Department of Families, Seniors, Disability Services and Child Safety v James

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109

James v Department of Children, Youth Justice & Multicultural Affairs [2023] QCAT 111

PP and DP and DT v DCCSDS [2017] QCAT 477

• [1] James (a pseudonym) ('respondent') is the biological father of three children. Two of the children (who will be referred to as AS (a pseudonym), born 20 September 2010 and VJ (a pseudonym), born 23 July 2005; collectively the 'subject children'), are subject to child protection orders granting long-term guardianship to the Chief Executive of the Department of Families, Seniors, Disability Services and Child Safety ('Department') until they reach the age of 18. The third child is already 18.
• [2] The application by the respondent to the Tribunal below concerned a decision to allow unmonitored contact between the children and their aunt LK (a pseudonym), who is the respondent's sister.
• [3] Although there is some confusion about the exact decision being reviewed, I note that decision notices were given by the Department to LK on 31 May 2022, that:

(a) allowed LK and AS to have contact with each other as they each mutually agree; and

(b) permitted LK and AS to have contact with each other at any reasonable time and they may choose the duration and the type of the contact as well as the place where the contact happens.

• [4] The decision the subject of this appeal is James (a pseudonym) v Department of Children, Youth Justice & Multicultural Affairs[1] which ordered that 'the application by the Respondent (the Department) to dismiss the Application on the grounds of want of standing or jurisdiction is refused.'
• [5] In the decision the learned Member stated that the decision under review was, '...a decision by the Thuringowa Child Safety Service Centre. That Centre is described in the application as "the current foster carers of the children"', who made a decision '...allowing unmonitored contact between the children and their aunt, who is the applicant's sister.'[2]
• [6] In submissions to the Tribunal below, the respondent stated that his grievance was 'that a decision had been made on 2 March 2022 allowing "unmonitored contact" between my child, [AS] and her paternal aunt, [LK].' He also submitted that:[3]

I respectfully ask that based on the above information that the allowance for [LK] to have "unrestricted access and contact" with [VJ] and [AS] be revoked and restrictions [be] put in place to protect the safety and wellbeing of my daughters and allow me to continue to rebuild a positive relationship with my daughters as the involvement of [LK] returning to our lives is placing severe stress, anxiety and fast deterioration with my contact with my daughters.

• [7] The respondent sought review of the decision by application filed 30 March 2022.
• [8] The Department sought to have the review proceedings dismissed for want of standing or jurisdiction. The Member described the decision below as a decision to refuse an 'application by the [Department] to dismiss [the respondent's] application [for review] on the grounds of want of standing or jurisdiction'. The Member below found that the respondent 'is a person affected by the relevant decision and has standing to bring the present application'.
• [9] In refusing the Department's application to have the review proceedings below dismissed for want of standing or jurisdiction, the learned Member stated that:[4]

The nub of the issue, as identified in the 7 June submissions, is the contention by the Department that the [respondent] has no standing to challenge the decision because he was not a person affected within the meaning of s 87(3) in Schedule 2 of the Act since the decision could not be seen as directly affecting his own contact with the child or children. This it is said went to the question of standing, and which in turn is said to suggest that the Tribunal did not have jurisdiction to entertain the review application. In fact, the question of jurisdiction is not squarely raised in the submissions before the Tribunal. The issue is whether the Tribunal may grant the orders which are sought by the Applicant in the review application in light of the fact that it is contended that he did not have standing to apply for a review of the decision.

• [10] Later, the learned Member also noted:[5]

As is well established, see for example SBN v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 321, there are two questions, the first of which does not arise here namely whether the decision is a reviewable decision under the Act, and secondly if it is a reviewable decision, whether the Applicant for review is a person affected by the decision so that they have standing to bring the application.

• [11] Having formed the view that the first question did not arise the learned Member concluded that 'the Applicant is a person affected by the relevant decision and has standing to bring the present application.'[6]

• [12] The Department's application for leave to appeal pleads two grounds of appeal:

(a) Firstly, that the Member erred:

(i) in his conclusion (at [13] of the judgment) that the jurisdictional question of whether the impugned decision was a reviewable decision made under s 87(2) of the Child Protection Act 1999 (Qld) ('CP Act') did not arise; and

(ii) by proceeding to decide what the Member described as the 'application by the respondent to dismiss the application on the grounds of want of standing or jurisdiction' based upon an erroneous assumption that the impugned decision was properly within the Tribunal's jurisdiction to review.

(b) Secondly, even if (in the alternative to ground one) the impugned decision is a reviewable decision amenable to the Tribunal's review jurisdiction, the Member erred:

(i) by misconstruing the standing requirements under s 247 and Schedule 2 of the CP Act as they apply to seek review of a decision made under s 87(2) of the CP Act; and

(ii) by concluding (at [30] of the judgment) that the respondent was a 'person affected by the decision' who has standing to bring his application for review.

• [13] This appeal is made pursuant to s 142(3)(a)(ii) of the QCAT Act, which says:

(1) A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.

(2) Also -

(a) an appeal under subsection (1) against any of the following decisions of the tribunal may be made only if the party has obtained the appeal tribunal's leave to appeal -

(ii) a decision that is not the tribunal's final decision in a proceeding; ...

• [14] It is well established that the Appeal Tribunal ought to consider whether there is:

(a) a reasonably arguable case of error in the primary decision and whether a grant of leave is necessary to correct a substantial injustice occasioned by error at first instance; and

(b) a question of general importance in respect of which an appellant decision would be in the public interest.

• [15] The Department submits that there is an arguable case of error in the primary decision under both grounds of appeal set out above. The Department also submits that where an alleged error, if accepted by the Appeal Tribunal, would vitiate both the Tribunal's jurisdiction to hear the substantive review proceedings and the respondent's standing to bring that proceeding, a substantial injustice (indeed, a continuing abuse of process) is liable to occur if not corrected on appeal.
• [16] The Department submits in this case that, questions raised by this appeal are particularly important for three reasons:[7]

(a) Firstly, the questions are directed to the very jurisdiction of the Tribunal to hear and determine matters of this nature, and the standing of persons to commence proceedings of this nature;

(b) Secondly, the question raised by the second ground of appeal has been the subject of divergent jurisprudence in the Tribunal below, and would, it is submitted, benefit considerably from the clarification that a decision of the Appeal Tribunal would provide; and

(c) Thirdly, the clarification that a decision of the Appeal Tribunal would provide (in respect of the issues raised by both grounds of appeal) would be of considerable benefit to the efficient administration of the Child Protection regime, with which many vulnerable Queensland citizens, particularly children, engage on a regular basis.

• [17] For present purposes, it is accepted that the subject children are the subject of long-term guardianship orders in favour of the Department. As such, pursuant to ss 12 and 13 of the CP Act, the Department has all the powers, rights and responsibilities in relation to the child that would have otherwise been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child, including with whom the child is to have contact. Decisions made under ss 12 or 13 of the CP Act are not reviewable decisions.[8]
• [18] The chief executive has a range of additional functions and obligations under Chapter 2, Part 6, Division 4 of the CP Act. This includes s 87, which provides:

(1) The chief executive must provide opportunity for contact between the child and the child's parents and appropriate members of the child's family as often as is appropriate in the circumstances.

(2) However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child's parents or members of the child's family, if the chief executive is 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 members to have the contact.

(3) If the chief executive refuses to allow, or restricts or imposes conditions on contact between the child and a person, the chief executive must give written notice of the decision to each person affected by the decision.

(4) The notice mentioned in subsection (3) must comply with the [Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act')], section 157(2).

• [19] The Department noted the explanation of s 87 as set out in Department of Child Safety, Youth and Women v PJC and the Public Guardian ('PJC'):[9]

Relevantly, if the chief executive has custody or guardianship of the child, pursuant to s 87(1) the chief executive must provide an opportunity for contact between the child and child's parents and appropriate members of the child's family. However pursuant to s 87(2), the chief executive has a broad discretionary power to refuse to allow, or restrict or impose conditions on contact between the child and the child's parents or members of the child's family. If the chief executive makes a decision under s 87(2), pursuant to s 87(3) the chief executive is required to give written notice to each 'person affected by the decision'.

• [20] The Department appropriately makes concessions in respect to the first ground of appeal that neither the Department nor the respondent made submissions directing the Member to determine whether the decision was within the Tribunal's review jurisdiction. I am satisfied that, notwithstanding, I may proceed to determine the question of law raised. I note the submission made by the Department that, if I accept the correctness of the position advanced by the Department in respect of the first ground of appeal, it would follow that the Tribunal below was functus officio, the decision was ultra vires and consequently, it is not only expedient but necessary to hear and determine the first ground of appeal.[10]
• [21] I note provisions s 247 of the CP Act providing for the review of certain decisions. That section says:

An aggrieved person for a reviewable decision may apply, as provided under the QCAT Act, to the tribunal to have the decision reviewed.

Note -

Aggrieved persons and reviewable decisions are in schedule 2.

• [22] I also note the definitions of 'aggrieved person' and 'reviewable decisions' contained in Schedule 3 of the CP Act:

aggrieved person, for a reviewable decision, means a person stated opposite the decision in schedule 2.

...

Reviewable decision means -

(a) for chapter 2A - see section 99B; or

(b) otherwise - a decision stated in schedule 2.

Reviewable decisions and aggrieved persons

section 247 and schedule 3, definitions aggrieved person and reviewable decision

Refusing to allow, restricting, or imposing conditions on, contact between a child and the child's parents or a member of the child's family (section 87(2))

• [24] The Department submits that decisions to allow family contact, as distinct from decisions to refuse to allow, restrict or impose conditions upon family contact made under s 87(2), are not 'reviewable decisions' for the purposes of s 247.[11] The CP Act confers neither jurisdiction, nor standing, for the seeking of review of such decisions of the Tribunal.
• [25] The decision notice sent to LK was as follows:

When a child is under the guardianship of the chief executive, delegated officers of the department have the authority, under s 87(2) of the [CP Act], to make decisions about family contact between the child or young person and their family members. Such a decision is only made when it is considered to be in a child's best interests and/or such contact is not reasonably practicable.

Contact decision and reasons

It is under this authority that in approximately February or March 2022, I made a decision to allow you to enjoy family contact with your niece, [AS]. The decision I made is that you and [AS] should be able to have any such contact with each other as you each mutually agree. That is, you can have contact with each other at any reasonable times you wish and you may choose the duration and the type of contact as well as the place where contact happens. Effectively, this means you can have face-to-face, telephone/video contact and contact on social media that any time you and [AS] agree so long as this is reasonable and that the contact continues to be in [AS'] best interests.

I am required by the [CP Act] to advise you in writing when I make a contact decision and give you reasons for the decision and to give you advice about what you can do if you do not agree with the decision.

The reasons for my decision are that Child Safety assesses that:

(a) it has been observed between you and [AS] continues to be a positive experience for [AS];

(b) [AS] has the age and maturity to make sensible decisions about contact;

(c) you are assessed to be a significant person in [AS'] life; and

(d) it is in [AS'] best interests for child safety to listen to her views and make decisions that place significant weight on her wishes when they are soundly and reasonably based.

The contact that you have with [AS] will be reviewed from time to time having regard to the views and wishes that you both express and what is in [AS'] best interests. Further decisions will only be made if appropriate and necessary.

• [26] I am satisfied that, as submitted by the Department, the decision was a decision to allow contact between the child the subject of long-term guardianship orders and her aunt. It is not a decision to refuse, restrict or impose conditions on contact, and therefore is not a decision under s 87(2) but rather a decision under s 87(1). In those circumstances, I am satisfied that a decision to allow contact with a parent or family member, as distinct from a decision to refuse, restrict or impose conditions on contact with a parent or family member, is not a reviewable decision under s 247 of the CP Act. Accordingly, the Tribunal has no jurisdiction to hear an application for review of the impugned decision and the Member at first instance erred by proceeding to determine the review.
• [27] I accept the submission that a decision allowing unsupervised access to a child is not a reviewable decision under s 247 of the CP Act because no part of such a decision involves refusing to allow, restricting or imposing conditions on contact with a parent or family member.
• [28] Having found that the decision is not reviewable, it is not necessary to decide if the respondent is an affected person however I propose to do so in the interests of completeness.
• [29] I note and adopt the Appeal Tribunal's approach construing ss 87(3) and 247 of the CP Act in PJC in which Senior Member Howard and Member Browne jointly observed that:[12]

Having regard to the legislative scheme, and in particular, ss 87 and 247 and Schedule 2, on a plain reading, a 'person affected by the decision' for the purposes of s 87(3) who must be given written notice of a s 87(2) decision, is also relevantly an 'aggrieved person' for a reviewable decision pursuant to s 87(2) for the purposes of Schedule 2 and for s 247 of the Act.

Accordingly, here, it is not appropriate to adopt a broad approach to the construction of s 247 and in interpreting the words 'a person affected by the decision' as used in Schedule 2 for a decision made under s 87(2) of the Act. For reasons set out below, the class of persons who may be 'affected' for the purposes of s 87(3) is, on a proper construction, delimited by the class of persons to whom s 87(2) has application. Section 87 only applies to decisions by the chief executive about contact between a child and the child's parents and members of the child's family. Under s 87(1), contact must generally be provided. However, s 87(2) in respect of a child and a parent or member of the child's family, it must give a written notice to each person affected by its decision. That is, to the child and the parent or family member in respect of whom contact is refused or restricted or the subject of conditions.

• [30] I accept the Department's submission that the Member below erred in stating that:

... the decision that a biological parent of a child would never be a person affected by a decision by another person who has decided who could have unsupervised access to their child is demonstrably wrong.'

• [31] The learned Tribunal Member went on to say:[13]

To conclude otherwise would be to conclude that a parent is no longer a person affected by decisions concerning their children because the decision-making responsibilities are vested in another person.

• [32] With respect, in my view this is the wrong assumption. Of course, a parent will be affected by decisions made about their children. The question is rather, whether, the decision is a reviewable decision under the CP Act.
• [33] I note the decision by Member Rogers in PP and DP and DT v DCCSDS,[14] which says:[15]

The right to review a decision is not extended to all persons who have an interest in the child's well-being. I accept that decisions relating to contact impact on the carers and extended family because they are required to support the child in contact and manage the child's emotions, behaviours and health concerns following contact. However, this impact does not mean they are persons "affected by the decision" for the purposes of the Act.

• [34] I accept the submission made by the Department that a properly directed inquiry, informed by the subject, scope, purpose and context provided by the CP Act set out above leads to a conclusion that:

(a) a parent or family member who, by operation of a s 87(2) decision, finds their own contact with a child refused, restricted or conditioned, is affected by that decision; and

(b) the child in the chief executive's care the subject of the decision is affected by that decision; but

(c) a parent or family member whose own contact with a child is unaffected by a decision to refuse, restrict or condition contact with another person is not a 'person affected by the decision' within the meaning of Schedule 2 of the CP Act.

(a) the respondent is not an aggrieved person for the purposes of s 247 of the CP Act because he is not a person affected by the decision within the meaning of Schedule 2;

(b) the respondent does not have standing to bring an application to review the impugned decision in this case; and

(c) the learned Member below erred in concluding otherwise at [30] of his reasons.

Human Rights Act 2019 (Qld)

• [37] The Member below considered s 48 of the Human Rights Act 2019 (Qld) ('HR Act'), which states:

(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(4) This section does not affect the validity of -

(a) an Act or provision of an Act that is not compatible with human rights; or

(b) a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.

(5) This section does not apply to a statutory provision the subject of an override declaration that is in force.

• [38] I am satisfied that s 247 does not limit human rights. Section 247 provides a mechanism by which certain persons may seek merits review of certain decisions of the Tribunal.[16] However construed, s 247 does not of itself limit the family's right to protection.
• [39] I accept the Department's submission that, even if that is incorrect, any limitation of a human right occasioned by adopting a narrow interpretation of s 247 would be demonstrably justifiable in the way provided for in section 13 of the HR Act given:

(a) the need to ensure that decisions about a child are made without undue delay;

(b) the need to ensure that the child experiences legal arrangements that provide the child with a sense of permanence and long-term stability;

(c) the background to the making of such a decision, including that the child's parents must necessarily have been unable or unwilling to provide the desired protection for a child in order for the child protection order to have been made in the first place; and

(d) the fact that there are otherwise no review rights in respect of any contact decisions other than those refusing, restricting or conditioning contact with particular family members or parents under s 87(2).

• [40] Accordingly, it is the decision of the Appeal Tribunal that:
  1. Leave to appeal is granted.

1. Pursuant to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the appeal is allowed, and:

(a) the decision made in CML093-22 is set aside; and

(b) CML093-22 is dismissed.

[1] [2023] QCAT 111 ('James').

[3] Amended Applicant's Written Submissions, filed in the Tribunal 3 August 2023, 6 [25] ('Applicant's submissions') 4 [11].

[7] Applicant's submissions (n 3) 6 [25].

[8] Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109 ('PJC').

[10] Applicant's submissions (n 3) 15 [51(d)].

[14] [2017] QCAT 477.

[16] Applicant's submissions (n 3) 30 [110].