EST & ERE v Department of Child Safety, Seniors and Disability Services [2023] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: EST & ERE v Department of Child Safety, Seniors and Disability Services [2023] QCAT 305 PARTIES: EST & ERE (applicants) v DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (respondent) APPLICATION NO/S: CML160-22 MATTER TYPE: Childrens matters DELIVERED ON: 10 August 2023 HEARING DATE: 12 July 2023 HEARD AT: Brisbane DECISION OF: Member Goodman ORDERS: The application filed by SA to be joined to the proceedings is dismissed. The application for miscellaneous matters filed by the applicants on 25 May 2023 is dismissed. CATCHWORDS: CHILD PROTECTION – application for a party to be joined – application for the release of a confidential report to a non- party – attendance at a compulsory conference by a non- party 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 Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 26, s 28, s 31, s 58 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] EST and ERE were kinship carers of two children aged 11 (A) and 13 (B). The chief executive has long term guardianship of the children. [2] On 30 May 2022, the applicants lodged an application with the Tribunal, stating that they had been verbally advised on 26 May 2022 that the children were to be removed -- 1 of 6 -- 2 from their care during the upcoming school holidays which were to commence on 27 June 2022. [3] The applicants sought review of the Department’s decision, and an order staying the operation of the removal decision. They stated concerns that the children were to be moved from Brisbane to a regional area to live with family members, which they considered contrary to the children’s best interests. [4] On 24 June 2022, the Tribunal stayed the operation of the removal decision until the review application was determined. A separate representative was appointed for the children. The separate representative arranged for the preparation of a social assessment report. [5] On 26 May 2023, the applicants lodged an application seeking directions that: (a) The independent person Aunty HC is permitted to receive a copy of the Social Assessment Report, and (b) That all reasonable endeavours be made to have a member who identifies as Aboriginal be part of the panel for the compulsory conference. [6] On 19 June 2023, SA lodged an application to be joined to the proceedings to “promote the views” of an older sibling (C), and “provide the views of maternal family” in the regional town. [7] On 20 June 2023, I conducted a directions hearing and issued directions that all parties provide submissions in relation to the interlocutory applications. [8] On 12 July 2023, I dismissed both interlocutory applications. The applicants have requested reasons for that decision. These are my reasons. THE CONSTITUTION OF THE TRIBUNAL PANEL [9] I declined to make a direction that “all reasonable endeavours be made to have a member who identifies as Aboriginal be part of the panel for the compulsory conference”. The legislation provides for that to happen.1 Such a direction would be redundant. SHOULD AUNTY HC RECEIVE A COPY OF THE SOCIAL ASSESSMENT REPORT [10] The applicants sought a direction that Aunty HC receive a copy of the social assessment report. That seemed to be on the basis that they anticipated that Aunty HC would be attending the compulsory conference. The applicants submitted: (a) The Tribunal could make the direction pursuant to s 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). (b) S 44 of the QCAT Act provides that unless the Tribunal directs otherwise, a party to a proceeding or a witness may be helped in a proceeding by … another person necessary or desirable to make the proceeding intelligible to the party or witness, including, for example, a person with appropriate cultural or social knowledge and experience. 1 S99H, Child Protection Act 1999 (Qld). -- 2 of 6 -- 3 (c) S 5H of the Child Protection Act 1999 (Qld) mentions circumstances in which an independent Aboriginal and Torres Strait Islander entity may not attend court ordered conferences, but the Tribunal has discretion to extend the concept to the involvement of independent Aboriginal and Torres Strait Islander entity in a compulsory conference at the Tribunal in these circumstances. (d) It is “essential for the children’s best interests and for effective discussions to occur at the compulsory conference that Aunty HC is provided with a copy of the social assessment report”. (e) The applicants have concerns about the validity of the social assessment report which undermines its recommendations. Aunty HC must have a copy of the social assessment report to be able to share her views regarding the children’s culture to consider whether this has been accurately understood and assessed by the report writer. (f) Section 29 of the QCAT Act requires the Tribunal to take all reasonable steps to ensure proceedings are conducted in a way that recognises and is responsive to cultural diversity and Aboriginal tradition. (g) Providing access to the social assessment report will ensure Aunty HC’s meaningful engagement in the compulsory conference, which would mitigate against the risk of comments that have been made by the author of the social assessment report “inviting a prejudiced perception of the applicants’ credibility”. (h) Aunty HC should access the social assessment report and participate in the compulsory conference to “utilise her cultural expertise as the children’s independent person”. [11] The separate representative submitted that: (a) The material should not be provided to HC. She is not a party to the proceedings and proceedings under the CP Act are confidential. (b) HC may be called as a witness at the hearing if she has information which would assist the Tribunal. (c) The children have sufficient advocacy – there is already a separate representative and child advocate involved, and direct representation has been applied for. [12] The Department submitted that: (a) There is inherent confusion in the proposition that HC could be an independent person and also provide cultural advice to the Tribunal. (b) The children have sufficient advocacy and representation. (c) HC may be called as a witness at the hearing if she has information which would assist the Tribunal. (d) Compulsory conferences are confidential proceedings, and HC should not be present. -- 3 of 6 -- 4 THE TRIBUNAL DETERMINED [13] The compulsory conference is an opportunity for the parties themselves to reach agreement regarding the application. As such, evidence is not tested, and no findings are made by the Tribunal. Issues of credibility may be determined, if necessary, at a hearing. [14] Compulsory conferences in the child protection jurisdiction are governed by s 99N of the CP ACT, and sections 67 – 74 of the QCAT Act. The legislation provides that a party may be directed to attend a compulsory conference. A party may be represented by a person who has authority to settle the dispute the subject of the proceeding. A compulsory conference must be held in private unless the person presiding over the conference orders otherwise.2 [15] HC is not a party. There is no suggestion that she has authority to settle the dispute on behalf of a party. There was no evidence that the applicants required help to make the proceedings intelligible to them. It seemed that HC may be called as a witness if the application proceeded to a hearing. It would be inappropriate for a potential witness to be part of the private compulsory conference process. On the material before me, I was not satisfied that there was any basis for HC to be in attendance at the compulsory conference. There was, therefore, no need for her to be provided with a copy of the social assessment report. [16] The application was dismissed. SHOULD SA BE JOINED AS A PARTY TO THE PROCEEDINGS [17] SA sought to be joined to “promote the views” of C and “provide the views of maternal family” in the regional town. SA is the maternal great aunt of the children and is the carer of C. The Department propose that A and B are placed in SA’s care in the regional town. [18] The applicants submitted: (a) While it is accepted that SA is a person genuinely concerned in the subject matter of this application,3 it would not be in the best interests of the children for her to joined as to do so may damage the relationship between the applicants and SA. (b) The information she wishes to provide could be made available to the Tribunal by way of evidence at a hearing. (c) The children have both voiced strong views that they do not wish to be in her care, but rather remain with the applicants. [19] The Department submitted: (a) SA’s interests may be affected by the proceedings.4 2 s 70(2), QCAT Act. 3 s 99ZC, CP Act. 4 s 42(1)(b), QCAT Act. -- 4 of 6 -- 5 (b) SA is the maternal great aunt and has care of C. She is an approved kinship carer and the Department’s preferred carer. (c) It is appropriate that SA is joined as a party. [20] The separate representative submitted: (a) The Department could provide SA’s and C’s input by way of evidence from them – there is no need for SA to be a party. (b) Joining SA will increase the complexity of the matter. (c) Child protection proceedings are confidential and sensitive family relationships may be impacted if SA is joined as a party. THE TRIBUNAL DETERMINED [21] Joining SA as a party would result in an increased level of complexity and prolong the proceedings. SA’s and C’s views can be provided to the Tribunal by way of evidence from them. Adding SA to the proceedings may have a divisive effect on the family. [22] Joining SA to the proceedings was not in the best interests of the children and would add to complexity of the proceedings and delay resolution. This would be contrary to the objects of the QCAT Act,5 and cause further delay.6 Evidence which she wished to provide could be made available to the Tribunal without her being joined. [23] The application was dismissed. HUMAN RIGHTS CONSIDERATIONS [24] In making this decision, I gave 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.7 [25] 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 HR Act. Human rights may be limited only if permitted under the Act,8 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. [26] To give proper consideration to a human right, I must identify the human rights that may be affected by this process and decision, and consider whether the decision would be compatible with human rights9. [27] I consider the following human rights are potentially impacted through this process and by this decision: 5 s 3, QCAT Act. 6 s 5B, CP Act. 7 s 58, Human Rights Act 2019 (Qld). 8 ss 8 and 13, HRA. 9 s 58(5), HRA. -- 5 of 6 -- 6 S 15 right to recognition and equality before the law S 26 protection of families and children S 28 cultural rights – Aboriginal peoples and Torres Strait Islander peoples S 31 fair hearing [28] I am satisfied that the rights of the parties to a fair hearing have not been limited. The applications have been determined by a competent, impartial and independent tribunal after a fair hearing. The parties were provided with a fair opportunity to provide submissions and are being advised of the reasons for the decision. Accordingly, the process and decision are compatible with human rights.10 [29] I do not consider that this decision limits any other human rights. If there has been some impact, I am satisfied that such outcome is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom and is, therefore, reasonable and justifiable.11 [30] In any event, the CPA compels me to make decisions on the basis that the safety, wellbeing and best interest of a child … are paramount.12 The decision is made on that basis. [31] This decision is compatible with human rights. 10 s 8, HRA. 11 See factors in s 13(2) HRA. 12 s 5A CPA, s 58(2) HRA. -- 6 of 6 --