DMT and DPV v Department of Children, Youth Justice and Multicultural Affairs [2023] QCAT 90

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DMT and DPV v Department of Children, Youth Justice and Multicultural Affairs [2023] QCAT 90 PARTIES: DMT AND DPV (applicants) v DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS (respondent) APPLICATION NO/S: CML068-21 MATTER TYPE: Childrens matters DELIVERED ON: 22 February 2023 HEARING DATE: 22 February 2023 HEARD AT: Brisbane DECISION OF: Member Goodman Member Bishop Member Gardiner ORDERS: 1. Paragraph 1. of the decision of the Tribunal dated 26 March 2021 is changed so that, unless otherwise ordered, the decision made on 27 January 2021 by the respondent to remove RB from the care of the applicants is stayed until the review has been determined, subject to the condition that the stay does not prevent the respondent from making a decision pursuant to s 82 (2) of the Child Protection Act 1999 (Qld) to place RB in the care of her mother. 2. The application to dismiss the review application pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 1999 (Qld) is dismissed. CATCHWORDS: CHILD PROTECTION – where application to terminate a stay order – where a significant change in circumstances – where application to dismiss review application Child Protection Act 1999 (Qld) Queensland Civil and Administrative Tribunal Act 1999 (Qld) -- 1 of 5 -- 2 Lyons v Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders [2011] QCAT 150 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] RB is a child who is subject to a long term guardianship order granting guardianship to the Chief Executive. RB has been placed with the applicants, who have cared for her for a number of years. [2] On 27 January 2021, the respondent Department made a decision pursuant to s 89 of the Child Protection Act 1999 (Qld) that RB be removed from the applicants’ care. The applicants lodged an application with this Tribunal seeking review of that decision, and an application seeking a stay. On 26 March 2021, the Tribunal considered the application for a stay and made the following decision: Unless otherwise ordered, the decision made on 27 January 2021 by the respondent to remove RB from the care of the applicants is stayed until the review has been determined. [3] Since that time, the Department has worked with RB’s mother to progress a plan for reunification. The applicants have been supportive of that plan. The Department wishes to move RB back to live with her mother next week.1 The Department considers that the current stay decision prevents it from removing RB from the care of the applicants and placing her with her mother. [4] On 17 February 2023, the Department filed an application for miscellaneous matters seeking orders: (a) Lifting the stay, relying on s 22 (6) (c) of the Queensland Civil and Administrative Tribunal Act 1999 (Qld), and (b) Dismissing the substantive application, pursuant to s 47 (1) (b) and (c) of the QCAT Act. [5] The applicants submit that the stay does not prevent the Department placing the child with her mother, and that there is no need for it to be lifted. Alternatively, they seek an order imposing conditions on the stay which would allow RB to be placed with her mother, but otherwise keeping the stay order intact. THE DEPARTMENT’S SUBMISSIONS [6] Since the stay was granted on 26 March 2021, the parties have worked together towards reunifying RB with her mother, who has made significant progress to address the case plan goals and child protection concerns. This is a significant change in circumstances over the last almost two years. 1 Pursuant to s 82 (2) Child Protection Act 1999 (Qld). -- 2 of 5 -- 3 [7] In order for the Department to exercise its decision making discretion in a way that is in accordance with the best interest principles2 and to place RB in her mother’s full time care, the Tribunal must discharge its decision granting the stay. The stay effectively prevents the Tribunal from removing RB from the care of the applicants and placing her with her mother. [8] It is acknowledged that the applicants hold concerns as to the future placement of RB if the reunification is unsuccessful. If reunification is not successful, a further reviewable placement decision would be made. That decision would be based on the circumstances at the time, which are not possible to foresee at this stage. If they wish, the applicants could lodge a further application on behalf of the child (if appropriate approval was given)3 in relation to any future decision. [9] Taking into account the matters to be considered in granting a stay, continuation of the stay and prevention of reunification would not be in RB’s best interests. Transitioning her to her mother’s care for a period of observation and assessment is in her best interest. [10] A stay should not be used to hold a position for a period of time in case the ultimate outcome is not favourable to the applicant. This would be an abuse of process.4 [11] Given that the applicants are in support of the reunification process, the current application lacks substance and should be dismissed.5 By supporting the reunification process, the applicants have conceded they are no longer aggrieved by the decision to remove RB from their care. THE APPLICANTS’ SUBMISSIONS [12] The substantive application should stay in place until the applicants withdraw from the proceedings, the long term guardianship order is revoked, or the Tribunal determines the application at a final hearing. [13] The stay does not affect reunification with RB’s mother and should stay in place. There is no legislative requirement to make a removal decision under s 89 of the CPA in order to make a decision under s 82(2). The stay therefore has no bearing or effect on the decision to attempt reunification with RB’s mother. [14] Alternatively, a condition should be imposed on the stay6 that it not interfere with an attempt at reunification via placement with a parent under s 82(2) of the CPA. [15] The applicants hold concerns that reunification may not be successful in the long term. Previous reports have recommended that RB remain with the applicants if unable to return to the care of a parent. [16] There is no utility in revisiting the basis upon which the stay was originally granted. It is in place. 2 s 5B Child Protection Act 1999 (Qld). 3 s 99P(1) Child Protection Act 1999 (Qld). 4 s 47(1)(c) Queensland Civil and Administrative Tribunal Act 1999 (Qld). 5 s 47(1)(b) Queensland Civil and Administrative Tribunal Act 1999 (Qld). 6 s 22(6)(b) Queensland Civil and Administrative Tribunal Act 1999 (Qld). -- 3 of 5 -- 4 [17] Placement stability is in the best interests of RB. Reunification is a process, not a fait accompli. [18] If reunification is successful, the review application will be redundant by process of law, and will necessarily be dismissed. If it is not successful, they wish to proceed with their application. [19] The applicants support the attempted reunification but remain concerned that if it should fail, RB is likely to experience some trauma and should return to her current placement with them. They see their concerns as well grounded, given concerns previously raised regarding the care provided by RB’s mother to RB and her siblings. DECISION OF THE TRIBUNAL [20] The Tribunal is satisfied that the terms of the stay decision made on 26 March 2021 was intended to, and does, have the effect of preventing the Department from removing RB from the applicants’ care. That includes removing her from the care of the applicants to place her in the care of her mother. We accept that the possible return to her mother’s care was not contemplated at the time the stay decision was made. [21] When making decisions in this jurisdiction, the main principle is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.7 We must make decisions that promote the welfare and best interests of RB.8 [22] We accept, and it is agreed between the parties, that successful reunification with her mother is in RB’s best interests, and that removal of impediments to that outcome is also in her best interests. [23] We consider that it is not unreasonable that the applicants hold concerns regarding the ultimate success of reunification. It is not possible for anyone to predict with certainty how that process will play out. [24] We do not consider that the provision we are referred to in relation to lifting of the stay order applies. Section 22(6)(c) of the QCAT Act allows the Tribunal in making a stay order to provide for the lifting of the order if stated circumstances occur. The Tribunal on 26 March 2021 did not do so. [25] The power of the Tribunal to terminate a stay order has been considered previously by the Tribunal in Lyons v Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders.9 In Lyons, it was accepted that a court (and so a tribunal) “has power and almost a duty to review all interlocutory orders, other than those which decide the rights of the parties, so they may be varied or rescinded whenever circumstances change sufficiently”. We accept that we have power to vary or rescind the stay order if circumstances have sufficiently changed. [26] Further, the Tribunal did, on 26 March 2021, make allowance for consideration of a change in circumstance by making the stay decision “unless otherwise ordered”. 7 s 5A Child Protection Act 1999 (Qld). 8 s 99C Child Protection Act 1999 (Qld). 9 Lyons v Queensland Building Services Authority and Dreamstarter Pty Ltd t/a Protec Builders [2011] QCAT 150. -- 4 of 5 -- 5 [27] We are satisfied that there has been a significant change in circumstances and that reunification with RB’s mother was not contemplated at the time the stay was made. Given the unusual circumstances of this case, we are satisfied that the appropriate course is to change the 26 March 2021 decision so that there is no interference with decisions made to reunify RB with her mother. This is the ultimate outcome agreed upon by the parties, and which the Tribunal considers to be in RB’s best interests. The applicants wish for the stay to remain in place pending final resolution of this matter. That is what the Tribunal intended when granting the stay on 26 March 2021. We are not persuaded it is appropriate to interfere with that decision except as outlined above to take into account the significant change in circumstances relating to the reunification plans. [28] We will dismiss the application to dismiss the review application. We do not consider it to be frivolous, vexatious or misconceived. Nor do we consider it to be lacking in substance or an abuse of process.10 It is by no means certain that reunification will be successful. If it is successful, the application will become redundant and will not proceed according to the usual processes. If it is not successful, and the Department does not agree that RB should remain in the applicants’ care, the Tribunal will need to make a decision on the review application. 10 s 47 Queensland Civil and Administrative Tribunal Act 1999 (Qld). -- 5 of 5 --