HD v Department of Communities, Child Safety and Disability Services
[2018] QCAT 17
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- Unreported Judgment
- HD v Department of Communities, Child Safety and Disability Services[2018] QCAT 17
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HD v Department of Communities, Child Safety and Disability Services[2018] QCAT 17
HD v Department of Communities, Child Safety and Disability Services[2018] QCAT 17
CITATION: | HD & BHW v Department of Communities, Child Safety and Disability Services [2018] QCAT 17 |
PARTIES: | HD BHW (Applicants) v Department of Communities, Child Safety and Disability Services (Respondent) |
APPLICATION NUMBER: | CML031-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 31 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND PARTIES – PARTIES – interlocutory application to be joined as a party in a childrens matter FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where foster carers applied to be joined as parties in a review of contact between parents and the Department – where carers argue they have genuine concerns and unique evidence to put before the Tribunal – whether it is necessary to join as parties or whether status as witness is sufficient Child Protection Act 1999 (Qld), s 99ZC |
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]HD and BHW are the parents of four children, HAM, HIM, HJ and HM. Two children reside with their aunt and uncle and two, HAM and BM, are in the care of generally-approved foster carers.
- [2]The parents have applied to QCAT to review a decision made by the Department concerning contact with their children.
- [3]As part of this dispute, the foster carers for HAM and HM have applied to be joined as parties under section 99ZC of the Child Protection Act 1999 (Qld) and if that is successful, the foster carers for HM have applied to be legally represented.
- [4]The Tribunal may join a person as a party to a review if it is satisfied the person is genuinely concerned in the subject matter of the review. However, if the review concerns a child, the Tribunal may not join a person as a party unless it is satisfied that to do so would be in the child’s best interests
- [5]If a party is joined to a proceeding, that person becomes a “party to the review” with all the normal rights a party has in Tribunal proceedings, for example to call or give evidence, to examine, cross-examine and re-examine witnesses, and make submissions to the Tribunal and to appeal the eventual decision.
- [6]RK and CD are the foster carers of BM. They submit in support of their application to be joined that:
- They have serious concerns regarding BM’s welfare due to contact with her birth family and have raised their concerns with the Department, but the Department have allowed her contact to be increased;
- BM has been seeing a play therapist and a clinical psychologist in relation to the effects of contact on her and that the carers want to provide their evidence to the Tribunal for consideration;
- They have observed BM’s post-contact behaviour and they wish to put these observations before the Tribunal as evidence;
- In their view, contact between BM and her parents should be reduced in BM’s best interests. As there has only been a small number of home visits by the Department, RK and CD believe the Department’s view may be based on inaccurate and out of date information.
- [7]SEV is the foster carer of HAM. She submits in support of her application to be joined that:
- The decisions being made are detrimental to HAM;
- The Department has not acted in his best interests;
- HAM requires a reduction in contact not an increase. If the current contact frequency is maintained or increased this would have a significant impact on HAM’s development, social and emotional wellbeing;
- SEV can provide information about HAM, in particular his behaviour, the impact of contact and how his impairment effects his home life and relationship with his family.
- [8]The Department recognises its obligation to use its best endeavours to help the Tribunal in these review proceedings and to assist the Tribunal to reach the correct and preferable decision.[1]
- [9]In its submissions the Department says:
- The carers in this matter along with all other relevant witnesses in the matter are competent and compellable;
- In meeting its obligations under the Act, the Department intends to lead evidence from the carers and any relevant expert who has been involved in an assessment or therapeutic intervention;
- When the matter proceeds to hearing, the Department will be inviting all relevant witnesses to prepare witness statements to be filed in the Tribunal and will be seeking to have issued Notices to Attend compelling those witnesses to attend the hearing to be cross-examined in relation to their evidence;
- All the carers will have ample opportunity to put all relevant information in their possession, including evidence of their pre-contact and post-contact observations of the children before the Tribunal for consideration;
- To the extent that the carers propose to put opinion evidence before the Tribunal or to advocate their own particular views, there will also be ample opportunity for them to ventilate those views in their role as witnesses in the proceeding.
- [10]The Department further submits:
- If the carers are joined as parties to the proceeding, they will be entitled to have disclosed to them all evidence filed in the proceeding. That evidence will comprise significant amounts of confidential information in relation to the parents and the children to which they would not otherwise be entitled. It would constitute a significant invasion in the privacy of the parents and the children;
- Joining two further parties to the proceeding will also inevitably extend or lengthen the duration of the hearing;
- If the carers are joined to the proceeding, they will also be able to appeal any final decision of the Tribunal. This would vest in them (as persons who can only be legally characterised as “strangers” or “interlopers”) an ability to seek review of a decision in relation to another person’s contact with a child (in this case the parents’ contact);
- Taking such a step would allow a person to challenge the granting of contact to another person. Currently, only the Public Guardian has the power to seek such reviews under sections 128 and 133 of the Public Guardian Act 2014 (Qld).
- [11]Finally, the Department says none of the carers’ submissions in relation to their unique ability to put information before the Tribunal necessarily leads to the conclusion that they should be elevated to the status of being parties to the proceeding. Further, interference in the parents’ and the children’s privacy and the almost inevitable elongation in the scale and duration of the hearing will occur in circumstances where neither carer has been able to identify any compensating advantages accruing from their involvement in the proceeding as parties.
- [12]Having considered the submission for all parties, I do not see the utility in joining these carers as parties. I am satisfied that the Department, through its legislative obligations will ensure that the evidence of the carers is put before the Tribunal.
- [13]I am not satisfied the carers have any persuasive reason why they should be given the privileged status of a party and to have all of the rights and duties that accrues to that status. The same evidence can be put before the Tribunal as witnesses in the proceedings.
- [14]I am satisfied, as submitted by the Department, that acceding to the application would otherwise elevate the standing of persons whose own contact with the child is not the subject of review. In this matter joinder as parties is not procedurally necessary for the Tribunal to reach the correct and preferable decision on the hearing in a manner that deals with this matter in a way that is accessible, fair, just, economical, informal and quick.[2]
- [15]As I have not granted the joinder application, the consequential application for leave to be legally represented must also be dismissed.