AA & Anor v Department of Communities (Adoption Services) [2011] QCAT 106

CITATION: AA & AB v Department of Communities (Adoption Services) [2011] QCAT 106 PARTIES: AA and AB v Department of Communities (Adoption Services) APPLICATION NUMBER: CML034-11 MATTER TYPE: General administrative review matters HEARING DATE: 25 March 2011 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 25 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for review is dismissed. CATCHWORDS: ADOPTION – review of decision – where relief sought is not attainable – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. REASONS FOR DECISION 1. On 2 March 2011 AA and AB lodged an application in the tribunal to review the decision made on 8 February 2011 by the Department of Communities (Adoption Services) to remove their names from the suitable adoptive parents register. 2. The Department has applied for an order that the application for review is brought to an early end without a hearing. Copies of the Department’s application and supporting submissions were sent to AA and AB on 11 March 2011 and they were asked to provide any response to the Department’s application by 25 March 2011. A response was received by the tribunal on 25 March 2011. -- 1 of 3 -- 3. In July 2006 AA and AB expressed interest in being assessed as suitable adoptive parents for a child through the inter-country adoption program. In March 2007 they were found suitable to be adoptive parents. 4. On 1 February 2010 new legislation relating to the adoption of children commenced in Queensland and new criteria came into effect as to the suitability for persons to be adoptive parents. AA and AB were on the suitable adoptive parents register as of 1 February 2010. 5. Section 146 of the Adoption Act 2009 provides that the chief executive of the Department must remove a person’s name from the suitable adoptive parents register if the person is not eligible to have their name remain in the expression of interest register. Section 76 of the Adoption Act 2009 provides that a person is eligible to have their name remain in the expression of interest register if, among other factors, they do not have custody of a child aged less than 1 year. 6. AA and AB have in their custody a biological daughter who is aged less than 1 year. As a result of the operation of sections 76 and 146 of the Adoption Act 2009 the chief executive must remove the names of AA and AB from the suitable adoptive parents register. There is no statutory provision to enable the Department to delay the removal of persons from the register after the Department becomes aware of the persons’ ineligibility to remain on the register. 7. The tribunal can under section 319 of the Adoption Act 2009 conduct a review of that decision. In conducting a review, the tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the Adoption Act 2009 under which the decision being reviewed was made.1 The purpose of the review by the tribunal is to produce the correct and preferable decision.2 8. The Department submits that the outcome being sought by AA and AB in the review, namely that the Department should delay taking any further action about their adoptive parents file until after 22 November 2011, is unattainable. The relief being sought by AA and AB is effectively for no action to be taken that would otherwise impact on their eligibility to adopt a child through an inter-country program. 9. The tribunal accepts the submissions of the Department that the relief being sought is not able to be provided by the tribunal in this review. In their submissions received on 25 March 2011 AA and AB appear to proceed on the basis that the tribunal is being asked to investigate the timeframe in which the Department must withdraw a person’s name from the inter-country program. This is not correct. The tribunal’s statutory power to review is restricted to a review of the decision to remove their names from the suitable adoptive parents register. The review cannot be about the consequential action by which the Department informs the inter- country program of the removal of names from the register. 10. The tribunal stands in the shoes of the Department in this review. The tribunal has the same powers as the Department and is bound by the same law. In the absence of any discretion in section 146 of the Adoption 1 Section 19(a) of the Queensland Civil and Administrative Tribunal Act 2009. 2 Section 20(1) of the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 3 -- Act 2009 for the tribunal to delay the removal from the suitable adoptive parents register of persons who are no longer eligible to remain in the suitable adoptive parents register, the tribunal cannot provide the relief sought and the tribunal concludes that the application to review is misconceived and lacks substance. 11. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is misconceived or is lacking in substance. 12. The tribunal concludes that the application by AA and AB should be brought to an early end as the tribunal cannot provide the relief being sought. The resources of the tribunal are limited and it would be futile to proceed to a hearing when the tribunal has no power to grant the relief being sought. -- 3 of 3 --