CS v Department of Communities, Child Safety and Disability Services [2012] QCAT 385

CITATION: CS v Department of Communities, Child Safety and Disability Services [2012] QCAT 385 PARTIES: CS (Applicant) v Department of Communities, Child Safety and Disability Services (Respondent) APPLICATION NUMBER: CML248-11 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 27 August 2012 DELIVERED AT: Brisbane ORDERS MADE: Application to reopen the proceeding is refused. CATCHWORDS: REOPENING – CHILD PROTECTION – where application to reopen decision dismissing review application – where a ground for reopening the review proceeding has not been established Queensland Civil and Administrative Tribunal Act 2009, s 137 Child Protection Act 1999, s 247 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] CS was informed by a departmental officer on 30 November 2011 that she would not have contact with child A. CS had previously been a carer of the child but in late 2010 the child had been placed with other carers. A decision had subsequently been made by the department to restrict contact between CS and the child to one hour each fortnight on a -- 1 of 3 -- 2 supervised basis and the decision was set out in a letter dated 25 March 2011. CS considered the contact arrangements were unsatisfactory and terminated her contact with the child in about June 2011. As a result, CS has not had contact with the child over the past 12 months, except for one occasion, described as contact “by accident”. [2] In December 2011 CS lodged an application seeking a review of the decision made in November 2011 to refuse contact but her review application was dismissed on 22 December 2011. The dismissal was made under section 47 of the QCAT Act as the application for review was found to lack substance as there was no reviewable decision. CS has made an application to reopen the proceeding. The reopening application is opposed by the department. [3] Under the QCAT Act a party can apply to reopen a proceeding if a ground for reopening exists. The application must be made within 28 days. Section 137 sets out the grounds for reopening. In this case CS must satisfy the tribunal that she would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first decided. [4] CS did not file her application for a reopening within 28 days of the decision which had finalised the review application. Her reopening application was received on 12 March 2012, well outside the required 28 day period. An extension of time could be considered for the filing of her application if a ground for reopening can be established. [5] CS relies on a letter from the department to her dated 3 February 2011 and a letter dated 25 March 2011 which set out limited contact arrangements with the child as being evidence sufficient to support a reopening of the review proceeding. In the letter dated 3 February 2011 CS is referred to as a very important person in the life of the child and that ongoing contact between them is important to the child. [6] The question is whether that evidence provides a ground for reopening the proceeding on the basis that CS would suffer a substantial injustice if the review application were not to be reopened. To answer that question, the standing of CS to seek a review of the decision to refuse her contact with the child must be examined. [7] Under section 247 of the Child Protection Act 1999 an aggrieved person may apply to QCAT to have a reviewable decision reviewed. Details of who is an aggrieved person and what is a reviewable decision are set out in schedule 2 of the Child Protection Act 1999. A decision which refuses to allow contact between a child and a member of the child’s family is a reviewable decision. CS is not a member of the child’s family. [8] Contact arrangements for a child are defined to mean arrangements for the child’s contact with members of the child’s family group or other persons with whom the child is connected. The Act also refers to the kin -- 2 of 3 -- 3 of a child as any of the child’s relatives who are persons of significance to the child or anyone else who is a person of significance to the child. [9] The relevant question is whether CS at November 2011 was a person of significance to the child or was a person with whom the child was connected as a former carer. The child was three years of age at that time. From March 2011 to June 2011 the contact between them had been occurring for only one hour a fortnight. From June 2011 to November 2011 CS had not had contact with the child, apart from on one occasion described as contact by accident. [10] CS nevertheless asserts that she remained a person of significance to the child, based primarily on a letter dated 3 February 2011 in which a departmental officer had stated that CS was at that stage a very important person in the life of the child and on the decision set out in a letter dated 25 March 2011 to restrict contact to one hour a fortnight with supervision. While she was a person of significance to the child in early 2011, it has not been established that by November 2011 CS remained a person of significance to the child and that she had standing to review a contact decision made by the department. [11] What new evidence was produced by CS about her standing to review a contact decision and which would support a reopening application? I do not find any new evidence was produced to support the reopening application. [12] The letters dated 3 February 2011 and 25 March 2011 cannot amount to significant new evidence that has arisen since the tribunal decision made on 22 December 2011 or evidence that was not reasonably available when the proceeding was first decided. Copies of those letters had already been provided to the tribunal before 22 December 2011. [13] Has CS established that she would suffer a substantial injustice if the review application were not to be reopened? I do not find that to be the case as CS has not satisfied the tribunal that any other result than a dismissal of the review application was available to the tribunal. [14] It is in the interests of justice that proceedings of the tribunal are brought to finalisation. Reopenings are able to be permitted only in those cases where grounds for reopening are established. CS has not established a ground for reopening. [15] The reopening application is refused. -- 3 of 3 --