IA v Department of Communities, Child Safety and Disability Services
[2012] QCAT 622
| CITATION: | IA v Department of Communities, Child Safety and Disability Services [2012] QCAT 622 |
| PARTIES: | IA (Applicant/Appellant) |
| v | |
| Department of Communities, Child Safety and Disability Services (Respondent) |
| APPLICATION NUMBER: | CML102-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 7-9 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Gwenn Murray, Presiding Member Nathan Jarro, Member Graham Quinlivan, Member |
| DELIVERED ON: | 3 December 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | That the decision of the Department of Communities, Child Safety and Disability Services to refuse contact between IA and her son, IJD be confirmed. |
| CATCHWORDS: | ADMINISTRATIVE LAW – a review of the decision to refuse contact between the applicant and her child – when a child refuses contact with a parent – obtaining child’s view – special witness Child Protection Act 1999, ss 5A, 5E, 74, 87(1) and (2), 87(3) and (4), 99ZD, 99ZG, Schedule 1(c) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | IA |
| RESPONDENT: | Dr Stephen Lake Manager and Ms Clair Martin Team Leader, Beaudesert Child Safety Service Centre and Ms Nicole Karger, Court Services Advisor for the respondent |
REASONS FOR DECISION
History of the Application
The Department of Communities, Child Safety and Disability Services (“the department”) made a decision on 21 June 2012 to refuse contact between the applicant, IA and her son IJD[1].
[1] Section 87(2) Child Protection Act 1999.
On 11 July 2012 IA filed an application in the Tribunal to review the contact decision. IA also wanted the department to return her children to her care. The Tribunal does not have the jurisdiction to review this decision.
On 12 July 2012 the Tribunal granted leave for IA to be legally represented. On 24 October 2012 IA’s solicitor withdrew her representation due to a conflict of interest. IA told the Tribunal another solicitor was appointed but she would not be legally represented for the Tribunal hearing.
On 16 July 2012 a stay hearing and compulsory conference were conducted. The application for a stay of the decision was withdrawn by leave of the Tribunal.
An agreement was made at the compulsory conference and filed in the Tribunal, between IA and the department with the following terms:
i)A meeting would take place by 13 August 2012 with IJD, Mr Hocking (Child Safety Officer), IA and her solicitor;
ii)Supervised contact visits between IJD and IA would be arranged if IJD expressed his wishes to have face to face contact with his mother and if this progressed positively then;
iii)A gradual contact plan between IJD and his mother would be instituted if IJD stated at the meeting not to have face to face contact. Other forms of contact that IJD agrees to would be considered such as photographs, letters and phone calls;
iv)The contact arrangements would be reviewed on 31 August 2012; and
v)The department would investigate a “better fit of CSO” to improve the relationship between IA and the department.
A further compulsory conference was listed for 10 September 2012 in Brisbane. The application was listed for a hearing 7-9 November 2012 with parties to file in the Tribunal a list of witnesses and statements 10 days prior to the hearing.
On 17 September and 9 October 2012 the Court Services representative requested by email that the Tribunal vacate the dates listed for the hearing of 7-9 November 2012 or schedule a further compulsory conference or directions hearing prior to the hearing. This was due to the departmental Senior Practitioner not being available to give evidence as she would be on holiday.
The request was opposed by the applicant. On 10 October 2012 the Tribunal refused the request for the adjournment of the hearing dates. A directions hearing was listed for 16 October 2012.
On 16 October 2012 the Tribunal directed that the hearing would proceed on 7 November 2012 at 9.30am, parties were to file submissions by 26 October 2012 and were to request any Notices to Attend by 22 October 2012.
The hearing took place 7-9 November 2012.
Background to the department’s decision to refuse contact between IA and IJD
IA has three children: IJD, HJM and ID.
HJM is 7 years old and lives with his father HM who has sole parental responsibility for HJM under Family Court orders since February 2010.
IJD and ID were removed from IA’s care on 5 October 2011.
ID is nearly 3 years old and lives with his father BA. It is understood he is currently pursuing Family Court orders concerning ID.
This application concerns IJD who is 11 years old and lives with his foster carer, Ms TT.
The department’s material documents a child protection history was first recorded in July 2005 and highlights a theme of emotional and physical harm perpetrated towards the children by IA.
IJD is currently on an interim child protection order. The department is seeking a two year order with guardianship to the Chief Executive. The matter is listed for hearing in February 2013 in the Children’s Court. IA is contesting the application.
On 21 February 2012 under section 87(2) of the Child Protection Act 1999 (“the CP Act”) the department decided to place restrictions on IA’s contact with IJD. The reasons for this decision were that:
i)It was reported IA approached IJD’s foster carer in the Centrelink office and used “threatening and inappropriate behaviour” to her publicly.
ii)It was alleged that IA reported to the Queensland Police Service that IJD was living in an unsafe environment. Police officers apparently found this information was untrue and it caused distress to IJD, the carer's family and other children in the placement.
iii)It was alleged that during a telephone call to IJD, IA undermined his carer and the placement to him and made inappropriate comments that showed little regard for his emotional well being.
iv)The department received a Social Assessment Report for the upcoming court proceedings that recommended contact between IA and IJD be fully supervised until she underwent a full clinical mental health assessment.
Consequently contact remained fully supervised and telephone contact was cancelled.
Since May 2012 the department noted contact between IJD and his mother was not positive, IJD was unhappy and grew reluctant over the following weeks to have contact with his mother.
IJD told the department “he wished (his mother) was dead”, “she stuffed everything up in his life”, “she was really annoying” and that “he was being mean (to his mother) because she had abused him”.
On 31 May 2012 IJD told CSO Frost that he didn’t want to have contact with his mother any more, he was very unhappy and said “please don’t make me go to contact today”.
IJD expressed his wishes to his counsellor Ms Peta Ward at Paradise Kids, to the Children’s Court and to his foster carer that he didn’t want any contact with his mother.
IJD was having nightmares, shouting out in his sleep and sleepwalking. He was very anxious and school personnel reported that he was having behavioural problems at school.
A decision was therefore made that contact between IJD and his mother would cease until a time that IJD was prepared to see her.
The Evidence
The issues in this review are confined to the question of whether it is in the best interests for IJD to have contact with his mother[2]. Of importance is that IJD is very clear in expressing his wishes[3] that he does not want to have contact with his mother at this time.
[2] Section 5A CP Act.
[3] Section 5E CP Act.
The Tribunal therefore remained focussed on this issue. There was a lot of material before the Tribunal concerning the history of the relationship between the department and IA and IJD coming into care.
IJD
IJD wrote letters to his mother in reply to her correspondence to him. He wrote that he didn’t want to see her again. He wrote that “he didn’t love her, he didn’t belong to her and was not her sweetheart”. He wrote how he wanted to hurt her.
IJD also wrote a letter to “the court man” (Children’s Court Magistrate). He wrote … if I was there in front of you I would be on my knees begging to go and live with my brother HJM forever until I’m 18 …because I love him very much and I hardly get to see him and I want to be able to have the responsibility to be a big brother again without being bashed up by my mum. I would not want to live with my mum ever again because she is a horrible mum to have because she abused me always for being bad in attitude way (sic). She use to bash me, slap, punch, make me drink a bottle of Tabasco sauce.
IJD requested to meet with the Tribunal[4] but he was afraid of seeing his mother at the Tribunal. The Tribunal therefore arranged for IJD to meet with the panel prior to the commencement of the hearing.
[4] Section 5E CP Act.
The Tribunal did not advise IA of this meeting before the hearing as IJD did not want to see her and there was a concern that she may arrive early in the hope of seeing him. The panel did not have IJD’s permission prior to the meeting with him, to tell his mother that he asked to meet with the Tribunal panel. IA was told of the meeting at an appropriate time during the hearing.
IJD met with the panel on his own[5]. He was comfortable to meet without the presence of his carer or CSO as support for him.
[5] Section 99(2)(a) QCAT Act.
IJD spoke to the Tribunal about himself, his interest in music, computer games, school, his friends, his brothers and his placement with his foster carer. He described himself as an “inside and outside kid” he likes computer games and television but also likes to be outside and kick a ball around.
IJD said he recently won an award for maths and for good behaviour at school. He said he had a lot of friends and he was “happy enough” to attend.
He spoke fondly of TT, his foster carer and that he felt happy and safe at her house. IJD said he likes her family, she has grandchildren that visit and she provides respite to some other young people who stay with her from time to time.
IJD was aware that the panel members had seen his letters that he had written to the court and to his mother. He confirmed he wrote them and no one told him what to write. He apologised for swearing in the letters but said he was angry. He said he was angry at his mother.
IJD said he wanted to see his mother when he first went into care, but after a while he found it harder to have contact with her because he “realised things about her and worked out some things”. He said his mother “was playing him, kind of playing games and using him”. He said at first he tried not the think about the abuse but he started to think about what his mother had done to him, “she hit me and shoved Tabasco sauce in my mouth, she yelled at me and she hurt me. She hit me with things like a baseball bat”. He didn’t speak in detail about the abuse but talked about the affects of it – it had made him angry and anxious and he had nightmares.
IJD said “TT tells me that she just wants me to be happy and we don’t really talk about the past”. IJD said he feels safe and happy at TT’s house and he knows he can stay there as long as he likes.
IJD rejected any form of contact with his mother at this time including phone calls and letters. He gave his permission to discuss the content of his conversation with the Tribunal to the department and his mother.
Dr Scott Harden
Dr Harden is a registered psychiatrist in private practice who was commissioned by the department to provide a psychiatric assessment concerning IA in the Children’s Court proceedings, his report of 23 July 2012 was provided to the Tribunal. Dr Harden spoke to this report.
Dr Harden conducted a psychiatric assessment of IA and considered a range of reports about IA and the children. He found it very difficult to get a clear understanding of the child protection allegations from the history IA presented to him. He said she could not offer any reasonable basis in her view for the department having any concerns about child protection matters. She denied that she struggled with any aspects of parenting and she had no regrets with regard to any of her previous actions. Dr Harden said this suggested IA had little or no insight into any issues associated with her parenting. IA saw the removal of the children from her care as “a pay back” from the department for her lack of cooperation with them.
Dr Harden referred to a paediatric report by Dr Toni Redman of 26 November 2011. Dr Redman referred IJD to “Act for Kids” therapy team for emotional support and educational assessment. She noted a four year history of concerns about emotional abuse, physical discipline and the instability of IA. Dr Harden stated that Dr Redmond wrote that IJD’s sexualised behaviours were developmentally inappropriate and support a long exposure to sexually inappropriate behaviours.
In conclusion Dr Harden’s opinion of IA was most likely a Personality Disorder Not Otherwise Specified with significant histrionic (rapidly shifting and shallow expression of emotions, style of speech that is excessively impressionistic and lacking in detail, considers relationships to be more intimate than they actually are) borderline (unstable and intense interpersonal relationships, mood instability, inappropriate intense anger) and antisocial (repeated lying) personality traits.
Dr Harden recommended long-term psychological treatment aimed at stabilising IA’s interpersonal relationships, sense of self and control of emotional reactions. The treatment would be two to three years in duration with appointments on a weekly to fortnightly basis.
Dr Harden did not recommend unsupervised contact between IA and her children. When he was informed that IJD had refused contact with his mother, Dr Harden did not agree he should be forced to have this contact but could not offer any further opinion as he did not have information about this issue and he had not seen IJD.
IA asked questions of Dr Harden. In brief she did not agree with his findings and took exception to the environment in which she completed a questionnaire for Dr Harden. She said other patients were in the waiting room and the telephone was ringing. IA had audio recorded her consultation with Dr Harden. She said he did not carry out the requisite tests asked of him by the department and due to the environment of completing the forms, she believed Dr Harden’s tests were invalid.
Peta Ward, Counsellor at Paradise Kids
Ms Ward met with IJD on six occasions and provided him with support and counselling. On occasions the department’s CSO Frost was in the room as well. Ms Ward said IJD talked about his mother and his brothers and it was up to IJD to discuss issues that were important to him.
Ms Ward said they talked about the changes in his life, moving into foster care, seeing less of his brothers and some confusion he was feeling in response to contact with his mother. He received one letter from his mother and he wanted to reply. Ms Ward said IJD wrote the letter himself with no input from anyone else. Ms Ward said she knew IA would find his letter upsetting and discussed this with IJD but she felt it was not her role to edit or censor the content of his letter.
Ms Ward said there were issues that IJD was currently facing and coming to terms with in her opinion forcing IJD to see his mother when he did not wish to, could be quite traumatic for him.
TT Foster Carer
TT was a kinship carer for her grandchildren for 18 months and now a departmentally approved foster carer.
TT said she knew very little about IJD’s family and his history when he was placed with her. The department told her he was having problems at school. She knew he had experienced abuse in his previous foster care placement.
TT said IJD frequently suffered from nightmares and sleepwalking. He would call out in his sleep “she’s here!” and would remain agitated and upset. It would take her some time to calm him.
She has sought assistance from ‘Complex Care’ arranged through the department. These workers have provided valuable insight into trauma and attachment to TT. She said it has been helpful in responding to IJD’s needs.
TT said IJD had been having behavioural problems at school and she has been working closely with school personnel to address these issues. However he has settled well in the past few weeks and he had received an award for good behaviour.
TT has facilitated family contact for IJD with his maternal grandmother, aunt, brothers and step father.
TT said that IJD is clear in his view that he does not want any contact with his mother.
TT said “IJD is a gorgeous boy, he is spirited, with a wonderful imagination and he’s very intelligent”. She said he is “insecure and likes reassurance and lots of hugs”. She said he has fitted in well with her family and her grandchildren. He is part of the family and is welcome to stay as long as he wants to.
Child Safety Officer Wendy Frost
Ms Frost has been IJD’s Child Safety Officer (CSO) since May 2012 and will remain in this role until the department’s application to the Children’s Court for a child protection order is heard in February 2013. If an order is made IJD will transfer to the orders team.
There is a strained relationship between IA and Ms Frost.
Ms Frost’s statement and oral evidence to the Tribunal sets out her supervision of the contact visits between IJD and IA and Ms Frost’s interaction with IJD.
Ms Frost said IJD is comfortable with her and talks freely with her. He has clearly expressed to her on many occasions he doesn’t want to see his mother. She said she has tried to encourage him and offered phone contact or letters but he refuses.
The department’s goal is for the reunification of IJD with IA and therefore Ms Frost said it is important to facilitate a positive relationship between them.
Ms Frost said IJD is happy to have contact with his extended family and looks forward to seeing his brothers and family members. He told her he wants to live with his brother HJM. HJM lives interstate with his father who is not IJD’s father. The department would prefer IJD to remain in Queensland so as to encourage contact with IA for her to address the child protection concerns.
Ms Frost described the relationship between IJD and his mother and how contact had became strained and negative. She talked with IA about her attitude towards IJD, that it was inconsistent and confusing for him. On one hand she was loving and friendly and then she would become firm and assertive and start disciplining him over minor matters.
Ms Frost said that IA would not believe her that there was a problem with her relationship with IJD and that IJD did not want to see her. She said IA recorded contact and conversations with the departmental officers.
Ms Frost sought advice from the Senior Practitioner and her team leader as she did not want to do harm to him by asking him over and over if he would have contact with his mother and she needed advice on fostering a positive relationship between them.
In Ms Frost’s experience, children in care who refuse to see a parent can change their mind, particularly with counselling and over a period of time. IJD said to Ms Frost his mother abused him and he doesn’t want to see her.
Ms Frost said she does not believe anyone is turning IJD against his mother and can see no reason for doing so. She said the case plan is to reunify IJD with his mother but it requires IA and the department working together to address the child protection concerns and developing a more positive relationship between mother and child.
Dr Travis Gee, Psychologist
IA was referred to Dr Gee by the department for a clinical psychological assessment in June 2011. IA sought treatment from Dr Gee after he completed the report.
In summary Dr Gee’s findings about IA were different to the psychiatric findings of Dr Harden. Dr Gee opined that IA was at the time of the report, in the middle of a custody battle and it was not surprising if at times she presented as angry and this would be a normal reaction to her concern about the welfare of her children.
Dr Gee did not find indications of psychopathology in IA’s presentation. He said her self-reports and psychometric test results showed an absence of any significant psychological symptoms.
Dr Gee told the Tribunal the department contacted his practice manager and requested the recommendations be removed from his report as recommendations were not required. He said this request was problematic and thought they were “playing hard ball” with IA.
Dr Gee has not met IJD or the other children and not witnessed any interaction between IA and her children. He was not aware that IJD does not want to see his mother.
In his final version of his report Dr Gee stated that his opinions were subject to revision if for example “the children were afraid to return to their mother’s care”. Dr Gee told the Tribunal that if IA was diagnosed with a personality disorder he would revise his report if necessary.
The Department
Ms Rachel Madill, Senior Practitioner provided a statement to the Tribunal but was on holiday at the time of the hearing. She provided brief information about the child protection concerns of the department.
Ms Madill provided information about the Family Court reasons for judgement by Justice Bell in granting sole parental responsibility to HM of HJM as this was relevant to IJD. The Court found overwhelming evidence that IA’s attitude towards the children was either “grossly inappropriate or that she was attempting to alienate the affections of the children from the father”. HM is not the biological father of IJD but Justice Bell commented that IA may have alienated IJD from HM (his step-father). Justice Bell was more than satisfied that HJM should be removed from IA to prevent any chance of psychological harm.
In summary the department acknowledged it was undisputed that IA loves IJD and her views and the department’s view are different with regard to the history of child protection concerns and the need for child protection intervention.
Dr Lake said IA believes IJD’s views have been manipulated by the department and she thinks she has been denied contact with IJD since June 2012. However, Dr Lake said the reality is somewhat different.
The department arranged the meeting requested by IA and agreed to by the parties at the compulsory conference between IJD, IA’s lawyer and departmental staff.
The meeting took place on 9 August 2012. IJD informed the group quite clearly that he does not want contact with IA, and that he wanted to live with HJM.
A psychiatric assessment has been arranged for IJD with Dr Siva, a psychiatrist chosen by IA. It is hoped that the assessment will provide a better understanding of IJD’s mental health, attachment, trauma and required treatment. IJD has advised CSO Frost that he no longer wishes to attend counselling at Paradise Kids.
Dr Lake confirmed the case plan for IJD and that reunification with IA was a goal. The department has made a commitment to continue to review the current contact arrangements and encourage a positive relationship between IJD and his mother in the hope that IJD will want to recommence contact with his mother. In order to support and address IJD’s trauma, the department requires IA to address the child protection concerns and work with the department.
IA
IA provided a substantial amount of material to the Tribunal including her affidavit filed in the Children’s Court 26 October 2012 and transcripts of recordings that she made during contact with IJD and meetings with the department. These exhibits were not certified. IA then swore an oath that they were an accurate transcript of her recordings and asked that the Tribunal accept them as material to be relied upon[6]. The Tribunal accepted the documents but did not accept the CDs with the recording of 350 hours of conversations.
[6] Section 28(4) QCAT Act.
IA addressed the Tribunal most passionately. She told the Tribunal she has been a loving mother of her three beautiful boys and never thought she would find herself in the current situation. She said she worked hard to feed and care for her children and raise them to be respectful citizens.
She provided references from friends and colleagues who attested to her as a good mother.
IA believed that she “struck bad luck” in her relationships and choice of men. She said she endured domestic violence and spitefulness where her partners made false allegations about her to the department and to the Family Court. She said that during this time she was very unwell and undertaking chemotherapy.
IA focused on the child protection issues and the broader matters that concern the Children’s Court proceedings. She spoke of the removal of the children and treatment by the department that she described as unfair and harassing.
IA disputed the report provided by psychiatrist Dr Harden and stated his methods rendered his conclusions invalid. Instead, she said the Tribunal should rely on Dr Gee’s psychological report.
With respect to the matter concerning contact with IJD, IA does not believe that IJD does not want to see her. He therefore would not be forced to see her. She believes he has been brainwashed by the department and family members have alienated him.
IA was shocked to read IJD’s letters and considered that someone was encouraging him to write in that manner. She had not witnessed IJD using such language. She asked that the Tribunal overturn the department’s decision and not reinforce the alienation of her son and to give IJD the opportunity to see his mother and for IA to rebuild her relationship with her son.
She said under the Charter of Rights for Children in Care[7], IJD has a right to have contact with his mother.
Discussion
[7] Section 74 Schedule 1 CP Act.
Evidence taken into consideration
IA sought review of the department’s decision of 21 June 2012 to refuse contact between her and her son IJD. She also wanted the department to return her children to her care. The Tribunal has no jurisdiction to review this request.
A substantial amount of material was filed in the Tribunal that included about 500 pages of transcripts from IA that she has recorded during contact visits and meetings with the department.
The Tribunal confined its focus to the issue at the heart of the review application: contact between IJD and his mother and whether this was in his best interests which is the paramount consideration[8].
[8] Section 5A CP Act.
IA holds a great deal of mistrust concerning the department. She does not accept the child protection concerns of the department and rejects any parenting concerns on her part. There is poor communication between them.
IA does not accept that IJD’s expressed wishes are truly what he wants.
IA believes he has been brainwashed by the department and alienated by family members against her.
IJD has written letters to his mother and to the Children’s Court. He has expressed his wishes that he does not want to have contact with his mother, face to face, by letter or by phone to the following:
·IA, his mother;
·departmental staff;
·his foster carer, TT;
·his separate representative in the Children’s Court proceedings;
·his mother’s solicitor;
·his counsellor at Paradise Kids Ms Ward, and
·the Tribunal.
IJD met with the Tribunal panel at his request where he made his wishes clear. He is a delightful boy and mature for his 11 years. The panel found him to be genuine in his expressions and wishes and he was competent in articulating them. He plainly said his mother hurt him and he no longer wants to see her.
[100]IJD will soon be undertaking psychiatric assessments and hopefully this will be of benefit to him in understanding his feelings towards his mother and the trauma he has experienced.
[101]Sadly this little boy has had to tell many people over and over that he simply does not want to have contact with his mother. To force him to do so would be an injustice to him and could cause him further trauma and damage his already strained relationship with his mother.
[102]In summary, it would not be in the best interests[9] of IJD for the Tribunal to overturn the department’s decision and order that contact should occur. This would involve forcing IJD to attend and quite possibly doing further harm to him.
[103]Over time, counselling and through healing, IJD may change his mind and express an interest to see his mother again. The department has given an undertaking to facilitate this contact if this occurs.
[104]The Tribunal, therefore, confirms the decision of 21 June 2012 of the department to refuse contact between IJD and IA. This decision is confirmed pursuant to section 24(1)(a) of the QCAT Act.
[9] Section 5A CP Act.
Other matter – confidentiality
[105]It came to the department’s attention that IA had published on a social media internet site, information about the Tribunal hearing which included information that may have identified IJD and a witness called in the proceeding. The Tribunal provided a warning to IA that the hearing was confidential[10], children are not to be identified and that certain information must not be published as set out in section 99ZG of the CP Act and that a penalty could be incurred if it was published.
[10] Section 99ZD CP Act.
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