IJ and PD v Department of Communities (Child Safety Services) (No 2)

[2010] QCAT 622

CITATION:		IJ and PD v Department of Communities (Child Safety Services) (No 2)  [2010] QCAT 622
PARTIES:	Mr IJ and Ms PD v Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CSR241-09  

MATTER TYPE: Childrens matters

HEARING DATE:     08 March 2010

HEARD AT:  Brisbane 

DECISION OF:

Ms S. Watters – Presiding member
Michelle Howard – Member

Nathan Jarro – Member

DELIVERED ON: April 2010

DELIVERED AT:      Brisbane

ORDERS MADE:	The decision of the Department of Communities (Child Safety Services) to restrict and impose conditions on contact between IJ and PD and their children is CONFIRMED.
CATCHWORDS :	Review of Decision, decision to restrict contact, Section 87 of the Child Protection Act, reasons for restricting contact; aggressive and disturbing behaviour on contact, applicants’ non-attendance at hearing.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	No Appearance
RESPONDENT:	M Potter, Manager Child Safety Services
SEPARATE REPRESENTATIVE FOR THE CHILDREN	L Walsh DA Family Lawyers

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. On 7 October 2009 the Manager, Beenleigh Child Safety Service Centre, Department of Communities (Child Safety Services) made a decision to restrict contact between IN, IK, IB, ISh, IS, IP, IJ and IA with their father, IJ and mother, PD.

2. The decision was communicated to IJ and PD in separate letters dated 7 October 2009.

3. The letter conveying the decision identified the reasons for the restricted contact as being:

1. A domestically violent incident between IJ and PD on 5 October 2009 resulting in injuries to IJ and PD.  These injuries were visible to the children at their contact visit on 5 October 2009.
2. The children were visibly upset and scared at the contact visit on 5 October 2009 and it was assessed that the children were further emotionally harmed as a result of IJ’s presentation and behaviour which included crying hysterically, yelling at and making threats to workers and making inappropriate statements to the children.
3. IJ was aggressive and distressed and threatening towards departmental staff and threatened to self harm, raising significant concerns about IJ’s mental health. The department concluded that until a mental health assessment of IJ occurred, they were unable to ensure the safety of workers or the children at contact.

4.The contact restrictions for IJ provide for weekly, supervised phone contact with IN, IK, IB, ISh, IS, IP and IJj. Letters to the children from IJ are required to be sent to the Child Safety Officer to ensure they are child friendly.

5.The contact restrictions for PD provide for fortnightly supervised face to face contact and fortnightly, supervised phone contact with IN, IK, IB, ISh, IS, IP and IJj. Letters to the children from PD are required to be sent to the Child Safety Officer to ensure they are child friendly.

6.The contact decision letters do not make clear the decisions about contact between each parent and IA who at the time of the decision was 18 months old.

HISTORY OF THE MATTER

7. A Preliminary Conference was held before the (former) Children Services Tribunal on 24 November 2009. This conference was adjourned to 8 December 2009 on submission from the applicants for the matter to proceed by way of a stay hearing.

8. The Tribunal was not constituted for a stay hearing at the Preliminary Conference.

9. The Preliminary Conference made orders for the adjournment, granting leave for the applicants to be legally represented and appointing a Separate Representative for the eight children. 

10. Legal Aid Queensland was advised that four of the children, IK, IB, IS and ISh had elected to be joined as parties to the application.

11. At 8 December 2009 Compulsory Conference and Stay hearing before the Queensland Civil and Administrative Tribunal, in addition to the written material before the Tribunal, oral evidence was provided by the parties and a witness for the applicants, Dr LT, treating General Practitioner for IJ.

12. A stay of the decision made on 7 October 2009 to restrict and place conditions around contact between IJ and PD and their eight children was not granted for the following reasons:

4. The decision had been made and implemented for two months;
5. The Tribunal considered that it was not in the children’s best interest to make a decision that could disrupt them in the short term;
6. The Tribunal considers the status quo should be maintained pending a final hearing at which the issues will be fully explored.

13. The Tribunal ordered that the matter be listed for hearing for 3 days in Brisbane on 8, 9, 10 March 2010 commencing at 10am. The applicants were advised of their right to object to the hearing being heard by the panel that heard the Stay hearing under the Queensland Civil and Administrative Tribunal Act 2009.

14. An Attendance Notice was issued to BA, School Principal.

15. The Social Assessment Report prepared for the Children’s Court was filed by the Separate Representative for the hearing and a January update report including interviews with some of the children about contact issues was filed.

16. The applicants failed to attend the hearing on 8 March 2010. The Tribunal was satisfied that the applicants were aware of the hearing through QCAT Registry case manager telephone contact on 5 March 2010 and efforts were made on the day of the hearing to attempt contact with the applicants.

17. The Tribunal accepted the submission of the respondent party for the Tribunal to make a decision on the matter on the papers and the oral evidence of the Stay hearing.

The Issues and the Legislation

The legislation relied upon in this matter:

18. This application was made to the former Children Services Tribunal on 5 November 2009.  This Tribunal ceased to exist on 1 December 2009 being replaced by the newly formed Queensland Civil and Administrative Tribunal (QCAT).

19. Under the transitional provisions, where evidence in an application is yet to be heard, QCAT hears matters according to its procedures, but has the same powers and functions of the former Tribunal and QCAT appeal rights apply.  This is the situation in this matter.

20. The decision for review is about contact between a family member and a child and was made by the decision maker under section 87 of the Child Protection Act 1999 (CP Act).
21. Section 4 of the CP Act provides that the purpose is to provide for the protection of children.
22. Section 87 (1) and (2) provide as follows:

i.The chief executive must provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances

ii.However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents or members of the child’s family if the chief executive is satisfied it is in the child’s best interests to do so..

23. Section 87(3) and (4) provide that the Chief Executive must give written notice of the decision to each person affected by the decision in a form that complies with the Queensland Civil and Administrative Act 2009 (QCAT Act) 157(2).
24. The issue for the Tribunal is - is it in the best interests of IN, IK, IB, ISh , IS,  IP, IJj and IA for their contact with their father to be restricted to contact by telephone once per week and with their mother to 2 hours per fortnight face to face contact at this time?

THE PARTIES

25. The applicants, IJ and PD, attended the Stay hearing and presented their own case. IJ and PD did not attend the hearing and were not represented at the hearing. 
26. The respondent Department’s decision maker, Michelle Potter, Manager, Beenleigh Child Safety Service Centre, put the respondent’s case.  Tony Nixon, Court Coordinator and Janine Erb Court Services Advisor also assisted.
27. The children were represented by a separate representative, Leanne Walsh, DA Family Lawyers.

EVIDENCE ABOUT THE DECISION

28. In addition to the written material contained on the Tribunal file, all of the parties attending the Stay hearing and the hearing were given the opportunity to express their views.  These views, where specifically relied upon by the Tribunal, are discussed below.

Background to the Department’s Decision to Restrict and Place Conditions around Contact

29. Child Safety Services records indicate a child protection history in relation to the family spanning from 1999 to the present time. From 2000 to 2005, 11 child protection concerns were recorded by DoCS NSW. Three Child Protection Notifications have been recorded in Queensland between 1999 and 2006. IN, IK, IB, ISh, IS, IP and IJj were removed from their parents care in April 2006 and placed in out of home care. IA has been in out of home care since her birth.

30. The child protection concerns recorded in NSW and Queensland have been similar and include neglect, parental drug misuse, children being exposed to incidents of domestic violence, unstable accommodation, parents inability to manage and provide positive consistent parenting to the children, parents ability to manage all of the children during contact and IJ’s emotional instability during contact and the negative impact of this on the children.

31. Child Protection Orders were granted in November 2007 and renewed in February 2008. At the time of the hearing applications for further extension of the Child Protection Orders were before the Children’s Court.  On 26 November 2009, the Department made the decision to change the application seeking long term guardianship orders for all eight children.

32. Throughout the children’s placement in out of home care, IJ and PD have maintained contact with their children. During 2009, contact arrangements changed on a number of occasions and were restricted for periods of time. The Department’s reasons for these restrictions were related to IJ’s behaviour at contact. Supervision of contact by Departmental and support staff has been in place since January 2009.

33. Prior to the 7 October 2009 decision to further restrict contact, both IJ and PD’s contact with the children was supervised weekly contact for two hours. Incidents occurred at contact on 5 October 2009 that led to the decision to restrict contact.

Applicants Proposition

34. The contact remedy sought by IJ and PD was to have weekly contact at the family home reinstated. PD expressed a preference to maintain all 8 children at contact together to enable sibling contact.

35. At the Stay hearing, IJ acknowledged that he has demonstrated impulsive anger at times as a result of frustration at the lack of progress towards reunification with the children and the close scrutiny he feels he is under from Departmental personnel. He described the circumstances around contact as sometimes being overwhelming ‘with 22 people in a 2 bedroom flat’. His anger is directed towards Departmental officers and he describes its expression as ‘impulsive’ ‘cheeky’ and ‘sarcastic’.  IJ described feeling overwhelmed and confused about what was required of him by the Department and that nothing seemed good enough including his abstinence from illicit drug use. IJ claims Departmental Officers are not in physical danger from his anger.

36. IJ acknowledged that he did threaten to self harm and throw himself off a building if the Department didn’t pull their fingers out towards reunification. He acknowledged that threats of self harm which he described as ‘impulsive’ would be concerning to others.  At the time of this incident he said that he felt particularly isolated from support, particularly that of his Mother, with whom he has not had contact since the October 7 decision, because of her role as IJj’s and IP’s carer.

37. IJ also acknowledges that he can be emotional in his interactions with his children. At the Stay hearing IJ cited his last telephone contact which his sons IJj and IP, who reside with his parents, where IJj and IJ were emotional because IJj wanted to see his dad.  There has been no further contact with the boys since this incident.  IJ believes he did not act inappropriately on this phone contact.

38. IJ told the Tribunal that he understood the importance of not expressing his frustrations with the Department in front of the children. In relation to the alleged incidents that occurred at contact on 5 October 2009, IJ described the incident with IK as him reprimanding IK for hitting ISh by comparing IK hitting ISh to IJ hitting the children’s mother PD, to highlight the cruelty of IK’s action.

39. IJ denied that he uses physical violence towards PD or that he screams at her during contact.  He acknowledged that they have their ‘ups and downs and disagreements’. At the Stay hearing PD supported IJ’s statements about there being no violence in their relationship and that IJ does not scream at her at contact. PD told the Tribunal that she does not feel threatened by IJ. In PD’s view IJ is calmer since he has been on medication following his period in hospital in October. She gave an example of the recent stress of their moving house as example of IJ not rising to anger in the face of a stressful situation.

40. IJ believes that his emotional and psychological symptoms may indicate that he has Borderline Personality Disorder.  He confirmed that following the contact incident on 5 October he was hospitalised for 4-5days.  In his application he described this period as ‘having a mental breakdown’. Subsequently, IJ has been referred to a private psychologist but his treatment had not commenced at the time of the Stay hearing.  IJ expected to see the psychologist for 12 sessions with 3 sessions between 8 and 25 December 2009. Dr. LT, his General Practitioner provides informal counselling up to two visits per week and has done so for over 4 years. Following the October hospitalisation, IJ’s daily medication for mental health issues remained the same, being 1 nocte of 5mg strength Diazepam for anxiety and 30 mg Avanza for depression.

IJ’s mental health

41. Dr LT provided evidence by telephone at the Stay hearing.  Four letters from Dr LT were also submitted in the application to the Tribunal. One letter dated 15 October 2009 addressed to the Department of Child Safety provided medical treatment information (as per paragraph 41 above). All four letters contained information from Dr LT of an advocacy nature, in particular focusing on the impact of removal of the children on IJ. Dr LT described his relationship with IJ as being of a supportive counselling nature in addition to his General Practitioner role. He has been treating IJ for over 4 years.  Dr LT was aware of Departmental concerns about IJ’s anger management but told the Tribunal he was less aware of the issues surrounding contact with the children. Dr LT’s oral and written evidence was consistent with the evidence provided by IJ. Dr LT described IJ’s motivations and behaviours as:

a.Cares for his children greatly and has a goal to have access to his children once or twice per week

b.Does not suffer from rage or loss of control

c.Is proactive in addressing his behaviour and understands that he needs to manage the expression of his frustrations

d.Is motivated to take his medication to deal with his mood swings

e.Is open to suggestions about how to respond to rules and deal with officials

f.Recognises how destructive his impulsive criminality has been in his life

g.Is generally more calm and lucid and less reactive since being stabilised on his medication.

42. Dr LT was not satisfied that IJ has the profile of someone with Borderline Personality Disorder, as in his opinion IJ does not demonstrate the trust and self focus issues that are typical of Borderline Personality Disorder.

43. The Department’s case plan and contact restriction decision includes the provision that a mental health assessment of IJ is required for the Department to ensure the safety of workers and the children at contact. The Department provided evidence about IJ’s recent mental health background and issues from the service agencies.

44. Princess Alexander Hospital (PAH) and Logan Hospital confirmed IJ’s Emergency Department presentation for lower arm self inflicted lacerations on 5 October 2009 and self admission to the PA Hospital on 9 October 2009 with symptoms of emotional distress and suicide ideation.  The assessment of IJ at this time was that he was suffering from ‘situational crisis and an episode of self harm on a background of borderline personality traits, cannabis use, and reducing Methadone dose’.  IJ responded well to medication and was discharged on 14 October. PAH records also indicate presentations from IJ over the previous 3.5 years since the children were taken into care as including attempted hanging, superficial cutting and feelings of depression.

45. Following the Stay hearing in December, IJ agreed to participate in a mental health assessment and attended Emotional Balance and consulted with a Psychologist on three occasions from 11 December 2009 to 23 February 2010.  The psychologist reported that his preliminary assessment included IJ having issues with anger grief and loss, depression and anxiety, some trauma and struggles with alcohol and drugs while he is currently on the Methadone program. The psychologist reported at 23 February that he had been unable to complete an assessment of IJ’s mental health status due to IJ’s inconsistency in attending appointments.  He reported 6 broken appointments between 7 December 2009 and 23 February 2010. He expressed concern about IJ ‘struggling to sort his life out’ and his need to show commitment by attending services regularly.

46. Evidence was also provided by the Department that IJ had attended fortnightly counselling with a Personal support Worker for the first 6 months of 2009.  The program ceased due to the termination of government funding. The personal support worker, whose professional background is unknown, considered IJ had made some good progress but could benefit from ‘more intensive counselling and support and possible mental health intervention’.

47. At the hearing on 8 March, the Department submitted that IJ’s engagement with the Psychologist has to date been insufficient to provide a comprehensive mental health assessment, a treatment plan and consistent engagement in treatment and evidence of mental health stabilization.

48. Departmental evidence documents numerous occasions where IJ has been aggressive and threatening towards Departmental staff. Some staff report that they have been fearful for their personal safety as a result of these incidents.

Contact Issues

49.The Department acknowledged that in general the evidence is that the children look forward to seeing their parents at contact. Phone contact is generally positive with both parents when it occurs.  There are issues with commitment and consistency by both parents to phone contact.  Face to face contact issues and concerns have significantly resulted from IJ’s aggressive and emotional behaviour which he is unable to control in front of the children.

50. The Department’s decision to restrict contact was triggered by a specific incident that occurred at contact on 5 October 2009. This incident subsequently triggered a review of contact by the Department resulting in a stronger emphasis being placed on future contact stabilisation and consistency for the children consistent with a changed focus to long term placement planning and long term orders.

51. IJ and PD provided limited evidence about the incident at contact on 5 October. IJ denies showing aggression towards any of the children on this or any occasion. He argued that he was merely disciplining IK. He does not believe the children were at risk from his behaviour towards them on this or other occasions. At the Stay hearing IJ acknowledged that on the morning prior to contact on 5 October he self harmed.  He did not disclose the circumstances surrounding his emotional state.

52. Daniela Sachse, Child Safety Officer, provided written evidence from Departmental records about both parents presenting with injuries at this contact. PD was recorded as having a bruised right eye and IJ had both of his arms bandaged. Christine Slade, Child Safety Support Officer, Allison Hyman, Youth Worker and David Teunis, Youth Worker were all present at the contact on 5 October and provided written statements detailing IJ’s highly emotional, agitated and threatening manner  towards supervising staff and aggressive interactions with IK. Christine Slade provided evidence about the children witnessing some of these interactions causing them to be distressed and crying and concerned for their mother PD’s safety. Christine Slade also provided evidence about IJ’s interaction with IK about being mean to his brother IB.  This interaction, described by IJ as disciplinary, was described by Christine Slade as IJ being angry and loud and aggressively challenging of IK. Christine quoted IJ as saying “would you like it if I punched your mother in the head, would that make you happy?” David Teunis witnessed the interactions between IJ and Christine Slade and IJ and IK and provided evidence consistent with Christine Slade’s about these interactions and their impacts in distressing the children who witnessed or were subject to them.  On the way home from contact, IK told David Teunis that he did not want to see his father anymore only his mother. ISh, IS and IN wrote and gave letters to IJ at this contact telling him they loved him but didn’t want him to be silly.

53. During 2009, Departmental records indicate that for anther period in March, IJ’s contact was restricted as a result of angry, demonstratively emotional and threatening behaviour conducted in the presence of the children.

54. IJ told the Tribunal at the Stay hearing that he had difficulty in accessing a telephone at times for telephone contact.  He agreed that he could attend the Department of Child Safety for telephone contact when private access was difficult. The Department provided evidence that IJ had participated in six of 19 possible weekly telephone contacts with the children between 5 October 2009 and 25 February 2010.  Six telephone contact occasions in December, January and February following the Stay hearing were missed. On two occasions in January IJ attended the Child Safety Service Centre for telephone contact.

55. In relation to future contact, the Department submitted that one of their requirements was a regular commitment to phone contact by IJ before reinstatement of face to face contact could be considered.

Impact of domestic violence on the children at contact

56. The Departmental decision to restrict contact included the Department’s view that a domestically violent incident between IJ and PD had occurred on 5 October 2009 resulting in injuries to IJ and PD.  IJ had his arms bandaged and PD had a bruised right eye. These injuries were visible to the children at their contact visit on 5 October 2009.  When interviewed by Departmental personnel on 8 October, PD denied that her eye injury was due to domestic violence and occurred from an accident involving a car door 11 days prior on 24 September. PD’s report of the car door accident resulting in a black eye was later verified by an incident report from a youth worker, Leonne Jones.

57. Police records indicate that during 2009 the police attended IJ and PD’s residence on two occasions, 6 May and 17 November, investigating concerns about domestic violence. Police did not take further action on 6 May following reports from IJ and PD that they had had a verbal argument only.  Police records of their interview with PD on 6^th May report her as stating that over the past few months the level of domestic violence had escalated, that previous altercations had been verbal only and never resulted in physical assaults or property damage and that IJ is dependent on his methadone medication and becomes violent and abusive if he doesn’t take it. Police assessed that the likelihood of further domestic violence will increase. On 17 November, the police detained IJ and made an application for a Temporary Domestic Violence Order. PD was observed by Police as having a cut and swollen right eye.  PD did not call the police and refused to make a formal complainant.

58. On at least two occasions, Departmental officers report that PD has made disclosures about domestic violence perpetrated by IJ in the past.

59. IK and IS are reported to have made disclosures to Christine Slade on 5 October of their father being physically violent to PD in the past. The Department submitted that domestic violence in IJ and PD’s relationship remains an issue of concern impacting the children and creating fear and anxiety for them about their mother’s safety.

Social Assessment Reports

60. A Social Worker and specialist in child and family welfare and industrial assessment reports, undertook a social assessment on behalf of the Separate Representative. The first report was completed on 19 November 2009. Its purpose was to inform the Court in regard to Child Protection Orders for all 8 children. A further report dated 23 January 2010 was completed by the Social Worker.  This report focused on contact issues and the children’s views and wishes around contact and whether the children wished to be represented directly or through a Separate Representative.

61. In preparing the January assessment report, the Social Worker interviewed IB, IS and ISh face to face and IK by telephone. IN and the three younger children were not reinterviewed for the second report however IN and the other four older children were interviewed on 23 September 2009 for the preparation of the first report. The children who were interviewed twice within a  4 month period maintained similar views about where they wanted to live, how much contact they wanted with their parents and issues impacting on contact quality and safety. The report writer however noted that IB, IS and ISh’s overriding concerns in the second interviews were where they were to live in future and how they were to see their parents if they were not to return home in the near future.

62. The social assessor formed the view that all children maintained a reasonable level of attachment to their parents despite being in care for a significant period of time.  It was concluded that in part attachment relationships have been maintained by a diligent and regular contact

regime.  For most of their time in care all children have maintained weekly contact with their parents and weekly or fortnightly contact with each other.

63. The social assessor reported that the parents maintain a fervent commitment to reunifying their family.  However they have been unable or unwilling to significantly address their personal and relationship dysfunction or recognise the deficits in their caring environment that led to the placement of their children in care. These significant risk factors have largely persisted.  A significant indicator of the persistent risk factors is the ongoing requirement for contact supervision.

64.The assessments identified significant issues relevant to contact decisions as being:

a.Concerns about the parent’s diligence with contact

b.Parents conduct during contact including IJ’s propensity for aggressive/emotional responses to the children or organisational personnel and PD’s passive acceptance of IJ’s conduct

c.Long term planning for the children

65. The report writer considered the November decision by the Department to seek long term orders for the children and noted the significantly different

and less intensive contact that might be appropriate if long term orders are achieved. The report writer opined that maintenance of the children’s current attachments to their parents in a reduced contact regime should not however be compromised.

66. The social assessor concluded that the current contact arrangements, including the decision to restrict the father’s contact to telephone contact, are appropriate at this time. The social assessor also recommended that thorough assessment of IJ’s explosive anger and contrasting emotional presentation is required irrespective of future case planning decisions. It is also suggested that PD would benefit in her personal and relationship functioning by participating in a similar assessment and therapeutic process.

Separate Representative’s Views

67. The Separate Representative told the Tribunal that the children’s views generally are that they want contact with both of their parents but are disquieted by their father’s behaviour. IK most recently has expressed that he does not want to talk to or see his father at this time. The Separate Representative did not consider IK’s views to be reliable or consistent because of his emotional and behavioural difficulties. IN has consistently expressed the view that she is embarrassed by her father’s anger and chooses not to attend contact some times. More recently ISh has been expressing ambivalence about how much contact she wants. The Separate Representative noted the delicate nature of contact in the children’s lives, with the older children having a ‘parentified’ involvement in their mother’s life, demonstrating distress symptoms if they do not see her and trauma symptoms if they have contact and are concerned for her safety and well being.

68. The Separate Representative supported the Social Worker’s recommendation and the Department’s decision about contact at this time.

THE TRIBUNAL’S VIEW

69. The Tribunal accepts the Department’s submissions that while a domestic violence incident prior to contact on 5 October was not substantiated, the remaining reasons are sufficient if substantiated, to support the decision for restricting contact.

70. The Tribunal is satisfied that IJ’s behaviour on 5 October contributed to significant stress experienced by all of the children at contact. Witness statements from three adults present consistently documented IJ being verbally aggressive and threatening to Departmental staff in front of the children and aggressive towards IK. When interviewed in January, ISh and IS demonstrated insight into their father’s inappropriate behaviour, describing it as dad “mucking up” and “acting stupid, not taking medication”.

71. IJ’s behaviour towards IK on this occasion goes beyond acceptable parental disciplinary behaviour.  The Tribunal therefore does not accept IJ’s evidence that he is not aggressive towards his children. It is also patently clear from witness statements that all or most of the children were exposed to aggressive and disturbing behaviour on 5 October that caused them significant distress at the time which was demonstrated by their crying, reluctance to leave their mother and comments to staff on their travel home.

72. IJ’s aggressive and emotional behaviour is not isolated to this one occasion. There is significant evidence in Departmental records and witness statements of this being frequent, episodic behaviour going back at least to the beginning of 2009 when the Department resumed responsibility for contact supervision. The Tribunal accepts the social assessor’s view that significant concerns in relation to IJ’s emotional stability, inability to control demonstrative and excessive emotional displays, lack of control in front of the children and insight into the effects of his behaviour on the children were presenting factors leading to the children being taken into care and remain currently as relevant.

73. The Tribunal accepts that IJ’s aggressive behaviour is largely not directed towards the children. However the children are frequently exposed to IJ’s aggressions towards other adults, particularly Departmental personnel. There is also significant evidence that IJ is at times highly emotional towards the children. IJ’s and his witness Dr LT’ explanation of this emotional behaviour is expression of frustration about the children being in care. The Tribunal accepts the report writer’s assessment that this level of emotional expression is inappropriately directed towards the children and is likely traumatising for them.  Rather than the rational expression of a frustrated parent as argued by Dr LT, the Tribunal is of the view that IJ’s level of emotionality is a symptom of insufficiently addressed mental health issues.

74. From the material before it, including primary records of criminal and domestic violence history and secondary mental health reports, the Tribunal  accepts the submissions from the decision maker and the social assessor that in an in-depth psychiatric assessment, treatment plan and consistent participation in treatment is likely to be required to address IJ’s long term behavioural dysfunction. To date, while episodic engagement with mental health services has occurred, a substantive diagnosis and an ongoing treatment plan have not been developed.  The Tribunal notes that IJ’s engagement with mental health services has been self initiated and that his treating General Practitioner is positive about his motivation and capacity to sustain his commitment to a treatment plan.  To date this has not occurred despite commencement of an assessment process in December 2009. The Tribunal commends IJ to sustain this commitment for his own wellbeing and for the benefit of his relationship with his children.

75. The Tribunal accepts that IJ’s inadequate mental health diagnosis and treatment and subsequent unstable emotional and psychological functioning negatively affects his relationship with PD to the extent that his behaviour is verbally abusive towards PD and on occasions physically abusive.  The Tribunal accepts that the police report of the domestic incident on 17 November 2009 indicates that the incident included PD being physically assaulted and that the likely perpetrator was IJ. The Tribunal is concerned that PD for the most part covers up and denies the emotional and physical domestic violence in her relationship with IJ.  PD’s evidence to the Tribunal in this regard is not accepted as credible. PD’s denial of the violence in her relationship with IJ is a significant barrier to addressing it and contrary to her reported views, has harmed rather than protected her relationship with her children and directly harmed the children themselves. 

76. The Tribunal has not found any evidence that PD’s behaviour at contact is in any way inappropriate and in any way causes stress to her children.  Contact supervisors attest to her child appropriate planning for contact and her positive interactions with each child and the children as a group. She is described as affectionate, conciliatory and calm. Criticisms levelled at PD about her passive acceptance or avoidance strategies of IJ’s aggression towards the children and others at contact are likely to be accurate and indicative of her enmeshed and passive role in her relationship with IJ. In this regard her protective ability is compromised. 

CONCLUSION
The Tribunal concludes:

77. The issues impacting IJ’s behaviour on 5 October 2009 and leading to contact restrictions are indicative of significant mental health issues occurring for IJ at the time. Soon after, IJ was voluntarily hospitalised in a mental health ward for 6 days. If IJ is able to stabilise his mental health through appropriate assessment and consistent commitment to treatment, reinstatement of face to face contact consistent with maintaining his attachments with each of his children and the case plan goals should occur. At least the four oldest children, IN, IK, IB and ISh should be consulted about their views about contact with their father at this time.

78. IJ’s restriction to weekly telephone contact is sufficient to maintain his bonds with his children while he is working on stabilising his mental health. Demonstration of regularity of telephone contact as well as stability in his emotional regulation is required before face to face contact should be considered.

79. The current contact schedule for PD of two hours per week face to face supervised contact will all 8 children is sufficient to maintain family bonds and an appropriate amount of contact while long term guardianship is being determined. 

THE DECISION

80. The decision of the Department of Communities (Child Safety Services) to restrict and impose conditions on contact between IJ and PD and their children is CONFIRMED.