SST v Department of Communities (Child Safety Services)

[2012] QCAT 153

CITATION: SST v Department of Communities (Child Safety Services) [2012] QCAT 153

PARTIES:	SST (Applicant)
v
Department of Communities (Child Safety Services)   (Respondent)

APPLICATION NUMBER: CML004-12

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 2 March 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application to bring an early end to the review application is dismissed.

CATCHWORDS:

CHILD PROTECTION – review sought of a contact decision – where new decision made after review commenced – where early end of proceedings sought – refused as no grounds established for dismissal

Child Protection Act 1999, s 87
Queensland Civil and Administrative Tribunal Act 2009, ss 23, 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. SST is the grandfather of SN who since October 2011 has been subject to a child protection order granting guardianship to the Chief Executive of the Department of Communities (Child Safety Services).  SN had lived with his grandparents until 2011 and after that time he had been staying with his grandparents over the weekends about once a month.

2. On 14 December 2011 the Department gave written notice to SST that conditions would be placed around his contact with SN.  Contact was to take place for a two hour period on a fortnightly basis and the contact would be supervised.  SST has sought to review that decision by the Department.

3. The Department applied to QCAT for an early end to the review application under section 47 of the QCAT Act. The basis for the application was that a new contact decision had been made by the Department on 31 January 2012 which replaced the decision under review. The later decision permitted five hours of fortnightly contact supervised for only two hours out of five. The new contact decision was put into writing on 8 February 2012.

4. The Department submitted that as the decision dated 14 December 2011 under review had been replaced by a later decision, QCAT’s jurisdiction could only be enlivened if the later decision was one that was reviewable under the Child Protection Act 1999. It was submitted that the decision made on 31 January 2012 was not reviewable.  Those submissions are not accepted. 

5. The application to review the decision made on 14 December 2011 is a valid application and has not yet been finalised.  It will continue until it is finalised by the tribunal. 

6. A decision maker cannot avoid a review continuing by simply making some change, minor or otherwise, to the reviewable decision unless the legislation provides that a later decision replaces the earlier decision. Such a provision exists in section 23 of the QCAT Act in circumstances where the tribunal has invited a decision maker to reconsider a decision. If the original decision is set aside and a new decision is substituted, section 23(4)(a) provides that the substituted decision is taken to be the reviewable decision. No such invitation under section 23 of the QCAT Act was made in this case.

7. The decision made on 14 December 2011 has not been substituted for review purposes by the later decision. That does not inevitably mean that an early end to the review of the decision made on 14 December 2011 cannot be reached. It may well be found by QCAT that the application to review that decision lacks substance or amounts to an abuse of process in view of the change in the contact arrangements brought about by the decision made on 31 January 2012. QCAT may find grounds to dismiss the review under section 47 of the QCAT Act.

8. However that was not the case put to QCAT by the Department. Rather the Department submitted that the decision made on 31 January 2012 was not a reviewable decision under section 87(2) of the Child Protection Act 1999.  It was submitted that the decision did not restrict or impose conditions on contact between a child and members of the child’s family when considered against the amount of contact existing prior to 31 January 2012.  The decision of 31 January 2012 increased the contact and relaxed supervision of that contact. 

9. I cannot find in the words of section 87(2) of the Child Protection Act 1999 any support for the submission that the decision made on 31 January 2012 was not made under section 87 and was not reviewable under that section. It was patently a decision which imposed conditions on contact and was made under that section. There is no other statutory basis for such a decision to be made.

10. The tribunal refused the application to dismiss the review of the decision made on 14 December 2011 as none of the factors supportive of bringing an early end to the proceedings under section 47 of the QCAT Act had been established.