Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. UE v Department of Child Safety, Seniors and Disability Services - [2024] QCAT 36

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

UE v Department of Child Safety, Seniors and Disability Services[2024] QCAT 36

UE v Department of Child Safety, Seniors and Disability Services[2024] QCAT 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

UE v Department of Child Safety, Seniors and Disability Services [2024] QCAT 36

PARTIES:

UE

(applicant)

v

department of child safety, seniors and disability serivces

(respondent)

APPLICATION NO/S:

CML280-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

17 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The application is dismissed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OF TERRITORY JURISDICTION AND LEGISLATION – CHILD PROTECTION – where applicant is a former foster carer and seeks to review the respondent’s decision regarding her contact with the children – whether the applicant is a parent or member of the children’s family – where there is no reviewable decision and the application is dismissed

Child Protection Act 1999 (Qld), s 11, s 13, s 87, s 247 Sch 2, Sch 3 3

Human Rights Act 2019 (Qld), s 8, s 13, s 26, s 31, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 18, s 47

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

B and B: Family Law Reform Act 1995 (1997) FamCa 33

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

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

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]
    UE is the former foster carer of a number of children.
  2. [2]
    On 28 July 2023, the Department made a decision regarding contact between UE and some of the children. UE seeks review of that decision.
  3. [3]
    Under the Child Protection Act 1999 (Qld) (‘CPA’), an “aggrieved person for a reviewable decision”[1] may apply to the Tribunal for a review. The questions arise:
    1. Is this a “reviewable decision”, and, if so
    2. Is UE an “aggrieved person”.
  4. [4]
    Section 87 of the CPA provides that 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, but may refuse to allow, restrict, or impose conditions on the contact. Decisions made pursuant to section 87 are reviewable in this Tribunal.[2]
  5. [5]
    UE contends that she is either a parent or a member of the children’s family, and the Department’s contact decision is thus made under section 87 and is reviewable in the Tribunal. 
  6. [6]
    The Department contends that the decision is not made pursuant to section 87, but rather sections 12 and 13 of the CPA, and, accordingly, there is no right of review in the Tribunal.

SUBMISSIONS BY THE APPLICANT

  1. [7]
    UE is a long term foster carer. She and the children consider each other family. In daily life, UE and the children operate as family – sharing special occasions and celebrating one another’s achievements.
  2. [8]
    The children share a close relationship with UE’s biological family, including UE’s parents who reside on the family property and who are referred to by the children as Nan and Pop.
  3. [9]
    In relation to the meaning of “parent or family member”:
    1. “parent” is defined in Schedule 3 of the CPA  -

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. [10]
    Section 11 of the CPA states (relevantly):

Who 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.
  1. However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child…
  1. [11]
    The CPA Explanatory notes explain the meaning of parent – the word “parent’ has a broad meaning and can include anyone caring in an ongoing way for the child like a parent, e.g. step-parents or grandparents, with whom the child lives. “Parent” does not include temporary carers, e.g. relatives with whom the child stays for a few weeks or neighbours who mind the child each day. It does not include persons standing in temporary “loco parentis” for the parent: for example, school principles.
  2. [12]
    The Human Rights Act 2019 (Qld) (‘HRA’) requires that the Department must make decisions which are compatible with the HRA, including the protection of families and children.[3] This legislation expands on the concept of “family”, and who is included in a family.
  3. [13]
    The Tribunal should have regard to the previous Tribunal decision of James v Department of Children, Youth Justice & Multicultural Affairs[4] where the Tribunal “explores in detail the meaning of family and, therefore who may have standing in review proceedings in those proceedings commencing since the commencement of the HRA.”
  4. [14]
    James “clearly articulates that the interpretation of family is a broad one allowing it to reflect the meaning of family in Australian society, and this definition includes specifically that the definition of family as encompassing a foster family.”
  5. [15]
    The Tribunal should not follow Department of Child Safety, Youth and Women v PJC and the Public Guardian,[5] (‘PJC’), where it was determined that a former foster carer could not bring a review application on the basis that the decision was made under s 13 of the Act, as that decision predates the HRA.
  6. [16]
    Having regard to UE’s involvement in the children’s lives, the Tribunal should accept that UE is family by virtue of her connection and enduring relationship and also by virtue of her designation as a foster or kinship carer. The Tribunal should accept that the correct interpretation of family in matters commenced post-enactment of the HRA is the broad definition adopted in James.
  7. [17]
    “Family” extends 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.[6] 
  8. [18]
    “Kin” is relevantly defined[7] as:
  1. a member of the child’s family group who is a person of significance to the child;

…

  1. another person—
  1. who is recognised by the child, or the child’s family group, as a person of significance to the child… 
  1. [19]
    The Department’s Policy on Kinship Care, and the CPA, provide that kinship care and then general foster care are the preferred option for placement. The system is geared to place children in families, and “it is only natural that by virtue of these ongoing relationships and connection the children and families involved in this system come to recognise each other as family.” Family is broader than the biological parents of a child. It should include UE who could be considered kin to the children.
  2. [20]
    Regard should be had to the definition of “parental responsibility” contained in the Family Law Act 1975 (Cth).[8] In a case such at this, where the Department has been granted guardianship of a child, and a child is placed with a carer, the carer will be responsible for meeting the child’s day-to-day care needs in partnership with the Department – there is an “allocation of parental responsibility”.

SUBMISSIONS BY THE DEPARTMENT

  1. [21]
    As UE is not a parent or member of the children’s family, this is not a decision made under section 87 of the CPA. The Department made this decision about contact between the children and the former foster carer under sections 12 and 13 of the CPA. The Act does not provide for a review of decisions made under sections 12 and 13. The application cannot, therefore, proceed.
  2. [22]
    In Department of Child Safety, Youth and Women v PJC and the Public Guardian,[9] the Appeal Tribunal considered an application by a former foster carer and determined that:
    1. The head of power for all contact decisions is contained within sections 12 and 13 of the Act, and section 87 is a supplementary power that is specific to parents and family members;
    2. “Kin” is not used in the construction of section 87, and had legislature intended for a broader class of persons such as kin to be included in section 87, it would have used that word. It did not. Any contemplation of who is included in a kinship family is therefore not relevant;
    3. A former foster carer does not fall within the definition of “parent”, nor is she a member of the child’s family as provided under the Act, even if a child was in her care for a long time. The decision to place the child in her care was, although continuing for a number of years, always temporary in the sense that the Chief Executive had guardianship of the child under a Child Protection Order.
  3. [23]
    These children are each subject to a Child Protection Order granting custody or guardianship to the Chief Executive. The Chief Executive’s decision to place the children in UE’s care was a temporary placement decision.[10] Therefore, decisions relating to contact between UE and the children are made under sections 12 and 13 of the Act.
  4. [24]
    The application should be dismissed pursuant to s 47(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the grounds that it is frivolous, vexatious, or misconceived.

THE DECISION OF LVF

  1. [25]
    In the recent case of LVF v Department of Child Safety, Seniors and Disability Services,[11] the Tribunal considered whether a former kinship carer could seek Tribunal review of a decision of the Department regarding her contact with her former foster children. The Tribunal considered whether the former foster carer was a “parent” within the section 11 definition.
  2. [26]
    Clearly, she was not the biological mother or father. The Tribunal went on to consider whether the foster carer had been “having or exercising parental responsibility for the child”[12], and whether she was not a “parent” because she had been “standing in the place of a parent of a child on a temporary basis”.[13]
  3. [27]
    The Tribunal stated:

…for practical purposes, the Chief Executive is conferring limited parental responsibility on the carer…The metes and bounds of that limited parental responsibility are set out by the Chief Executive… 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…Any decision made by the 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.

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.

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”… At the time the Department made the particular decision that the Applicant seeks to review…she did not have nor was she exercising any form of parental responsibility … 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.

  1. [28]
    The Tribunal then considered whether the former foster carer could be considered a “member of the children’s family”, and so have standing to bring a review.
  2. [29]
    The Tribunal determined that the test, in the particular circumstances of the case, was whether the applicant was a member of the children’s extended family, or was, at least, recognised by members of the children’s extended family as belonging to their family. While the Applicant was a person of significance to the children and could be considered “kin” to them, it did not necessarily follow that she was a member of the children’s family group. 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”.  The Tribunal noted “If it was intended to be the latter, it is reasonably safe to say that Parliament would have used that term”.
  3. [30]
    The Tribunal considered the Applicant’s submissions that the meaning given to the word “family” has been expended since the commencement of the HRA, and found that the HRA did not include a definition of the word “family” and the word (as in the CPA) must therefore be given its natural and ordinary meaning unless a contrary intention is plain.
  4. [31]
    The Tribunal found:

…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 send 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 children’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.

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.

DECISION OF THE TRIBUNAL

  1. [32]
    The Tribunal has jurisdiction to review “reviewable decisions”.[14] If a proceeding is frivolous, vexatious or misconceived, or is lacking in substance, the Tribunal may dismiss or strike out the application.[15]
  2. [33]
    It is not contended that the definition of parent contained in Schedule 3 of the CPA is applicable, and I accept that it is not. That definition applies only to particular parts of the legislation which are not under consideration in this decision.
  3. [34]
    The Tribunal is not satisfied that the decision in James provides guidance in this case. In James, the applicant was the biological father of the child and sought to review a decision regarding contact between his child and another person. The Tribunal determined that the father was able to bring the application. The situation for UE as a former foster carer is significantly different.
  4. [35]
    It is clear that section 48 of the HRA compels the Tribunal to read the statutory provisions in the way compatible or most compatible with human rights.
  5. [36]
    Having read and carefully considered the decision and reasoning in LVF (discussed above), the Tribunal respectfully agrees with and adopts both. Accordingly, the Tribunal finds that the applicant in these proceedings is neither a “parent” nor a “member of the child’s family”. The contact decision, therefore, is not made pursuant to section 87 of the CPA. 
  6. [37]
    The Tribunal is only able to consider reviews of “reviewable decisions” as set out in the Act.[16] Decisions made pursuant to sections 12 and 13 are not reviewable. The Tribunal, then, has no jurisdiction to conduct a review and the application must be dismissed.[17]

HUMAN RIGHTS

  1. [38]
    In making this decision, the Tribunal has given proper consideration to relevant human rights under the Human Rights Act 2019 (Qld). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.[18]
  2. [39]
    A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act,[19] and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  3. [40]
    To give proper consideration to human rights, the Tribunal identified the human rights that may be affected by this process and decision, and considered whether the decision would be compatible with human rights.[20]
  4. [41]
    The following human rights are potentially impacted through this process and by this decision:
    1. s 26 protection of families and children
    2. s 31 fair hearing
  5. [42]
    The Tribunal is satisfied that there has been no limit on the right to a fair hearing.  The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The proceedings are conducted in private as required by the CPA. The parties are being advised of the reasons for the decision. Accordingly, the process and decision are compatible with the applicant’s / parties’ human rights.[21]
  6. [43]
    The Tribunal is satisfied that there has been no limit on the right of families to be protected, or the right of children to be protected.
  7. [44]
    This decision is compatible with human rights.
  8. [45]
    In any event, the Tribunal may make a decision not compatible with human rights if it could not reasonably have made a different decision because of a statutory provision.[22] If this decision impacts on the applicant’s or the children’s human rights, the Tribunal is satisfied that it is able to lawfully make this decision because it is compelled to do so by the provisions of the CPA. 

Footnotes

[1]CPA, s 247.

[2]Ibid, s 87, sch 2.

[3]HRA, s 26.

[4][2023] QCAT 111 ('James’).

[5][2019] QCATA 109 ('PJC’).

[6]See James.

[7]CPA, sch 3.

[8]See B and B: Family Law Reform Act 1995 (1997) FamCa 33.

[9][2019] QCATA 109 ('PJC’).

[10]See PJC.

[11][2023] QCAT 406 ('LVF’).

[12]CPA, s 11(1).

[13]Ibid, s 11(2).

[14]Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 9, 17, 18.

[15]Ibid, s 47.

[16]CPA, s 247, sch 2.

[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

[18]HRA, s 58.

[19]Ibid, ss 8, 13.

[20]Ibid, s 58(5).

[21]Ibid, s 8.

[22]Ibid. s 58(2).

Close

Editorial Notes

  • Published Case Name:

    UE v Department of Child Safety, Seniors and Disability Services

  • Shortened Case Name:

    UE v Department of Child Safety, Seniors and Disability Services

  • MNC:

    [2024] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Goodman

  • Date:

    17 Jan 2024

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
B and B: Family Law Reform Act 1995 (1997) FamCA 33
2 citations
Jump To
Cite 1 - (1997) FamCA 33
Cite 2 - (1997) FamCA 33
Department of Child Safety, Youth and Women v PJC [2019] QCATA 109
3 citations
Jump To
Cite 1 - [2019] QCATA 109
Cite 2 - [2019] QCATA 109
Cite 3 - [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
LVF v Department of Child Safety, Seniors and Disability Services [2023] QCAT 406
2 citations
Jump To
Cite 1 - [2023] QCAT 406
Cite 2 - [2023] QCAT 406

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.