CRM v Department of Communities [2011] QCAT 215

CITATION: CRM v Department of Communities [2011] QCAT 215 PARTIES: CRM (Applicant) v Department of Communities (Child Safety Services) (Respondent) APPLICATION NUMBER: CML049-11 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 19 May 2011 DELIVERED AT: Brisbane ORDERS MADE: The application for review is suspended pursuant to s 99M of the Child Protection Act 1999. CATCHWORDS: CHILD PROTECTION – SUSPENSION OF REVIEW APPLICATION – where the applicant had sought a review of a decision of the Department of Communities (Child Safety Services) that her brothers be placed in the care of their mother – where the matter was set down for a compulsory conference – where there are current applications in the Children’s Court relating to the care of the two boys – where the Children’s Court can decide the matter – whether the review should be suspended by the President pursuant to s 99M(2) of the Child Protection Act 1999 Child Protection Act 1999, ss 5A, 61C, 99M -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 19 May 2011 the legal representative for CRM (aged 15) sought reasons for my decision to exercise the power to suspend the review application previously brought by CRM. The representative submitted that she had not been afforded the opportunity to be heard on the issue of suspension and, thus, her client had not been afforded procedural fairness. [2] CRM had earlier sought a review of a decision of the Department of Communities (Child Safety Services) for her two brothers CRA and CRB to be placed in the care of their mother, CRR. [3] Under s 99M(2) of the Child Protection Act 1999 the President must suspend the Tribunal’s review if the president considers – (a) a court’s decision about the matters would effectively decide the same issues to be decided by the Tribunal; and (b) the matters will be dealt with quickly by a court. Action may be taken under this section on the President’s own initiative, under s 99M(6). [4] The evidence concerning proceedings around this family is that there are current applications in the Children’s Court relating to CRA, and CRB. The current child protection orders were due to expire on 11 May 2011. On 29 April 2011 the Department made applications to the Children’s Court for child protection orders (Protective Supervision Orders), requiring the Chief Executive to supervise CRA and CRB’s protection in accordance with s 61(c) of the Child Protection Act 1999. [5] The applications were mentioned on 3 May 2011 in the Children’s Court, and adjourned for a further mention on 23 May 2011. This in effect means that guardianship of the subject children remains with the Chief Executive, in the absence of any other order. The children are being supervised by the Department while currently in the care of their mother, and the Court will be determining effectively where the children will be placed in due course. [6] The Department will be seeking orders for the Chief Executive to supervise CRA and CRB’s protection while in the care of their mother and, in so doing, are acting protectively in that regard. [7] On 20 May 2011, a QCAT panel was scheduled to conduct a further adjourned compulsory conference relating to the review application by CRM. This adjournment was due to CRM not being present at the previous compulsory conference, on 19 April 2011. CRM’s instructions to the legal representative at that conference were to continue with the review application. [8] On 19 April 2011, the legal representative submitted that the Tribunal should hold a full hearing of the review application before the expiration date of the child protection orders, being 11 May 2011. This request was not able to be met for a number of reasons, and most particularly that the subject children, CRA and CRB, should have an independent separate representative at the hearing. The timeframe was not conducive to conducting a full hearing within a matter of days. The Tribunal panel was not satisfied that the parties (and a separate representative in particular) -- 2 of 4 -- 3 would be afforded the appropriate opportunity to prepare comprehensively for a full hearing. [9] The Tribunal panel adjourned the compulsory conference to 20 May 2011 to allow the Children’s Court process to take place, for the legal representative to encourage CRM to attend the adjourned conference, and for the opportunity for further dispute resolution discussions between the parties to continue. [10] CRA and CRB’s matters were coming before the Children’s Court again on 23 May 2011. The issue of where the children would be placed is subject to these Children’s Court proceedings. The decision to suspend the review application [11] On the afternoon of 19 May 2011, while acknowledging the intent of the Tribunal panel in holding another compulsory conference, I considered the information before me in the matter and concluded that future events in these different proceedings and, in particular, the QCAT proceedings, should be determined with reference to s 99M of the Act. The reasons for that decision follow. [12] The subject children have been in the care of their mother since 27 March 2011. [13] A stay of that state of affairs was not granted by the Tribunal panel on 4 April 2011. The Tribunal was satisfied that there was no evidence that the children were not being adequately cared for by their mother and that she was not acting protectively. The Tribunal was also satisfied that the Department had appropriate supervision and support mechanisms in place. In making the decision the Tribunal panel was guided by s 5A of the Act – that is, having regard to the safety, wellbeing and best interests of these subject children. [14] The decision was given at that stay hearing but the reasons for the decision were not delivered until the date of the adjourned compulsory conference, on 19 April 2011. At the request of CRM’s legal representative the panel delayed giving oral reasons so that CRM could be present at, and be accorded a more fulsome reasoning for, the decision not to grant the stay. As noted above, CRM was not in attendance. [15] The Tribunal may no longer have jurisdiction to hear the review application in light of the Children’s Court hearing relating to CRA and CRB on 23 May 2011. [16] The QCAT registry contacted the legal representative for CRM on 18 May 2011 seeking advice whether CRM was intending to attend the scheduled compulsory conference on 20 May 2011. The representative was not able to reply with instructions from CRM by the afternoon of 19 May 2011. [17] I noted submissions provided by the Department on 18 May 2011, in response to the registry enquiry as to the outcome of the Children’s Court proceedings of 3 May 2011. -- 3 of 4 -- 4 [18] Notably, the Acting Magistrate did not make an interim order granting guardianship of CRA and CRB to the Chief Executive as per the submission made by CRM’s legal representative as a non party to the Children’s Court proceedings. [19] It is also noted that in the absence of an order by the Children’s Court to end the guardianship order, guardianship of CRA and CRB remains with the Chief Executive. Protective measures remain in place. [20] The legal representative for CRR, the children’s mother, had informed the Tribunal on 18 May 2011 that her client would not be attending the compulsory conference due to her responsibilities for the four children currently in her care (including CRA and CRB). [21] I was satisfied by this evidence, and from these circumstances, that the issue of the placement of the subject children is currently being considered as part of the applications before the Children’s Court. Given the time frames in place, it was also apparent that these matters would be dealt with quickly by the court. In those circumstances, the legislation explicitly compels suspension of the Tribunal’s review: s 99M(2). [22] The President is also given the power to cancel the suspension of the review matter brought by CRM, under ss 99M (4) and (5): if the President has suspended the Tribunal’s review and the review matter has not been decided by the court, the President may cancel the suspension and the Tribunal may continue with the review application. [23] CRM’s review is currently suspended. It has not been dismissed nor withdrawn. It remains an active file within the Tribunal registry. The Tribunal will continue active case management of the matter in order to inform the President of the placement status of the subject children, CRA and CRB, through the proceedings before the Children’s Court. -- 4 of 4 --