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[2017] QCAT 477
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2017-10-12
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
[1] This application relates to a decision made by the Chief Executive in about February 2017 granting a mother unsupervised contact with her young child in her home three times a week for three hours each visit. The little one is nearly two and she has two siblings aged 4 and 3. All three children are subject to short term child protection orders granting short term custody to the Chief Executive of the Department of Communities, Child Safety and Disability Services. Each child was placed in the care of their grandparents shortly after birth.
[2] The family is Indigenous and, as is required by the Child Protection Act 1999 (the Act), where a parent is not able and willing to care for the children they have been placed in the care of family members to maintain their cultural beliefs and identity. Two of the applicants seeking a review of the February 2017 decision are the kinship carers and grandparents of the children. The third applicant is the sister of the Grandfather/Carer and an Elder in the family. She has been a large part of the children's lives.
[3] As the result of concerns that were raised about the health of the child, Child Safety made a decision on 29 March 2017 restricting contact to twice a week for three hours. The first session is to be at a playgroup and the second in the mother's home and it is to be supervised at the beginning and end of each session.
[4] The mother applied for a review of this decision which restricted her contact. After a Stay Hearing and Compulsory Conference, she was given leave to withdraw her application on 18 August 2017 and accordingly the proceedings relating to the 29 March 2017 decision have now been finalised.
[5] The present arrangements are the mother and youngest child have contact at playgroup on Wednesdays for three hours. If playgroup is cancelled the contact occurs in the mother's home for three hours and is supervised for 30 minutes at the beginning and 30 minutes at the end of the session. Contact also occurs on Fridays in the mother's home. This contact is supervised by a Departmental worker and includes the two older children.
[6] The applicants have asked for Orders that any contact be fully supervised, that a psychological assessment be completed on the children to explore the impact of separation of the siblings or removal from their primary carers prior to any decision being made regarding their future and the children be assigned an independent lawyer to assess the case in its entirety.
[7] Child Safety has applied for the application to be dismissed under s 47 of the QCAT Act without proceeding to a review on the merits because it is frivolous, vexatious or misconceived, or lacking in substance or is otherwise an abuse of process. It argues the applicants are not persons who fall into the category of people 'affected by the decision' as it relates to the contact between the child and her mother and therefore they do not have standing to bring the application.
[8] The applicants state that this argument is misconceived and culturally inappropriate.
[9] I have decided the applicants do not have standing and their application must be dismissed.
[10] An application for review of a decision under s 87 of the Act to refuse, restrict or impose conditions on contact can only be brought by 'an aggrieved person.' An 'aggrieved person' is the person nominated in Schedule 2 of the Act against the section under which the decision is made. In the case of decisions made under s 87(2) Schedule 2 states the application can be brought by 'persons affected by the decision.'
[11] These words must be interpreted in the context of the legislation as a whole. Any person who has a significant connection with a child can apply to maintain contact with the child. The person asking for contact or the child is a person 'affected by the decision'. This is because the decision has either granted, denied or imposed conditions on their request. The child is a person affected because the decision affects their right to maintain or not maintain contact with significant people in their life. The decision acts on these people.
[12] 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.
[13] I acknowledge the argument that in the Aboriginal culture decisions concerning the raising of children can be made by the extended family rather than restricted to the biological parents. The applicants are arguing that because they would have been the ones to make the decision if the child was not in care they are in fact 'affected by' the decision when it is made by someone other than them.
[14] Once a child is taken into care decisions relating to contact are made not by the family but by the Chief Executive or delegate under the power contained in s87(2). While the views of people involved in a child's life and the information they have concerning the well being of the child are very important, the final decision, with the specific exceptions where a jurisdiction to review is given to the Tribunal, must rest with the delegate.
[15] It appears the applicants are wanting to bring this application because they believe it is in the best interests of the child to do so. However that is not a course that is open to them.
[16] Even if the applicants did have standing the Tribunal does not have the jurisdiction to make the Orders requested seeking a psychological assessment or the appointment of a legal representative for the children in this application. Those requests include all three children but the decision being appealed is limited to the youngest child. The concerns raised to support these requests are matters that need to be fully explored when the current child protection orders expire if further orders are sought by Child Safety.
[17] The February 2017 decision was superseded by the 29 March 2017 decision concerning the same mother and child. The proceedings seeking a review of that subsequent decision, which restricted contact and reinstated some supervision, have now been finalised. An application to review a decision does not trigger an adversarial contest between two parties, namely the applicants and Child Safety. An application is merely a request to the tribunal to make a decision afresh. While acknowledging different applicants will bring different evidence and make different submission to the tribunal, it is, to some extent, irrelevant who makes the request. The tribunal must have formed the view it was in the best interests of the child for the March decision proceedings to be terminated before granting leave to the applicant, who was the mother, to withdraw her application. In other words, the tribunal must have been satisfied it was not necessary to review the March decision.
[18] In these circumstances, a review of the February decision is now lacking in substance.
[19] Section 47 of the QCAT 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. I am satisfied the applicants lack standing and the application is therefore misconceived. In the alternative, I am satisfied the application is lacking in substance because the orders sought by the applicants cannot be granted.
[20] The application is dismissed.
PP and DP and DT
Department of Communities, Child Safety and Disability Services [2017] QCAT 477