WK v Department of Communities (Child Safety Services)

[2010] QCAT 208

CITATION: WK v Department of Communities (Child Safety Services) [2010] QCAT 208

PARTIES:   WK

V

Department of Communities (Child Safety Services)

APPLICATION NUMBER:            CSR120-09

MATTER TYPE:   Children’s matters

HEARING DATE:   6 May 2010

HEARD AT:   Brisbane

DECISION OF:   M Howard, Member

DELIVERED ON:   6 May 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   

(1)The proceeding for review is dismissed as far as it relates to review of the decision about placement of the child.

(2)That the proceeding be listed for a compulsory conference on Thursday, 3 June 2010 at 9:30am.

CATCHWORDS: Early end to proceedings – sections 47, 48 Queensland Civil and Administrative Tribunal Act 2009 – part of 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 Children Services Tribunal on 9 June 2009 by WK seeking a review of decisions made by the Department of Communities (Child Safety Services) about her contact with a child and placement of the child.

2. The respondent seeks orders dismissing the application.

   3. From 1 December 2009 the Queensland Civil and Administrative Tribunal (QCAT) has replaced the Children Services Tribunal. QCAT is which now authorised to deal with the proceeding.     

ISSUES AND THE LEGISLATION

1. Section 86 of the Child Protection Act 1999 provides that when a child is in the care of the respondent under a child protection order, a written notice of the decision regarding placement of the child and the reasons for the decision must, among other things, be given to the child’s parents who may apply to have the decision reviewed.

2. 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.

3. 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. 

4. At the time of the application, section 247 of the Child Protection Act 1999 effectively provided that a person aggrieved by a reviewable decision may apply to have the decision reviewed by the Children Services Tribunal under the Children Services Act 2000. Since 1 December 2009, it has provided for review under the Queensland Civil and Administrative Tribunal Act 2009.    

5. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) gives the Tribunal power to bring a proceeding or part of 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. Section 48 of the Act provides, in effect, that a proceeding may be dismissed or struck out if the Tribunal considers that an applicant to proceedings is acting in a way that unnecessarily disadvantages another party to the proceeding, for example, by not complying with tribunal orders or directions without reasonable excuse or causing an adjournment.

EVIDENCE

9. The child concerned was subject to an interim Child Protection Order.
10. The respondent informed the Children Services Tribunal on 20 November 2009 that subsequent to the application a final Child Protection Order was granted on 17 August which is current to 17 August 2010. Further, the applicant’s circumstances had changed in that although for a period following a preliminary conference at the Children Services Tribunal, she had increased contact with the child at her home, she had then disappeared for a period and had since failed to attend contact and subsequently changed residence.
11. Following these changes in circumstances, the respondent made a decision on 18 November 2009 to suspend contact until the applicant recontacted the respondent and recommitted to contact. The letter advising the applicant of this decision about contact also advised of a decision regarding changed placement of the child.
12. The respondent contends that the reviewable decisions giving rise to the application have accordingly been superseded by the decision of 18 November 2009 in respect of which the applicant has fresh review rights. The respondent seeks dismissal of the application about contact and placement of the child.
13. The registry of the Children Services Tribunal wrote to the applicant at her then last known address on 23 November 2009 informing her that the respondent had asked the Tribunal to dismiss her application. That correspondence was returned to QCAT unclaimed on 4 December 2009, with an endorsement suggesting that the address was incorrect.
14. The Tribunal subsequently sought, through the respondent, to ascertain the applicant’s current address and in late March 2010 was again advised that it was the address to which the correspondence of 23 November 2009 had been forwarded. On 31 March 2010, correspondence was forwarded to the applicant by the Tribunal registry advising her that the respondent was seeking dismissal of her application and enclosing a copy of the respondent’s submissions regarding the dismissal of the application. It also requested that she contact the QCAT registry as soon as possible about these matters.
15. At the date of hearing, the correspondence had not been returned, and nor had the applicant contacted the registry.

CONCLUSION

16. Since the application was filed by the applicant in the Children Services Tribunal, circumstances have changed. The applicant’s contact with the child ceased for a period due to the applicant’s failure to attend and because she was uncontactable. As a result of the applicant’s actions, a further decision about suspending contact was made by the respondent. Also, a different decision has been made about the placement of the child. The applicant has not separately sought to review the new decisions.
17. It has not been suggested, and nor does the tribunal file suggest, that the applicant has acted in a way which unnecessarily disadvantages another party to the proceeding. Accordingly, there is no basis under section 48 to dismiss the proceeding.
18. The Tribunal may dismiss the proceeding or part of it under section 47, if the tribunal considers that it meets one of the specified criteria. There is no basis advanced to suggest that the application is frivolous, vexatious or misconceived or an abuse of process. It remains to be considered whether the proceeding, or part of it, is lacking in substance.
19. The decisions reviewed relate to contact with and placement of a child. The fresh decision made about contact, although it may, in effect, supersede the earlier decision is still a decision to restrict contact with the child. The tribunal in deciding a review conducts a fresh hearing on the merits. It makes the correct and preferable decision on the information available at the time of the hearing. The contact with the child remains a live issue for the applicant it seems, since she has not sought to withdraw her application. This is so notwithstanding that the respondent made a new decision regarding the issue in the intervening period.  Accordingly, as far as it relates to the review of the decision about contact with the child, the proceeding cannot be said to be lacking in substance.
20. With respect to the decision about placement of the child, the decision reviewed by the applicant no longer has any effect. The child resides in a different placement. Accordingly, the review proceeding as far as it relates to the decision about placement is now lacking in substance.
21. In the circumstances, part of the proceeding is dismissed as far as it relates to the review of the decision about placement of the child. Noting that a preliminary conference in the Children Services Tribunal was adjourned, I will direct that the remaining part of the proceeding be listed for a compulsory conference.