PJC v Department of Communities, Child Safety and Disability Services
[2017] QCAT 350
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- PJC v Department of Communities, Child Safety and Disability Services[2017] QCAT 350
- Add to List
PJC v Department of Communities, Child Safety and Disability Services[2017] QCAT 350
PJC v Department of Communities, Child Safety and Disability Services[2017] QCAT 350
CITATION: | PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350 |
PARTIES: | PJC (Applicant) |
v | |
Department of Communities, Child Safety and Disability Services (Respondent) | |
APPLICATION NUMBER: | CML156-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 20 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where decision to place conditions on contact – where applicant not parent or member of family – whether applicant has right of review Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20(1) Child Protection Act 1999 (Qld), s 5A, s 5B, |
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).
REASONS FOR DECISION
- [1]On 23 May 2017 a delegate of the Director General, Department of Communities, Child Safety and Disability Services (Child Safety) made two decisions. The first was to remove a child, who is under the guardianship of the chief executive, from the care of PJC. The second decision was a purported contact decision. It stated a decision about contact would be made in the future depending on the wishes of the child. PJC was advised by the accompanying notice she had a right of review of this contact decision through QCAT.
- [2]PJC applied to QCAT on 26 June 2017 for a review of the contact decision.
- [3]On 14 July 2017 Child Safety made a further decion which placed conditions around contact between PJC and the child. This decision also advised of a review right to QCAT.
- [4]The purpose of a review is to produce the correct and preferable decision,[1] by way of a fresh hearing on the merits. The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) and the Child Protection Act 1999 (Qld) (the Act).[2] An application for a review is a request for a new decision to be made by the Tribunal based on the information available at the time of the hearing. It is not the role of the Tribunal to determine if the reviewable decision was correct. However the scope of the Tribunal’s decision is restricted by the scope of the reviewable decision.
- [5]Both the decision of the 23 May 2017 and the decision of 14 July 2017 may be considered by the Tribunal because they relate to the same subject of the review, namely a decision to regulate and restrict contact between PJC and the child.
- [6]It was not argued by Child Safety that the decision of 23 May 2017 was not a decision but merely an indication that a decision would be made in the future. I have formed the view that even if this argument had been made and accepted, the subsequent decision of 14 July 2017 was a valid reviewable decision.
- [7]At a Directions Hearing on 9 August 2017 Child Safety raised an argument that PJC did not have a right to review the contact decision. A Direction was made that this issue would be determined on the papers following written submissions from the parties.
- [8]This decision is therefore restricted to the question of whether the Act confers on PJC a right of review through QCAT.
- [9]The decisions in relation to contact were made under s 87(1) of the Act. This section provides:
Chief executive to provide contact between child and child’s parents
- (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 member to have the contact.
- (3)If the chief executive refuses to allow, or restricts or imposes conditions on contact between a 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 QCAT Act, section 157(2)
- [10]S 247 of the Act provides for the review of a reviewable decision and states:
An aggrieved person for a reviewable decision may apply, as provided under the QCAT Act, to the tribunal to have the decision reviewed.
- [11]Schedule 2 of the Act provides that when a decision is made under s 87(2) the aggrieved person is ‘a person affected by the decision’.
- [12]Child Safety argues s 87 falls within Part 6 Division 4 of the Act which relates to the obligations and rights attaching to parents and family members whose rights with respect to their primary responsibility for the child have been disrupted by an Order to place a child in the care of the chief executive. This focus has resulted in a deliberate reference only to ‘the child’s parents and appropriate members of the child’s family’ and excludes reference to kin, persons of significance or those with a connection to the child thus forming part of the family group.[3]
- [13]Child Safety argues that to elevate and establish entitlements under s 87 to a person with a connection to the child, or even a significant relationship, is untenable and not supported by the language of the Act.
- [14]PJC argues she has cared for the child for over five years and is a therefore a person of significance to the child. She describes herself as the person to whom the child consistently turns for ’security, reassurance and comfort.’ It is not disputed by Child Safety she may fall into the category of ‘kin’. I accept that she does and that their relationship falls into the category of ‘significant relationships’.
- [15]She then argues her relationship with the child is sufficient to characterise her as falling into the category of ‘parent’ or ‘appropriate member of the child’s family’ and she is therefore entitled to the benefit of contact with the child and the child with her. It is this submission that is challenged by Child Safety.
- [16]I accept the approach outlined by Child Safety is the proper approach when considering the obligations of the chief executive under s 87. The Act is a complex one. Guided by the principle that the safety, wellbeing and best interests of the child are paramount[4], it addresses the rights of children to be raised by their parents, the circumstances where this is not appropriate, the obligations of the chief executive when a child is taken into care, the rights of parents when their child is in care, the regulation of carers and many other matters.
- [17]When interpreting this legislation, it is necessary to ensure language used in another part of the Act is not imported to override the clear meaning and focus of the section under review. I am satisfied the purpose of s 87 is to ensure a child has an opportunity to know and maintain a relationship with their family of origin to the extent possible in the circumstances.
- [18]S 122 of the Act imposes a positive obligation on the chief executive to ensure the child will be encouraged to maintain family and other significant relationships.
- [19]S 5B(l) states ‘a child should be able to maintain relationships with the child’s parents and kin if it is appropriate for the child’. The term ‘kin’ is defined broadly in Schedule 3 of the Act to mean any of the child’s relatives who are persons of significance to the child and anyone else who is a person of significance to the child.
- [20]While I am therefore satisfied the chief executive is under an obligation to ensure the child is able to maintain significant relationships, and the child’s relationship with PJC is a significant relationship, a decision under s 87 is not the proper mechanism for this to occur.
- [21]However, the submission by Child Safety has been framed such that PJC does not have a right of review because s 87 is intended to apply to a narrow group of people, she does not fall within that narrow group and therefore the decision made under s 87 cannot be characterised as a ‘reviewable decision’ under the Act. As a consequence, the decision does not enliven the tribunal’s review jurisdiction.
- [22]The submission does not indicate whether Child Safety is of the view decisions affecting non-family members can be made under s 87, just not reviewed, or these decisions should not be made under s 87 at all.
- [23]If it would argue the later alternative is correct, a consequence of granting the application to dismiss by Child Safety would have the effect of leaving on foot a decision which, it appears, should not have been made under that section in the first place. This outcome would be contrary to the obligation on the Tribunal to ‘foster an atmosphere of review that enhances the delivery of service to children’.[5]
- [24]If on the other hand, Child Safety is arguing it can make decisions affecting person who are not family under s 87, they just can’t be reviewed, this approach would have the effect of creating two classes of decisions made under that section. One class of decisions would be reviewable and the other would not, even though the persons in both groups would meet the criteria of a ‘person affected’ for the purpose of Schedule 2.
- [25]In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[6] the Full Federal Court was asked to deal with an objection raised by the Collector to the jurisdiction of the Administrative Appeals Tribunal to set aside an invalid decision to revoke a licence. In that case it was argued that a decision that was alleged to be invalid was not a decision but a nullity. Smithers J stated that the Tribunal could review a decision ‘made by an administrator in purported or assumed pursuance of the relevant statutory provision’.[7] Bowen CJ commented ‘There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal.’[8]
- [26]In this case Child Safety has not argued that its decision is invalid, or a nullity, it has simply argued that because PJC is not a person who comes within the scope of s 87 she should be denied a right of review. It is difficult to see how that argument can be construed as anything other than an acceptance by Child Safety that the decision made, as it relates to PJC, is legally ineffective.
- [27]Sub-section (3) of s 87 does not refer to ‘a parent or members of the child’s family’ it refers to ’a person’. In this case a decision has been made under s 87 and that decision purports to determine the conditions surrounding PJC’s contact with a child. Notice was given to PJC. She is, for the purpose of the requirement to give notice and for the purpose of Schedule 2, ‘a person affected by the decision’ and therefore has a right of review as provided for in Schedule 2 of the Act. The validity of the decision, or whether it should have been made in the first place, does not determine whether PJC is affected by it. She clearly is. This is the basis of her review right.
- [28]A decision to deny a right of review on the basis of jurisdiction cannot be made lightly. The High Court has stated that it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”[9]. While I accept the submissions of Child Safety about the purpose and scope of s 87, once a decision has been made it would be necessary to imply a limitation to deny a right of review of that decision.
- [29]For these reasons, I am satisfied PJC does have a right of review and the application by Child Safety to dismiss the application is refused.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
[2] S 19.
[3] ‘Family group’ is defined in s 51E to include, relevantly, members of the child’s extended family and anyone recognised by the extended family as belonging to the family.
[4] Child Protection Act 1999 (Qld), s 5A.
[5] Child Protection Act 1999 (Qld), s 99C(c).
[6] (1979) 41 FLR 338.
[7] Ibid, 365.
[8] Ibid, 344.
[9] The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404, 421, as cited by Member Olding in Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 263, [38].