ABC v State of Queensland - [2015] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

ABC & Ors v State of Queensland & Anor [2015] QDC 321

PARTIES:

ABC
(First Plaintiff)

AND

DEC
(Second Plaintiff)

AND

FGC
(Third Plaintiff)
v
STATE OF QUEENSLAND
(Defendant)

AND

HIC
(Third party)

FILE NO:

DP49/2011

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 December 2015

DELIVERED AT:

Cairns

HEARING DATE:

20 – 31 January 2014 and 24 March 2014

JUDGE:

Harrison DCJ

ORDER:

1) Judgment for the first plaintiff against the defendant in the sum of $320,091.23

2) Judgment for the second plaintiff against the defendant in the sum of $90,746.60

3) Judgment for the third plaintiff against the defendant in the sum of $386,058.65

4) Defendant’s claim against the third party is dismissed

The Court will hear the parties on costs

CATCHWORDS:

TORTS – NEGLIGENCE – BREACH OF STATUTORY DUTY – Where the defendant as long term guardian of a foster child placed a foster child with the third party and her family which included her daughters, the three plaintiffs – Where the foster child sexually abused the three plaintiffs during the course of the placement – Whether the defendant owed the three plaintiffs a duty of care and if so what was the scope of such duty – whether there was any breach of duty on the part of the defendant – Whether any such breach was causative of subsequent psychological injury on the part of each of the three plaintiffs – Whether a finding of contributory negligence should be found against first and/or second plaintiffs – Where the defendant alleges that if it is liable to the plaintiffs, the plaintiffs injuries were caused by a breach of duty on the part of the third party and where the defendant claimed contribution and/or indemnity against the third party – Whether the third party owed a duty of care to the three plaintiffs and whether there was a breach of such duty of care

S B v State of NSW [2004] VSC 514, cited, wherein authorities in matters such as this were analysed

Child Protection Act 1999 (Qld) ss 4, 5A, 5B, 5D, 5E, 8, 9, 13, 82, 83A and 122

Civil Liability Act 2002 (Qld) ss 9, 11, 12, 13, 14, 35 and 36

Crown Proceedings Act 1980 (Qld) s 8

COUNSEL:

R Trotter for the plaintiffs
D Kelly for the defendant
A Lawrence for the third party

SOLICITORS:

Shine Lawyers for the plaintiffs
Crown Law office for the defendant
Preston Law for the third party

Introduction

The first plaintiff was born on 2 February 1988. The second plaintiff was born on 6 September 1989, and the third plaintiff was born on 21 April 1992.

The third party was born on 30 November 1965. The first, second and third plaintiffs are all children of the marriage of the third party and KC who was born on 16 February 1963.

On 13 November 1992, a child born on 23 July 1991 (hereinafter referred to as “the foster child”), was made the subject of a care and protection order granting long term guardianship of him to the Director General of the then relevant department until he turned 18 years of age.

From 2004 onwards the long term guardianship order was administered by the Department of Child Safety (Qld) (hereinafter referred to as “DOCS”).

From 13 December 2005 until late May 2006, DOCS placed the foster child with the third party and her husband in their home at a beach north of Cairns. Also present during the period of that placement were the three plaintiffs. From 13 December 2005 until approximately February 2006, LM a sister of the third party who was born 11 December 1990, also resided in that same household.

In paragraph 10 of the statement of claim, the first plaintiff alleges that the foster child entered her bedroom, in the said home, and engaged in inappropriate sexual behaviour which included inappropriate contact with her. It was alleged that this occurred over a period of time from late January to May 2006. The first plaintiff was 17 years of age at the time the foster child was placed in the home on 13 December 2005, and turned 18 years of age on 2 February 2006.

In paragraph 12 of the statement of claim, the second plaintiff alleges a number of incidents where the foster child entered her bedroom at the said home which included inappropriate sexual behaviour and inappropriate contact with her. She alleges that this occurred between February and May of 2006. The second plaintiff was 16 years of age throughout that period.

In paragraph 14 of the statement of claim, the third plaintiff alleges that the foster child entered her bedroom in the said home one night in May of 2006, and behaved in an inappropriate sexual manner. She had just turned 14 years of age at the time.

Throughout the period from late January 2006 to late May 2006, the foster child was 14 years of age.

There are no allegations of any inappropriate behaviour on the part of the foster child towards LM during the period of time in which she resided in the home shortly after his placement there on 13 December 2005.

The first, second and third plaintiffs have each pleaded that they have suffered psychological injury and have alleged in each case that this was caused by the negligence on the part of and/or breach of statutory duty on the part of DOCS. The proceedings have been instituted as against the defendant pursuant to the provisions of Section 8 of the Crown Proceedings Act 1980 (Qld).

The defendant has denied negligence and/or breach of statutory duty and has joined the third party in the proceedings on the basis that, if one or more of the plaintiffs is successful in their action, the defendant is entitled to indemnity or contribution from the third party because of negligence on her part.

History of the Third party and Her Husband as Foster Parents

In October 2002, the third party and her husband applied to be foster carers.[1] They were assisted in their application by an organisation known as Cairns Shared Family Care (hereinafter referred to as “CSFC”) which was associated with the Uniting Church in Australia and which worked with the then Department of Families in the care, placement and follow up of children who were placed with foster carers.
[1]Application Ex 2A.5 signed by the third party on 4 October 2002 and by her husband on 3 October 2002.

The Department of Families (DOCS did not take over the administration of these applications until 2004) engaged CSFC to prepare a foster care assessment which was completed on 4 November 2002.[2]
[2]Assessment Ex 2A.6.

This assessment indicated that their placement preference was for boys up to 5 years of age, girls up to ten years of age and up to three children at any one time.[3]
[3]Ex 2A.6 p 16.

Under the heading “SIGNIFICANT LIFE EVENTS” the report dealt with a number of matters, but particularly, the after effects of an incident involving the first plaintiff at Narrandera in New South Wales, when she was nine years of age when someone had pointed a gun at her head. It was noted that the first plaintiff received very little treatment in the short term after that and that there were ongoing problems which included bullying at school such that she was subsequently linked with a worker at the child and youth mental health team. There was this further entry:

(the third party) is not sure how (the first plaintiff) would cope with a particularly aggressive foster child. She knows that (the first plaintiff) does not cope when she feels cornered or threatened and that such incidents trigger off anxiety attacks. For this reason, I would strongly suggest that children with such behaviours are not referred to the (third party’s family).[4]

[4]Ex 2A.6 pp7-8.

After talking to the third party about certain matters in her own childhood, the assessors, Helen Giles and Liz Cooney from CSFC, noted in the assessment:

(the third party) felt that she could cope with children who were sexually abused provided they did not have sexualised behaviours that would put her daughters at risk. Given the age group they are interested in fostering, this should not be a problem.[5]

[5]Ex 2A.6 p 4.

I was not provided with a copy of the original approval of them as foster carers, but it would seem that that was done shortly after the assessment for a period of one year.

On 29 October 2003, the Department of Families received what appears to be an application for renewal of approval as foster carers dated 29 October 2003, signed by both the third party and her husband.[6] It was approved on 8 November 2002, effective for two years.
[6]Ex 2A.15.

The best estimate I have as to the number of children who were placed with them, from when they first became registered up until when the certificate of approval was due to lapse on 8 November 2005, is contained in an internal report completed by Georgia Gustafson from the Matters of Concern Review Unit Complaints, Case Review and Investigation Branch of DOCS dated 21 December 2007.[7]
[7]Ex 10.

She said that 58 children were placed with the third party and her husband (by DOCS and its predecessor the Department of Families) between 12 November 2002 and 8 November 2005.[8]
[8]Ex 10 p 10.

When the third party and her husband were originally approved as foster carers they dealt with the Cairns North office of what is now DOCS. It is not clear when, but sometime after they commenced, they also started receiving children who were being handled by the Cape/Torres office of what is now DOCS.

Apparently, the Cape/Torres office managed children originally from Cooktown north and the Cairns North office children south of that.

It is clear that the foster child first commenced residing in the third party’s home on 5 September 2003. An authority to care for the child issued under the provisions of the Child Protection Act 1999 (Qld) (“the CPA”) was signed by Annie Roberts from the Cape/Torres office that day.[9] Ms Roberts gave evidence in these proceedings that the Cape/Torres office managed the foster child because he was originally from Hopevale and had spent a considerable period of time with earlier carers in Hopevale.
[9]Ex 2A.10.

The report of Ms Gustafson indicates that the foster child resided with the third party’s family from 5 September 2003 until 20 October 2003. His younger sister and younger brother also resided with the third party’s family at that stage.[10]
[10]Report of Gustafson Ex 10 p 24.

It is clear that the certificate of approval as foster carers for the third party and her husband was not renewed on 8 November 2005, or thereabouts.

They were sent a reminder from the Cairns North office of DOCS dated 10 August 2005, advising them that the approval would lapse on 8 November 2005, and how they would need to apply for a renewal of the approval prior to that lapsing date.[11]
[11]Ex 2A47.

No application as such was made prior to 8 November 2005. By that stage the third party had expressed an interest in having the foster child reside with her and her family.

On 19 May 2005, the foster child, during a placement at Kuranda with another foster family, committed two serious offences on a three year old child. He got the young child to place her mouth over his penis when he and the young child were alone in a bathroom in the foster carer’s home and also digitally penetrated the young child. He was charged with rape and permitting a child under the age of 14 years to perform an indecent act upon him and subsequently pleaded guilty to these charges in the Children’s Court of Queensland in February 2006. I will deal further with these matters and all relevant developments after he was charged later.

It is clear from all of the material that the third party developed a very close bond with the foster child from when he was placed with her.

Sometime after the foster child was charged with these offences and during a time when he was placed at a facility called St Luke’s Boys Home, which was run by Anglicare, the third party did express some interest in caring for the foster child. At that stage, she still had a number of young children both boys and girls in her care and it is clear that DOCS did not want the foster child residing in the home with those young children present. I will deal with these matters in more detail later.

Eventually, it was a requirement that all of these children be placed elsewhere before the foster child was placed with her and her family.

Incident on 19/5/05 involving foster child

The allegations surrounding what happened that evening are contained in the police brief. They are summarised as follows:

1) The complainant child in relation to the matter is a 3 year old female who at the time of this offence resided with her mother and father and two children in care at (address supplied).

2) The defendant child in relation to this matter is a 13 year old child whom at the time of the offence was under the care of the complainant child’s mother and father. The defendant child had resided with his 11 year old brother in the care of the family for over a year.

3) On Thursday, 19 May 2005 the complainant child was having a bath with her mother in the bathroom at their residence. The only other person at home at the time was the defendant child in this matter.

4) At approximately 5.30pm the defendant child knocked on the bathroom door stating he had to do a shit as he had a sore stomach. The complainant child’s mother got out of the bath and wrapped a towel around herself leaving the complainant child in the shower. The shower actually has a small recess area at the bottom which was being utilised as a bath for the complainant child.

5) The defendant child then entered the bathroom and the complaint child’s mother went to her bedroom for a very short time and got changed into a robe and then returned to the bathroom and knocked on the door and told the defendant child to hurry up. Soon after this the defendant child exited the bathroom.

6) The complainant child also exited the bathroom and her mother took her into the child’s bedroom to get dried and dressed. At about this time the child told her mother (the foster child) told me to put my mouth on his bitie (word for penis) and suck it like an ice cream. She also indicated that the put his bitie in her moyu (word for bum). Her mother then clarified this and the child displayed what she did with her mouth which linked in with what she had said. The mother has indicated that she only left the child for approximately 1 minute.

7) The complainant child’s mother then called the defendant child into the room and put the allegations to him and he denied such actions.

8) Later that day both the complainant child and the defendant child were medically examined in relation to this matter. The child indicated to the doctor that she had a sore vagina. …[12]

[12]Ex 2A38 p38.

It would seem that DOCS was made aware of the matter that evening and that, initially, the foster child ran away after being confronted by the young child’s mother. He was found and urgent temporary accommodation was organised by crisis care for the evening of 20 May 2005.[13]
[13]Crisis Care notes Ex 2A30.

The foster child was actually placed with St John’s shelter in Cairns on the night of 20 May 2005, and left of his own volition without authority on 22 May 2005.[14]
[14]Case note Michael Oates Child Safety Officer dated 23 May 2005 Ex 2A32.

In the meantime, the matter was referred to SCAN and was eventually followed up by the police following the SCAN meeting.[15]
[15]SCAN team minutes Ex 2A.36 dated 23/05/05.

The foster child was again located and on 2 June 2005, was interviewed by the police in respect of the offending.[16] He made admissions about his offending on that date in the presence of a support person and he was charged with one count of rape and one count of unlawfully permitting himself to be indecently dealt with by a child under the age of 16 years, with the circumstance of aggravation that the child was under 12 years of age.
[16]Crisis Care case notes dated 2 June 2005 Ex 2A37 and Police Brief Ex 2A.38.

I do not have a copy of the bail undertaking in relation to his original appearance before the court, but it is clear that he was granted bail because Crisis Care organised urgent accommodation for him that night and it is apparent that shortly after that he was placed at St Luke’s which was at a beach north of Cairns adjoining the beach where the third party and her family resided.

It would not appear as though there was any residency condition placed on his bail undertaking. DOCS later contacted the police and Youth Justice with a view to varying his bail conditions and, in an affidavit sworn on 29 September 2005, Vicki Oxnam a team leader with DOCS swore that there were no bail conditions relating to his residence in relation to those two charges which were then outstanding and also swore how he was unwilling to comply with any directions from the department as to where he should reside.[17]
[17]Affidavit of Vicki Oxnam Ex 2O.21.

Subsequent Developments

It appears that the third party started making enquiries about the foster child on or about 10 June 2005. That day Amanda McCallum from CSFC wrote to Michael Oates the Child Safety Officer for the foster child with DOCS indicating that the third party had asked a number of questions about the foster child and her role in his life. Ms McCallum reminded Mr Oates that the foster child had a good relationship with the third party and that he tends to run there from time to time. She then went on to say:

Given his situation at the moment (the third party) really wants to assist (the foster child) when he turns up but realises there are boundaries for her due to all the other kids she has in her care. (The third party) was wanting to get together and discuss this as soon as possible and I am happy to do this in the next few weeks. …I was wondering if you could give her a call and explain how (the third party) can support (the foster child) without crossing any boundaries and putting herself or (the foster child) in a risky place. Whether this involves (the third party) being able to visit him or (the third party) having guidelines around what to do when he turns up, I will leave this up to you.[18]

[18]Email Ex 2A.41.

That same day Mr Oates responded as follows:

Spoke to (the third party) today—advised her that for most of the info she needed she could speak to St Luke’s who are now caring for him – eg visit permission, times etc. I advised her that from a department viewpoint we do not want to see (the foster child) exposed either to the risk of offending again or to be accused of offending. Hence, if small children are present it is best if (the foster child) is not around them, and especially not alone. I advised that St Luke’s intend to get a psych assessment done on (the foster child) to assess risk of reoffending, and until it is known it is probably best if contact between (the foster child) and (the third party) and (her husband) takes place when other children are not present.[19]

[19]Email Ex 2A.40.

On 15 June 2005, Anneke Van Woerkom the team leader and Mr Oates of the Cape/Torres office spoke to Jonathon Bankes the manager of St Luke’s where the foster child was then placed. Mr Bankes had previously worked for the department and its predecessor from 2001 onwards, but had taken leave of absence to undertake the position at St Luke’s. He said that he returned to the department sometime in mid to late September 2005.[20] From November 2005 onwards he acted in Ms Van Woerkom’s position.[21].
[20]T7-57 L 22-23.
[21]Evidence Van Woerkom T7-40 L 46-47.

During the course of that meeting, Mr Bankes informed Ms Van Woerkom that the foster child seemed to need firm boundaries and was currently a handful. He also recommended that a psychological assessment take place as soon as possible and that, depending on the advice, it would be good for the foster child to receive counselling eg. with Nick Rayner of Relationships Australia. He also recommended that a placement meeting was needed as soon as possible, preferably the following week.[22] He went on to say that he was aware of the allegations involving the earlier incident with the child.[23]
[22]Case notes Van Woerkom dated 15 June 2005 Ex 2A.42.
[23]T7-50 L 14-18.

When asked further about whether any consideration was given after that to any counselling in the interim he replied:

yes, I know Nick Rayner was mentioned before. I don’t – as I said, I don’t recall, specifically, what, if anything,, was put in place but I certainly remember that my time as program manager, when the child was in my care or in St Luke’s care, that he certainly could benefit from counselling around not only his sexual offending but also his – I guess his attachment issues and trauma related issues and experience of being in care because it was clear that he wasn’t – it was clear that he needed some help.[24]

[24]T7-52 L 13-20.

When he was asked in evidence why he made the suggestion about Mr Rayner, Mr Bankes said that this would have been in relation to his bail for sexual offending and around a risk of sexual offending.[25]
[25]T7-50 L 9-13.

Crisis Care became involved again on 29 June 2005, when contacted by Mr Bankes after an incident in which the foster child and others were involved in physical altercations with each other and when the foster child and another child were banging the wall and screaming that they were going to kill themselves. The relevant residential worker, Cassie Biggs, indicated to Crisis Care that the foster child had left and that she had sought arrangements for him to be placed elsewhere if he returned to St Luke’s that night and he was, in fact, moved to another residence.[26]
[26]Crisis Care notes Ex 2A.43.

Mr Oates formally requested a copy of the police brief from police prosecutions on 29 June 2005, indicating that he required it for the purposes of making a risk assessment on the foster child’s likelihood of offending again. The police brief was received by him on 1 July 2005.[27]
[27]Ex 2A.44 letter from DOCS to prosecutions section with hand written note confirming receipt on 1/7/05.

Mr Oates obviously then referred the foster child for an assessment to Ian Ritchie, a psychologist, who saw him on 11 July 2005, and who provided a report directed to Mr Oates, Department of Child Safety Cape/Torres office dated 13 July 2005. [28]
[28]Ex 2A.45.

It is clear that Mr Ritchie was provided with a copy of the police brief and with the relevant DOCS case notes.

He discussed the offending in some detail with the foster child and the foster child did admit the offending. Mr Ritchie, however, noted that there were some concerning elements regarding his explanation of the offending. Firstly, the foster child denied using force or coercion on his victim, but failed to consider the natural power imbalance between them ie an older boy telling a little girl what to do. Secondly, he noted that the foster child had sought to include the victim’s apparent acceptance of involvement as an excuse for his offending behaviour. He went on to say that, ‘at the very least, (the foster child’s) subsequent offending behaviour indicated that he had no apparent boundary regarding the propriety of his actions at the time.’[29]
[29]Report Ex2A.45 [30-31].

Under the heading ‘SUMMARY’ commencing on page seven of his report he said:

53. (the foster child’s) explanation of his sex offending was indicative of his need to atone for the wrongdoing without demonstrating an understanding of the dynamics and beliefs underlying such behaviour. In his explanation he failed to appreciate the power imbalance present between himself and the victim and he sought to include her in his decision to touch her vagina. As such, (the foster child’s) explanation and present level of understanding wasn’t sufficient to ensure no relapse of offending behaviour.

54. It seemed likely that (the foster child’s) beliefs concerning women, sex and male sexual entitlement similarly played a part in his offending behaviour. It wasn’t likely that he had been exposed to sex education which included material about the propriety of sexual conduct and boundary issues. Exposure to such education would probably assist (the foster child) to conform to appropriate sexual rules of conduct.

55. (the foster child’s) present assessed level of risk for committing further sex offences was low, but not negligible and levels of risk in adolescent offenders remain more fluid just as adolescence was fluid. It was considered that (the foster child) required appropriate intervention to lower his level of recidivism risk.

Opinions and Recommendations

56. It is my opinion that (the foster child) presents as at low risk for committing further sex offences.

57. It is my opinion that (the foster child) attend upon an experienced practitioner for some sex offender treatment.

58. It is my opinion that (the foster child) receive some appropriate sex education.

Mr Oates had clearly read that report by 15 July 2005, because he referred to the opinions and recommendations in a case note that day.[30] He confirmed that the foster child had appeared in the Children’s Court that day and that Mr Bankes from St Luke’s was present as a support person. He confirmed that a copy of the report would be provided to Legal Aid who were to represent the foster child and that the recommendations within the report would be passed on to St Luke’s. He then noted ‘CSO is organising appropriate interventions’. In evidence he said that that was a reference to himself because he was the relevant child support officer.[31]
[30]Case note Ex 2A.46.
[31]T6-85 L 34-38.

He then went on to say that he was going to organise interventions that were deemed appropriate coming from the report and then when asked as to what he understood they were to be, he said:

I am presuming based on what I now know, with much greater experience and training, that we – that it – the appropriate counselling, etc, should have been organised with a forensic psychologist or someone experienced in sex offending treatment. At the time, I may not have – have fully realised the – that – sorry – at the time of – of this, I may not have fully realised this.[32]

[32]T6-85 L 43- T6-86 L 1.

It appears that the foster child became increasingly difficult to manage for those at St Luke’s because of his behaviour generally and because he continued to visit the third party’s family in circumstances where he had no permission to do so. On 16 August 2005, Ms Roberts from DOCS spoke to Mr Bankes. She noted that she had seen the foster child at the home of the third party. Further, Mr Bankes informed her that the foster child had no boundaries and continued to make inappropriate sexual remarks to boys in the house, who themselves were the victims of sexual abuse, and that he had been warned that if he continued with this behaviour there would be no option other than Cleveland for him.

The reference to Cleveland appears to be to the Cleveland Youth Detention Centre in Townsville. She also notes that she gave Mr Bankes some names of persons who were experienced in sex offender counselling that may assist them to find the appropriate person for the foster child.[33]
[33]Case notes Annie Roberts Ex 2O.10.

It is not clear to me why the onus was being passed onto St Luke’s in relation to counselling after Mr Ritchie had reported back to DOCS and after Mr Oates had said in the earlier memo that he would attend to the recommendations.

On 19 August 2005, the team leader Ms Van Woerkom prepared a case note as a result of a phone call from Mr Bankes. She noted that Mr Bankes was complaining about the behaviour of the foster child namely:

· It was very difficult to get him to go to school, he seemed to just want to play around and not show any responsibility;

· The school timetable had already been changed a few times to adapt to his needs;

· The staff feel that they have come to the end of the road with the foster child and will discuss the matter in a team meeting which was to start at 10.00am that day;

· That the foster child just wanted to hang out with the third party’s people watch plasma tv and hang around with the kids there;

· That the foster child stated that he wanted to go to Cleveland but that it was agreed that this was not an option as he was still on bail;

· The foster child was easy to get along with and was very funny most of the time but the lack of commitment and responsibility was very concerning.[34]

[34]Case notes Anneke Van Woerkom Ex 2O.11.

In the course of that conversation, she indicated that she was not available to attend the meeting at St Luke’s, but would discuss the matter with Ms Roberts who knew the third party well and would hold a meeting with the third party to discuss the consequences and rewards for the foster child.

It appears that the situation with the foster child at St Luke’s got worse. Ms Van Woerkom, in her case notes dated 2 September 2005, noted the contents of a further phone call from Mr Bankes where he had the following concerns:

· That the foster child was not engaging in the sex offender counselling program as directed;

· That he was not partaking in any other activities organised for the boys;

· That he roamed the streets and refused to come or stay home as directed;

· That with regard to his offences it was very concerning that he might offend again as a result of not enough or sufficient supervision;

· He stays with the third party and there are many other children there.[35]

[35]Case notes Anneke Van Woerkom Ex 2O.12.

It is not clear what happened with sex offender counselling. There was no doubt that the foster child did not cooperate, but not one of the witnesses in this case was able to confirm that any appointments were ever made. Similarly, there is nothing in any of the documentation that has been tendered which confirms that any such appointments were made.

Mr Bankes was questioned about the need for counselling in cross-examination where the following exchange appeared:

Well you knew from various sources within the department that various people were very concerned about the risk and they regarded it as a matter which should be performed ASAP, right back in June and July of 05 didn’t you? --- Yes.

And you, yourself knew that there was a risk? --- Yes that’s correct.

Well, in simple language, can you tell us why the foster child did not receive the treatment in a timely way? --- I can’t exactly remember. My understanding is that he would not engage in counselling.

Well --- I don’t specifically remember what counselling was arranged for him.

Well, was any counselling arranged for him, and if so, with whom and when? ---I believe there was counselling arranged through Nick Rayner, but I don’t – I can’t – I can’t remember whether – whether, you know, specifically, whether that happened.

There would be documentation to support that fact, if it were a fact. ---That is a fair assertion.[36]

[36]T7-68 L 33-T7-69 L 2.

Ms Van Woerkom suggested that Mr Bankes try to put consequences in place if the foster child did not comply with directions such as not being allowed to go to the third party’s place. She enquired as to when he would have to appear in court again. She indicated that she agreed with a collaborative approach and that she would back Mr Bankes and any measures he saw fit to work intensively with the foster child. She spoke to Ms Roberts who indicated that she would talk to the third party about these matters. Under the heading “Assessment/Issues” she said ‘(the foster child) is not behaving appropriately in following directions to deal with the sex offences.’

On 19 August 2005, a placement referral form was completed in relation to a possible referral to a new Anglicare group home in Mareeba. There is no evidence to suggest that that placement ever went ahead, but the document which appears to have been prepared by Leanne Julian, with Ms Van Woerkom noted as the team leader, did include the following entries in respect of the foster child

·(The foster child) displays serious lack of respect for females
·Difficult to engage

And there was a further entry later in the document which said:

· Immediate counselling to deal with sexualised and challenging behaviour and the (sex) offending. [37]

[37]Ex 2A48.

In evidence Ms Van Woorkom said that she agreed with the recommendation which apparently came from Ms Julian in relation to immediate counselling and when asked whether it was carried out she said ‘I know that lots of attempts were made, but I don’t know if it was actually completed or that any assessment was made afterwards. I can’t recall.’[38]
[38]T7-35 L 18-23.

By 9 September 2005, it would appear that Mr Bankes’ patience with the foster child was running thin. He spoke to a Nicola Tune on the telephone that day advising her that he thought that the placement had broken down and that the final build up to this was:

·Non compliance to programs;
·He is severely impacting on the other young people and the staff;
·Mr Bankes was assaulted the day before by his cousin but the foster child was the leader who created the situation.

In evidence Mr Bankes described the foster child as quite a large well-built fourteen year old who at times threw his weight around.[39]
[39]T7-46 L 27-31.

Ms Tune eventually left the matter to Ms Van Woerkom to follow up.

In the meantime, Amanda McCallum from CSFC organised a meeting with the third party and Mr Bankes on 9 September 2005, although, Mr Bankes did not attend. She noted that the issues addressed at that meeting were:

·The foster child case plan/current situation;
·Appropriateness of contact between the third party’s family and the foster child;
·Carer’s relationship with the foster child;
·How can contact be facilitated between the foster child and the third party and her husband without putting other children in their care at risk.[40]

[40]Case notes Amanda McCallum Ex 2A.49.

It seems that Mr Bankes was successful in having him removed from St Luke’s for a short period on 9 September 2005. A note from Ms Roberts dated 12 September 2005, confirms that he was placed at St John’s on the following weekend. St John’s was a shelter run by the same organisation as St Luke’s, but separately managed. Accommodation was also organised at the Tropicana Motel with youth worker support for 12 and 13 September 2005.[41]
[41]Case notes Annie Roberts Ex 2O.14.

On 12 September 2005, the third party rang Ms McCallum at CSFC. She had heard that the foster child’s placement at St Luke’s had broken down and suggested that the foster child could come and stay with her husband on Lizard Island for a week where he was working. Ms McCallum expressed her concerns to the third party about that, but it seems that arrangements were made with the Cape/Torres DOCS office and the child did eventually go.

This lead to a formal complaint from Liz Cooney at CSFC to Ms Van Woerkom at DOCS.[42] At the very least, there was a real breakdown in communication between CSFC and the Cape/Torres office of DOCS at that stage.
[42]Complaint document Ex 2A.52.

It was obvious that DOCS was having considerable difficulty placing the child by late September. On 22 September 2005, Ms Julian from DOCS spoke to Shaun McIntyre from Anglicare trying to organise a short term placement at St Johns or St Luke’s. This placement was for the foster child on his return from Lizard Island the following Sunday. Mr McIntyre recommended that Mr Bankes advise about suitability and options.[43]
[43]Case notes Leanne Julian Ex 2O.15.

Ms Julian spoke to Mr Bankes the following day and he indicated that he was unable to place the foster child because he was unable to work with him previously due to his behaviour and non compliance.[44] Towards the end of September 2005, DOCS placed the foster child with another carer, but it is clear that he left that carer and went to the home of the third party. At that stage the third party was away and a boyfriend of her second daughter, the second plaintiff, had reported the fact that he turned up there. Ms Roberts also indicated that she took him to court that day where the solicitor again explained the bail conditions to him. She also explained how she took him back to her office and explained to him how he could not go to the third party’s home.[45]
[44]Case notes Leanne Julian Ex 2O.16.
[45]Notes Annie Roberts Ex 2O.18.

In evidence, she was asked what could happen to him if he continued to reside other than where the department formally placed him in breach of his bail and she indicated that she would have got in touch with Youth Justice and that Youth Justice would contact the police and that may lead to his bail being revoked.[46]
[46]T6-35 L 4-10.

That also seems to be consistent with advice she received from the Juvenile Aid Bureau as set out in her memo of 28 September 2005.[47]
[47]Ex 2O.18.

By this stage the department had obviously had enough of the child coming and going as he pleased and it seems that they made approaches to the Queensland Police Service to have his bail conditions varied. Detective Sergeant Gooiker from the Cairns Juvenile Aid Bureau prepared a memo to be forwarded to Police Prosecutions to recommend that the bail be varied such that he was not allowed to attend at the premises of the third party and that he was required to reside at a place where directed by DOCS. In the memo he said that this was being done at the request of DOCS[48]. The application to vary the bail came before the Childrens Court on 4 October 2005, and the following conditions were added:

3. The defendant shall not attend within 25 metres of, enter or remain at (address of third party);

4. The defendant is to reside at a placement as directed by the Department of Child Safety.[49]

[48]Memo Sergeant Gooikier Ex 2A.59.

[49]Copy bail undertaking Ex 2A.69.

Ms Van Woerkom was cross-examined about going back to court and obtaining further bail conditions and she agreed that she was the one who made the approach to the police to have those additional bail conditions inserted.[50]
[50]T7-39 L 40-T7-40 L 9.

The affidavit of Vicki Oxnam sworn on 29 September 2005, was used in support of the application to vary bail. In paragraph three of that affidavit she said:

there was some difficulty finding an alternate placement for (the foster child), due to his behaviour and because of the charge of rape against him. A foster care placement of residential placement where other children were residing were both excluded due to the safety considerations of other children.

In paragraph 11 she said:

it is clear that (the foster child) is unable and unwilling to comply with any direction from the department. Given his sexual offences against a young female now before the court this places constraints upon the department on where he can be placed. If he does not comply then there is no safe place the department can offer this young man. He is not well connected within the community and is at risk if he has no placement. He is also at risk if he self places where there are young female children.

Interestingly, Ms Roberts, who had quite extensive dealings with the foster child at about that time, said in evidence that she was not aware of the earlier psychological report.[51]
[51]T6-36 L 42-46.

When it was put to her that she must have been aware that the child posed a risk to the four girls in the household she replied ‘I would say that any one who committed any sex offence was a – was going to a risk to any other child’.[52]
[52]T6-46 L 20-23.

Later it was put to her that the third party was somewhat naïve about the foster child and she replied ‘I don’t know if naïve is the right word. There certainly did not seem to be any insight into the seriousness of the offence that he committed at Kuranda.’[53]
[53]T6-52 L 46-T6-53 L2.

She then agreed that the third party did not seem to have a full appreciation of the potential risks to the children and that that concerned her. She also said that she had previously run a sexual assault service in Cairns for ten years.[54]
[54]T6-53 L 4-13.

The extent to which the relationship between the foster child and the management at St Luke’s broke down is very well illustrated in a case note dated 16 September 2005, from Sarah Edwards of the Cape/Torres office of DOCS.

At approximately 11.00am that day, Mr Bankes attended at her office with the foster child and one of the workers from St Luke’s. Mr Bankes was clearly frustrated with his inability to control the foster child and explained to Ms Edwards why the child was being exited from St Luke’s. He gave three reasons initially namely:

1. Not following directions;

2. Consistently bad behaviour;

3. An incident the previous night when the lights had been turned off at St Luke’s.

He then went onto say that his main concern was that the foster child had got his cousin to attack Mr Bankes. The foster child was present for this discussion and was denying that this happened.

Ms Edwards was expressing concern that Mr Bankes was speaking about the child in front of him and conveyed those concerns to Mr Bankes. Mr Bankes told her that another issue was that the foster child refused to attend what was referred to as a choice program.

Ms Edwards referred to the psychological report (obviously that of Mr Ritchie) and said that the foster child was unlikely to re-offend again. This was clearly an over simplification of what was actually contained in the report.

Mr Bankes made it clear that he had concerns about what the foster child may do when he was effectively going wherever and whenever he liked. At one stage, he said that the foster child could abuse any of the children in the neighbourhood. At another stage, he said that the foster child ‘could abuse little children playing on the street with their bikes.’[55]
[55]Case note of [Sarah] Edwards Ex 2A.67.

In response to that final comment, Ms Edwards reminded him again of the psychological report again interpreting it to mean it was unlikely that the foster child would reoffend and he indicated that he did not agree with that report.

This note is significant in that it deals with the concerns of Mr Bankes as at 16 September 2005, bearing in mind that it was only shortly after that he returned to DOCS and, in November 2005, became the Team Leader of the Child Safety Officer responsible for the foster child.

Reference was also made to a report from St Luke’s to DOCS dated 9 November 2005, which summarises the behaviour of the foster child during the period of time he resided at St Luke’s.[56]
[56]Ex 2A.71.

It is obvious that Mr Bankes could not have completed this report because he had already left St Luke’s by then and gone back to DOCS.

This report deals with a lot of the behavioural matters which I have already summarised, but in some areas does go further. At one stage the report says:

(the foster child) has highly sexualised behaviours. He continually used inappropriate references to acts of a sexual nature and is not shy when talking openly about females in relation to sex. (The foster child) had engaged in inappropriate discussions with staff and (sic) St Luke’s and has inappropriately touched a female worker. (The foster child) does not feel he is exhibiting inappropriate behaviour and does not adhere to the staff’s direction on what is appropriate and what is not in relation to individuals’ personal space and sexual conversation. (The foster child) has a history which indicates these behaviours and staff made an effort to address these inappropriate advances, conversation and actions with the utmost sensitivity and explanation of what is appropriate and what is not.

(The foster child) does not like to take responsibility of his actions in most forms of his daily routine. He likes to lay blame on others and does not accept responsibility easily.[57]

[57]Ex 2A.71 p 3.

Attempts were made on trial to explore the allegation of inappropriate touching of a female worker, but nothing was forthcoming beyond what was contained in that report to DOCS.

It is not clear from the documentation, but there were a number of short term placements of the foster child after he stayed at St Luke’s.

A case note dated 3 October 2005, from Ms Julian confirms that school arrangements were being made at Gordonvale State School that day, but it is not clear where he was residing then.[58]
[58]Case note Ex 2O.23.

A case note dated 18 October 2005, from Ms Roberts confirms that he was residing with an alternative carer at that stage and that there was some suggestion that he may try and enrol at Djarragun College as a boarder.[59]
[59]Case note Annie Roberts Ex 20.24.

A case noted date 25 October 2005, from Ms Van Woerkom confirms that he was residing with a different named carer at that stage and that there were difficulties with him not attending school and that the third party had contacted the then carer and informed her that she had found him walking along the highway one afternoon.[60]
[60]Case note Anneke Van Woerkom Ex 2O.25.

A case note from Ms Van Woerkom dated 26 October 2005, indicated that the then carer was not able to look after the foster child and that DOCS were urgently looking for another placement. Ms Van Woerkom spoke to the principal of Gordonvale State High School who confirmed that the foster child was swearing at and abusing some teachers and that there would be disciplinary consequences. He did not wait to be dealt with by the principal and left the school and, as a result, he was suspended for two days. At that stage Ms Van Woerkom was hopeful that there were other suitable carers, but she was advised by Neari Van Hooren, another employee of DOCS, that those carers had since changed their minds about having the foster child and that Ms Van Hooren was continuing to look for a further placement.[61]
[61]Case note Anneke Van Woerkom Ex 2O.26.

Another foster carer was organised and it was clear from a case note from Ms Van Woerkom dated 14 November 2005, that, by then, the new carer was experiencing difficulty with the foster child. The then foster carer expressed concerns about the fact that young lads would be going into the bedroom of the foster child and staying there with him. She obviously thought that that was inappropriate because she did know something of what was referred to as the rape charge. When told that he was not allowed to have friends stay over he became very aggressive towards her and started swearing at her. The foster carer also expressed concerns about the fact that he was doing nothing all day because he was not being accepted at school. She also expressed concerns that the foster child may become violent towards her if his friends did not come to stay over at the weekend. Ms Van Woerkom noted that the foster carer appeared weary and increasingly concerned about the foster child’s reaction when he gets angry and she suggested that a more suitable placement be found.[62]
[62]Case note Anneke Van Woerkom Ex 2O.27.

There was a further case note by Ms Van Woerkom on 17 November 2005. Apparently, the foster child had made it clear that he would invite his friends to stay overnight in spite of what the department said and what the foster carer said. He stated that ‘he did not care what the fucking department wanted’. The then foster carer indicated she was scared of what the child would do and spoke of inappropriate sexualised behaviour displayed by the foster child. She did not go into detail but stated ‘she had not seen them in bed together.’ She went on to say that the child was intimidating her by walking very close behind her and deliberately climbing out the window and standing on a ledge to scare her. Ms Van Woerkom agreed that they would have to get a different placement and she discussed protective measures with the foster carer.[63]
[63]Case note Anneke Van Woerkom Ex 2O.28.

It is not clear from the material where he was in early November 2005, but a referral to the Innisfail Youth Shelter was prepared on 17 November 2005, and an authority to care under the provisions of the Child Protection Act 1999 (Qld) was issued to the Innisfail Youth Shelter.[64]
[64]Referral and authority Ex 2O.74-75.

It appears that the foster child absconded, however, when he was being sent down to Innisfail by bus. DOCS was concerned that he may have been with the third party at that stage, although there was no evidence of that presented to the Court.[65]
[65]Crisis Care notes dated 18 November 2005 Ex 2A.77.

On 19 November 2005, Ingrid Geissler from Crisis Care completed a critical incident report form indicating that the child had absconded from his placement with the Innisfail Youth Shelter. At this time he was on bail for rape and indecent dealing offences and was in breach of his bail conditions, namely, that he reside at a placement as directed by DOCS.[66]
[66]Report form Ex 2A.78.

On 17 November 2005, the foster child’s enrolment at the Gordonvale State High School was formally cancelled because of his lack of attendance.[67]
[67]Letter and annexure Ex 2A.79.

A report from the Innisfail Youth Shelter dated 29 November 2005, to Mr Oates at DOCS confirmed that he finally arrived at the shelter on 21 November 2005. As summarised therein, however, on the evening of 24 November 2005, he stole a motor vehicle from the shelter in Innisfail and drove it to the third party’s home north of Cairns.[68]
[68]Report Ex 2O.83.

The foster child was detained fairly quickly and charged in relation to the vehicle. A case note from Janita Colahan from DOCS confirmed that he appeared in the Childrens Court that morning and that he was remanded in detention on these new matters until 21 February 2006.[69]
[69]Case note Janita Colahan Ex 2A.81.

He was taken to the Cleveland Youth Detention Centre and the centre advised Mr Oates of this in writing on 28 November 2005.[70]
[70]Letter from Department of Communities dated 28 November 2005 Ex 2A.82.

Even prior to his detention, it was clear that the third party was expressing an interest to both the Cape/Torres office and the Cairns North office of DOCS for the child to come and reside with her. At that stage it is not clear just how many foster children she had with her, but that they were all of either pre-school or primary school age. Further, it appears that they were being managed through the Cairns North office of DOCS.

On 8 December 2005, Mr Oates prepared a case note of a telephone conversation he had with the foster child who was then in the Cleveland Youth Detention Centre. In response to a query from the child about where he would be staying upon release he advised him that the third party was still on the agenda.[71]
[71]Case note Oates Ex2A.86.

This appears to be consistent with what he included in a document signed by him on 30 November 2005, when the child was admitted to the Cleveland Youth Detention Centre. Under the heading “Plans for post release placement support” he wrote:

Assessment of suitability of (the third party) as carer:

Assist into education/vocational training

Support/counselling etc as needed.[72]

[72]Detention centre admission report Ex 2B3.

In evidence he said that he had no recollection of what the plans were for the foster child on his release and that he had no input whatsoever in relation to his bail conditions when he was released.[73]
[73]T6-77 L 45-T6-78 L25.

By this stage DOCS were having real difficulties in terms of where they could place him. Mr Bankes agreed, in cross-examination, that they were desperate to find a placement and that no one wanted him.[74]
[74]T7-69 L35-41.

Something had to be done because of the expiry of the third party’s foster carer approval on 8 November 2005. I note that Pat Anderson, the manager of Cairns North office of DOCS, issued an approval for the third party and her husband to be limited carers to cover the time that it may take to arrange placement for the children in her care as of 9 November 2005.[75]
[75]Approval decision Ex 2A.70.

This document predates an application for approval dated 10 November 2005, completed by the third party and her husband.[76]
[76]Application Ex 2A.72.

In her evidence Ms Anderson made it clear that, before she had indicated to the third party and her husband that, if they were to care for the foster child, the young children placed with her would have to be placed elsewhere. She confirmed that this was because of the earlier offending on the part of the foster child.

On 4 November 2005, Narissa Skarabot from DOCS sent an email to Liz Cooney at CSFC confirming that she had received an approval for foster care application in the mail from the third party and her husband. She queried why that was the case because she thought they were resigning as foster parents.[77]
[77]Email part of Ex 2A.73.

Ms Cooney emailed back the same day indicating that the third party was resigning and that the application could be left. She noted, however, that the third party did not think that the children would be removed from her care prior to her authority as a carer expiring. Ms Cooney indicated that Ms Anderson had mentioned to her that she would be prepared to risk manage those children beyond the expiration of the original authority which would have expired on 8 November 2005.[78]
[78]Email from Liz Cooney part of Ex 2A.73.

There is no reference in the relevant documentation about what was going to happen to those children although it was apparent from the evidence of Ms Anderson that DOCS had made it clear they did not want the young children in the same residence as the foster child. The foster child remained in detention at the Cleveland Youth Detention Centre until 13 December 2005, when he was granted bail in the Childrens Court.[79]
[79]Court details document completed by Youth Justice Service Ex 2B.5 and bail undertaking Ex 2B.6.

In the meantime, the third party and her husband made a formal application which they both signed on 8 December 2005, for approval as approved foster carers. On page eight of that document under the heading ‘details of subject children to be placed,’ the name of the foster child was inserted with the proposed duration of placement being until the end of his guardianship (which would have been until age 18), but that was also crossed out. There was no reference to any other foster children in that document.[80]
[80]Application form Ex 2A.87.

It was accepted that, after the foster child was granted bail on 13 December 2005, he was flown back to Cairns from Townsville and then resided with the third party.

There is little documentation in the material provided as to what role DOCS played in what became the ultimate relevant bail conditions. The undertaking as to bail was signed on at Townsville on 13 December 2005, and had the following special conditions:

3. That the child reside at (the third party’s address) at all times whilst on bail.

4. That the child not leave those premises between 6.00pm and 8.00am unless in the company of an adult approved by the Department of Communities.

5. That the child agree to and comply with conditional bail program.[81]

[81]Ex 2B.6.

Mr Bankes who was the relevant team leader at the time was certainly aware as to how bail could be used to try to enforce where the child resided. He conceded that the child could be picked up on a breach of a bail by notifying Youth Justice who then would be able to have the bail revoked and have the Queensland Police Service pick the child up.[82]
[82]T7-46 L18-25.

He was referred to bail conditions 3 and 4 which were imposed on 4 October 2005. He said that he was familiar with those conditions and was aware that the child was clearly breaching condition number 3 when he continued to attend at the premises of the third party. He agreed that he could, in those circumstances, have informed Child Safety and/or Youth Justice of these breaches.[83]
[83]T7-53 L32-T7-54 L5.

The reference to Department of Communities in paragraph four of the conditions imposed on 13 December 2005, would appear to relate to the Youth Justice Service. Further, this court was not provided with a copy of a conditional bail program, but from the information contained in the Youth Justice file, there clearly was one in place until he was ultimately dealt with for the original charges and the additional charges for unlawful use of a motor vehicle and driving without a licence stemming from the incident when he took the car in Innisfail.

On 16 December 2005, the child appeared for the first time in the Childrens Court of Queensland at Cairns. He pleaded guilty to all offences that day and a presentence report was ordered and the matters were adjourned until 24 February 2006.[84]
[84]Court details report Ex 2B.7.

It does not appear as though an appropriate authority to care document was completed on or about 13 December 2005. On 27 February 2006, Mr Oates issued an authority to care for child to the third party and her husband in respect to the foster child which was back dated to 13 December 2005. It was never explained why this happened, but there is a note at the bottom of the document to the effect that it was back dated to allow for what is described as an FTB claim. [85] I presume that that was probably to assist the foster carers in making a claim for some allowance.
[85]Case notes and authority to care for child dated 27 February 2006 Ex 2O.31.

As Ms Gufstafsen said in her report, it is unclear who made the decision to place the foster child with the third party and her husband.[86] This did not become any clearer on trial despite the number of witnesses from DOCS who were called.
[86]Ex 10 p 52.

What is clear, however, is that the application for foster carer approval completed 8 December 2005, was treated by the Cape/Torres office of DOCS as an application for approval as a relative carer.

At or around the time the foster child went to live with the third party and her family the Cape/Torres office of DOCS engaged Cherie Schaeffer, a former employee of DOCS then practicing as a psychologist, to prepare an assessment document headed ‘relative carer assessment resource’.

Ms Schaeffer gave evidence in these proceedings and she said that she attended at the premises on 18 December 2005, and that she completed a report dated 21 December 2005.[87]
[87]Copy report Ex 2A.92.

After she provided her report Stephanie Fielder the acting manager of the Cape/Torres office refused to approve the application for relative carer on 13 January 2006.[88]
[88]Copy foster carer approval document Ex 2A.88.

She noted the following concerns on the relevant form at the time:

Discuss

- Concerns from when they previously were approved (ie they were deregistered) Carers’ inability to acknowledge risk

Sexual assault – what is planned for protection of other chn?

If we approve – need conditions, structure, support, monitoring in place.

It is not particularly clear what happened from there. Ms Fielder did not give evidence in these proceedings. A further document dated 2 February 2006, was completed by Ms Van Hooren from DOCS Cape/Torres office.[89]
[89]Part of Ex 2A.96.

When she gave evidence, Ms Van Hooren had no recollection of completing the document or what she did but she said that she would have followed up the concerns addressed by Ms Fielder with Ms Schaeffer. The four paragraph document deals with the matters raised by Ms Fielder but shows, at best, that all she did was talk to Ms Schaeffer.

On that same day, Ms Fielder then endorsed the foster carer approval document as follows:

2 February 2006 – Approved as relative carer for (the foster child) need to ensure appropriate support and monitoring.

By the time that formal approval was given the foster child had been residing with the third party and her family for just over seven weeks.

The foster child was eventually dealt with in the Childrens Court of Queensland at Cairns on 24 February 2006, in relation to the rape and indecent treatment charges from Kuranda and the unlawful use and driving without a licence charge stemming from the incident at Innisfail.

He was placed on probation for a period of three years with special conditions in relation to undertaking adolescent sex offender’s treatment and in relation to undertaking a cognitive skills program. He was also sentenced to six months detention which was to be served by means of a Conditional Release Order. This meant that he was not required to spend any further time in detention.[90]
[90]Criminal history of foster child Ex 17.

The foster child continued to live with the third party and her family until the subject matters came to a head in late May 2006. On 6 June 2006, the foster child met for the first time with Dr Danielle Shumack, a psychologist from the Griffith Adolescent Forensic Assessment and Treatment Centre. This was clearly organised by Youth Justice as part of the special conditions of the probation order made on 24 February 2006.[91]
[91]Report from Dr Schumack dated 27 June 2006 Ex 3.

It is not clear from the Youth Justice file why there was the delay between the date of sentencing and the date of consultation with her. There is nothing whatsoever contained in any of DOCS file notes to indicate DOCS arranged any counselling or reports which involved any direct contact with the foster child other than the report from Mr Ritchie in July the previous year.

The various case notes suggest that Mr Oates continued to maintain contact with the foster child throughout the period from December 2005 to May 2006. The first indication that DOCS was aware of anything to do with the subject complaints appears in a case note from Mr Bankes dated 29 May 2006.[92] He noted that the third party contacted him and sounded quite distressed and informed him that her elder daughters (the first and second plaintiffs) had both disclosed to her that the foster child had been masturbating in front of them and making inappropriate sexual advances towards them.
[92]Case notes Bankes Ex 2O.35.

The foster child had actually left her place by that stage and Mr Bankes organised temporary care through St John’s for the weekend and agreed there would need to be a further carer after that.

On 7 June 2006, Mr Bankes made a further case note where he said in part:

(the foster child) attended sexual offender assessment sessions today and yesterday with Danielle Schumack from Griffith Sex Offender and Treatment Centre. According to Danielle these went ok and she will return in three weeks time on 28/6/2006 to commence treatment sessions with him. According to Danielle (the foster child) has no insight into the effects his actions have on harming others and could not articulate any strategies re – recognising and containing his urges. Danielle strongly recommended that (the foster child) not stay with families with other young children.[93]

[93]Case notes Bankes Ex 20.39.

These comments about the lack of insight are quite disturbing, particularly, when Mr Ritchie noted in paragraph 31 of his report, approximately 11 months before, that he had no apparent boundary regarding the propriety of his actions at the time of the incident with the young child and how his beliefs concerning women, sex and male sexual entitlement played a part in his earlier offending. In paragraph 54 of that report, Mr Ritchie identified that exposure to sex education would probably assist him to conform to appropriate sexual rules of conduct and in paragraph 55 he said that appropriate intervention would lower his level of recidivism risk.

In evidence Mr Bankes agreed that the lack of insight referred to by Ms Schumack was the sort of matter that he would have expected to have been dealt with in the type of counselling that Mr Ritchie was recommending should be done as soon as possible back in June/July the previous year.[94]
[94]T7-69 L4-16.

It would appear, however, that nothing was done in the interim to address these issues of boundaries and lack of insight even thought DOCS obviously agreed to the placement of the foster child with the third party and her family from 13 December 2005 onwards.

Relative Carer Assessment Undertaken by Cherie Schaeffer dated 21 December 2005

Once the department treated the application dated 8 December 2005, from the third party and her husband as one for relative carer it was necessary for the Chief Executive of the department pursuant to s 122 of the CPA to take all reasonable steps to ensure that the foster child was cared for in a way that met the statement of standards set out therein namely:

a. the child’s dignity and rights will be respected at all times;

b. the child’s need for physical care will be met, including adequate food, clothing and shelter;

c. the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self regard;

d. the child’s needs relating to his or her culture and ethnic grouping will be met;

e. the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met;

f. the child will receive education, training or employment opportunities relevant to the child’s age and ability;

g. the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;

h. the child will receive dental, medical and therapeutic services necessary to meet his or her needs;

i. the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age;

j. the child will be encouraged to maintain family and other significant personal relationships;

k. if the child has a disability – the child will receive care and help appropriate to the child’s special needs.

Essentially, these matters relate to what are in the best interests of the child. It is interesting to look at the explanatory notes in the left hand column of the 22 page assessment form completed by Ms Schaeffer. Time and time again they refer back to those very standards set out in s 122 of the CPA.

Obviously, the emphasis on any questioning in this case of Ms Schaeffer related to the whole issue of any assessment of the risk to the four teenage girls in the household at the time and how such risks could be minimised. The document, as a whole, was clearly geared more towards what was in the best interests of the foster child.

Ms Schaeffer in her evidence mentioned, on a number of occasions, that she was not engaged to conduct a risk assessment, but to complete an assessment to assist in the approval or otherwise of what she perceived to be an application on behalf of the third party and her husband to be relative carers for the foster child. At one stage during cross-examination by counsel for the plaintiffs the following exchange appears:

Thank you. Well, what was the main purpose of the document. I think you’ve told us that it was to establish that the suitability of the household for the foster child?‑‑‑Normally foster care assessments are based on the standard of care and there is a list of different things that foster carers are expected to provide a child, such as physical environment, emotional stability and so forth, all the things around school, maintaining family contact, and so when you do a foster care assessment, you always try to establish that they can meet those standards of care, meeting the emotional care of the child, the physical care of the child, schooling, etcetera, etcetera.

So the purpose – the main purpose of your assessment was from the point of view of the foster child’s welfare?‑‑‑Yes.

And would the foster child’s welfare include protecting him from risk of committing criminal offences?‑‑‑That’s not what a foster care assessment would be about, no.

So his – anything he did to the three girls in the family who lived there was not really of your concern?‑‑‑It’s a concern because it’s a risk, because we had prior knowledge of his risk, but while he’s in the home under a foster carer and the assessment’s already been done, that then is a concern of the Department of Child Safety and the foster carers.

So by the assessment, you’re talking about this assessment?‑‑‑This assessment’s just established whether both of the foster carers have the capacity, the care and understanding to meet the needs of the child; that’s all it does.

HIS HONOUR: To be approved as relative carers?‑‑‑Yes.

MR TROTTER: So that’s all you were interested in?‑‑‑Can he meet the basic needs of the children?

So that’s really all you were interested in?‑‑‑And safety is one of them.

And safety is one of those. With respect to the foster child, that’s what you’re saying?‑‑‑Their ability to provide a safe environment – provide a safe – yes.[95]

[95]T5-29 L4-37.

When cross-examined about what she knew of the earlier incident involving the three year old child she said:

I don’t recall getting a lot of details. I do know that he sexually harmed another child in foster care placement. I don’t recall having the full history. I know it was pretty significant and, that, to me, is enough to say we need to put in some severe safety measures here.[96]

[96]T5-34 L18-21.

She later went on to concede that she had been given information by Child Safety about what happened and agreed that did involve digital penetration of the three year old child.[97]
[97]T5-34 L30 – T5-35 L10.

She was then asked if she was concerned about that and she replied:

I was concerned yes. Absolutely.[98]

[98]T5-35 L12.

She went on to say:

It’s my role to identify the concerns. Yes … my role is not to address the concerns.[99]

[99]T5-35 L12-17.

She was later asked whether or not she had any concerns as to whether the third party seemed to fully appreciate the risk to her children and she replied:

I did mention suggestively in the assessment about that and the need for further training and support around understanding that. I did feel she was being a – trying to rescue him and I didn’t feel that that was the most appropriate thing, but sometimes, we – we do approve foster carers knowing the fact they are willing to go through training and willing to be supported and helped to develop that knowledge. We don’t expect all foster carers to have all the knowledge straight away upon the assessment phase.[100]

[100]T5-35 L27-36.

When questioned further about that foster carer training, she mentioned some set training from DOCS about understanding the act and about understanding complex behaviour. She mentioned that there was one type of training that was based on sexualised behaviours and children in care and that there are specific training modules that can be set up in place for foster carers in those circumstances.[101]
[101]T5-35 L36-42.

She was questioned further about that training and asked whether she would have expected some follow up in regard to the potential risks from what she knew about the foster child’s earlier behaviour and she replied:

Yeah, definitely. Quite intensive follow up is the process.[102]

[102]T5-39 L36-37.

She then went on to say:

Well, all that intensive training – training that – modules they need to go through. Its quite a lengthy process to be a foster carer, and you also have to go through approval, so everyone needs quite a lot of support to go through that and intensive because this young man is quite complex and a lot of risk and I made it clear that there was lots of need for monitoring and supervision of that.[103]

[103]T5-39 L39-44.

She then went onto say she thought that she verbally passed the information of that need onto the manager, Ms Anderson.[104] She was clearly mistaken in that regard because Ms Anderson was in charge of the Cairns North office and the assessment in this case was requested by the Cape/Torres office. She was later shown the document headed up ‘additional information’ completed by Ms Van Hooren on 2 February 2006, and she indicated that she had no recollection of any conversation in that regard.[105]
[104]T5-40 L1-15.
[105]T5-47 L28-45.

She was questioned further about any warning signs associated with the increasingly defiant behaviour of the foster child after the earlier offending and again stressed what she understood her role to be when she said:

Now – but, yes, again, this is about whether they had capacity and motivation to care for this young person, and they did. They wanted to help this young person. They were willing to maintain all the conditions, the safety, provide the best environment they could – possibly can, and they had the best intentions and the motivations. That was obvious. But I was not there to predict whether this person would re-offend. That was – the young person was not what I was there for. I was there to establish whether they had a capacity to provide a parenting, safe, caring environment for this young person, and that’s what … that’s what I did.[106]

[106]T5-49 L37-47.

She was then asked whether she would have done things differently had she been asked to carry out a risk assessment and she replied:

Yes, absolutely, because then you are more focussed – I’ve done risk assessments before, and your more focussed specifically on the young person and you’d be looking more into their file and going into their history and talking to the young person and getting a lot more information, and that’s not what I was there for. I was not there for that.[107]

[107]T5-50 L1-6.

I have read closely the pro forma document which was completed by Ms Schaeffer and all the references to risk in the left hand column clearly seem to relate to risk to the foster child not necessarily to other members of the household.

Under the heading “other household members” Ms Schaeffer did make the following observations in the column relative to risks when she said:

it was obvious that the girls have also established a close relationship with (the foster child) and are supportive of him living in the home. They are well informed about (the foster child’s) situation. The (third party) has discussed with them about protective behaviours in the home (this is discussed further in the following section). It is established that the family is committed to having (the foster child) stay.[108]

[108]Ex 2A.92 p 13.

This merely touches on any potential risk to the three plaintiffs, but does not go into that in any detail. This is not surprising because the notes in the left hand column clearly seem to relate to any potential risk to the foster child himself coming from other members of the household.

These matters are touched on again in section 4d headed “other” which is defined as any other issues that may impact on the applicant’s ability to provide a safe and stable environment that is free from harm or risk of harm. Ms Schaeffer said:

It is an important aspect of this assessment to assess whether the applicants have developed and implemented safety measures in the home to ensure that the applicants’ girls are not at risk at being harmed in any way taking into consideration the sexual nature of the legal charges placed on (the foster child).

The applicants have spoken to the girls before (the foster child) came to stay and discussed with them what (the foster child) has been charged with and how they felt about it.

The applicants talked to (the foster child) and have discussed what will be involved in the legal proceedings and how they are willing to support him. The conditional bail means that (the foster child) has certain conditions that impact on his lifestyle. The applicants have made it clear to him that they expect him to abide by the conditions. This means that (the foster child) has to let (the third party) know where he is going and when he will be back.

It is impossible to see what, if anything, was done for or on behalf of DOCS, to deal with the very concerns expressed by Ms Fielder in her notation on 13 January 2006, when she originally refused to approve the application.

She was concerned after receipt of the assessment that the third party and her husband were unable to acknowledge risk and was concerned as to what the plan was for protection of other children.

There are no details of any plan in the assessment document, although Ms Schaeffer did refer to safety plan a number of times during the course of her evidence. Nowhere is any plan documented and the relevant passages of the assessment, which touch on the potential risk to the teenage girls in the household, appear to suggest that it was basically left up to the third party to deal with the teenage girls in relation to that risk.

Nothing in the additional information document provided by Ms Van Hooren took the matter any further in terms of the details of any such plan.

Nor it would seem there was anything done in terms of what Ms Fielder said about needing conditions, structure, support and monitoring in place when she did approve the application. If there were to be conditions, these needed to be spelt out in writing and, if structures were to be put in place it would have made sense for them to be written down. Nowhere is there any written confirmation of any support that was being provided nor any monitoring that was done nor was any referred to in evidence.

Certainly, from time to time, Mr Oates and Mr Bankes did have contact with the family, but there is no suggestion that that contact was in any way facilitated with a view to enforcing any such conditions or monitoring any structure or support.

Further, there is no reference to the appropriate support and monitoring in any documents following the relative carer approval on 2 February 2006.

One matter of concern was that the copy of the assessment report completed by Ms Schaeffer was not signed. It is not clear whatever happened to any documents that she may have signed but I note that even in 2007 Ms Gufstafson was unable to locate the original signed, copy. This merely means that we have nothing further to consider, other than the copy which was tendered by consent in these proceedings.

Whilst it is easy to be critical of Ms Schaeffer for the lack of information in relation to any safety plan based around the potential risk to the teenage girls in the household, it seems quite clear, as she said, that this was not the emphasis of her assessment and her assessment was aimed more at the suitability of the applicants as relative carers. It is understandable that she would not have had any concerns in that regard particularly because of their earlier background as carers.

Charges Arising out of the Foster Child’s Behaviour Towards the Plaintiffs

For whatever reason there appears to have been a considerable delay in terms of the reporting of the subject incidents involving the plaintiffs and the foster child to the police. During the course of the trial there were allegations that the third party did not want the matters reported and there was also criticism of DOCS for not ensuring that the matters were reported earlier. It is not clear why there was such a delay.

Certainly DOCS became aware of the complaints on 29 May 2006.[109]
[109]Case notes Jonathon Bankes Ex 2O.35.

Further, Mr Bankes did discuss the matter with Ms Shumack, from the Griffith Sex Offender Assessment and Treatment Centre, on 7 June 2006, when she told him that the foster child had no insight into the effects his actions had on harming others and could not articulate any strategies re recognising and containing his urges.[110]
[110]Case notes Jonathon Bankes Ex 2O.39.

In her case I have decided to allow a global component for economic loss. This compensates her for that time that she did miss out on work from 2006 onwards and also for the impact that absence from work has had on her career long term. I allow a global component of $60,000.00. I have not allowed any further component for the future.

Because of the time involved I have allowed 10% for the loss of superannuation namely $6,000.00.

In relation to interest I note that she has received periodic payments from Centrelink totalling $10,185.00 as per the statement received from Centrelink.[297] I have therefore allowed interest on the difference, namely $49,815.00 at 3.75% for 9.5 years, namely $17,746.60.
[297] Exhibit 2.H3.66.

(iii) Other Heads of Damage

There is a claim for special damage particularised in the Quantum Statement. There should be very slight discounting to this claim because some of her problems did relate to the loss of her uncle, although it did not have the same impact on her as it did the first plaintiff.

In the circumstances I have rounded off the allowance claimed at $3,500.00 inclusive of interest.

There should be some very modest component for the future. She has, in the main, got on with her life and it may well be that she will not need any further treatment. She may however, at times, experience stressors that remind her of what happened to her which may necessitate counselling and/or medication although it seems to me that the likelihood of that is relatively slight. To cater for that possibility I allow the sum of $2,500.00 for future recurring expenses.

(iv) Summary

In summary I assess her damages as follows:

General damages $1,000.00

Economic loss $60,000.00

Loss of superannuation benefits $6,000.00

Interest on economic loss $17,746.60

Special damages, including interest $3,500.00

Future recurring expenses $2,500.00

Total $90,746.60
Quantum Third Plaintiff

The third plaintiff was born on the 21 April 1992 and had turned 14 shortly prior to the incident involving the foster child. She was in grade 9 at the Smithfield State High school at the time.

She relies on two reports from Dr Antoce dated the 24 August 2009 and the 15 June 2012. The defendant relies on two reports of Dr Varghese dated the 12 July 2010 and the 4 March 2013. She has also attended upon a number of health professionals for psychological problems since the incident in May 2006, and these various attendances are summarised in the reports from both Dr Antoce and Dr Varghese. Both Dr Antoce and Dr Varghese gave evidence in these proceedings.

On any reading of the reports she has experienced considerable difficulties since the incident in May 2006 which, on the face of it, was relatively short. This is different to the situation involving both of her older sisters where there was repeated offending over a period of time ending in May 2006.

Dr Antoce in her first report diagnosed the third plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood with elements of post-traumatic stress disorder and traumatic grief.[298] When she first saw Dr Antoce on the 6 August 2009 she was tearful on presentation when talking about what had happened with the foster child. She described how she had started seeing psychologists about two years after the incident and about how see had difficulties with flash backs about what had happened. She was also scared of any contact with the foster child and/or his friends and tried to avoid places where they attended.
[298]Exhibit 2.I.1.

She described difficultly coping with people generally and, in particular, she described her anger and upset at what happened to her. She felt betrayed by the foster child whom she had regarded like a brother.

She described a lack of concentration and a lack of motivation and how she was doing very little and remaining at home on her own. Dr Antoce noted that she clearly was depressed.

She saw Dr Varghese on the 7 May 2010 for the purposes of his first report.[299] She appeared to be a reluctant participant in that interview and Dr Varghese described her as only just co-operative.[300] Dr Varghese concluded that she had developed a depressive illness namely a major depressive sometime during year 9 and year 10 of her education. He considered that this was in remission at the time he saw her and that she was then suffering from a chronic dysthymic disorder. He said that that mood disorder occurred in the context of what appeared to be significant personality vulnerability and an avoidant dependant type personality. At the same time he was cautious about making any statement regarding personality in someone who was, in effect, only 14 years of age. He said that this mood disorder suggested insecure attachments, anxiety proneness and avoidance and chronic low self-esteem. He noted that her grandmother appeared to be her only secure attachment figure at that stage.
[299]Exhibit 2.I.2.
[300]Exhibit 2.I.2 p 4.

He described the cause of those psychiatric difficulties as multiple factorial. He said that some was constitutional pre-dispostion to a mood/anxiety disorder. He said that it was unlikely the depressive illness and her then current psycho social dysfunction were as a result of the subject incident alone. He accepted that the incident would have been distressing to a young person of her age but it was not the type of incident that would lead to long term decompensation without other factors present. He then noted that a significant issue appeared to be the family dynamics in particular her relationship with her mother.[301]
[301]Exhibit 2.I.2 p 5-6.

Like Dr Antoce before him he also noted that the death of her uncle in 2007 had a significant effect upon her.

Dr Varghese then provided a PIRS assessment of 13% as to her then overall condition. He did not consider that all of that related to the subject incident.

The third plaintiff saw Dr Antoce again on the 15 June 2012. On this occasion she provided a PIRS rating of 15% whole person impairment. She noted that the third plaintiff had seen a number of psychologists over the years with only minimal benefits and also that she had been trialled on a number of anti-depressant medications.

Her prognosis at that stage was very guarded and depended very much on satisfactory closure of the legal case and successful engagement with the course of study and gradual separation and increased control over her life and choices. She noted that she would continue to have long term residual impairments in her trust of males and relationships, impaired self-esteem and avoidance of social contact, low grade depressive symptoms and anxiety symptoms that would affect her leisure activities and potentially her occupational function for variable periods of time.[302]
[302]Exhibit 2.I.3 p 20

Dr Varghese saw her for the second time in December 2012. He confirmed his earlier PRIS assessment and confirmed that he believed that 25% of the overall condition was related to the subject incident and its secondary sequelae.

He explained that further by saying that the only condition that he diagnosed which was attributable to the subject incident was major depression and that she had had a number of episodes of that. He said that what he diagnosed as a personality disorder was unrelated to the subject incident. He went on to say that the pre-existing condition was predominantly a personality vulnerability which then could be called a personality disorder.[303]
[303]Exhibit 2.I.4 p 9.

Dr Antoce explained in evidence that a personality disorder cannot be diagnosed before the age of 18. She conceded that the third plaintiff may have had personality traits and vulnerabilities prior to the subject incident she was not however prepared to make such an diagnosis unless she had sufficient data as she said “on a longitudinal line in a person’s life and that it was enduring leading to presently disturbed behaviours.”[304]
[304]T4 – 71 ll 29 to 45 and T4 – 72 ll 10 to 20.

The main area of difference between the two doctors called related to the relevance of what Dr Varghese described as her family dynamics, particularly her relationship with her mother.

I have already touched on how the family effectively tore itself apart after all of this. Even as at the date of trial the third plaintiff had no relationship whatsoever with her mother and father. She had a limited relationship with the second plaintiff and, at that stage, was living with the first plaintiff and her partner.

She was obviously closer to her grandmother and had spent quite a considerable period of time before that living with her grandmother in Ingham.

There is no doubt that she has displayed anger towards her own mother towards what happened although I have already dealt with the relevance of that in my findings in terms of the knowledge on the part of relevant officers of DOCS about the third party and her husband’s inability to acknowledge the relevant risks.

Considerable time was spent on trial on this issue and Dr Antoce was cross-examined at some length on that point.

She was questioned about Dr Varghese’s opinion that this incident, in isolation, would have been unlikely to cause psychological injury with such significant symptoms. She said:

In isolation, meaning to a person who wouldn’t have two other sisters in the same house or in isolation in respect to the age of the person or – I’m not sure. How can we isolate it?[305]

[305] T4-69 L1-5.

She was questioned further about Dr Varghese’s assessment of 25% apportionment and she said:

I find – I find the whole formation of this puzzling, because the consequences for the family arise from the subject incident. So it’s very hard to separate the two. It’s a bit artificial to separate the two. So I’m – I’m not sure I can answer this question.[306]

[306] T4-79 L1-5.

In the circumstances I accept the opinion of Dr Antoce in that regard in preference to those of Dr Varghese. I would agree that it is artificial in this case to make that distinction. That is particularly so when the defendant was suggesting that much of her reaction to what happened stemmed from finding out what happened to her two sisters. In this case the breach of duty of care that has been found to be established is in relation to all three of them and it would be artificial to try and isolate the cases one by one and then try and theoretically establish what would or could have happened in the absence of knowledge of the other incidents.

I therefore accept that the incident and its aftermath has been the substantial cause of her ongoing condition. This is against a background where Dr Antoce concedes that she was vulnerable to psychological injury because of the earlier personality traits and against the background where the death of her uncle clearly had some impact.

It is of concern that the third plaintiff has hardly worked at all since. She has been receiving the disability pension for a depressive type illness since 2012 and her position has now become chronic.

(i) General Damages

As I have accepted Dr Antoce’s evidence, I accept her assessment of a 15% PIRS rating which would being the matter within item 11 on the relevant scale for serious mental disorder.

Having regard to that range I allow an ISV of 20 which equates to an allowance of general damages of $26,000.00.

(ii) Past Economic Loss

There would need to be a substantial allowance in this case although it is difficult to quantify. In evidence the third plaintiff said that she always wanted to be a lawyer and said that she lost that opportunity because of what happened to her.

Her school grades in the years leading up to the incident and her school attendances were discussed at some length during the course of the trial.

It is generally accepted that there was a fairly high rate of absenteeism and that she had been averaging about 1 day per week away from school.

It is not necessary to analyse all of her reports but they do show mixed results over a period of years. I have considered various reports from grades 6 and 7 at the Trinity Bay State School and grade 8 at the Smithfield State High School.

Certainly her effort towards the end of primary school was commented on positively and, in terms of her achievement, the best evidence that I have relates to the literacy and numeracy tests that were conducted in 2004 when she was in grade 7.[307]
[307] Exhibit 2.K1.12.

The literacy ratings were divided into three categories. She was assessed as in the average range for reading and viewing and slightly less than average for writing and spelling. Similarly the numeracy range was divided into three categories and she was assessed as on average for overall numeracy and for numbers but less than average on measurement and data. The explanatory notes show that the average referred to was the average result for students in Queensland at that year level at the time.

In 2005 her reports varied considerably from subject to subject. In some she was commended for her work and achievement and in others effectively criticised for her lack of effort. In the main, her marks appeared to vary between B and C but there were some subjects where she did not return her assignments and therefore did not get an assessment.

Whilst she may have considered a career in law it may have been difficult for her to achieve the necessary grades for entry from what I read of those results although I accept people’s attitude to study can vary considerably from time to time. I have made allowance for her loss of that opportunity in my assessment for future economic loss

After the incident she continued on at school on and off until midway through 2007. Towards the end she was doing some home schooling. She did not complete her secondary education beyond that although she has done some courses since. As set out in paragraph 18 of her quantum statement,[308] she had some brief work experience in a retail position and also at a picture theatre but she could not cope being around people, particularly when Aboriginal people came in.
[308] Exhibit 13.

Her condition has been so chronic for so long that it is highly unlikely that she would have been able to undertake any other work until now.

I accept that she would have gone on with her studies probably until the end of grade 12 had it not been for the incident. That would have taken her up to the end of 2009.

It seems reasonable to allow as a starting point $400.00 net per week from then to reflect her average earnings in positions such as a shop assistant or other such paying work.

$400.00 net per week for 309 weeks results in a calculation of $123,600.00.

I believe that there should be some discounting because of the vulnerability conceded by Dr Antoce in evidence and also in her second report and I have discounted that amount by 15% and rounded off the allowance at $105,000.00.

I have allowed 11% in her case for the past loss of superannuation benefits namely $11,550.00.

In relation to interest I have had regard to the statement from Centrelink as at 14 August 2013.[309] This showed total payments up to 14 August 2003 as $47,508.00. She has continued to receive the disability pension since 14 August 2003. Doing some rough calculations I have adopted a further $250.00 per week from that period onwards, namely $250.00 x 121 weeks, namely $30,250.00. In the circumstances I have rounded off the amount that does not attract interest as $77,750.00 and I have allowed interest on the difference $27,250.00 at 3.75% for 6 years, namely $6,131.25.
[309] Exhibit 2K3.29

(iii) Future Economic Loss

The real difficulty for her stems from the fact that she hasn’t worked now for over 7 years and even then her work history was very brief. I have accepted Dr Antoce’s opinion but Dr Antoce is certainly not of the view that she will never work again. In her first report[310] she says:

It is hard to comment on [the third plaintiff] will fare for the future. This depends on the success of early treatment interventions at this stage. It also depends on availability of other supports and improvements in her family dynamic.

[The third plaintiff] indicated that she is interested in attending a TAFE course in administration and she just wants to move on with her life. She is likely to be able to complete further study and engage with successful occupational function. It is likely that he sense of self and personal function will be more affected than her occupational function.

[310] Exhibit 2I1.

In her second report[311] she said:

In my opinion the prognosis is of guarded optimism and it depends very much on an early and satisfactory closure of the legal case, successful engagement with a course of study and gradual separation individuation with increased control over her life and choices. [The third plaintiff] is likely to have a long term residual impairment in her trust in males and relationships, impaired self-esteem and avoidance of social contact, low grade depressive symptoms and anxiety symptoms that will affect her leisure activities and potentially her occupational function for variable periods of time.[312]

[311] Exhibit 2I3.

[312] Second report of Dr Antoce, page 20.

Further on she said:

[The third plaintiff] has not been able to secure any employment since the time of the incident. She is likely to take some time before she will obtain active employment, however on the positive side she is enrolled with a course of study and plans to do a bachelor of communications course online and to start writing.[313]

[313] Second report of Dr Antoce, page 20.

Further on she said:

The ability to work has been affected by symptoms of anxiety and depression and by a general withdraw from interaction.[314]

[314] Second report of Dr Antoce, page 20.

She also said:

[The third plaintiff] is likely to experience some relief when the case is closed and hopefully this will allow a return to some enjoyment of occupational and leisure activities.[315]

[315] Second report of Dr Antoce, page 21.

In that same report she spoke of a need for psychotherapy. That may well not have been done at that stage but it seems that it would be of some assistance once these proceedings are concluded. Clearly, the condition will have a significant impact on her earning capacity into the future. What I am prepared to allow is a substantial amount for short term psychotherapy once this matter is resolved and to allow her a substantial amount for her loss of income in the short term followed by a further global allowance for the period after that.

It would be unrealistic to expect her to return to the workforce immediately. At the outset I have allowed her $500.00 net per week for two years namely, $500.00 x 99.4[316] $49,700.00 which I have rounded off at $50,000.00. This would allow her sufficient time to undergo the relevant psychotherapy and also allow her sufficient time to undertake any further courses with a view to reenterring the workforce.
[316] Exhibit 1H1.

Thereafter there should be a further substantial global allowance to cater for the possibility that she may never get back into the workforce and, also, for the loss of chance of not being able to pursue her chosen career. I assess that as a relatively slight chance and I have also allowed for the fact that she is still young enough to study and may well be able to do so after these matters are concluded.

These are notoriously difficult to assess but I have eventually settled on a figure of $120,000.00. By way of analogy that represents roughly $200.00 net per week for 35 years deferred 2 years on the 5% tables with a discount of 25% for contingencies. 25% would be appropriate because of the pre-existing vulnerabilities and the fact that she may have succumbed to difficulties from time to time with depressive illness.

That makes the overall allowance for future economic loss $170,000.00. I have allowed 12% for the future loss of superannuation benefits, namely $21,000.00.

(iv) Other Heads of Damage

I have allowed the special damages as particularised in the Quantum Statement. The bulk of those items claimed ($14,735.70) constitute the charge to Medicare as per the statement exhibited to her Quantum Statement.

The balance relate to pharmaceutical, travel and therapist expenses. My allowance is therefore $15,945.90. I have allowed interest on $1,200.00 at 3.75% for 9.5 years namely, $427.50.

There would have to be a very substantial allowance for the future to assist her particularly with the psychotherapy in the short term. This was canvassed with Dr Varghese in evidence and he agreed it was quite expensive. He spoke of $300.00 per consultation with as many as one per week for some time.[317]
[317] T7-16 to T7-18.

In the circumstances it would not be unreasonable to allow $30,000.00 for future recurring expenses. This would allow for psychotherapy for up to 2 years and also for any associated consultations and medication I would include some global component for any ongoing needs into the future.

(v) Summary

In summary, I assess the third plaintiff’s damages as follows:

General damages $26,000.00

Past economic loss $105,000.00

Past loss of superannuation benefits $11,550.00

Interest on past economic loss $6,131.25

Future economic loss $170,000.00

Future loss of superannuation benefits $21,000.00

Special damages $15,949.90

Interest on special damages $427.50

Future recurring expenses $30,000.00

Total $386,058.65
ORDERS

I make the following orders:

(1) I give judgment for the first plaintiff against the defendant in the sum of $320,091.23.

(2) I give judgment for the second plaintiff against the defendant in the sum of $90,746.60.

(3) I give judgment for the third plaintiff against the defendant in the sum of $386,058.65.

(4) The defendant’s claim against the third party is dismissed.

I will hear the parties on costs.

CITATION:	ABC & Ors v State of Queensland & Anor [2015] QDC 321
PARTIES:	ABC (First Plaintiff) AND DEC (Second Plaintiff) AND FGC (Third Plaintiff) v STATE OF QUEENSLAND (Defendant) AND HIC (Third party)
FILE NO:	DP49/2011
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	11 December 2015
DELIVERED AT:	Cairns
HEARING DATE:	20 – 31 January 2014 and 24 March 2014
JUDGE:	Harrison DCJ
ORDER:	1) Judgment for the first plaintiff against the defendant in the sum of $320,091.23 2) Judgment for the second plaintiff against the defendant in the sum of $90,746.60 3) Judgment for the third plaintiff against the defendant in the sum of $386,058.65 4) Defendant’s claim against the third party is dismissed The Court will hear the parties on costs
CATCHWORDS:	TORTS – NEGLIGENCE – BREACH OF STATUTORY DUTY – Where the defendant as long term guardian of a foster child placed a foster child with the third party and her family which included her daughters, the three plaintiffs – Where the foster child sexually abused the three plaintiffs during the course of the placement – Whether the defendant owed the three plaintiffs a duty of care and if so what was the scope of such duty – whether there was any breach of duty on the part of the defendant – Whether any such breach was causative of subsequent psychological injury on the part of each of the three plaintiffs – Whether a finding of contributory negligence should be found against first and/or second plaintiffs – Where the defendant alleges that if it is liable to the plaintiffs, the plaintiffs injuries were caused by a breach of duty on the part of the third party and where the defendant claimed contribution and/or indemnity against the third party – Whether the third party owed a duty of care to the three plaintiffs and whether there was a breach of such duty of care S B v State of NSW [2004] VSC 514, cited, wherein authorities in matters such as this were analysed Child Protection Act 1999 (Qld) ss 4, 5A, 5B, 5D, 5E, 8, 9, 13, 82, 83A and 122 Civil Liability Act 2002 (Qld) ss 9, 11, 12, 13, 14, 35 and 36 Crown Proceedings Act 1980 (Qld) s 8
COUNSEL:	R Trotter for the plaintiffs D Kelly for the defendant A Lawrence for the third party
SOLICITORS:	Shine Lawyers for the plaintiffs Crown Law office for the defendant Preston Law for the third party

General damages	$1,000.00
Economic loss	$60,000.00
Loss of superannuation benefits	$6,000.00
Interest on economic loss	$17,746.60
Special damages, including interest	$3,500.00
Future recurring expenses	$2,500.00
Total	$90,746.60

General damages	$26,000.00
Past economic loss	$105,000.00
Past loss of superannuation benefits	$11,550.00
Interest on past economic loss	$6,131.25
Future economic loss	$170,000.00
Future loss of superannuation benefits	$21,000.00
Special damages	$15,949.90
Interest on special damages	$427.50
Future recurring expenses	$30,000.00
Total	$386,058.65