FQA and MKD v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 126

Date: 16 March 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Senior Member Aughterson
Human Rights Act 2019 (Qld) Sections: ss 25, 26.
Rights Considered: Right to privacy and reputation; right to protection of families and children.
Other Legislation: Child Protection Act 1999 (Qld), ss 5BA, 11, 12, 13, 87, 99P, 247; Sch 2.
Keywords: Children and Families

The case concerned an application to review a contact decision. The Tribunal determined that MKD was not a parent or a member of the children’s family, so he had no standing to bring an application to review that decision and the Tribunal did not have jurisdiction to determine the application.

The case concerned an application to review a contact decision. The Tribunal considered that account needed to be taken of the right under section 26 which, in part, provides that families are the fundamental group unit of society and are entitled to be protected by society and the State, and that every child has the right, without discrimination, to the protection that is needed by the child: at [13].

The Tribunal quoted the discussion of those rights in N and IN v Department of Child Safety, Youth and Women [2020] QCAT 146: at [14]. The Tribunal discussed that, also in N and IN v Department of Child Safety, Youth and Women [2020] QCAT 146, it was noted that the UN Human Rights Committee, in a case arising in the Western context, had stated that while the term family should be given a broad interpretation, a relationship must display the ‘minimal requirements’ of ‘life together, economic ties, a regular and intense relationship, etc’ in order for it to be protected as a family under art 23(1) of the International Covenant on Civil and Political Rights: at [17]. It was also noted that, in the present matter, no relevant person identified as Indigenous, and that it was “not evident that any other ethnic or cultural considerations arose that might impact a determination of what constitutes a ‘family:’ at [17] n 20.

The Tribunal considered these minimal requirements were “far from the circumstances of the present case” as “MKD has never met the subject children and there is no indication of any other involvement with them, other than perhaps indirectly through his relationship with FQA, the nature and scope of which is not evident on the material before the Tribunal:” at [18].

The Tribunal determined that MKD was not a parent or a member of the children’s family, so he had no standing to bring an application to review that decision and the Tribunal did not have jurisdiction to determine the application: at [19].

Visit the judgment: FQA and MKD v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 126