CDM v Department of Communities, Child Safety and Disability Services [2012] QCAT 718

CITATION: CDM v Department of Communities, Child Safety and Disability Services [2012] QCAT 718 PARTIES: CDM Applicant v Department of Communities, Child Safety and Disability Services Respondent APPLICATION NUMBER: CML117-12 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 23 August 2012 DELIVERED AT: Brisbane ORDERS MADE: The application to review the decision of the respondent set out in a letter dated 22 June 2012 is dismissed CATCHWORDS: CHILD PROTECTION – where decision made to refuse contact with children – where applicant is not a parent or member of the children’s family – where no reviewable decision – where application lacks substance - early end to proceedings sought Queensland Civil and Administrative Tribunal Act 2009 s 47 Child Protection Act 1999 ss 87, 247, sch 2 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] CDM was in a relationship with RST from February 2002 to about May 2009. RST was already the mother of five children to another partner at the start of her relationship with CDM. The relationship between CDM and -- 1 of 3 -- 2 RST was “on and off” at times and RST had other partners during the period from 2002 to 2009. [2] During the period of their relationship, RST’s children had been placed into out of home care on three occasions for periods varying from two months to six months. RST died in July 2010. [3] There has been no contact between CDM and the children since November 2008. They had wanted him removed from their mother’s home before his relationship had ended with RST. CDM has not been part of the lives of the children since the children were placed into continuous out of home care in November 2008. He did not have contact with the children at the times when their mother had contact with them after November 2008. [4] The department submits that the children have no positive attachment to CDM. The children, now aged from 17 to 13 years of age, have informed the department that they do not want to have any contact with CDM. [5] The department has applied to the tribunal to bring an early end to the proceedings. The submissions in support of that application have been sent to CDM but he has not provided any response. [6] QCAT has the power to bring an early end to proceedings under section 47 of the QCAT Act if the tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The courts have over the years considered applications under other similar legislation or under the rules of court which have sought to bring a summary end to proceedings before a hearing of the merits of the substantive case can take place.1 [7] The authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a party from having their case determined by a hearing. The department submits that this is such a case on the grounds that the decision made on 22 June 2012 was not a reviewable decision. It is submitted that the review application lacks substance as QCAT has no jurisdiction to consider the review application. [8] Under section 247 of the Child Protection Act 1999 an aggrieved person may apply to QCAT to have a reviewable decision reviewed. Information as to who is an aggrieved person and what is a reviewable decision is set out in schedule 2 of the Child Protection Act. A decision which refuses to allow contact between a child and a member of the child’s family is a reviewable decision. Family is not specifically defined in the Child Protection Act. 1 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 -- 2 of 3 -- 3 [9] However the Act does define contact arrangements for a child as meaning 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 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. As CDM is not a relative of the children of RST, the relevant question is whether he is a person of significance to the children or a person with whom the children are connected. [10] I am not convinced that CDM is either a person of significance to the children at the present time or that the children are connected with him. He plays no current role in their lives. He has not had any contact with them since November 2008 even though his relationship with their mother did not end until May 2009. I accept that the children are not emotionally connected with him as they do not want contact with him. I find that CDM is not a member of the children’s family. [11] I am satisfied that CDM does not come within the category of a person aggrieved by the decision made on 22 June 2012 in the sense that he is not a parent of the children and is not a member of the children’s family. The application to review the decision made on 22 June 2012 is without substance as it is not a reviewable decision under section 247 of the Child Protection Act. The application must be dismissed. -- 3 of 3 --