to be placed in his mother’s care on 23 December 2009. 
9. It had been further disclosed that the mother intended to take SJ with her on a trip and that she would return to Queensland before 19 January 2010.
10. The respondent stated that the family meeting had taken place on 21 December 2009 and Christmas contact with SJ was arranged for the applicants on 22 December 2009. This contact took place as arranged with the applicants and extended family and presents were exchanged.  On that same day, SJ’s mother had her Christmas contact with other children in the family.    
11. No decision had been made about further Christmas contact between SJ and the applicants.  Physical contact or telephone contact would not be feasible on Christmas Day due to the lack of departmental officers to supervise contact on that public holiday. 
12. The respondent asked that the application for review be dismissed on the basis that Christmas contact as arranged following the Tribunal hearing had already occurred. 

CONCLUSION

13. The Tribunal finds that the issue of contact by the applicants to SJ had been discussed at a hearing of the Tribunal on 18 December 2009.  With the consent of the applicants, the application involving contact issues had been adjourned to 2010 on the basis that a family meeting about contact with SJ would take place before the date of the resumed Tribunal hearing. In those circumstances the applicants had in effect relinquished the opportunity to seek directions about their contact to SJ made by the Tribunal before Christmas.     
14. The Tribunal accepts the evidence of the respondent that Christmas contact had taken place between the applicants and SJ on 22 December 2009 as arranged at the family meeting.  The Tribunal also accepts the evidence that there would not have been departmental staff available to supervise contact between the applicants and SJ on Christmas Day. 
15. The Tribunal finds that Christmas contact between the applicants and SJ had been arranged by the method agreed by the applicants on 18 December 2009 when they had consented to the adjournment of the then current Tribunal hearing until after Christmas and into 2010.  The Tribunal also finds that Christmas contact took place as arranged on 22 December 2009. 
16. While the Tribunal accepts that the applicants believed that it was unreasonable that they could not have contact on Christmas Day and while they might have anticipated before the family meeting that Christmas Day contact was a likelihood, the Tribunal finds that they had on 18 December 2009 foregone the opportunity to seek directions about their contact to SJ made by the Tribunal before Christmas.         
17. In view of those findings, the Tribunal considers that the application for a review of the decision made on 21 December 2009 to permit Christmas contact to take place on 22 December 2009 and not by implication on Christmas Day is lacking in substance and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application should be dismissed.