James v Department of Children, Youth Justice & Multicultural Affairs
[2023] QCAT 111
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- James v Department of Children, Youth Justice & Multicultural Affairs[2023] QCAT 111
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James v Department of Children, Youth Justice & Multicultural Affairs[2023] QCAT 111
James v Department of Children, Youth Justice & Multicultural Affairs[2023] QCAT 111
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | James v Department of Children, Youth Justice & Multicultural Affairs [2023] QCAT 111 |
PARTIES: | JAMES (a pseudonym) (applicant) v DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS (respondent) |
APPLICATION NO: | CML093-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 23 March 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney KC |
ORDERS: | The application by the Respondent to dismiss the Application on the grounds of want of standing or jurisdiction is refused. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where chief executive granted long-term guardianship rather than mere custody of subject children – where application to review contact decision made by chief executive – whether applicant a parent or family member – whether applicant person affected by decision and has standing – whether Tribunal has jurisdiction to determine the application Child Protection Act 1999 (Qld), s 5B, s 5BA, s 11, s 12, s 13, s 87, s 247, Schedule 2 Human Rights Act 2019 (Qld), s 26 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 17 Allan v Transurban City Link Limited (2001) 208 CLR 167 Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109 FQA and MKD v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 126 NN and IN v Department of Child Safety, Youth and Women [2020] QCAT 146 PP and DP and DT v Department of Communities, Child Safety and Disability Services [2017] QCAT 477 SBN v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 321 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The present proceeding before the Tribunal concerns an application by the biological father of two children, one under the age of 10 and one under the age of 15 where the Applicant has filed an application in 2022 seeking a review of what was described as a decision by the Thuringowa Child Safety Service Centre. That Centre is described in the Application as “the current foster carers of the children”. As I will mention shortly in relevant context, in fact the Children’s Court has granted long-term guardianship to the Chief Executive. As described in the application, a review is sought of the decision by an identified person within the Thuringowa Child Safety Service Centre which had the effect of allowing unmonitored contact between the children and their aunt, who is the Applicant’s sister.
- [2]A directions hearing was held by the Tribunal on 24 May 2022 at which the Respondent Department made submissions to the effect that a parent or family member of a child, within the meaning of s 87 of the Child Protection Act 1999 (Qld), who seeks to challenge a decision that affects the contact that another parent or family member has with a child, not that of the applicant parent, does not have standing to bring that application because he is not a “person affected” by the decision.
- [3]Orders made on 8 November 2022 by the Tribunal directed that there be a separate hearing of this issue, which has been described on orders as a question of jurisdiction to be determined separately from the merits review sought to be brought by the Applicant. The Respondent seeks an order dismissing the review summarily.
- [4]Submissions were initially filed by the Department in relation to that issue on 7 June 2022 and the Applicant, who is self-represented, filed submissions on 14 June 2022. Further lengthy submissions were filed by Child Safety dated 8 November 2022 which do not appear to have been responded to by the Applicant. The submissions filed on behalf of the Applicant on the standing issue raise many factual issues and issues that go to the merits of his application for a review and have been of limited assistance. There is no other contradictor of the Respondent’s contentions.
- [5]The nub of the issue, as identified in the 7 June submissions, is the contention by the Department that the Applicant 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.
- [6]One of the directions which was made by the Tribunal required the Department to file copies of any decision letters or other material relating to the children, and to the paternal aunt, that is the Applicant’s own sister, in consequence of which two decision letters were filed in the Tribunal on 31 May 2022 and were provided both to the Applicant, and also to the paternal aunt who was to be given unmonitored child contact, as well as to one of the children.
- [7]There are two other applications before this Tribunal at present, namely proceedings CML006-21 and CML114-22 in which an applicant has, I was told, also sought to review decisions in relation to contact between an applicant’s children and another family member. In the first of those matters it concerns contact between the children and their mother. In the second it concerns contact between four siblings, with no other parent being involved. Submissions which were filed in QCAT seeking to have those applications dismissed on the basis that the applicant in each of those cases did not have standing, based upon the same argument as is raised here, have been included in the material before this Tribunal.
- [8]In those submissions in CML006-21 and CML114-22 some reliance is placed upon other decisions of this Tribunal, namely that of Department of Child Safety, Youth and Women v PCJ and the Public Guardian [2019] QCATA 109, a decision of Senior Member Howard and Member Brown, and the decision of Senior Member Aughterson in FQA and MKD v DCYJMA [2022] QCAT 126.
- [9]The first question is to construe s 87 of the Child Protection Act to see whether it is capable of being construed as including within the categories of persons affected by a decision who have a right of review, a parent or family member who is not the subject of the decision.
- [10]The evident purpose of s 247, and Schedule 2 of the Child Protection Act, is to define and limit who may apply to the Tribunal to review a decision. What its limitations are is a matter of conjecture. The decision in the present case was one made under s 87(2).
- [11]Section 87 provides:
87 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 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 QCAT Act, section 157(2).
- [12]Section 247 of the CP Act provides for the review of a reviewable decision and states that an aggrieved person for a reviewable decision may apply, as provided under the QCAT Act, to the tribunal to have the decision reviewed. 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’. In my view whether and how a particular person is affected will vary from case to case; it is certainly not determined by to whom it is that the director gives a section 87(3) notice.
- [13]Section 87(2) allows the Chief Executive 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”. 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. Hence, contact decisions made under s 87(2) of the Act are reviewable by the Tribunal.
- [14]The decision in SBN allowed contact between the subject child and an aunt and uncle and one of the subject child’s siblings with the intention to facilitate family time between the subject child and the two other siblings. The Applicant in that case was the mother of all of the three children, and the Tribunal held that the decision concerned contact between family members. In that case, the Respondent submitted that the Applicant was not a person affected, as it does here, because the Applicant was not the subject of the decision and the decision did not concern her contact with the subject child and hence she was not a person affected by the decision.
- [15]In SBN, Senior Member Aughterson held as follows (footnotes omitted):
[5] However, it is the respondent’s submission that the applicant is not ‘a person affected by the decision’ and hence is not an ‘aggrieved person’ within the meaning of s 247 and Schedule 2 of the Act. It is submitted that that is so because the applicant was not the subject of the decision; the decision did not concern her contact with the subject child and hence she was not ‘a person affected by the decision’. On that basis, it is submitted that the Tribunal does not have jurisdiction to determine the matter.
[6] The term ‘a person affected by the decision’ is not defined in the Act. While two earlier decisions, referred to in the written submissions of the respondent, have considered the meaning of that term, the primary issue in those cases was whether it was a reviewable decision such as to invoke the jurisdiction of the Tribunal.
[7] In Department of Child Safety, Youth and Women v PJC and the Public Guardian (‘PJC’), application was made by a former approved foster carer of the subject child, seeking to review a decision of the respondent restricting her contact with the child. It was the position of the Department, and accepted by the Appeal Tribunal, that the contact decision was not made pursuant to s 87, but rather under s 13 of the Act.
- [16]The learned Senior Member referred to another decision of the Tribunal in Department of Child Safety, Youth and Women v PJC and The Public Guardian [2019] QCATA 109 (“PJC”), noting that while the Tribunal there did seem to suggest that the term refers to the child and parent or family member in respect of whom contact is refused or restricted, that issue was not central to the determination of the Tribunal because no decision was made there under s 87 of the Act, as it is here. Hence, no standing question arose in that case and any suggestions concerning what was the proper construction of the language of the “person affected” was obiter or not central to the decision.
- [17]The decision in FQA and MKD v The Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 126 at [15] turned not upon the issue of what was the proper construction of the words presently under consideration, but whether a person who was not the biological father of the children and had not exercised parental responsibility was a parent within the meaning of s 87 of the Act and therefore whether the decision was a reviewable one. Again, the standing question did not arise and was not specifically dealt with relevantly for present purposes. Senior Member Aughterson recognised in SBN at [13] a distinction was drawn between persons who were directly or indirectly affected by the decision and that a broad interpretation of the term person affected so that a review application might be brought by a wide range of people outside the family does not sit comfortably with the principles for achieving permanency for the child, in particular those which can be found at s 5BA(2)(b) of the Child Protection Act to ensure the child experiences stable living arrangements.
- [18]It seems to me that the concern about a wide range of people outside the family has limited if any relevance to a case where the person who has brought the application is in fact a parent of the child.
- [19]Another decision of this Tribunal in PP and DP and DT v Department of Communities, Child Safety and Disability Services [2017] QCAT 477, the Applicants for the review of a decision permitting contact with the children by a mother was challenged by kinship carers and grandparents and a sister of the grandfather/carer. The argument raised here was also raised there, although none of the Applicants there was a parent. The decision predates the commencement of the Human Rights Act 2019 (Qld) which was passed by State Parliament in February 2019 and which from 1 January 2020 required public entities to act compatibly with human rights.
- [20]Again, the assumption seems to have been made that a person affected was a person asking for contact for the child, although there was no analysis of this in the reasons. In brief reasons the Tribunal member held that:
[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 wellbeing. 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.
- [21]In my view, irrespective of whether it can be said that “the right to review a decision is not extended to all persons who have an interest in the child’s wellbeing” the standing granted referable to persons affected is not constrained by any notion that it is only the person who was the subject matter of the decision ie. the child involved or the person being granted or refused access, who is affected by it in the relevant sense. Moreover assuming it to be correct that the person asking for contact or the child is a person ‘affected by the decision’, it does not follow that that person is the only person affected or aggrieved.
- [22]In SBN, Senior Member Aughterson disagreed with the conclusion of the member in PP and DP and DT v Department of Communities, Child Safety and Disability Services and held (footnotes omitted):
[15] In the present case, it is not in dispute that the decision was made under s 87 of the Act, so that it is a reviewable decision. In relation to standing, the applicant is the mother of the subject child. At least where the Chief Executive has custody rather than guardianship of a child, as in the present case, a parent has a direct interest in contacts formed with their children and, accordingly, is a person affected by any such decision.
[16] In Allan v Transurban City Ling Limited, it was stated that the term ‘affected by’ appears in a range of laws and in determining its scope it is necessary to consider the subject, scope and purpose of the legislation in question rather than by the application of concepts derived from decisions under the general law in relation to ‘standing’.
[17] In the present case, the ‘subject, scope and purpose of the legislation’ includes the general principles under the Act. Section 5B(b) of the Act provides that:
a child’s family has the primary responsibility for the child’s upbringing, protection and development.
Also, s 5B(f) of the Act provides:
If a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests.
[18] Further, s 26 of the Human Rights Act 2019 (Qld) provides, in part:
- (1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
- (2)Every child has the right, without discrimination, to the protection that is needed by the child.
[19] In that context, given the obligation to support the family and also the potential return of the subject child to the applicant, the applicant is a person affected by any decision concerning contact with the child.
- [23]Reference was made in argument here to the qualification in paragraph 15 of those Reasons which it is said drew some kind of distinction between the circumstance where the Chief Executive has custody, as was the case there, rather than guardianship of a child, in which in the latter case a parent has a direct interest in contact formed with their children, and accordingly is a person affected.
- [24]In the present case, the Respondent seeks to draw upon that distinction to point to the proposition that the grievance stated in the application is to review a decision relating to a younger child and contact with the paternal aunt and that child was the subject of a child protection order granting long-term guardianship to the Chief Executive in February 2021.
- [25]The Applicant contends that the effect of that is that under s 5B(b) and 5B(f) of the Child Protection Act, the Applicant does not have “the primary responsibility for the child’s upbringing, protection and development”. Furthermore, it points to the fact that the Children’s Court has granted long-term guardianship of the child to the Chief Executive and as such it is not contemplated by the Department nor does it form any part of the child’s case plan to work towards “allowing the child to return to the child’s family”. It is contended that having regard to the purpose of the legislation there is no obligation on the Department to support the family to promote reunification and no potential to return the child to either parent. It is contended therefore that the Applicant is not a person affected.
- [26]First, the definition of “person affected” is not only not defined in the Act, it is not the subject of any particular constraints referable to whether particular responsibilities are allocated under the Act for a child’s upbringing, protection and development. Indeed, the fact that some person other than either parent has primary responsibility for a child’s upbringing, protection and development may be of some little, but barely any significance to the question of whether there is genuine interest in what happens to a child, and what access is permitted by the child to any particular individual, independently of whether primary responsibility for upbringing, protection and development lies with the Chief Executive and not with any of the parents.
- [27]That primary responsibility for those aspects lies with one person does not necessarily mean that there are no responsibilities which fall to other persons who might be affected by a decision. Moreover, responsibility is not at the foundation of the notion that a person might be affected by a decision, in the sense that they are aggrieved by it.
- [28]In my view, 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. 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.
- [29]It is unnecessary to go into detail for the purposes of these reasons, however the applicant’s submissions make clear that he believes there are a number of things that have occurred in the past involving his sister and the children and holds concerns about the welfare of the children. He references a number of events which, if they in fact occurred as he suggests, would certainly indicate that a basis for a genuine concern about the effects of this decision about access and the physical and emotional wellbeing of the children exists and therefore what might be described as a basis for aggrievement.
- [30]In my view, the distinction which Senior Member Aughterson referenced in the decision in SBN between the situation where the Chief Executive has custody rather than guardianship and hence a parent has a direct interest in contacts formed with their children, was not intended as a statement that a person who is a natural parent of a child in respect of which guardianship had passed was not a person affected by a decision about who had direct interest in contacts formed with their children. In my view therefore, the Applicant is a person affected by the relevant decision and has standing to bring the present application.
The significance of the Human Rights Act
- [31]Because of what I have said above, it is not strictly necessary to consider whether there is any effect on the proper construction of the language to be found in s 87(2) of the Child Protection Act having regard to what is in the Human Rights Act. In my view that interpretation is consistent with the HR Act and I have interpreted the provisions in a way that is compatible with human rights. Nevertheless, I will proceed to consider the issue, as it has been raised in submissions of the Respondent filed in the two earlier mentioned other decisions pending in this Tribunal.
- [32]Apart from the standing issue, and the proper construction of the expression “person affected” in this context, this application throws up for consideration an issue raised only in the further submissions of the Department dated 8 November 2022, a question of whether the contended for interpretation of the words “person affected” where they appear in s 87 of the Act are compatible with the Human Rights Act. In that regard, it is contended that if there is a constructional choice open in relation to the meaning of that expression, the two possible constructions are to:
- (a)Treat the language as confined to the parent or family member in respect of whom the decision is made under s 82 of the Child Protection Act; or alternatively
- (b)Treat a person affected as including a parent or family member who is not the subject of the decision.
- (a)
- [33]Section 48 of the Human Rights Act requires that all statutory provisions be read in light of human rights. Provisions which were enacted before the Human Rights Act may yield different, human rights compatible meanings in consequence of the commencement and operation of s 48 of the Human Rights Act: Momcilovic v The Queen (2011) 245 CLR 1 at [684].
- [34]Section 48 of the Human Rights Act provides as follows:
48 Interpretation
- (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.
- [35]In Australian Institute for Progress Ltd v Electoral Commission of Queensland (2020) 4 QR 31 at [114], it was held that this provision has two functions:
- (a)First, to ensure the consistency of an interpretation with a statutory provision’s purpose, and having regard to that purpose an interpretation which is compatible with human rights.
- (b)The second element is that if a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision is to the extent possible to be interpreted in a way that is most compatible with those rights.
- (a)
- [36]Were I to construe the expression “person affected” as excluding a parent who is not the subject of a decision, that may well infringe on the right to non-interference with family in s 25(a) of the Human Rights Act. That is a right which protects the intimate relations which people have in their family. It provides:
25 Privacy and reputation
A person has the right—
- (a)not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
…
- [37]The Respondent does not, for the purposes of this application, contend otherwise but contends that the right is one not to have one’s family arbitrarily interfered with. From that proposition, it is contended that the decision in PJC which I mentioned earlier, which was of course an application by a former approved foster carer, was a decision which was compatible with human rights, which is to say that one is to treat the language of “affected person” as being the parent or family member who was the subject of the decision, in this case, either the paternal aunt or the child itself and no-one else. In my view, whatever the significance those arguments may have to persons who are not parents or members of family, and to providing protection of intimate relations people have with their family, they have no application to prevent a biological parent from being a person affected by decisions about who will have interaction with their children.
- [38]If, as s 26 of the Human Rights Act provides, families are a fundamental group unit of society and are entitled to be protected by society and the State, then a family member, clearly encompassing in this case the biological parent, has an interest which is protectable insofar as the parent seeks to sustain his or her interest in the family. As a secondary aspect, if the protections under s 26(2) concern a child’s right without discrimination to the protection that is needed by the child, conceptually at least, a parent who has a concern about a child’s protection, and whether it will be adequately achieved by a decision made by a decision-maker, is also consistent with an interpretation of s 87 of the Child Protection Act, which extends its operation to the interest of a parent including one that is not that the subject matter of the decision in the sense that it is about the right of access of that parent, or the right of the child in respect of that access.
- [39]Before I conclude these reasons, it is appropriate to draw attention to a decision of mine in NN and IN v Department of Child Safety, Youth and Women [2020] QCAT 146. The question of standing was raised there in a review application. The first Applicant was a former foster sister of the child. She referred to herself as the child’s ‘Aunty’ in relation to her relationship with her. The second Applicant was the former foster father of the child’s mother. He is referred to in Departmental records as the child’s maternal grandfather, although is perhaps better described as his ‘Foster Grandfather’.
- [40]The foundation for the application to dismiss summarily, was that the Applicants are not biologically related to the child or his mother, and were therefore not aggrieved persons within s 87 and Schedule 2 of the Act.
- [41]Without finally deciding the standing question, I held that these protected rights are based on Articles 23(1) and 24(1) of the International Covenant on Civil and Political Rights. Australia ratified this treaty in 1980. I noted that the Victorian Equal Opportunity and Human Rights Commission has identified that the explanatory material accompanying the Victorian Charter of Human Rights, which preceded the Qld Act and has in s 17 an equivalent to the Queensland s 26, says that:
Parliament intended that the term ‘families’ be given a meaning that recognises the many different types of families that live in Victoria, all of whom are entitled to protection. The term ‘family’ should be given a broad interpretation to include all people who make up a family unit, reflecting the meaning of ‘family’ in Australian society. For example, a ‘family’ could include a situation where children are living with their grandparents rather than their parents, or with a legal guardian, or a foster family. The term ‘family’ could also include extended family in some circumstances: for example, where there are kinship ties to extended family, or where someone’s culture or ethnicity gives their extended family unit particular significance for them.
- [42]The Victorian Equal Opportunity and Human Rights Commission also suggests that s 17 could be engaged by activities that:
…affect the law regarding close or enduring personal relationships or fail to give legal recognition to these relationships.
- [43]I also noted that the Australian Government has recognised in published material[1] that the UN Human Rights Committee has considered the protection of the family to be closely related to the prohibition under article 17 on unlawful or arbitrary interference with family. It has stated that the term family in article 23 should have the same meaning as under article 17, in that it should be given a broad interpretation to include all those persons comprising the family as understood in the society of each country
- [44]I also referenced the detailed analysis of the operations of Articles 17 and 23 in the Australian context,[2] and observed that some of that academic analysis supports the view that the UN Human Rights Committee’s jurisprudence on the issue has reiterated the principle that ‘the term “family” be given a broad interpretation so as to include all those comprising the family as understood in the society in question’ and has consistently applied this principle when dealing with what counts as a family for the purposes of art 23(1) in a non-Western context.[3] On the other hand, in a case arising in the Western context, the Committee has stated, as late as the mid-1990s, that a relationship must display the ‘minimal requirements’ of ‘life together, economic ties, a regular and intense relationship, etc’ in order for it to be protected as a family under art 23(1).[4] However, more recently the Committee noted that ‘the right to protection of family life [is not] necessarily displaced by geographical separation, infidelity, or the absence of conjugal relations’: Ngambi v France, UN Human Rights Committee, Communication No 1179/2003, UN Doc CCPR/C/81/D/1179/2003 (16 July 2004) [6.4].
- [45]These issues may well have significance in other review proceedings post the commencement of operation of the Human Rights Act where a biological parent is not the review applicant.
- [46]For the reasons I have set out above, I dismiss the respondent’s application.
Footnotes
[1]https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Righttorespectforthefamily.aspx.
[2] Zanhellini, Aleardo "To What Extent Does the ICCPR Support Procreation and Parenting by Lesbians and Gay Men?" [2008] MelbJlIntLaw 4; (2008) 9(1) Melbourne Journal of International Law 125 http://classic.austlii.edu.au/au/journals/MelbJIL/2008/4.html#fn9.
[3]Hopu v France, UN Human Rights Committee, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev.1 (29 December 1997) [10.3].
[4]Santacana v Spain, UN Human Rights Committee, Communication No 417/1990, UN Doc CCPR/C/51/D/417/1990 (29 July 1994) [10.2]. In an early case the absence of cohabitation (between a mother and daughter) was sufficient to deny that a family existed for the purposes of art 23(1): AS v Canada, UN Human Rights Committee, Communication No 68/1980, UN Doc CCPR/C/12/D/68/1980 (31 March 1981) [8.2(b)].