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LVF v Department of Child Safety, Seniors and Disability Services[2023] QCAT 406

LVF v Department of Child Safety, Seniors and Disability Services[2023] QCAT 406

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LVF v Department of Child Safety, Seniors and Disability Services [2023] QCAT 406

PARTIES:

LVF

(Applicant)

v

department of child safety, SENIORS and disability services

(Respondent)

APPLICATION NO/S:

CML176-23 

MATTER TYPE:

Childrens matters

DELIVERED ON:

30 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

The Application filed by the Applicant in this Tribunal on 17 May 2023 is rejected on the grounds that it seeks to review a decision of the Chief Executive of the Respondent of which the Applicant has no statutory right of review to this Tribunal.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the Applicant provided day-to-day care for two children over more than six years including as an approved kinship carer – where the Applicant sought review of the Respondent’s decision to stop ongoing contact between her and the children following cessation of the care – whether the Applicant had standing to bring the application – whether she was a parent of the children or a member of their family under s 87 of the Child Protection Act 1999 (Qld) (CPA) – whether having parental responsibilities meant the Applicant was a parent under s 11 of the CPA – whether a former approved carer is a member of a child’s family in accordance with statutory interpretation of the CPA – whether the Human Rights Act 2019 (Qld) or statements by human rights bodies require such interpretation of family

Child Protection Act 1999 (Qld), s 11, s 13, s 87, Sch 3

Family Law Act 1975 (Cth), s 4, s 61B

Human Rights Act 2019 (Qld), s 26

Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109

James v Department of Children, Youth Justice & Multicultural Affairs [2023] QCAT 111

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

NN and IN v Department of Child Safety, Youth and Women [2020] QCAT 146

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. [1]
    The issue for determination in this matter is the Applicant’s standing to bring an application seeking the review of a decision of the Respondent Department of Child Safety, Seniors and Disability Services (“the Department”) that she is unhappy with.
  2. [2]
    The Applicant was caring for two children who are subject to orders made pursuant to the Child Protection Act 1999 (Qld) (the CPA) granting their long-term guardianship to the Chief Executive of the Department. She was caring for them as an approved kinship carer under the provisions of the CPA. Earlier this year, the Department removed the two children from the Applicant’s care and began restricting the contact that she could have with the two children. More recently, the Department stopped contact between the Applicant and the two children completely. The decision to stop that contact is the decision the Applicant now seeks to review in this Tribunal.
  3. [3]
    The Applicant is not biologically related to the two children at all. That fact is not in dispute. She did, though, provide day-to-day care for them for more than six years. Most of that care was provided by a departmentally approved kinship carer, but that followed on from a shorter, private care arrangement she had with the children’s biological mother.  
  4. [4]
    On or about 27 January 2023, after departmental officers assessed that the Applicant was “unable to meet the Standards of Care as required under s 122 CPA”,[1] the children were removed from her care.  There followed a period of weeks during which the Applicant was not permitted to have contact with the children. Then, from on or about 24 March 2023, the Department authorised and facilitated fortnightly telephone contact between the Applicant and the two children. That contact was for thirty minutes once each fortnight and was fully supervised by a departmentally approved person. On or about 26 April 2023, a departmental decision was taken to prohibit the Applicant from having even that limited amount of contact with the two children. The Department asserts that decision was taken after consideration of advice from the “children’s psychologist” to the effect that ongoing contact between the Applicant and the two children would “not be in the children’s best interests.”[2]
  5. [5]
    On 17 May 2023, the Applicant started proceedings in this Tribunal by filing a Review Application seeking review of the decision prohibiting her from contacting the two children. The Department disputes the Applicant’s right to do that, asserting the use of review rights conferred on certain people in certain circumstances by the CPA is not available to the Applicant.  Rather, the Department submits that the Principal Registrar of this Tribunal should reject the Review Application filed by the Applicant pursuant to s 35 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) on the basis that the Applicant is not authorised to make it.

The Competing Submissions

  1. [6]
    The Department refers to s 247 of the CPA as the section that gives the right to an “aggrieved person” to apply to this Tribunal to have a “reviewable decision” reviewed. I accept that is correct. That section provides that both the list of “reviewable decisions” and the classes of “aggrieved persons” who may apply to QCAT for review of those decisions are set out in Schedule 2 to the CPA.
  2. [7]
    Schedule 2 does set out in tabular form a list of those “reviewable decisions” and “aggrieved persons.” The only listed “reviewable decision” that is included that could apply to this particular case I am considering is at point 7. It lists the “reviewable decision” as being a decision made under s 87(2) of the CPA refusing “to allow, restricting, or imposing conditions on, contact between a child and the child’s parents or a member of the child’s family” [emphasis added].  It lists as the “aggrieved persons” who effectively have ‘standing’ to file an application reviewing the decision as “a person affected by the decision.” 
  3. [8]
    It is appropriate, therefore, at this early stage, to set out s 87 of the CPA. It provides as follows:-

87Chief 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. (my emphasis)
  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. (my emphasis)
  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).
  1. [9]
    The Department submits that the decision to stop the Applicant’s contact with the two children was not one made pursuant to s 87 as the Applicant is not a “parent” of the children or a “member of the [children’s] family.”   Instead, the Department submits that s 13 of the CPA is the source of the power to suspend the Applicant’s contact with the two children and that it is not included at all in the list of “reviewable decisions”.  If those submissions are indeed accepted as correct, then the Applicant does not have a statutory right to file a review application in respect of the decision to stop her contact and her application should be rejected.

What does section 13 of the CPA provide?

  1. [10]
    Section 13 of the CPA sets out the effect of an order granting guardianship of a child or children to the Chief Executive of the Department. It says:-

If the chief executive or someone else is granted guardianship of a child under a child protection order, the chief executive or other person has:-

  1. the right to have the child’s daily care; and
  2. the right and responsibility to make decisions about the child’s daily care; and
  3. all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child.

[emphasis added]

  1. [11]
    This section gives the Chief Executive who has a guardianship order in respect of a child or children, the same powers, rights and responsibilities as a person who has “parental responsibility” for the child or children. There is, therefore, no doubt, in my view, that this section does confirm that a guardianship order in favour of the Chief Executive is a source of power to determine who a child or children subject to the guardianship order can and cannot have contact with and the terms of such contact. That parental responsibility is not fettered or conditioned in any way by the section conferring it. I will say more about the meaning of the term “parental responsibility” further below. For now, it is enough to simply also observe that in the Explanatory Notes that accompanied the Child Protection Bill 1998 that became the CPA, the term “guardian” was said to mean “a person having parental responsibility as defined in part 7, division 2 of the Family Law Act 1975.”
  2. [12]
    Section 87, on the other hand, is a section that seeks to condition that section 13 power of the Chief Executive to make decisions about who a child the subject of a guardianship order in the Chief Executive’s favour has contact with, particularly when the class of persons that includes the parents of the child and other persons who are members of the child’s family are concerned.
  3. [13]
    Sub-section (1) of section 87 requires the Chief Executive to 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. Sub-section (2) of the section, however, confers a discretion on the Chief Executive to refuse to allow, or to restrict or impose conditions on contact between the child and the child’s parent 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. However, and importantly, sub-section (3) of the section imposes an obligation on the Chief Executive to give written notice of any such decision to refuse or restrict contact between the child and a person to each person affected by the decision, and, as I have observed already, such a decision is subject to review by application to this Tribunal.
  4. [14]
    One can clearly see from the wording of section 87 that Parliament intended that being a “parent” or a “member of the [children’s] family” is a pre-requisite for being a person to whom the whole section applies. Furthermore, if “parent” is intended to have its natural and ordinary meaning, being, in this country, a biological parent, then the Applicant is not a “parent” of the children. If being a “member of the [children’s] family” is intended to mean having a blood tie, then clearly the Applicant is not a member of the children’s family either. If the Applicant is neither a “parent” nor a “member of the [subject child’s] family” within the intended meaning of those two terms within s 87, then she has no right of review of the decision to stop her contact with the children.
  5. [15]
    So, is the Applicant a parent of the two subject children or a member of their family within the meaning of either of those terms as they are used in the section?
  6. [16]
    The term “parent” is not actually left undefined in the CPA. It is actually defined in s 11 of the CPA. That section provides as follows:-

11Who is a parent

  1. A parent of a child is the child’s mother, father or someone else (other than the chief executive) having or exercising parental responsibility for the child.
  2. However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child.
  3. A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child.
  4. A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child.
  5. A reference in this Act to the parents of a child or to 1 of the parents of a child is, if the child has only 1 parent, a reference to the parent.

Note—

See also schedule 3, definition parent, paragraph (a).

  1. [17]
    That definition, as can be seen, refers also to the further definition of “parent” in Schedule 3 of the CPA. That is as follows:-

parent, of a child—

  1. for chapter 2, parts 2, 3, 3AA, 3A and 4, sections 67 and 117 and chapter 7—means each of the following persons—
  1. the child’s mother or father;
  2. a person in whose favour a parenting order operates;
  3. a person, other than the chief executive, having custody or guardianship of the child under another Act or a law of another State;
  4. a long-term guardian of the child;
  5. a permanent guardian of the child; or
  1. otherwise—see section 11.
  1. [18]
    The Applicant does not contend that she is a “parent” within the Schedule 3 definition. In the very detailed written submissions filed for the Applicant, her solicitor contends that the Applicant should be determined to fall within the section 87 class of persons intended to be included in the bounds of that section by being a “parent” of the children, or at least “a member of the [children’s] family”. In my view, if she is to be determined to be the children’s “parent” for s 87 purposes, that would require her to fall within the s 11 definition of “parent”.
  2. [19]
    I shall deal with that question of whether the Applicant is a “parent” of the children before turning to the alternative question of whether the Applicant is a “member of the [children’s] family” for s 87 purposes.

Is the Applicant a parent of the children within the s 11 definition?

  1. [20]
    Firstly, I observe that there is no argument made that the children are Aboriginal or Torres Strait Islander children or that the Applicant is a person who, under Aboriginal or Torres Strait Islander tradition, is regarded as a parent of the children. She is, therefore, not a “parent” under those sub-considerations of the definition.
  2. [21]
    In Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [26], a majority of judges of the High Court said in considering the meaning of the word “parent” in the Family Law Act 1975 (Cth) (“the FLA”), that a court:

“will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning”

  1. [22]
    There is nothing at all within the sections of the CPA being considered, or the context within which they sit in s 87(1), to suggest any contrary intention in the use of the words “mother” or “father” in that sub-section than their natural and ordinary meaning. I consider that to be biological parentage. The Applicant is not the mother or the father of the children. The question though, then remains – is the Applicant “someone else (other than the chief executive) having or exercising parental responsibility for the children”? Then, if she is, is she standing in the place of a parent of the children only on “a temporary basis” such that sub-section 11(2) rules her out of being considered a parent?” 
  2. [23]
    The term “parental responsibility” is not defined in the CPA or in Schedule 3 to the CPA. It is a term that was introduced into the law of parenting in this country through Part VII of the Family Law Act 1975 (Cth) (“the FLA”) a couple of decades ago. It is defined in the FLA. Part VII of the FLA is headed “Children”. The term “parental responsibility” is defined in s 4 of the FLA to have the meaning given by section 61B in Part VII of the FLA.
  3. [24]
    Section 61B of the FLA defines “parental responsibility” as meaning “in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” [emphasis added].  I am satisfied, particularly having regard to the Explanatory Notes that I refer to in [11] above, that using the term “parental responsibility” in the CPA, without specific definition given to it in that Act, is intended to import the same meaning as it is given in the FLA. 
  4. [25]
    Having “parental responsibility” in relation to a child means an adult is standing in a legal relationship to that child or children. One either has to be a biological parent of the child whose parental responsibility has not been displaced by an order of a court[3] or one has to be the recipient of a conferral of that legal responsibility by a court with the statutory jurisdiction to confer it[4] or by a person with the authority to confer it.[5]
  5. [26]
    You either have parental responsibility for a child as the biological mother or father of that child or as another adult person who is the beneficiary of a valid order of a court with jurisdiction to confer parental responsibility upon you in relation to a particular child or you have it as another adult person who is the beneficiary of a conferral of that responsibility by a person with the authority to confer it upon you, usually temporarily. Otherwise, you do not have parental responsibility for that child. If you are not the biological parent of a child or you are not the beneficiary of a valid conferral of parental responsibility upon you in respect of a child, whilst you might be caring for the child pursuant to some arrangement with the parent or person who has parental responsibility, you do not have, nor are you exercising lawful “parental responsibility” for that child.
  6. [27]
    I also observe here that the FLA clearly provides for the parental responsibility of biological parents or other persons upon whom it is conferred by order to be restricted or limited at times. It can be limited to responsibility for particular decisions such as day to day care decisions or decisions about particular major long-term issues like health, education or religion. It is limited by order when such limitation or restriction is considered to be in the best interests of the child.[6] So, it is entirely possible for a person to have limited, lawful parental responsibility for a child or children, depending on the nature of the parenting order that might be in place that expressly limits it or the limitations of the temporary conferral by the person who holds lawful parental responsibility. In such cases, the parent or person could be said to have a limited de jure parental responsibility for the child.
  7. [28]
    One type of order of a court that s 61C of the FLA contemplates that might displace a biological parent’s parental responsibility for a child (or anyone else’s ordered or conferred parental responsibility for a child) is an order of a state court made pursuant to child protection legislation, such as the order for guardianship of the two children in favour of the Chief Executive in this case. Whilst that guardianship order is in place in favour of the Chief Executive, all parental responsibility held by the parents of the two children pursuant to s 61C(1) of the FLA or held by the parents or any other person by force of a parenting order conferring parental responsibility upon them, is displaced in favour of the Chief Executive having that parental responsibility pursuant to the provisions of s 13 of the CPA.[7] Unless the state court’s order confers guardianship jointly on the Chief Executive and another person, no one else has concurrent de jure parental responsibility for the child or children who is or are subject to the guardianship order.
  8. [29]
    However, in this particular case, the Applicant’s solicitors submit that when the Chief Executive places a child or children (in respect to whom the Chief Executive has guardianship) in the care of a person such as the Applicant, the Chief Executive delegates, allocates or confers parental responsibility for the day-to-day care of the children to the Applicant. Effectively, in my view, that means the approved carer, such as the Applicant, stands in loco parentis to the child within the limitations placed on the exercise of parental responsibility by the person who holds all de jure parental responsibility for the child, the Chief Executive.  This is done through a particular policy instrument known as the “Child Safety Practice Manual”, which sets out in tabular form just who is permitted to make decisions about the care of the child, depending on a sliding scale of complexity and long-term significance of the decisions being made. For the Applicant, it is submitted that this must be considered as an allocation by the Chief Executive of some of that parental responsibility to the carer, otherwise, as a matter of practicality, the situation would be unworkable. 
  9. [30]
    I consider there is merit in that submission. I accept that for practical reasons the Chief Executive is conferring limited parental responsibility on the carer, be that an approved kinship carer or an approved foster carer. The metes and bounds of that limited parental responsibility are set out by the Chief Executive. For the moment, they are to be found in the Practice Manual referred to. It is critical though to remember that this parental responsibility conferred on carers is limited and is always subordinate to the Chief Executive’s parental responsibility pursuant to the guardianship order in her favour (effectively a sole parental responsibility order). Any decision made by a carer exercising that limited parental responsibility is susceptible to being overruled, reversed or set aside by the Chief Executive and, at any time, the child may be removed from the carer by the Chief Executive exercising her guardianship or lawful parental responsibility. Indeed, section 89 of the CPA also expressly provides that the chief executive “may decide to remove the child from the care of the child’s carer if the chief executive is satisfied it is in the child’s best interests.”
  10. [31]
    So, whilst I am satisfied that the Applicant did have or exercise some limited parental responsibility whilst caring for the children as an approved kinship carer, that might have brought her within the section 87 meaning of “parent”, the placement of the children in her care can only be considered as temporary as it was only ever at the continued discretionary approval of the chief executive who has guardianship of the children until they turn eighteen (even though it went on for some years, as it did in this case). As such, I am of the view that sub-section 11(2) of the CPA expressly excludes the carer who is “standing in the place of a parent of a child on a temporary basis” from being held to be “a parent of the child” as that term “parent” is used in section 87. 
  11. [32]
    If I am wrong about these matters, I am fortified in my determination by another fact that I consider excludes the Applicant from being considered to be a “parent” of the children in this case, as that term is defined in the CPA. At the time the Department made the particular decision that the Applicant seeks to review, namely, the decision to stop her from having fortnightly telephone contact with the two children, even if she could be considered to have had or to have exercised a limited form of parental responsibility in relation to the two children in the past, she did not have nor was she exercising any form of parental responsibility at the time the decision was made. So, she could not be determined to be a parent of the children at that time on any view of the definition of that term.

Is the Applicant then a member of the [children’s] family for the purposes of s 87?

  1. [33]
    The term “family” is not itself defined in the CPA or Schedule 3 to that Act. Interestingly, it is not defined in the FLA either. Remembering what the judges of the High Court said in Masson and Parsons cited in [21] above, the questions then become:-
    1. what is the natural and ordinary meaning of the phrase “a member of the child’s family?”; and
    2. if that natural and ordinary meaning does not include the Applicant in this case, is it otherwise plain that Parliament intended it to have some different meaning that does include her?
  2. [34]
    Whilst “family” is not defined in the CPA, interestingly, the term “family group” of a child is. It is defined in Schedule 3 of the CPA. It is said to include the following:-
  1. members of the child’s extended family; and
  2. if the child belongs to a clan, tribe or similar group—members of that group; and
  3. anyone else recognised by persons mentioned in paragraph (a) or (b) as belonging to the child’s family.
  1. [35]
    There has been no submission made that the children who are the subject children in this case belong to “a clan, tribe or similar group,” so the test then for whether the Applicant in this case is a member of the children’s “family group” is whether she can be said to be a member of their “extended family” or is, at least, recognised by members of the children’s extended family as belonging to their family.
  2. [36]
    There is another term of some significance to the answering of these questions. It was referred to in the submissions for the Department. It is the term “kin”. It is to be remembered that the Applicant was approved by the Department as a “kinship carer” for these children.  
  3. [37]
    In Schedule 3 to the CPA, "kin", in relation to a child, is said to mean the following persons:-
  1. a member of the child’s family group who is a person of significance to the child;
  2. if the child is an Aboriginal child—a person who, under Aboriginal tradition, is regarded as kin of the child;
  3. if the child is a Torres Strait Islander child—a person who, under Island custom, is regarded as kin of the child;
  4. another person—
  1. who is recognised by the child, or the child’s family group, as a person of significance to the child; and
  2. if the child is an Aboriginal or Torres Strait Islander child—with whom the child has a cultural connection.
  1. [38]
    This definition tells us that one can be “kin” as a person recognised by the child, or the child’s family group, as a person of significance to the child, but still not necessarily be a member of the child’s family group. Clearly, there is no dispute that the Applicant is “kin” for these two children. The undisputed facts that I am aware of satisfy me that the Applicant is a person who is recognised by the children and the children’s mother as a person of significance to them and she was an approved kinship carer pursuant to section 82(1)(a) of the CPA and held that role for several years.
  2. [39]
    Clearly, establishing that the Applicant is a person of significance to the children such that she could be considered “kin” and approved as a kinship carer does not mean that she is a member of the children’s family group. However, even if she was, the term used in section 87 is “members of the child’s family” and not “member of the child’s family group”. If it was intended to be the latter, it is reasonably safe to say that Parliament would have used that term.
  3. [40]
    The Department, in its written submissions, have relied heavily on a previous decision of the Appeal Tribunal of this Tribunal, Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109. In that decision, the Appeal Tribunal granted leave to appeal and upheld the appeal from the Department against a Tribunal member’s decision that determined a former approved foster carer who had a child removed from her care by the Chief Executive who had guardianship of the child was a person “affected by the decision” even though she was not a “parent” of the child or a member of the child’s family.
  4. [41]
    In allowing the appeal, the Appeal Tribunal determined, essentially, that the decision to remove the child from the approved foster carer’s care was not a decision made pursuant to section 87(2) as the foster carer was not a member of the class of persons in respect of which decisions under section 87 were delimited, therefore, she could not bring herself within the persons referred to in section 87(3) as the referable decision was not a section 87 decision at all, but rather was a section 13 decision which was non-reviewable.
  5. [42]
    In that case, the foster carer, like in this case, had cared for the child for several years whilst it was in the guardianship of the Chief Executive. So, as a matter of fact, there was no doubt that she had to be considered as a person of significance to the child, just as the Applicant in this matter is.
  6. [43]
    In the PJC decision, the Appeal Tribunal consisting of Senior Member Howard, Presiding, and Member Browne, carefully set out High Court authorities on statutory interpretation and went on to consider the meaning of the term “members of the child’s family” as used in section 87(1) and (2). Respectfully, I have no reason to disagree with their views on the import of that authority. Importantly, they also referred to the fact that “the natural and ordinary meaning” of the words must be what Parliament intended the term to mean, unless Parliament otherwise made it plain that something broader was intended.[8] As I have already observed earlier in these reasons, that is also clearly what High Court authority establishes.
  7. [44]
    The Appeal Tribunal found in the PJC decision that a former approved foster carer is not a member of the child’s family having regard to the natural and ordinary meaning of that term. At [90] of that decision, the Appeal Tribunal said:-

This does not include people, who in the broader definition of a person is ‘significant’ in the child’s life and who would otherwise fall outside the ‘child’s family’, such as a former approved foster carer. Had parliament intended for a broader definition of the child’s family to be considered for the purposes of facilitating contact, a broader definition as to the class of persons to be included in s 87(1) and (2) of the Act would have been used.

  1. [45]
    Further on, at [93] of its decision, the Appeal Tribunal also said:-

More importantly, where the relevant parts of the Act into which the Act is divided make specific reference to certain powers, such as the power to refuse to allow restrict or impose conditions on contact, given to the chief executive in prescribed circumstances, had legislature [sic] intended for a broader class of persons such as ‘kin’ to be included in s 87 of the Act, it would have used the word or words accordingly.

  1. [46]
    Plainly, if I follow the reasoning of the Appeal Tribunal in this decision, I will find that the Applicant is not a member of the class which would make the decision a section 87 decision. However, for the Applicant, her solicitors submit that I should not follow that decision as things have moved on since it was determined.

The Submissions of the Applicant’s solicitors in respect of Human Rights

  1. [47]
    The Applicant’s solicitors submit that the commencement of the Human Rights Act 2019 (Qld) (the HRA) is of relevance and that the meaning given to the word “family” should now be determined to be different in light of that Act. They submit that it has been “expanded” by the enactment of that legislation. They submit that the HRA protects various human rights. In respect of the “family,” the HRA includes a statement in section 26(1) that “families are the fundamental group unit of society and are entitled to be protected by society and the State.” That the family is entitled to be protected by society and the State is hardly controversial.
  2. [48]
    Importantly, though, the HRA does not include a definition in the Act or in Schedule 1 to the Act of the word “family”. So, again, it must be taken to have its natural and ordinary meaning unless contrary intention is plain.
  3. [49]
    The Applicant’s solicitors refer to the recent decision in this Tribunal of Member Roney KC in James v Department of Children, Youth Justice & Multicultural Affairs [2023] QCAT 111 and submit that Member Roney KC “explores in detail the meaning of family and the scope of who may be considered family.”[9]
  4. [50]
    Firstly, in that case, Member Roney KC was principally considering the question of whether section 87 of the CPA could be construed so as to include 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. That is not the question in this case.
  5. [51]
    Acknowledging that it was not strictly necessary because of what he had decided already, Member Roney KC nevertheless went on to express his views on whether there had been any effect on the proper construction of the language to be found in section 87(2) of the CPA having regard to what is in the HRA.[10] Then, however, the two possible constructions that he set out and then began to consider[11] were not strictly on the point of construction being considered in this matter.
  6. [52]
    Respectfully, Member Roney KC did go on to correctly point out that section 48 of the HRA requires that all statutory provisions be read in light of human rights. Indeed he correctly observed, at [33], that:-

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].

  1. [53]
    Section 48 of the HRA provides as follows:-
  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—
  1. an Act or provision of an Act that is not compatible with human rights; or
  2. 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.
  1. This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [54]
    In James, Member Roney KC went on to refer to the Supreme Court of Queensland decision of Applegarth J in The Australian Institute of Progress Ltd v Electoral Commission of Queensland (2020) 4 QR 31. Member Roney KC found that in that decision, Applegarth J had held that section 48 of the HRA has two functions. Those are, respectfully, quite clear from the first two sub-sections of section 48. They are, firstly, to ensure that a statutory provision is interpreted in a way that is compatible with human rights to the extent possible that is consistent with the provision’s purpose, and, secondly, to ensure that the provision is interpreted, to the extent possible, in a way that is most compatible with human rights, even if it cannot be interpreted in a way that is compatible with human rights.
  2. [55]
    Member Roney KC then went on to consider those matters from the point of view of a biological father of a child who claimed he was a “person affected” by a section 87(2) decision whose contact with a paternal aunt was stopped by the Chief Executive. As those are facts that distinguish the James case from the one I am considering, respectfully, I do not consider that I need to state a view on whether or not Member Roney KC’s obiter dictum views about the meaning of section 87(3) are ones that I share.
  3. [56]
    Of greater relevance though, Member Roney KC went on in James at [39] – [45] to refer to another of his own Tribunal decisions in NN and IN v Department of Child Safety, Youth and Women [2020] QCAT 146. That was a matter in which the Department had made a decision to stop contact between a former carer of a child who was not biologically related to the child but had been a former foster-sister of the child’s biological mother. The woman sought to review the decision, relying on section 87(3) and the review provisions set out earlier in these reasons. The Department filed an application for summary dismissal of the application arguing that as the applicants for the review were not biologically related to the child or his mother, they were not members of the class to which a section 87 decision could be directed. The argument there was that it was not therefore a decision pursuant to section 87 but rather was one pursuant to section 13 of the CPA and not subject to review. As such, it was the same argument that is being advanced for the Department in the matter I am deciding.
  4. [57]
    Member Roney KC, in his decision in that matter, did go on to talk about the meaning of “family” in the light of the HRA, though, importantly, he did not decide the point, but rather directed further submissions be exchanged as the Department had not made any submissions on the point when he was deciding it on the papers. Member Roney KC also directed that the Public Guardian be given copies of the submissions and an opportunity to join the proceedings if he or she wished. 
  5. [58]
    I have found no further decision of Member Roney KC or any other member of the Tribunal in respect of that particular matter, so it would seem that the parties must have finalised it between themselves without requiring a definitive decision to be made on it. So, again, I say respectfully, Member Roney KC’s views on the question could only be described as obiter dictum.
  6. [59]
    In those remarks, Member Roney KC referred to section 26 of the HRA and to matters published by the Queensland Human Rights Commission and the Victorian Equal Opportunity and Human Rights Commission on the subject. Both advocate that the term “family” should be interpreted broadly, “extending to different cultural understandings of family and small family units with or without children”[12] and “to include all people who make up a family unit, reflecting the meaning of ‘family’ in Australian society.”[13]
  7. [60]
    Indeed, the Victorian material went further. It said:-

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.

  1. [61]
    Member Roney KC went on to observe that the Australian Government has recognised in published material that the UN Human Rights Committee has considered the protection of the family to be closely related to the prohibition under Article 17 of the International Covenant on Civil and Political Rights (ratified by Australia in 1980) prohibiting arbitrary interference with, amongst other things, one’s family, and expressing that everyone has the right to the protection of the law against such interference. The UN Human Rights Committee, Member Roney KC pointed out, said that ‘family’ “should be given a broad interpretation to include all those persons comprising the family as understood in the society of each country.”[14]
  2. [62]
    Respectfully, Member Roney KC, whilst discussing these matters as I have just set out, did not express a definitive view on the question that was at the heart of that matter or that is at the heart of the matter I am deciding. Of course, the Applicant’s solicitors want me to find that the Applicant is a member of the children’s family because she was a kinship carer for the children for several years. They submit that would bring her within a broader definition of the term family than one that is simply taking the natural and ordinary meaning of the term.
  3. [63]
    The Applicant initially engaged with these children when they were still living with their mother. She came to their family as an employed ‘nanny’ or carer. Later, she withdrew from the role, but still maintained an interest in the children. Later again, when the Department was looking to remove the children from their mother’s care, the mother engaged the Applicant to care for them in her place. She was later approved as a kinship carer, a role that she held for some years.
  4. [64]
    Nevertheless, and notwithstanding what the Victorian Equal Opportunity and Human Rights Commission said in respect of foster carers, I do not consider that the term “member of the child’s family” can be, or is required by the HRA to be, interpreted so broadly as to include a person such as the Applicant who stands as a kinship carer and who is not a member of the children’s family or even their extended family in the natural and ordinary sense of those terms as they are understood in contemporary “western” Anglo-Australian culture. I do not consider that the HRA has changed the way in which the term “member of the child’s family” as used in section 87 of the CPA is to be interpreted in the circumstances of this case. I do not take a different view of its meaning than the one taken by the Appeal Tribunal in the PJC case.
  5. [65]
    Accordingly, I accept the submissions of the Department that the decision to stop contact between the children and the Applicant was a decision made under section 13 of the CPA and not one made under section 87(2) of that Act and that it is, therefore, not reviewable.

What of section 99P?

  1. [66]
    Just in conclusion, I note that the Applicant purported to make the Review Application on behalf of the children, apparently relying on section 99P of the CPA. It provides for a person, other than the public guardian, to be able to file a review application on behalf of a child, but only with the permission of the President of the Tribunal. Sub-section (2) of that section provides for the basis upon which the President may give that permission. Firstly, the person is not entitled to apply for the decision to be reviewed on their own behalf. Secondly, it is considered to be in the child’s best interests that the application be made, and, thirdly, it would be inappropriate or unreasonable to require the child to make the application himself or herself.
  2. [67]
    I have already determined that the Applicant is not a person entitled to apply for the decision to be reviewed on her own behalf. However, that does not mean that she can apply on behalf of the children instead. The decision that is sought to be reviewed on the children’s behalf necessarily must still be a reviewable decision and the children must still be aggrieved persons who are permitted to review the reviewable decision. As I have already earlier observed, there is a table of reviewable decisions and a list of who the applicable aggrieved persons are in respect of each reviewable decision set out in Schedule 2 of the CPA. It expressly lists the child in respect of certain decisions. It does not say “the child” has a right of review in respect of a section 87(2), though it does say “a person affected by the decision”. That probably does include the child, though I do not have to determine that in this case, as I  have already found that the decision sought to be reviewed was not a section 87(2) decision, but rather a section 13 decision and thus is not a reviewable decision at all, not even by someone seeking to bring a review application on behalf of the children.

Conclusion

  1. [68]
    For all of the above reasons, I am satisfied that application CML176-23 filed by the Applicant should be rejected pursuant to section 35 of the QCAT Act as it seeks to review a decision of the Chief Executive of the Respondent of which the Applicant has no statutory right of review to this Tribunal.

Footnotes

[1]Written Submissions of the Respondent filed 21 June 2023 at [8].

[2]Written Submissions of the Respondent at [10].

[3]See section 61C of the FLA.

[4]By way of a parenting order made pursuant to s 65D of the FLA.

[5]The common law doctrine of in loco parentis also operates to enable other persons standing in the role of parent, usually on a temporary basis, such as teachers, adult siblings, grandparents and carers to make decisions whilst a child is in their care. The extent of the authority of those other persons to make decisions will depend on the extent of the delegation of responsibility from the person who otherwise lawfully holds it. See Australian Law Reform Commission, ‘ALRC’s view’, ‘Chapter 68, Decision Making by and for Individuals Under the Age of 18’ in For Your Information: Australian Privacy Law and Practice (Report No 108, May 2008).

[6]See sections 61C and 61D of the FLA.

[7]See section 69ZK of the FLA.

[8]At clause [89] in the PJC case.

[9]The Applicant’s written submissions at [87].

[10][31] of his decision in James.

[11][32] of his decision in James.

[12]Queensland Human Rights Commission in a Facts Sheet published on the issue, cited by Member Roney KC in NN and IN at [24].

[13]Victorian Equal Opportunity and Human Rights Commission in explanatory material accompanying the Victorian Charter of Human Rights cited by Member Roney KC in NN and IN at [25].

[14]At [27] in Member Roney KC’s decision in NN and IN.

Close

Editorial Notes

  • Published Case Name:

    LVF v Department of Child Safety, Seniors and Disability Services

  • Shortened Case Name:

    LVF v Department of Child Safety, Seniors and Disability Services

  • MNC:

    [2023] QCAT 406

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Forrest SC

  • Date:

    30 Oct 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Department of Child Safety, Youth and Women v PJC [2019] QCATA 109
2 citations
Jump To
Cite 1 - [2019] QCATA 109
Cite 2 - [2019] QCATA 109
James v Department of Children, Youth Justice & Multicultural Affairs [2023] QCAT 111
2 citations
Jump To
Cite 1 - [2023] QCAT 111
Cite 2 - [2023] QCAT 111
Masson v Parsons [2019] HCA 21
2 citations
Jump To
Cite 1 - [2019] HCA 21
Cite 2 - [2019] HCA 21
Masson v Parsons (2019) 266 CLR 554
2 citations
Jump To
Cite 1 - (2019) 266 CLR 554
Cite 2 - (2019) 266 CLR 554
Momcilovic v The Queen (2011) 245 CLR 1
1 citation
Jump To
Cite 1 - (2011) 245 CLR 1
NN v Department of Child Safety, Youth and Women [2020] QCAT 146
2 citations
Jump To
Cite 1 - [2020] QCAT 146
Cite 2 - [2020] QCAT 146
The Australian Institute for Progress Ltd v The Electoral Commission of Queensland(2020) 4 QR 31; [2020] QSC 54
1 citation
Jump To
Cite 1 - (2020) 4 QR 31

Cases Citing

Case NameFull CitationFrequency
UE v Department of Child Safety, Seniors and Disability Services [2024] QCAT 362 citations
1

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