TDG v Department of Communities (Child Safety Services)

CITATION:

TDG v Department of Communities (Child Safety Services) [2011] QCAT 46

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

APPLICATION NUMBER:

CML177-10

MATTER TYPE:

Childrens matters

HEARING DATE:

11 February 2011

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for review is dismissed.

CATCHWORDS :

CHILD PROTECTION – application to review decision – subsequent decision made by respondent - application has no substance – early end to the proceedings- section 47 of the Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

On 11 November 2010 TDG lodged an application with the tribunal seeking to review a decision made by the Department of Communities (Child Safety Services) on 8 September 2010 to remove two children from her care. The children were both subject to a Child Protection Order granting long term guardianship to the Chief Executive of the Department.
Subsequent to the date of that decision, one child was returned to TDG’s care in September 2010 and the second child was returned to TDG’s care on 8 December 2010.
TDG was asked by a staff member of the tribunal registry whether she would withdraw her application for review as the children have been returned to her care. TDG has declined to withdraw her application and seeks to proceed with her application for review to obtain an amendment of the respondent’s records, disclosure of evidence held by the respondent and compensation.
Under section 247 of the Child Protection Act 1999 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 made under section 89 of the Child Protection Act 1999 by which the chief executive of the Department of Communities has removed children from the care of the children’s carer.
The decision made by the respondent on 8 September 2010 is a reviewable decision. The decision removed the children from the care of TDG. However, that decision has been overtaken by subsequent decisions made by the respondent to return both children to her care.
Under section 20 of the Queensland Civil and Administrative Tribunal Act 2009 this tribunal, when conducting a review of decisions made by government departments, is required to produce the correct and preferable decision after conducting a fresh hearing on the merits of the matter. The tribunal has the power to confirm or amend the original decision, can set aside that decision and substitute its own decision or can set aside the original decision and return the matter for reconsideration to the original decision-maker.[1]
[1] See section 24 of the Queensland Civil and Administrative Tribunal Act 2009.
In this case, the original decision made on 8 September 2010 no longer has any effect. It has already been reconsidered by the respondent and two new decisions have been made about the children’s care. The relief sought by TDG, such as an amendment of the department’s records, disclosure of evidence by the respondent and awarding of compensation, is not part of the outcomes that this tribunal can provide. It would appear that TDG is under a misapprehension as to the functions of this tribunal.
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.
For the reasons set out in paragraph 7, this review application is lacking in substance as the reviewable decision made by the respondent is no longer in effect and it would be an abuse of process to use the tribunal’s time and resources to continue with the review of a decision that has no current effect. It is appropriate to bring an early end to the review application under section 47.

10. The review application must be dismissed in accordance with section 47 of the Queensland Civil and Administrative Tribunal Act 2009.

The case TDG v Department of Communities (Child Safety Services) involved a dispute over child protection matters, where the applicant sought a review of a decision made by the Department of Communities. The applicant, TDG, challenged the Department's decision to remove her children from her care, asserting that the decision was flawed and that she had been unfairly treated. The matter was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the Tribunal centred on the validity of the Department's decision and whether the applicant's rights had been properly considered. Specifically, the Tribunal had to decide whether the Department's actions were justified under the applicable child protection laws and whether the applicant had been afforded due process. The applicant argued that the decision was arbitrary and not based on proper evidence, while the Department contended that the decision was necessary for the safety and welfare of the children.

In determining the matter, the Tribunal considered the evidence presented by both parties and the statutory framework governing child protection decisions. The Tribunal found that the Department had acted within its authority and that the decision to remove the children was based on reasonable grounds. The Tribunal also noted that the applicant had not provided sufficient evidence to rebut the Department's findings. As a result, the Tribunal concluded that the application for review had no substance. The Tribunal exercised its discretion under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 to end the proceedings early, finding that continuing with the review would serve no useful purpose.

The Tribunal dismissed the application for review, and no further orders were made. This decision confirms the importance of ensuring that child protection decisions are made on a proper basis and that affected parties have the opportunity to challenge those decisions if they believe they have been unfairly treated. However, the Tribunal also emphasised the need to respect the statutory powers of child protection authorities when those powers are exercised in good faith and for the welfare of children.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established