Queensland Civil and Administrative Tribunal

Queensland Civil and Administrative Tribunal

The Queensland Civil and Administrative Tribunal (QCAT) is an independent body with authority to look into government decisions. This includes decisions made under the Child Protection Act 1999 about children and young people in the care of Child Safety.

QCAT is authorised to undertake merit reviews of specific reviewable decisions, as outlined in Child Protection Act 1999, schedule 2 and Public Guardian Act 2014, section 128 .

Court Services coordinates QCAT matters involving Child Safety and provides support and advice when a matter is before QCAT. Court Services maintains a leadership role in relation to QCAT matters to ensure:

• submissions are made in response to review applications where jurisdictional issues are identified. An example of a jurisdictional issue is when no reviewable decision has been made (which means it is outside of the authority of QCAT)
• all relevant issues are identified and addressed throughout the proceedings to assist QCAT, the applicant and the person who made the decision (the decision maker)
• the decision maker knows what needs to be done, by whom and when
  and
• Child Safety’s position on practice and policy issues is consistent.

Reviewable decisions and review applications

A list of reviewable decisions can be found in the Child Protection Act 1999, schedule 2. (Refer to the practice guide Reviewable decisions.) The authority to make reviewable decisions is delegated to officers in specified positions.

In addition to the decisions set out in the Child Protection Act 1999, schedule 2 of the Public Guardian Act 2014, section 128 states that the following decisions are also reviewable:

• a decision, under the Child Protection Act 1999, section 87(2), by the chief executive (Child Safety) not to take action under that subsection
• a decision by the chief executive (Child Safety) to take, or not to take, a step under the Child Protection Act 1999, section 122 for the purpose of ensuring a child placed in care under the Child Protection Act 1999, section 82 is cared for in a way that meets the statement of standards under the Child Protection Act 1999, section 122.

QCAT has jurisdiction to consider any reviewable decision a delegated officer has made under the Child Protection Act 1999. The application for a review of the decision must be submitted within 28 days of the person receiving the reviewable decision letter.

Those who may apply for a review of a decision include:

• an aggrieved person (detailed for each decision in the Child Protection Act 1999, schedule 2. 
• the Public Guardian
• in specified circumstances, the child’s carer
• a person granted permission by the president of QCAT (in line with the Child Protection Act 1999, section 99P) to make the application on behalf of the subject child.

Child Safety provides a person with written notice (a reviewable decision letter) when a decision has been made of which the person can seek review. The written notice must include details of their review rights, including how they can seek review.

If a person chooses to seek review of the decision, they must submit an Application to review a decision—childrens matters, known as a Form 17.

Under the Public Guardian Act 2014, section 133, the Public Guardian is able to apply to QCAT for a review of a decision.

Prior to the Public Guardian requesting a review by QCAT, the Public Guardian must give Child Safety written notice that states:

• why they are dissatisfied with Child Safety’s decision
• that the matter has not been resolved to their satisfaction
  and
• that they intend to apply to QCAT for a review of the decision.

Once an application for a decision to be reviewed is received by QCAT:

• QCAT will give notice of the review application to Court Services, who will then advise the decision maker that a review application has been received
• Court Services, in consultation with the decision maker, will provide QCAT with notice of all other people entitled to seek review of the decision within 7 days of receipt of the application (the Child Protection Act 1999, section 99E(2))  
• a Statement of Reasons (SOR) must be filed in QCAT and provided to the applicant (the aggrieved person) within 28 days, unless directed otherwise (Queensland Civil and Administrative Tribunal Act 2009, section 21(2)(a)) 
• QCAT will provide notice of a date for a directions hearing, a compulsary conference of a stay hearing (if a temporary stop to the decision subject to the review is sought) to be heard. (Refer to Compulsory conferences or Stay hearings.)

Respond when an application for review is submitted

If Court Services is advised that a review application has been made, it will send notice to the relevant CSSC. In line with the Queensland Civil and Administrative Tribunal Act 2009 and the Child Protection Act 1999, Court Services will consider:

• whether the application was made within the 28-day review period
• the jurisdiction of QCAT to review the matter
• whether factual information is required from the CSSC to determine the matter
• whether the applicant is entitled to seek review of the decision.

Sometimes, it might be necessary for Court Services to file a submission, for example, where jurisdictional issues are identified. In these circumstances, the CSSC may be asked to collate factual information to support the submissions prepared by Court Services.

Where submissions are to be filed, Court Services will:

• prepare written submissions and the relevant QCAT form to submit to QCAT
• provide the submission to the delegated decision maker for feedback and approval
• send the submissions and form to QCAT for determination once they have been approved by the decision maker.

Reviewable decision in relation to family contact where there are Childrens Court proceedings

If the review application seeks review of a decision made under the Child Protection Act 1999, section 87(2) in relation to family contact, Court Services will check ICMS to determine if the child is subject to current Childrens Court proceedings.

If there is a current application in the Childrens Court and the review application has been filed by a party to those proceedings, Court Services will:

• provide written advice to QCAT that the application must be suspended under the Child Protection Act 1999, section 99MA 
• provide email advice to the relevant CSSC, OCFOS and DCPL officers that:
  • a review application has been filed by a parent or other family member participating in the Childrens Court proceedings, and they are seeking review of the decision
  • QCAT has been advised that the review must be suspended.

Once Court Services receives confirmation from QCAT that the review will be suspended, they will:

• forward the advice confirming the review will be suspended to the CSSC, OCFOS and DCPL officers
• track the proceedings in the Childrens Court and maintain regular contact with the CSSC, OCFOS and, where appropriate, DCPL, to identify if the issue of contact is being raised in the Childrens Court
• keep QCAT up to date about any decision made in the Childrens Court that impacts on the suspension of the review application.

The CSSC will ensure the review applicant is aware that they can raise the issue of contact in the Childrens Court to seek either:

• an interim contact order (which will result in the review application being dismissed)
  or
• an order made under the Child Protection Act 1999, section 99MA(4), which has the effect of cancelling the suspension of the review and allowing QCAT to proceed with the review application.

Child Safety may also ask the DCPL to consider raising the issue of contact in the Children’s Court for further consideration if the applicant is not present, or is struggling to understand the process.

Once a decision suspending the review is received from Court Services, the CSSC will advise the parties to the proceedings, including the separate representative if one has been appointed.

Respond when a directions hearing is requested

The aim of a directions hearing is to work out how a case will proceed, including determining whether the case will proceed at all. A directions hearing is requested by a senior member of QCAT. It deals with any preliminary or interim issues raised by the parties and decides the procedures and timeframes for preparing evidence ready for hearing.

If a matter is scheduled for a directions hearing, Court Services will send the relevant CSSC a notice of directions hearing.

The CSSC may be asked by Court Services to provide documents (for example, a reviewable decision letter) or contextual information (for example, the last contact the CSSC had with a parent) in advance of the directions hearing, to assist Court Services in the preparation of relevant submissions.

During a directions hearing, Court Services will:

• make submissions on behalf of Child Safety
• respond to questions raised by QCAT in relation to policy and legislative matters
  and
• make submissions supporting directions sought by Child Safety.

Information notices

An information notice is a formal notice from QCAT advising Child Safety that a review application has been accepted by the QCAT registry.

QCAT sends information notices to Court Services.  If an information notice is sent directly to CSSC staff, contact Court Services as soon as possible.

When an information notice is received, Court Services prepares an email to CSSC staff that includes a template statement of reasons and other related information.

Upon receipt of the information from Court Services, the delegated officer who made the decision will:

• facilitate a case discussion to allocate the preparation tasks identified by Court Services
• provide advice to the Office of the Public Guardian (OPG)—via the OPG Regional Manager—of the review application, as per the Public Guardian Act 2014,  section 89. Refer to OPG—Regional visiting manager contact details.)
• arrange, subject to the child’s capacity to understand, for a Child Safety Officer to meet with the child or young person to:
  • discuss the review application
    and
  • determine if the child or young person wishes to be involved in the matter and if so, the level of involvement. This is a Child Safety obligation regardless of whether or not a child advocate legal officer from the OPG has made contact with the child.

Statement of reasons

A statement of reasons (SOR) is a statement written by the delegated decision maker, outlining the grounds on which the decision was made. The SOR also includes any documentation in the decision-maker’s possession or control that may be relevant to QCAT’s review of the decision.

Court Services will provide guidance to the decision maker about the SOR as well as information regarding timeframes for completing tasks.

The decision maker will prepare the SOR and ensure a draft SOR is provided in a timely manner to allow Court Services to review it and provide feedback.

Stay hearings and compulsory conferences

Stay hearings

When an application is made for a review of a decision, an application can also be made for a stay, which is a temporary stop to the decision subject to the review.

The application for a stay will be considered by QCAT at a stay hearing. If successful, a stay temporarily stops the decision from taking effect until a final hearing can be held. Before granting a stay, QCAT must consider:

• any person whose interests may be affected by making or not making a stay order
• any submissions made to QCAT by the decision-maker
• public interest.

QCAT does not have to give a person whose interests are affected an opportunity to make submissions if it is not practicable to do so because of the urgency of the case or for another reason.

Compulsory conferences

A compulsory conference is a dispute resolution process. QCAT will usually order a compulsory conference prior to a hearing proceeding. The aims of a compulsory conference are to:

• identify and clarify the issues on which the aggrieved person and Child Safety do not agree 
• find a solution to the dispute without proceeding to a hearing
• identify the questions to be decided by QCAT
• make orders and give directions to resolve the dispute
• make orders and give directions about how the case will proceed so it can be resolved, if the proceeding is not settled during the conference.

Prepare for a stay hearing or compulsory conference

During a stay hearing or compulsory conference, the role of Court Services is to:

• assist the decision maker and other Child Safety staff to prepare for and participate in QCAT proceedings
  and
• address jurisdictional issues that may arise.

The decision maker is responsible for explaining the reviewable decision and reasons for the decision, and for providing any content information required by QCAT.

When preparing for a stay hearing or compulsory conference, Court Services will facilitate a preparation telelink with the decision maker and any other relevant CSSC staff. During this telelink, Court Services will:

• ensure all relevant staff understand the process of a stay hearing or compulsory conference
• discuss with the CSSC the preliminary witness list of people who may be required to provide evidence should the matter proceed to a final hearing.

During a stay hearing or compulsory conference

The Court Services advisor and the decision maker are required to attend a stay hearing or compulsory conference.

Court Services will:

• make submissions on behalf of Child Safety and respond to questions raised by QCAT in relation to policy and legislative matters
• make submissions in relation to specific orders sought by Child Safety
• assist the CSSC in the delivery of their oral submissions.

The delegated decision maker will:

• attend the stay hearing and/or compulsory conference
• discuss the rationale for decision making
• respond to any questions from QCAT and others (for example, the applicant, joined party, child advocate, direct representative or separate representative).

After a stay hearing or compulsory conference

Following a stay hearing or compulsory conference, Court Services will send an email summarising the outcome to the CSSC detailing:

• the practical and legal implications of any interim orders or directions made
• filing deadlines and any other required actions
• the formal orders or directions of QCAT.

The decision maker will ensure all identified actions are allocated, to be completed within filing deadlines.

Full hearing

A full hearing for a reviewable decision occurs when a compulsory conference and other methods to resolve the dispute about the decision are unsuccessful. 

Prepare for a full hearing

In preparation for a hearing, Court Services will convene a preparation telelink with all relevant CSSC staff to discuss important tasks including:

• content required in affidavits for the hearing
• urgent tasks to be undertaken to gather additional evidence
• critical dates the CSSC needs to be aware of
• making application to QCAT for notices to attend for any witnesses not from Child Safety, being mindful of any existing protocols between external agencies and Child Safety, where relevant.

Following the telelink, Court Services will undertake tasks to prepare for the hearing including:

• sending an email to CSSC staff with the minutes of the telelink, including a template affidavit for witnesses to complete
• liaison with proposed witnesses (Child Safety and external) in relation to the provision of affidavits
• filing material relied upon by Child Safety with the QCAT Registry.

CSSC staff will:

• with the support of Court Services, liaise with witnesses who are not from Child Safety and other professional witnesses about preparing affidavits and attending QCAT as a witness on behalf of Child Safety
• notify Court Services if external witnesses are seeking witness expenses
• with the support of Court Services, provide the material relied upon by Child Safety to the applicants, any joined parties and, if appropriate, the OPG.

After the CSSC has prepared its evidence and sent it to Court Services, Court Services will:

• file Child Safety’s evidence in QCAT
• meet with the decision maker and assist them to prepare questions for Child Safety witnesses and opening submissions
• review material filed on behalf of the applicant in order to identify questions for cross examination of the applicant and their witnesses
• liaise with Child Safety’s witnesses to identify availability and prepare a witness schedule.

The CSSC will:

• act on the advice from Court Services about submissions or witness questions and inquiries
• meet with Court Services to prepare questions for Child Safety witnesses and opening submissions
• review material filed on behalf of the applicant and identify any issues arising
• provide pre-hearing support to proposed Child Safety witnesses, in conjunction with Court Services.

During a full hearing

When a full hearing occurs, the decision maker and their witnesses attend in person. The decision maker runs the hearing for Child Safety, with assistance from the Court Services adviser, who manages the list of witnesses, ensures phone numbers for witnesses are available, take notes of the evidence given, and assists the decision maker with questions to put to witnesses as evidence is given.

The QCAT panel may request that the parties, including the decision maker, each make a short opening submission. Each party then presents their evidence, and witnesses are asked questions by the applicant, any other party and the panel. The separate representative also presents their evidence and is able to be asked questions by any other party and the panel.

Once all the evidence has been given, the panel will request that the parties make oral closing submissions, or file written closing submissions within a specified timeframe.

During a full hearing, Court Services will:

• coordinate witnesses with the assistance of the CSO
• assist the decision maker to put questions to witnesses
• identify (as evidence progresses) any necessity for additional submissions and make those submissions on behalf of Child Safety
• respond to questions raised by QCAT in relation to policy and legislative matters
• assist the decision maker to present oral closing submissions or written closing submissions.

The decision maker will:

• attend the full hearing
• ask questions of Child Safety’s witnesses and put questions to the witnesses of the applicant and any other party
• assist with coordinating witnesses
• present an oral closing submission, or write closing submissions, with the assistance of Court Services.

The delivery of the decision by QCAT

QCAT will deliver their decision, either orally or in writing:

• on the same day that the hearing concludes (if oral closing submissions are made by the parties)
  or
• at a later date, which will be specified, or a ‘date to be fixed’.

Where the decision and reasons are delivered orally at the end of the hearing, Court Services will make a detailed record of the decision and reasons and provide this record by email to the CSSC. Court Services will identify whether the decision maker should request written reasons for the decision.

If the decision is reserved for a later date, Court Services will:

• attend the tribunal or link in to the appearance by phone for the delivery of the decision and reasons (if the decision is delivered orally) and provide a record by email to the CSSC as soon as possible
• ensure a copy of the decision and reasons are transmitted to the decision maker as soon as possible if the decision and reasons are delivered in writing.

The decision maker will also attend the tribunal, or link in to the appearance by phone, for the delivery of the decision and reasons.

Once QCAT has delivered its decision, Court Services will identify and explain to the decision maker the implications of QCAT’s decision.

The CSSC will:

• ensure that QCAT’s decision is made known to all relevant people and that Child Safety representatives give effect to the decision
• action any necessary tasks required to give effect to QCAT’s decision.

Guardianship and administration

If a young person with impaired decision-making capacity is likely to need their interests protected after they turn 18, consider whether to apply to have QCAT appoint the Public Trustee as a guardian (for non-financial matters) or an administrator (for financial matters).

Refer to Procedure 5 Support a young person with impaired decision-making capacity.