MB v Department of Child Safety, Seniors and Disability Services
[2023] QCAT 249
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- MB v Department of Child Safety, Seniors and Disability Services[2023] QCAT 249
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MB v Department of Child Safety, Seniors and Disability Services[2023] QCAT 249
MB v Department of Child Safety, Seniors and Disability Services[2023] QCAT 249
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MB v Department of Child Safety, Seniors and Disability Services [2023] QCAT 249 |
PARTIES: | mb (applicant) v department of child safety, seniors and disability services (respondent) |
APPLICATION NO/S: | CML110-23 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 23 June 2023 |
HEARING DATE: | 24 April 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: | The application for miscellaneous matters filed by the respondent on 12 April 2023 is dismissed. |
CATCHWORDS: | CHILD PROTECTION – application for directions vacating the hearing of an application to stay the operation of a decision and vacating a compulsory conference – where application refused Child Protection Act 1999 (Qld) Chapter 1, Part 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 21, s 22, s 69 |
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
BACKGROUND
- [1]MB is the maternal grandmother of the child AB, who is currently four years old. AB is subject to an interim order granting temporary custody to the Chief Executive, and had been cared for by MB. On 3 March 2023, the Department wrote to MB advising that she had been assessed as no longer a suitable person to have AB in her care, and a decision had been made to remove him from her care.
- [2]On 28 March 2023, MB lodged an application in this Tribunal seeking review of the Department’s decision. The application included an application for the operation of the decision to be stayed pending the review.
- [3]On 30 March 2023, the Tribunal provided an information notice to the Department, attaching a copy of the application.
- [4]On 11 April 2023, the Tribunal issued directions setting the stay application down for hearing on 3 May 2023, and setting the review application down for a compulsory conference on the same date.
- [5]On 12 April 2023, the Department lodged an application for miscellaneous matters seeking directions:
- (a)Waiving the requirement for it to prepare and file a Statement of Reasons in accordance with s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’); and
- (b)Vacating the hearing and compulsory conference and listing the matter for a directions hearing.
- (a)
- [6]The Department provided submissions in support of the application, stating:
- (a)AB was removed from the care of MB on 3 March 2023 due to concerns about her ability to safely care for him and meet his care and protection needs;
- (b)MB’s foster care authority was in place until 9 June 2023. Her application for renewal of the authority was underway and the Department was seeking an independent suitability assessment from a child protection consultant. It was anticipated that the assessment would be available by 19 June 2023;
- (c)The department had requested MB take part in a psychiatric assessment. She had not consented, but if she changed her mind further time would be needed for both parties to prepare assessments;
- (d)It would be premature and inefficient to file a Statement of Reasons and hold a Stay Hearing/Compulsory Conference in this matter prior to the completion of the suitability assessment, and a psychiatric report (should the applicant agree) and ultimately, a decision being made about whether the certificate of authority as a foster carer was to be issued;
- (e)The suitability assessment outcome and psychiatric assessment outcome, and the decisions required to be made from these assessments, may have significant implication on this review application and any remedy sought; and
- (f)Waiving the requirement to file the statement of reasons and listing the matter for a directions hearing to clarify next steps would not prejudice the applicant or the management of the review application.
- (a)
- [7]On 18 April 2023, MB advised the Tribunal that she did not agree to the proposed delay in conducting the stay hearing and compulsory conference. She pointed out that her carer’s certificate remained valid so there was no current impediment to AB returning in her care. She raised concerns that AB’s removal from her care had not been in his best interests and submitted that a delay in the listing of the stay hearing and compulsory conference would diminish the utility and procedural fairness of the stay process.
- [8]On 24 April 2023, I dismissed the Department’s application. The Department has sought reasons for my decision.
RELEVANT LEGISLATIVE PROVISIONS
- [9]The Tribunal is exercising its review jurisdiction, conferred by the Child Protection Act 1999 (Qld) (‘CPA’).[1] The CPA sets out the purpose of the Act, and principles for its administration.[2] In summary, the purpose of the Act is to provide for the protection of children, to promote the safety of children, and, to the extent that it is appropriate, to support families caring for children. The paramount principle and the other general principles are described.[3] It is unnecessary to restate them here, but those principles guide decisions made under the CPA.
- [10]The decision maker (the respondent) must use its best endeavours to help the Tribunal so that it can make its decision on the review.[4] The purpose of the review is to produce the correct and preferable decision, and the review must be heard and determined by way of a fresh hearing on the merits.[5]
- [11]The Tribunal may stay the operation of a reviewable decision or part of a reviewable decision if a proceeding for the review of the decision has started under the QCAT Act.[6] Considerations relevant to the granting of a stay of operation of a decision are set out in the Act, and include “the interests of any person whose interests may be affected by the making of the order or the order not being made”.[7]
DECISION OF THE TRIBUNAL
- [12]Staying the operation of the decision essentially preserves the status quo until a full merits review is conducted. In this case, MB had been advised on 3 March 2023 that a decision had been made to remove AB from her care. On 28 March 2023, she applied to the Tribunal to stay the operation of that decision. The hearing of the stay application was listed for 3 May 2023. The Department submitted that it would be premature and inefficient to hold the hearing until all assessments were finalised, indicating that it anticipated the report it had commissioned would be available by 19 June.
- [13]The Department submitted that listing the matter for a directions hearing to clarify next steps “will not prejudice the applicant or the management of the Review Application”. I do not accept that submission. If the stay application was not heard as quickly as possible, MB’s position would have been prejudiced as AB would have been out of her care for a period of many months and it could have been argued that a new status quo had been established.
- [14]The applicant applied for a review of the decision to remove AB from her care. At the time of my decision on 24 April 2023 there was no evidence that her foster care authority had been cancelled, and so no evidence that AB was unable to return to her care at that time. I appreciate that further consideration was to be given to whether MB should retain the authority, but it was not possible, at the time of my decision on 24 April 2023 to predict with any certainty what the outcome of that consideration would be.
- [15]I accept the Department’s submissions that “the suitability assessment outcome and psychiatric assessment outcome and the decisions required to be made from these assessments may have significant implications on this review application and any remedy sought”. I note, however that there was no evidence that a psychiatric evaluation was in fact going to occur. Further, it was not possible to predict the outcome of the suitability assessment. While it may have significant implications as suggested by the Department, it is also true that it may not. Finally, the Department suggested that the assessments may affect the review application, but did not address whether or how the Tribunal should be prevented from considering the stay application without the assessments.
- [16]The Department had made a decision to remove AB from the care of MB without the benefit of any updated assessments, and on the basis of the evidence available to it at the time. While the Tribunal would no doubt have considered an updated assessment if available, the lack of such an assessment does not prevent the Tribunal from making a decision based on the evidence available to it at the time. I note that the Department is required under the legislation to use its best endeavours to help the Tribunal, and so I would expect that all relevant available material would be before the Tribunal when it came to consider the application for a stay.
- [17]Accordingly, I dismissed the application so far as it related to the stay hearing being vacated.
- [18]The Department submitted that waiving compliance with the requirement to file a statement of reasons “will not prejudice the applicant or the management of the Review Application”. I do not accept that submission. As noted above, the Department is required to use its best endeavours to help the Tribunal, and that includes providing the Tribunal with an explanation for the decision under review, and which is the subject of the stay application. Apart from this general obligation to help, the Department is obliged to provide to the Tribunal within a reasonable period of not more than 28 days after the decision maker is given a copy of the application for review a written statement of reasons and any relevant documents or things in its possession or control. 28 days is the longest period of time allowable under the legislation, unless compliance with that requirement is waived by the Tribunal. In this case, a copy of the application was provided to the Department on 30 March 2023. The hearing and compulsory conference were listed for 3 May 2023. There were no grounds identified upon which to waive compliance with the legislation. Accordingly, I dismissed the application so far as it related to waiving compliance with the requirement to provide a statement of reasons.
- [19]The Department’s submission that the application should be set down for a Directions Hearing “to clarify next steps” is curious. The QCAT Act provides that[8] the Tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding, and may hold a directions hearing for giving the direction. In this case, the Department did not specify what, if any directions, it would seek at a Directions Hearing, or what directions it considered were necessary for the speedy and fair conduct of the proceeding. The matter had been set down for a compulsory conference on 3 May 2023. The QCAT Act sets out the purposes of compulsory conferences.[9] They include identifying and clarifying the issues in dispute and making orders and giving directions about the conduct of the proceeding. The Department’s submissions did not articulate why the compulsory conference process was not appropriate to “clarify next steps”. I was satisfied that it was. Accordingly, I dismissed the application so far as it related to setting the matter down for a directions hearing.