DH and DEPARTMENT FOR CHILD PROTECTION - [2011] WASAT 146

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA)

CITATION: DH and DEPARTMENT FOR CHILD PROTECTION [2011] WASAT 146

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 9 MAY - 12 MAY 2011

DELIVERED : 16 SEPTEMBER 2011

FILE NO/S: CCS 2 of 2010

BETWEEN: DH
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION
Respondent

FILE NO/S :CCS 3 of 2010

BETWEEN :SH
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION
Respondent

Catchwords:

Children - Protection order - Review of care plan - Scope of review - Role of Children's Court and Tribunal in review - Application of policy - Whether contact should be increased with father and grandfather - Whether risk to child in contact

Legislation:

Children and Community Services Act 2004 (WA), s 8, s 8(1)(g), s 9, s 9(ha), s 35, s 37, s 44, s 44(5), s 45, s 47, s 54, s 57, s 60, s 67, s 68, s 69A, s 89, s 89(1), s 89(2), s 90(1), s 94

Result:

CCS 2 of 2010: Care plan varied to provide unsupervised contact with father
CCS 3 of 2010: The application is dismissed

Category: A

Representation:

CCS 2 of 2010

Counsel:

Applicant: Self-represented
Respondent: Mr S Jones

Solicitors:

Applicant: Self-represented
Respondent: Department for Child Protection

CCS 3 of 2010

Counsel:

Applicant: Self-represented
Respondent: Mr S Jones

Solicitors:

Applicant: Self-represented
Respondent: Department for Child Protection

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made by each of the father and grandfather of a child the subject of a protection order under the Children and Community Services Act 2004 (WA) for review of the care plan in relation to the child. The applications sought increased contact by each of them, and sought to vary the care plan to alter its underlying objective to one of reunification of the child with the father.
The Tribunal considered the scope of its jurisdiction to undertake a review of a care plan, and in particular the relationship between that function and the role of the Children's Court in relation to protection orders. It also considered the application of the respondent's policies concerning permanency, contact and reunification. The Tribunal concluded that the care planning process had to be approached having regard to the nature of the protection order, and that questions of permanency or reunification were matters which fell to the Children's Court to determine.
The Tribunal examined the concerns expressed by the respondent in relation to unsupervised contact with each of the applicants. It concluded that some unsupervised weekend contact was appropriate for the child to have with her father, subject to the father meeting certain conditions. In relation to the grandfather, the Tribunal took the view that a cautious approach should be taken in light of unresolved concerns about him, and that his contact with the child should take place in the presence of either the father or some other responsible adult.

Introduction

Each of DH and SH have applied to the Tribunal for a review of a decision of the Chief Executive Officer of the Department for Child Protection (Department) concerning the care plan for a child, C. DH is the father of C, and SH is her grandfather and DH's father. The substance of each application is to have increased contact with the child C, and in particular, unsupervised weekend access. Both DH's and SH's applications seek a variation to the latest care plan with a view to working towards reunification between C and DH.
DH's application sought unsupervised contact with C, with DH having 'full parental responsibility' with respect to with whom C has contact (presumably whilst in his care). In particular, DH seeks at least eight hours contact each weekend and a total of 10 hours contact per week, increasing to 16 hours contact within four months. The application also seeks an order that reunification commence immediately.
SH's application sought four hours contact with C every Saturday morning, increasing after four weeks to every second Saturday from 8 am to 5 pm, and in six months to every second weekend from 8 am on Saturday to 5 pm on Sunday. That proposal was subject to contact arrangements with respect to DH and 'to end when full reunification with the father occurs'.
The Department has based its approach to the care plan on the proposition that reunification should not proceed, but rather arrangements should be made on the basis that C's placement with her current carer will be permanent, that is until she turns 18 years old.

The background to the applications

C was born on 17 November 2004. She has an older brother, A, who was born 10 months earlier on 4 January 2004. A is thus now 7 and a half years old, and C is 6 and a half. DH is the father of both children, and their mother is SM.
A was born severely brain damaged at birth, and required a tracheostomy to enable him to breathe, a gastrectumy to enable him to be fed and he requires a high level of care generally. He was placed in provisional protection and care pursuant to s 35 of the Children and Community Services Act 2004 (WA) (CCS Act) on 21 September 2006. On 2 May 2007, A was made the subject of a protection order until 18 which will expire on 4 January 2022. The present arrangements in relation to A are not the subject of challenge in these proceedings.
C was placed in provisional protection and care pursuant to s 37 of the CCS Act on 3 January 2007. She was made the subject of a protection order (time limited), on 4 December 2007 for a period of two years. DH did not oppose the making of that order, and SM did not participate in the hearing. That order was extended on 28 January 2010 for a further two years, and is due to expire on 27 January 2012.
The respondent's affidavits in support of the protection applications in respect of each child deposed to concerns as to the inability of the parents to provide for the safe care of the children, and as to the parents' reluctance to engage with support services for A. There were also concerns expressed as to the physical home environment being provided to the children and increasing concerns around ongoing and increasing incidents of domestic violence. The Department was also concerned that that C was exhibiting developmental delay and that there was a lack of engagement with counselling and support services to address those needs.
In late 2008, DH sought to have the protection order in relation to C revoked and sought orders which would lead to C resuming residence with DH, including interim orders in relation to increased unsupervised contact with DH, and also contact with A and SH and other extended family members. That application was opposed by the Department, and was ultimately unsuccessful.
Upon her removal from her parents' care, C was placed with SC, who now has the care of five other children. She has remained in SC's care ever since.
According to the evidence of SC, which I accept, C was physically and intellectually delayed when she was placed in SC's care in early 2007. SC took C to, and was involved in, a number of appointments with various services such as the Child Development Centre and the Disabilities Services Commission in order to assess the extent of C's delays and plan how to address them. C made good progress, and SC described her as 'now being on a level generally similar to most of the children in her class, but still a little below average both physically and intellectually'.
SH has continued to play an active role in relation to questions of C's (and also A's) arrangements for contact both with himself and DH. The Department has had, and continues to have, concerns about the safety of the children, and in particular C, in SH's unsupervised company. The circumstances giving rise to those concerns will be explained more fully later in these reasons.
In July 2008, SH made an unsuccessful application to the Tribunal seeking increased access to both A and C, but that application was rejected on the basis that there was no decision capable of review by the Tribunal.
In March 2008, at the behest of the Department, a report about DH was prepared by a psychologist, Ms Kirstin Bouse. That report set out a troubled and unsettled childhood as reported by DH. His parents had separated when he was 7 years of age and he was 'passed between' his parents until he was 17 years of age. By that time, he had used a range of drugs including cannabis and excessive quantities of alcohol. He reported heavy drug use characterising his life for the following three years during which time he reported having engaged in various criminal behaviours. His relationship with SM was adversely affected by regular illicit drug use. DH reported having developed signs of psychiatric disturbance and being under psychiatric care by the age of 19. By the time Ms Bouse saw him, DH was aged 25. She formed the view that DH's admissions to psychiatric care appeared to have occurred during a period when DH was abusing various substances, but although his use of drugs appeared to have diminished, substance abuse was considered to remain a risk to DH's psychological stability.
Ms Bouse expressed the opinion that DH was not in a position to assume the primary care giving role for C, but was capable of spending increased time with her without the need for supervision. She considered that DH may well be able to assume primary care of C should he fully commit to certain recommendations which she made.
A care plan for C was made in August 2008. SH appealed to the Case Review Panel in relation to the contact arrangements proposed in the August 2008 care plan. The care plan was upheld by the Case Review Panel. On 6 March 2009, SH applied to the Tribunal for a review of the Case Review Panel decision. That application went to hearing, and was ultimately dismissed by the Tribunal comprising Deputy President Judge Eckert in October 2009. At the time of that application, SH and DH were both having supervised contact with both A and C for two hours each Saturday.
At the hearing before Judge Eckert, evidence of three psychiatrists who had made assessments of SH was heard by the Tribunal. In the context of these proceedings, SH sought to challenge the conclusions reached by Judge Eckert in relation to that evidence. The decision by the Tribunal in relation to the earlier application is, however, a matter of record and comprises part of the history which led to the making of the care plans the subject of the present proceedings. I do not propose to revisit the evidence which led to the conclusions drawn by the Tribunal. Rather, it is necessary to review the current care plan in the context of the circumstances as they existed at the date of hearing, against the background which led to its making.
DH did not participate in the hearing before Judge Eckert. Her Honour concluded that there was tension between SH and DH at that time. She dismissed SH's application so that contact between C and SH continued to be supervised. That decision was given orally by the Tribunal on 29 October 2009.
Shortly before the hearing before Judge Eckert, a further care plan meeting occurred. That resulted in a further care plan (September 2009 care plan) which provided for C's increased contact between DH with a view to possible reunification, and a decreased contact with SH.
The September 2009 care plan reported that DH had completed urinalysis as requested by the Department, and that testing over an eight week period between January and March 2009 had produced clean results with the exception of two positive results for cannabis and the positive result in relation to opiates on another occasion, although the opiates had been explained adequately by DH having taken medication in the form of codeine at the time.
The case planning decisions taken were as follows:
1. Contact between SH and C is to remain supervised.
2. The Department is to seek an extension of C's Order for a further two year period. DH has agreed to consent to this Order on the basis that following a positive review of the increased supervised contact between DH and C, unsupervised contact will commence and the Department will then continue to explore the viability of eventual reunification.
3. DH is to move towards unsupervised contact with C following a satisfactory period of supervised contact. This will occur once per week at the Parent Help Centre in [nominated suburb] at a time to be negotiated with the Carer and the Parent Help Centre. SH is not permitted to attend these visits as they are intended to strengthen the relationship between C and her father and to allow ongoing assessment of the viability of future reunification. These visits will be supervised by DCP staff at Parent Help centre and feedback on the effect of these contacts will be sought from the Carer following each visit. Based on the reports and assessments of these oneonone visits unsupervised contact may be commenced at the discretion of the Case Manager and Team Leader in a formal review which will also consider DH's ability to maintain appropriate boundaries and ensure SH does not attend the additional contact visits.
4. DH is to work towards addressing three key issues before any decisions are made in relation to reunification. These issues are:
firstly independent and stable accommodation that provides an acceptable, hygienic environment.
secondly that DH demonstrate he is able to obtain and maintain stable employment, part time employment would be acceptable given that he would have significant responsibilities as the sole parent of a young child
thirdly that DH attend and progress in individual counselling so that he is able to maintain appropriate boundaries between C and her grandfather SH and ensure not only her safety but also her care so that her developmental delays which resulted from negligence in her early life, do not resume.
5. To maintain abstinence from the abuse of substances that could impair his ability to interact positively with his daughter. Regular testing is not required but if the Department becomes aware of substance abuse this may impact on the [progress] of unsupervised contact.
6. Contact to be reviewed formally by the Case Manager and Team Leader prior to moving to unsupervised contact. Any decision to move beyond unsupervised contact to overnight contact or reunification is not to occur without a further Care Plan review meeting.
The care plan also provided for C to remain in the care of SC.
SC applied for a review of the September 2009 care plan challenging the proposal to work towards possible reunification of C with DH. The Case Review Panel upheld the care plan.
In January 2010, the contact arrangements for C and A were changed so that there was supervised contact for C with DH twice per week and supervised contact with SH once per month. In relation to A, due to his permanent placement move in February 2010, his contact with DH, SH and C was changed to once per month.
On 29 January 2010, SH sought a review by the Tribunal of the reduction in his contact with C provided for in the September 2009 care plan. That application was eventually dismissed in June 2010, on the basis that, the matter not having been referred to Case Review Panel, the Tribunal lacked jurisdiction to review the plan.
On 28 June 2010, DH brought an application to the Tribunal for increased unsupervised contact with C, and for reunification to commence immediately. That application gave rise to a series of mediation hearings which led to a fresh care plan being made on 4 November 2010 (November 2010 care plan). A significant change in the November 2010 care plan was that it was designed to 'set a direction towards permanency planning for C's long term care'. The November 2010 care plan foreshadows the Department's intention to make an application for C to remain in the care of the Department under a protection order (until 18 years of age).
In relation to questions of safety of C, the November 2010 care plan dealt with the questions of contact between C and DH and SH.
It recited that following a Case Review Panel hearing in December 2009, a significant reduction in contact between SH and C had occurred so that he had supervised contact once a month. DH's contact with C had been increased to twice a week. The current arrangements for the contact between SH and C occurred when A was also present. The contact was supervised by a Departmental family resource worker. Although separate contacts between SH and C and A had been provided, SH had invited DH to be part of his contact so that the children's contact occurs once a month with both DH and SH present.
In relation to DH's contact with C, the November 2010 care plan recited:
In relation to DH contact with C, the Case Review Panel outcome on 23rd December 2009 deemed it was not appropriate that DH supervise contact between his father and C. Individual counselling involving DH commenced on the 2 December 2009 and concluded in October 2010. The outcome of this counselling was intended to inform whether contact between C and DH could progress to unsupervised contact, and ultimately if reunification was a viable option, or alternatively whether the Department needed to begin permanency planning for C. Following the Care Plan in September 2009, a referral was made to the psychologist within Perth DCP, for individual counselling to be completed with DH. This counselling concluded in October 2010. An interim report was produced when a change in psychologist occurred, however the final report has yet to be delivered. It is understood that the report will conclude that unsupervised contact between C and her father DH is to be considered however as DH has not significantly addressed the safety concerns as outlined in the 2009 Care Plan Review, clear boundaries need to be established as to what this contact will look like in order to continue to promote C's safety and well being.
In relation to the contact between C and DH, DH needed to (a) maintain independent accommodation, (b) evidence attempts to secure employment and (c) progress with individual counselling. Whilst DH has now completed his individual counselling, DH has failed to achieve the other two points. DH did obtain independent private rented accommodation, which he held for a period of approximately 9 months. DH then informed the Case Manager that he had moved out of this accommodation due to financial reasons. DH now resides in shared accommodation in the Ellenbrook area. Whilst DH has indicated his intention to explore further education and training options, or employment, DH is not currently in training or employment. The Department needed to see evidence that DH was seeking meaningful occupation and this has not achieved to date.
In early 2009, and as reported in the Care Plan dated September 2009 for C, DH completed two months of urinalysis testing. Following the Case Review Panel hearing in November 2009, in February 2010 DH undertook further urinalysis testing, from February 2010 July 2010. The aim of this further testing was for DH to demonstrate an abstinence from drug use, with DH being asked to submit to random testing on a weekly basis for a three month period. DH consistently produced positive urinalysis screenings, with results showing consistently high reads for cannabis. Following July 2010 DH self-elected to stop undertaking urinalysis testing.
The plan then provided that C should continue to have monthly supervised access with SH, supervised by a Departmental worker. C was also to have monthly contact with her brother A and possibly additional contact during school holidays. C was to have supervised contact with her mother, SM, during school holidays, and
With regard to C's contact with her father DH, a referral to be made to the Psychology Services Team of DCP for an assessment of the effect of contact arrangements between C and DH with a view to informing how future contact may be structured including any progression towards unsupervised contact. This is required as DH has not achieved the case planning decisions in the 2009 Care Plan.

C was to remain in her placement with SC. It concluded that DH had not significantly addressed the three key issues identified as requirements prior to unsupervised contact or reunification being considered, and that therefore it recommended that C's best interests would be served by the Department beginning permanency planning for C, with C remaining in her current foster placement.
SH then made an application to the case review panel to review the November 2010 care plan. The case review panel met on 1 February 2011 to consider the application, and determined to uphold the care plan.
Given the developments since the applications by SH and DH were made, these proceedings were treated as a review of the decision of the Chief Executive Officer (CEO) to accept the recommendations of the Case Review Panel and uphold the requirements of the November 2010 care plan.

Scope of the review

This application is brought under s 94 of the CCS Act. That section entitles a person aggrieved by a decision of the CEO in relation to a care planning decision to apply to the Tribunal for review. The scope of the care plan is described in s 89 of the CCS Act. Section 89(1) provides:
(1)In this section -
care plan means a written plan that -
(a)identifies the needs of the child; and
(b)outlines steps or measures to be taken in order to address those needs; and
(c)sets out decisions about the care of the child including -
(i)decisions about placement arrangements; and
(iia)secure care decisions referred to in section 88G; and
(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child’s life.
A care plan must be prepared and implemented as soon as practicable after a child first comes into the CEO's care (s 89(2)) and must be reviewed at regular intervals not exceeding 12 months (s 90(1)). Thus, care plans only apply to children who are the subject of protection orders.
Responsibility for making protection orders rests with the Children's Court - CCS Act s 45. There are a number of types of protection orders. Section 47 provides for a protection order (supervision) which is an order providing for the supervision of the well-being of a child by the CEO for a specified period. A protection order (supervision), does not affect the parental responsibility of any person for the child - CCS Act s 47.
A protection order (time limited), is an order giving a CEO parental responsibility for a child for the period specified in the order - CCS Act s 54. A protection order (until 18) is an order giving the CEO parental responsibility for the child until the child reaches 18 years of age - CCS Act s 57. A protection order (special guardianship) is an order giving an individual or two individuals jointly, parental responsibility for a child until the child reaches the age of 18 years - CCS Act s 60.
Applications for protection orders may be made under s 44 of the CCS Act. Copies of the application are required to be given to the child, the parent of the child, and any other person considered by the CEO to have a direct and significant interest in the well-being of a child - CCS Act s 44(5).
Section 67 of the CCS Act provides that a party to the initial proceedings may apply to the Children's Court for the revocation of a protection order. Under s 68, the CEO may apply to the Court for the revocation of a protection order and the making of another protection order in respect of a child. Pursuant to s 69A, a carer of a child who has been the subject of a protection order may apply for revocation of the protection order and the making of a protection order (special guardianship) in respect of the child.
It can be seen that questions of the long term care, and parental responsibility, in respect of a child fall within the jurisdiction of the Children's Court. The question of parental responsibility, and the duration of orders conferring parental responsibility, is not, therefore, a matter to be dealt with by way of a care plan. Nor is it appropriate for the Tribunal, in its review jurisdiction in relation to care plans, to make decisions inconsistent with the nature of the protection order to which the relevant child is subject.
In this case, C is subject to a protection order (time limited) which is due to expire on 27 January 2012. That order was made without opposition by DH in a context where the then current care plan contemplated a move to unsupervised contact and ultimately reunification. The November 2010 care plan was based upon a change in the objective of the care plan from proposed reunification to permanency. Permanent placement of C other than with her parents necessarily requires a different protection order, either a protection order (until 18) or possibly a protection order (special guardianship). Whether or not there should be revocation of the existing care plan, and a replacement with a care plan of a different type, is a matter which can only be determined by the Children's Court.
It was suggested in evidence that, but for the fact that the present review was being undertaken in the Tribunal, the CEO would have applied to the Children's Court for revocation and replacement of the protection order pursuant to s 68 of the CCS Act. That step has not, however, been taken, and the present underlying purpose of the care plan is inconsistent with the current protection order (time limited) and should, therefore, not guide the exercise of discretion in relation to the care plan.
Accepting that it is the CEO's proposal to make an application to revoke and replace the existing protection order, the present proceedings should, in my view, be treated as a consideration of the interim position pending resolution of the foreshadowed proceedings in the Children's Court. As such, an arrangement should be in place which does not pre-empt the outcome of those proceedings, which, it is reasonable to assume, will be strenuously opposed by DH, and if he obtains leave to be heard, SH.

The Department's policies

The respondent's approach to the November 2010 care plan was, apparently, influenced by the application of the Department's Permanency Planning Policy published in July 2010. That policy highlights the importance of the development of emotional attachments and stable relationships for children, particularly young children. It notes the introduction of protection orders (special guardianship) which came into effect by amendments to the CCS Act on 28 January 2011. The thrust of the policy is to make earlier decisions in relation to permanency planning. The policy recites:
This policy represents a shift in the Department's approach to Care Planning for children and young people in the care of the CEO, from a previous long term focus on reunification with the birth parent/s to a renewed focus on achieving the best interests of the child through permanent care arrangements and should be read in conjunction with the revised policies on contact and reunification.
Under the heading 'Legislative Mandate and Principles' reference is made to a principle, which was added in January 2011 to s 9 of the CCS Act (s 9(ha)) as a principle to be observed in administration of the Act. That was:
The principle that if a child is removed from the child's family then, so far as it is consistent with the child's best interest, planning should occur as soon as possible to ensure long term stability for the child.
The policy specifies a timeframe for decision-making in relation to permanent decisions regarding a child's long term care status. The policy recites that:
The Care Planning process will be used as the forum for making a permanent decision regarding a child's long term care status, whether this be reunification or long term out of home care.
It continues:
From the time a protection order (time limited) is granted, a decision about whether reunification with the child's birth family is realistic and possible must be made within 12 months for children less than 2 years of age and within 24 months for all other children and young people.
In relation to assessments and planning, the policy stipulates:
The Care Planning process will be used as the forum for making permanency planning decisions regarding a child's long term care status, whether this be reunification or out of home care. Care Plans will be used to clearly articulate the Department's goals regarding a child's permanency and will ensure that all parties are clear about the purpose, intent and direction of the Department's involvement and the roles and responsibilities of everyone involved.
In relation to contact, the policy provides:
Decisions about contact between children and their birth family will consider the child's existing emotional attachments, previous experiences and background to provide a sense of stability and continuity of identity. While considering a child's views and wishes about contact, the Department will exercise professional judgement in determining whether contact is informal, supervised or whether it should occur at all, to ensure the wellbeing and safety of the child. The purpose, frequency and nature of contact needs to be assessed for each individual child and family.
Contact within the context of permanency planning must distinguish clearly between:
•Contact aimed at reunification with a parent or parents, or
•Contact designed to achieve the alternative goal of long-term outofhome care.
The Permanency Planning Policy makes reference to the Reunification Policy 2010, which was also published in July 2010. The Reunification Policy stipulates that reunifying children in the care of the CEO with their birth families is 'the principal goal to be achieved, where appropriate and in the best interests of the child'. It continues:
The decision will take into account the child's best interests, developmental needs, the assessment of harm and future risk and parental capacity.
As such, reunification with a child's birth family can be a flexible arrangement and will be determined on a case by case basis. A child may be reunified with their birth parent/s, relative/s, grandparent/s, adult sibling/s, or through a family partnership arrangement whereby shared care arrangement exists between a parent/s and/or any of the above family members or a foster carer.
This recognises that parents and extended families pay a primary role in promoting a child's sense of belonging and connection to the world.
Reunification, for the purposes of the policy, is described as referring 'to a child's return home to the permanent care of his or her family resulting in reunification with a parent, relative or through shared care arrangements between parents and or relatives and any other party'. The timeframe for a decision on reunification prescribed in the permanent planning policy is repeated in the Reunification Policy.
Also published in July 2010 was a Contact Policy. That policy makes reference to various principles laid out in the CCS Act including that contained in s 9(g), namely, the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life.
Section 29(1) of the State Administrative Tribunal Act 2004 (WA) gives the Tribunal, when dealing with the matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the original decisionmaker. In performing those functions and discretions, it is appropriate that the Tribunal have proper regard to policies which inform the decisionmaking process by the original decisionmaker. In having regard to policies, it is important to ensure that the policies do not fetter the proper exercise of discretion and to ensure that the policies are applied in a way consistent with the legislation governing the relevant decision.
Ms Frances Orford is a social worker with the Department for Child Protection who had been case manager for C and A for some years. In her evidence to the Tribunal, she made it clear that the change in position in relation to reunification occurred by reason of C having been in the care of SC for almost four years within which time it was considered that DH had not made sufficient progress in meeting the requirements laid out for him. She made reference to the policy, which she described as 'the new Permanency Planning legislation', which required a decision to be made within two years.
It is quite apparent that the change in the Department's position occurred by reason of the new approach to permanency planning contained in the Permanency Planning Policy, including the suggested timeframes for decision-making contained within that policy.
As already observed, the consent by DH to renewal of the protection order relating to C and arrangements for contact proceeded on an assumption of a goal of reunification. Before a care plan was adopted based on a deferent assumption, that different assumption should have been the subject of consideration by the Children's Court. The rationale on which the current protection order was based should not be displaced by the application of policy. The November 2010 care plan pre-empted a revocation and replacement of the existing protection order. The proposition set out in the Permanency Planning Policy that 'the care planning process will be used as the forum for making a permanent decision regarding a child's long term care status' misapprehends the role of care plans within the Scheme of the CCS Act. In my view, the Department's policies should be revised to rectify that misapprehension.
That is not to say that the principles underlying the policy are not appropriate to guide decision-making in relation to matters of contact and permanency planning. Where, however, fundamental changes which are proposed in the approach to a care plan are inconsistent with the protection order to which the particular child is subject, an application should be made first at the Children's Court to revoke and replace the protection order. The care plan can then follow the Court's decision as to the appropriate protection order.

The issues for determination in relation to DH's application

DH, in his statement of issues, facts and contentions, identified as the issues for determination:
1.Whether C should begin to be reunified with him;
2.Whether he should commence to have unsupervised weekly contact with C consisting of 10 hours each week comprising of at least eight hours on the weekend for the first four months and thereafter at least 16 hours on the weekend and increasing thereafter leading to eventual reunification;
3.Whilst having unsupervised contact with DH, for him to have sole parental responsibility to determine C's contact with extended family members and other parties and supervision requirements, if any, of those other parties.
The word 'reunification' when used in the Department's Reunification Policy, does not necessarily mean moving to the full time care of any particular person. It is apparent that, in identifying his objective in these proceedings, DH is using the expression 'reunification' in the sense of him having full time care of C.
For reasons explained above, the ultimate full time care arrangements will necessarily be dependent upon the type of protection order which the Children's Court determines should be in place, if any, either at the expiration of the current protection order (time limited) in January 2012, or at such earlier time as the Court might deal with an application for revocation and replacement. I do not therefore, in the context of these proceedings, propose to address the first issue identified by DH. Rather, I approach the question of review of the care plan on the basis that it should not pre-empt any decision of the Children's Court as to the type of protection order which should be in place for C in the long term.
With respect to the third issue, the expression 'sole parental responsibility' potentially confuses the real objective which I understand DH to have. Parental responsibility flows from the particular protection order which is in place. Where there is, as in this case, a protection order (time limited), s 54(2) of the CCS Act provides that the CEO has parental responsibility for the child to the exclusion of any other person. It is not open to the Tribunal, in the context of a review of a care plan, to alter the effect of that section. It is therefore, not open to the Tribunal to confer parental responsibility on DH during the currency of the present protection order.
The true substance of DH's application in this respect is, however, essentially that he have unsupervised contact for the period specified, during which he might be free to bring C into contact with whomever he pleases. The extent of contact which is identified in issue 2, and the extent of control by the CEO of that contact, turn upon similar considerations, and will be dealt with together.
The issues concerning the extent and nature of DH's contact with C turn first on whether unsupervised contact with DH himself poses any risk to C, or otherwise would not be in her interests, and second on any risks which may be associated with SH's contact with C whilst in DH's care. The second consideration arises because of the CEO's concern that contact with SH poses a risk to C, and that DH is susceptible to SH's influence to an unacceptable degree, or alternatively would allow SH unsupervised contact with C during periods of her contact with DH.

The proper approach to the question of contact

In considering the question of the nature and extent of contact that DH or SH should have with C, it is necessary to bear in mind the objects and principles laid out the CCS Act.
The objects are set out in s 6 of the CCS Act, which provides:
The objects of this Act are -
(a)to promote the wellbeing of children, other individuals, families and communities; and
(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c)to encourage and support parents, families and communities in carrying out that role; and
(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e)to protect children from exploitation in employment.
Paragraphs (a) to (d) are relevant to the present proceedings.
Section 7 of the CCS Act prescribes that, in performing a function or exercising a power under the Act, in relation to a child, regard must be had to the best interests of the child as the paramount consideration. Section 8 directs that certain matters be taken into account in determining what is in a child's best interests.
As I have already observed, the scope of the present review is as to contact in the context of the present protection order (time limited), that is, contact until such time as the Children's Court determines the question of longer term planning for C in the context of any protection order which might be made on either the expiry or the revocation of the present order. In that context, the matters set out in s 8 of the CCS Act which require particular consideration are those set out in para (a), (b), (d), (e), (g), (h), (j) and (m) of s 8(1). Those matters are as follows:
(1)In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account -
(a)the need to protect the child from harm;
(b)the capacity of the child’s parents to protect the child from harm;
…
(d)the nature of the child’s relationship with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;
(e)the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;
…
(g)the importance of continuity and stability in the child’s living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i)the child’s parents; or
(ii)a sibling or other relative of the child; or
(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv)any other person who is significant in the child’s life;
(h)the need for the child to maintain contact with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;
…
(j)the child’s cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
…
(m)the likely effect on the child of any change in the child’s circumstances.

I will return to a consideration of those matters so far as they concern contact with C by both DH and SH later in these reasons.

Concerns as to contact with C by DH himself

It is not an issue that DH should continue to have contact with C, nor is it an issue that C enjoys a good relationship with DH, and that that relationship should be fostered. What is in issue is whether there is a risk to C, or it is otherwise not in her interests to have unsupervised contact with DH. Those concerns arise broadly in respect to two areas. The first is the concern as to DH's alleged failure to satisfy the requirements identified by the Department which might lead to unsupervised contact by DH. The second is a concern as to a risk which may arise if DH permits SH, about whom the Department has significant concerns, to have unsupervised contact with C. That concern is heightened by DH's present living arrangements, they being that he shares accommodation with SH.

The requirements imposed on DH

As evidenced from the extracts set out above from the September 2009 care plan and the November 2010 care plan, the Department identified three key issues which needed to be addressed by DH in order for reunification to be considered. They were first that he have independent and stable accommodation; second that he demonstrated stable employment; and third that he undertake individual counselling so as to be able to maintain appropriate boundaries between C and SH. In addition, DH was required to maintain abstinence from the abuse of substances.
With respect to employment, DH said that, between when C was taken into care and when the requirement to obtain stable employment was imposed, he had held three jobs, none of which he lost through any fault of his own. One of those jobs was originally commenced on a six week contract, but he remained in that employment for 18 months during 2008 to 2009 before being retrenched as a result of the global financial crisis. He then undertook work in various casual positions. At the time of the hearing, DH held what appeared to be relatively stable employment in a call centre providing technical support in relation to broadband connections. He was hopeful of being promoted to a more senior position in that field and with that employer. His hours of work were not as great as he would like, but that was because of his commitments in relation to contact with C which limited the shifts which he was available to work. He was nevertheless generally working five shifts, each of five hours each week. He had held that position for approximately six months at the time of the hearing.
While DH has had some periods of unemployment between mid 2009 and late 2010, he did have casual employment during that period. He now appears to be in relatively stable employment. A lack of stable employment is not, in my view, a factor which should work against DH's contact with C.
Accepting that it is desirable, in order to enhance DH's general stability, that he remain in stable employment, contact should be arranged at times which accommodate DH's work commitments, to the extent that it is consistent with C's best interests. One of DH's concerns about contact being on week day evenings, is that it has disrupted his capacity to work full time in a way in which weekend contact would not.
The second requirement related to stable accommodation. When the matter was heard in May 2011, DH had been living in a flat which he shared with his father, SH. He had been living there for approximately eight weeks. The flat is in Kewdale. Prior to that, DH was living in a shared house in Aveley, which is near to the suburb in which C lives with SC. DH was living with friends on a share basis. DH said that he commenced living there around October 2010. Before that, he was living in Kwinana from late 2009 or early 2010.
The accommodation in Kwinana was a home unit in which DH lived by himself. It was a two bedroom unit in a secure complex. He said that he left that accommodation because it was too difficult to maintain financially. He was travelling to Perth constantly for work and for contact with C and also had family obligations in regards to his sister. He said it 'just became too difficult to keep paying the rent when I wasn't even there most of the time'.
The obligations in relation to his sister was a reference to SH's child K who had been diagnosed as suffering from a condition within the autism spectrum, and DH was assisting his step-mother to deal with the issues which arose as a result.
At no time did Ms Orford make any attempt to visit and inspect DH's accommodation in Kwinana, although she was aware that he had obtained that accommodation. During the time that DH was living in Kwinana, contact was occurring in Ellenbrook, a very long distance from Kwinana.
Ms Orford did not inspect the accommodation which DH then moved to in Aveley. Nor has there been any inspection by Ms Orford, or any person from the Department, of DH's present living arrangements.
Putting aside the issue of DH's sharing of accommodation with SH, there is nothing in the accommodation arrangements which DH has made for himself which suggests instability, or gives rise to concerns about unsupervised contact. Some concerns were expressed during the care plan reviews about the environment which existed when DH was sharing accommodation in Aveley. Those concerns appear to be based on the fact that it was during this period that DH relapsed into frequent cannabis use. The actual accommodation was never inspected by any departmental officer, and thus no other concerns were raised about the accommodation, and the matter was not pursued in any detail at the hearing on this matter.
The third requirement imposed on DH was that he progress with individual counselling. It is recited in the November 2010 care plan that DH had completed his individual counselling. That was not the position adopted by Ms Quinn. She was the team leader employed by the Department who had the carriage of the case in respect of both C and A for most of the period between September 2006 and January 2009 before coming a team leader and retaining her involvement in the cases in that capacity. She expressed the view that further counselling of DH is required in relation to whether DH fully accepts and understand the risks that SH poses to the children.
DH explained that around the end of 2009, he commenced counselling often after the periods of contact with C, on a weekly basis. He said that the counselling revolved around questions of his relationship with his father and issues arising from his previous mental health history, including his drug use. Counselling also addressed parenting issues generally. It continued for about six or seven months until the counsellor moved to a different position. There was then a gap of about six to eight weeks whilst a new counsellor was introduced, and then DH continued counselling with the new counsellor. Counselling sessions finished in September or October 2010 when, according to DH, it was necessary to have a report prepared for the purposes of a new care plan, and the counselling sessions were determined. DH said that he found the counselling sessions 'positive' and if required to do them again he would happily participate.
It is not easy to see what, if any, complaint the Department has in relation to DH's participation in counselling. In my view, it cannot fairly be said that DH has failed to meet the Department's requirements in relation to counselling in any sense which would justify a restriction on DH's contact with C.
The next requirement of the Department was that DH should abstain from illicit drug use. DH has not complied with that requirement. DH acknowledged that, throughout 2010, he was on a fairly regular basis using cannabis. He acknowledged that that was a 'wrong decision to make' but said that he was not going to make excuses about it. He expressed a willingness to abstain from using cannabis in the future, and to undertake regular urinalysis as a condition of contact with C.
The underlying concern about cannabis use is as to the potential adverse effect on DH's mental health which might result.
As to the use in 2010, DH explained that it was use isolated to weekends, parties or social events. Its frequency varied but he estimated it would probably be every second weekend over a course of six or seven months. He said it was not heavy use and the drug was invariably supplied by friends with whom he no longer associates. He ceased that association because he said he recognised that it was a destructive form of social support.
DH gave his evidence concerning his cannabis use during 2010 quite frankly. He volunteered that a clean urinalysis result in July 2010 must have been an error because, at that time, his regular use of cannabis was continuing. He said that it was around December 2010 that he ceased the use of cannabis.
There is no suggestion that, at any contact session with C during 2010, DH was under the influence of cannabis. That is not to say that his cannabis use is not a serious issue in relation to questions of his contact with C. By his own admission, his use of cannabis, at a time when he was under scrutiny in the context of consideration of the possibility of his reunification with C, was, to say the least, extremely unwise. It raises serious questions as to his priorities. Against that concern, it is to his credit that he has apparently ceased, voluntarily, using cannabis. While he maintains that position, and if he subjects himself to regular monitoring, any immediate risk to C can be adequately managed.
It is quite clear that a primary concern of the Department in relation to unsupervised contact by DH is the risk of unsupervised contact with SH. Assessment of that concern requires that consideration be given to the question of whether SH poses a risk to C.

Does contact with SH pose a risk?

SH has taken an active role in dealings with the Department in relation to contact with both C and A since early 2007. In March 2007, he advised the Department that, should C remain in care for any length of time, he would seek to become her foster carer. That objective was maintained in frequent communications throughout 2007 and 2008 by SH with the Department. As already mentioned, SH brought the application for review of the care plan which was the subject of Judge Eckert's decision. In December 2008, he was joined as a party to proceedings in the Children's Court in relation to the protection order for C. His communications and representations with the Department have, in large part, been directed to questions involving his own contact with either C or A, and from time to time he has made representations on behalf of DH.
SH has a history of unsuccessful and conflictual personal relationships. He separated from DH's mother when DH and another son were relatively young. Although his present relationship with DH appears to be good, that had not always been the case. Although the evidence in relation to SH's relationship with his other son was sketchy, it appears that they are presently estranged.
SH was himself adopted, and acknowledges that that experience has coloured his perception of the present matter. He acknowledges the benefits of the life he had with his adoptive family. He met his natural mother at the age of 26, and notwithstanding that he is now 'estranged' from her, expressed the view that he would rather have stayed with his natural mother, and that he now has a sense of belonging within the 'wide range of natural family' which he now has.
SH had a daughter, S, in May 1999. S's mother was TK. In May 2000, SH had another daughter, K, whose mother was SB. SH has a long history of family court proceedings with both TK and SB in relation to SH's contact with their respective children. After a lengthy trial in May and July 2004, the Court ordered no direct contact between SH and K.
In the course of the trial, which was conducted before Martin J in the Family Court, evidence was led concerning the relationship which SH had with an American woman, LL, whom he married on 4 November 2002 and from whom he separated on 9 January 2004. During the course of the trial, an email was produced from LL to a friend which made serious allegations of sexually inappropriate conduct by SH in relation to his youngest child. SH denies the truth of the contents of the emails, and asserted both before the Family Court, and before this Tribunal, that LL was not in fact the author of the emails. That was a matter upon which Martin J made findings in her reasons for decision in 2006 in relation to contact with S. She found that it was probable that LL did write the emails, although noted that given LL's denial of authorship, her credibility generally was in doubt. Nevertheless, orders were made which deprived SH of contact with S. Her Honour also granted an injunction restraining SH from filing further proceedings without leave of the Court, and restraining orders preventing SH from attending within 100 metres of any school attended by S.
Martin J, in her 2006 decision, made a number of adverse findings against SH. It is apparent that the respondent places considerable importance on those findings in its assessment of the risk involved in unsupervised contact by SH with C.
The hearing before Judge Eckert in October 2009 involved the hearing of expert evidence from three psychiatrists in relation to SH's mental health and personality. Close consideration was also given to Martin J's decision, and SH's challenges to the conclusions reached in that decision. Having considered the psychiatric evidence, Her Honour concluded that SH was motivated by a desire to create a family circle with himself as the centre, and which he controls. Her Honour was concerned that when SH gathered his broader family around him, if they did not 'return the intensity of love and the structure of the family that he wants' that the children might be at risk. She declined to interfere with the supervised contact arrangements provided in the care plan the subject of her review.
In her reasons for decision, Judge Eckert noted and accepted an observation by a psychiatrist who had given evidence before her that SH:
… explained that what he wanted to achieve in his family, of a concept of what he regarded as 'good family', especially when it came to the role of him as a father and a central figure. He saw himself as a crusader in a battle to achieve such arrangement within his immediate relations. There appeared to be a pseudo-scientific nature of his beliefs in this regard and he used intellectualisations and rationalisations to justify his perceptions and his various actions and plans.
Since Judge Eckert delivered her decision, there have been further proceedings in the Family Court concerning SH's children. On 30 March 2010, Martin J made further orders in relation to contact by SH with K. Contact was permitted initially one in three weekends from 10 am to 5 pm Saturday, and thereafter until the end of the 2010 school year, at that time, one in every two weekends. The time with the child was to be spent in the presence of DH or any of several other nominated adults. Various other orders were made in relation to other forms of contact that SH might have with K. The reasons for decision in relation to that order reveal that by September 2008, SH had spoken to K only once since 2003. DH had, however, been a regular visitor to K and had taken SH's presents with him. In October 2008, Martin J had ordered that SH have a period of supervised contact with K. In December 2008 orders had been made for additional contact by SH in the presence of K's mother, SB and DH. It is apparent that SB had, after the experience of the initial limited contact, been prepared to agree to contact provided it occurred in the presence of the nominated adults.
Proceedings in relation to contact with the child S in the Family Court have also continued. During the hearing of this matter, SH was required to attend other proceedings relating to contact with S. The current position was somewhat unclear, but apparently provided for SH to have contact electronically every second fortnight, and supervised contact at a handover centre every four weeks for three hours at which it was open for K, her mother SB and DH to attend.
Despite SH's desire to revisit the evidence which led to restrictions on his contact with his own children, and the conclusions reached by Judge Eckert in the earlier proceedings in this Tribunal, those findings constitute the background against which decisions in relation to the care plan should be made. As SH was advised at the hearing, these proceedings cannot provide a venue to make collateral attacks on earlier findings in different proceedings. It is, however, appropriate to have regard to circumstances which have changed since the Tribunal's earlier decision in relation to contact provisions concerning SH in the care plan for C. What does appear to have changed is that there has been a gradual relaxation of the limitations on contact between SH and K, and to a slight degree in relation to S. That relaxation, certainly in relation to K, suggests a reduced concern on the part of the Family Court as to the potential impact on K's welfare, or any risk to her by more liberal contact with SH.
There remains, however, a long history of troubling allegations relating to SH and his conduct in relation to his daughters K and S. While it is acknowledged that SH denies inappropriate conduct, that DH does not consider his father to be a risk to C, and that none of the allegations have been definitively established against SH, it remains appropriate to adopt a cautious approach to the question of SH's contact with C.
The extent of contact with C proposed by SH in his application, culminating in contact for the whole of every second weekend demonstrates, in my view, SH's lack of perspective as to an appropriate level of involvement by him in C's life. He has two young daughters, not much older than C, with whom he has limited contact. There is not doubt that his involvement in proceedings in relation to C, and his persistent and highly critical dealings with the Department, have resulted in a poor relationship not only between the Department and SH, but also between the Department and DH. I have little doubt that, but for SH's involvement, DH's relationship with the Department would have been far more constructive, to the advantage of both DH and C.
In that regard, it is important to bear in mind that the focus of the best interests of a child under the CCS Act revolves around questions of relationships between a child and its parents. That is no to ignore the reference to relationships with other relatives which is mentioned in s 8 of the CCS Act, but in the present case, particularly against the unsettled background of SH, decisions concerning contact with SH should be subservient to considerations as to appropriate contact between C and DH.
As much was accepted by SH at the hearing. He went as far as volunteering to subject himself to a misconduct restraining order so as to enable DH to have unsupervised contact.

The relationship between DH and SH

As mentioned above, SH and DH have not always enjoyed a good relationship. It is quite apparent that, during DH's teenage years following his parents' separation, his relationship with SH was relatively dysfunctional. It was apparent at the hearing that their relationship is much improved, an improvement manifested by the fact that they share accommodation, and DH has obviously played a role in assisting to smooth the pathway to SH's increased contact with K and S, and SH's relationships with those children's mothers.
DH was cross-examined at some length as to his response to various concerns which had been expressed about his father's conduct towards his own children and towards C. He said that he was generally aware of the allegations, but considered that they had not been proved, and that from his own observations of seeing his father with C and K, he did not consider that his father posed a risk to the children. He indicated that he would be content to leave C in SH's care on an unsupervised basis.

Concerns were expressed by C's case officers that SH has a controlling personality and is likely to overbear DH to achieve his own purposes in terms of family relationships.
At the hearing of this matter, SH took the leading role in questioning witnesses and making submissions. While DH also actively participated, and demonstrated a degree of independence of thought, it was quite apparent that SH was the principal protagonist for their respective positions.
The history of proceedings in relation to the arrangements for the care of C and A in the Children's Court, with the Department, and through the Tribunal, all demonstrate that SH has taken a dominant role. I accept that SH's desire to create wide family interaction in which he plays a central role is likely to place pressure on DH's own relationship with C, and has the potential to cloud DH's judgment in determining the appropriate arrangements in relation to contact between SH having regard to C's wider best interests.
On the other hand, I am in no doubt that DH would be anxious to protect C from harm and that appropriate conditions on his contact could be put in place to assist him in that regard. Notwithstanding SH's forceful and persistent personality, both DH and SH contend, and I accept, that DH has the strength of character to deal with is father if any threat to C's wellbeing were to arise. Statements of various witnesses, who were not called but whose statements were tendered without objection, support that conclusion.

Appropriate contact arrangements for DH

Against the above background, I move to consider what contact with DH would be in C's best interests. The starting point is to remember that the Tribunal's present concern is arrangements pursuant to the current care plan until such time as a decision is made one way or the other by the Children's Court in relation to the ongoing terms of any protection order. Thus, I do not presume that C will necessarily continue to live in the care of SC, but I recognise that SC now provides a stable environment in which C has lived for the greater part of her life.
It is necessary, in considering what is in C's best interests, to have regard to the need to protect her from harm. There is no suggestion that DH presents any risk to C, provided that he avoids illicit drug use. Nor is there any suggestion that he would not be appropriately protective of C whilst she was in his care, apart from the concern that he would expose her to risk by allowing SH to have unsupervised contact. In my view, conditions can be placed on otherwise unsupervised contact arrangements which avoid risk to C.
It is also necessary to consider the nature of C's relationship with her parents, siblings and other relatives. Ms Orford, C's case worker, acknowledged that the relationship between DH and C is positive and strong and needs to be maintained. In my view, that relationship would be enhanced by unsupervised contact between DH and C, provided appropriate conditions are in place to avoid any risks of harm to C.
C has a limited relationship with her sibling A. A's position is now well settled with his permanent placement, and it is apparent that A's carers are able to deal comfortably with DH in relation to contact between DH and A. Allowing greater freedom in relation to contact between DH and C is likely to enhance the opportunities for contact between C and A. Similarly, C's opportunity to develop a relationship with DH's halfsisters, K and S, might also be facilitated by less restricted contact between DH and C.
The evidence supports a conclusion that C also has a good relationship with SH. That relationship should be maintained. If DH is given an opportunity to enhance his parental relationship with C, it is not necessary, in my view, that SH has unsupervised contact with C in order to maintain an appropriate grandfather/granddaughter relationship with C.
Regard must be had to the attitude which DH has demonstrated to C and to his parental responsibility in relation to her. That is a factor which might be of greater significance in the context of questions of permanent arrangements for C. So far as contact is concerned, however, DH has demonstrated a strong level of commitment to contact with C. He has been prepared to travel considerable distances to undertake contact, and has generally been reliable in honouring arrangements for contact. His employment of arrangements has been adjusted to facilitate contact. That level of commitment has emerged as time has progressed, and although it is apparent that, after C was first taken into care, DH took some time to get his life in order, he had demonstrated a good level of responsibility in more recent years. DH's attitude generally supports more liberal contact arrangements with C.
Section 8(1)(g) of the CCS Act highlights the importance of continuity and stability in a child's living arrangements as a factor to be considered in the context of assessing a child's best interest. C is currently settled in her current care family, in her schooling, and in weekend activities. I accept that the stability which those arrangements have provided for C has enabled her to largely overcome the developmental deficits from which she suffered at the time she was taken into care. Arrangements for contact which substantially interferes with that continuity and stability in her living arrangements would not be in her best interests. There is, however, scope for increased contact, particularly on a weekend, which would not significantly impact upon the stability of her living arrangements.
A period of weekend contact between DH and C would be likely to improve the quality of that contact when compared to the present restrictive arrangements for supervised contact. One issue which arose in relation to weekend contact was that C attends dancing lessons on a Saturday. In my view, arrangements could be made for a period of contact either before or after dance lessons, or even on the basis that DH would take C to, and collect her from, her dance class as part of his contact arrangements.
A child's cultural, ethnic or religious identity is also identified as a factor to be taken into account in considering the best interests of a child. An issue of concern to DH and SH was that C was attending church on Sunday with SC and the other children in her care. In addition, there was a suggestion at one point that SC wanted to enrol C in Girls Brigade. SH said that the Girls Brigade website stated that the objective of Girls Brigade was to help girls 'become followers of the Lord Jesus Christ and through self-control, reverence and a sense of responsibility to find true enrichment of life'. DH is apparently an atheist and objected to that activity. As it transpired, because the activity conflicted with DH's contact arrangements, it did not progress in any event.
Considerations of this issue turn more on questions of the long term arrangements for C, rather than questions of contact with DH. I do not consider that contact which would deprive C of the possibility of attending church with the other children in SC's care would be in C's interests. The reality is that C is currently part of SC's household. To isolate her from activities undertaken by other children in that household may be difficult for C to comprehend, and may not be in her interests. I do not consider that attendance at church with SC and the other children amounts to an interference with C's 'religious identity'.
Finally, the other factor relevant for present purposes in relation to C's best interests is the likely effect on her of any change in her circumstances. Again, that is a consideration more appropriately dealt with in the context of the long term arrangements for C. In terms of contact, however, an increased level of contact with DH would not, in my view, amount to a change in circumstances which would be in any way detrimental to C. Rather, enhancing the capacity of C to spend time with her father unrestricted by the present supervisory arrangements would be in her best interests.

Conclusion

In my view, the care plan should be amended so that DH has unsupervised contact with C for up to six hours on a weekend. As an initial move to unsupervised contact, six hours represents a gradual introduction. It may be that, in time, the period might be increased. Precise arrangements as to when that contact occurs should be negotiated by the Department and DH with input from SC. I do not consider that, at the present time, overnight access is appropriate. Rather, there should first be a trial period in which the success of unsupervised contact can be assessed.
The contact should be subject to a condition that DH undergoes urinalysis at a frequency to be determined by the respondent on the basis that if any illicit drugs are detected on testing, unsupervised contact will cease and be replaced by supervised contact. There should be a condition that DH supervise any contact between SH and C and that SH not be permitted to have contact with C other than in the presence of DH or some other responsible adult nominated by DH.
It follows from those conditions that I would not make any separate provision for contact between C and SH. SH's relationship with C as her grandfather can, in the interim period with which this care plan is concerned, be adequately maintained and developed through contact for which her father, DH, is responsible.

Orders CCS 2 of 2010

1.The case plan made in relation to the child C in November 2010 is varied so that the applicant has unsupervised contact with C on a weekend for up to six hours on condition that:
(i)the applicant undergo urinalysis for the detection of illicit drugs at a frequency to be determined by the respondent.
(ii)in the event that the applicant tests positive to an illicit substance, unsupervised contact is to be immediately suspended and supervised contact is to be arranged in its place on terms acceptable to the respondent.
(iii)the applicant is to supervise any contact between C and SH and to ensure that C does not spend time with SH unsupervised by the applicant or some other responsible adult.

Orders CCS 3 of 2010

1.The application is dismissed.

I certify that this and the preceding [127] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT