QCAT review of a decision made by Child Safety
The Childrens Court can make a "child protection order" that requires the Department of Communities, Child Safety and Disability Services (Child Safety) to supervise a child’s protection, or that gives Child Safety custody or guardianship of a child.
Once a child protection order has been made, Child Safety may be able to make decisions about the child’s daily care, including with whom the child lives (Placement Decisions), and who can have contact with the child (Contact Decisions).
Some of the decisions made by Child Safety, including Placement and Contact decisions, can be reviewed by the Queensland Civil and Administrative Tribunal (QCAT).
This factsheet outlines the process for parents and carers to apply to QCAT for review of a decision made by Child Safety. There are some references to legislation in this factsheet. A reference to the ‘CP Act’ is a reference to the Child Protection Act 1999 (Qld). A reference to the ‘QCAT Act’ is a reference to the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- 1 Who can apply to QCAT for review of a decision of Child Safety?
- 2 Concurrent proceedings in the Childrens Court
- 3 Notice and reasons for decision
- 4 Time limits
- 5 Child Safety’s statement of reasons and other documents
- 6 Applying for a stay of the decision
- 7 Compulsory conferences
- 8 Hearings
- 9 Legal representation
- 10 Contact us
Who can apply to QCAT for review of a decision of Child Safety?
Only some of the decisions made by Child Safety can be reviewed by QCAT (‘reviewable decisions’). Also, to apply for a review of a decision of Child Safety, you must be affected by the decision (an ‘aggrieved person’).
The definition of "reviewable decision" and "aggrieved person" is in Schedule 2 of the CP Act. If Child Safety makes a "reviewable decision" and you are an "aggrieved person", then you can apply to QCAT for a review of that decision. For example:
- A child or the parents of a child may be aggrieved persons and so able to apply for review of a decision that is made to place the child in the care of another person (s 86(2) CP Act);
- A child or the carer of a child may be aggrieved persons and so able to apply for a review of a decision that is made to remove the child from the carer (s 89 CP Act);
- A child or the parents, carer or a family member of a child may be aggrieved persons and so able to apply for a review of a decision to refuse, restrict or place conditions on their contact with the child (s 87(2) CP Act).
The Office of the Public Guardian (OPG) is also able to apply to QCAT for a review of certain decisions made by Child Safety.
After a review application has been made, QCAT will give notice of the application to other aggrieved persons who would also have been able to apply for a review of a decision (for example the child or another family member). Those parties can then apply to be joined to the review proceedings, if they want to.
Concurrent proceedings in the Childrens Court
If you have applied to QCAT for review of a Contact Decision, then QCAT must suspend those review proceedings if you are also a party to child protection proceedings relating to the same child in the Childrens Court (s 99MA CP Act).
This provision does not apply to applications for review of Placement Decisions, and only applies to review proceedings started in QCAT after 25 May 2016 (s 272 CP Act).
The Childrens Court can deal with the contact arrangements by:
- Adjourning the child protection proceedings and making an interim contact order;
- Ordering that the matter be dealt with by QCAT; or
- Not dealing with the matter prior to making its final decision in the child protection proceedings. The matter will then be dealt with by QCAT.
If the Childrens Court makes an interim contact order, then the review proceedings in QCAT will be dismissed.
Notice and reasons for decision
Child Safety must give you written reasons when it makes a reviewable decision that affects you.
You can ask Child Safety for written reasons if they do not give them to you. Your request for written reasons must be made in writing to Child Safety within 14 days of the date that you were notified of, or found out about, the decision. Child Safety must then give you written reasons within 28 days after the request is made (s 158 QCAT Act).
If you want QCAT to review a decision made by Child Safety, you must apply to QCAT for a review within 28 days after you are notified about the decision (s 33(3) QCAT Act).
If you have requested written reasons for the decision from Child Safety, then you will have a further 28 days from the date that you receive the written reasons to apply to QCAT for a review of the decision (s 33(4) QCAT Act).
You should use Form 17, available here, to apply for a review of a decision of Child Safety.
Child Safety’s statement of reasons and other documents
After you have applied for a review of a decision, QCAT will tell Child Safety about your application. Child Safety will then have 28 days to give QCAT a written statement of reasons for its decision, and any other documents that it has that may be relevant to the review of the decision (s 21 QCAT Act).
You can contact Child Safety to request a copy of the written statement of reasons and other documents given to QCAT. This is recommended because you may not otherwise know about all of the documents and information that Child Safety used to make its decision.
Applying for a stay of the decision
An application for review of a decision made by Child Safety will not affect the operation of the decision. So, for example, if you are reviewing a Contact Decision, the new contact arrangements set by Child Safety will remain in place until the QCAT review is finalised.
However, QCAT may make an order to "stay’" the operation of a decision (put it on hold) (s 22 QCAT Act). QCAT can make this order on its own, or in response to an application made by one of the parties in the review proceedings. To make an application to stay the operation of the decision, you should use Form 44, available here.
When deciding whether to make an order to stay the operation of the decision, QCAT will look at things like:
- The interests of any person who may be affected by the stay;
- Any submission made to QCAT by Child Safety; and
- The public interest, having in mind that the child’s safety, well being and best interests are the most important considerations.
As part of the review process, you will be required to attend one or more compulsory conferences with Child Safety, and any other parties to the review proceedings. The compulsory conferences are chaired by a QCAT member.
The purpose of a compulsory conference is for the parties to talk about the issues in dispute, and try to reach an agreement to resolve the dispute. Before going into a compulsory conference, you should think about what you want to achieve at the conference, and what compromises you are willing to make. Any agreement reached must be in the best interests of the child.
If the dispute is resolved at a compulsory conference, then the QCAT member may record any agreement that was reached. If the dispute is not resolved, then the QCAT member will make directions about the process going forward. You may be required to attend another compulsory conference.
If the review proceedings do not resolve at a compulsory conference, then the dispute will go to a hearing before three QCAT members. At the hearing, the most important consideration for QCAT will be the best interests of the child.
You will need to attend the hearing, and you may need to give evidence. The hearing will usually be held in private, and you are able to bring a support person to the hearing.
QCAT is able to:
- Confirm or change the decision;
- Set aside the decision and substitute its own decision;
- Tell Child Safety to reconsider the decision.
(s 20, 24 QCAT Act).
QCAT cannot change the existing child protection order made by the Childrens Court.
For more information about the process for hearings in QCAT, see our factsheet available here.
You need permission from QCAT to have legal representation (s 43 QCAT Act). If you want to be represented by a lawyer in QCAT, you need to make an application to QCAT using Form 56, available here.
For more information about legal representation in QCAT, see our factsheet available here.
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