Im, FG v Department of Communities (Child Safety Services)
[2010] QCAT 54
•8 January 2010
| CITATION: | IM, FG v Department of Communities (Child Safety Services) [2010] QCAT 54 |
| PARTIES: | IM FG Department of Communities (Child Safety Services) |
APPLICATION NUMBER: CSR142-09
| MATTER TYPE: | Children’s matters |
HEARING DATE: 5 & 6 November 2009
| DECISION OF: | Ms S. Watters, Ms J. Bakermans, Ms S. Bothmann |
| DELIVERED ON: | 8 January 2010 |
ORDERS MADE: The decision of the Department of Communities (Child Safety Services) to restrict and impose conditions on contact between IM and FG and their three children FN (born: 1992), FC (born: 1993) and FB (born: 1995) is CONFIRMED.
| CATCHWORDS : | Review of decision of the Department of Communities (Child Safety Services), sections 78, 86(2), 86(4), 87(2) & 89 of the Child Protection Act 1999, s.40(3) of the Children Services Tribunal Act 2000 |
REASONS FOR DECISION
HISTORY OF THE APPLICATION
On 12 March 2009 the (then) Department of Child Safety (the Department) made application for a Child Protection Order to supervise the protection of FN, FC and FB for a period of one year. A completed investigation and assessment of the family concluded that FN had been significantly physically harmed by excessive physical discipline by their parents IM and FG, including the use of implements such as a cricket bat and a saucepan. The application sought that the three children remain in the care of their parents under a Protective Supervision Order.
On 14 May 2009, FN, FC and FB were placed in foster care and an application for a Court Assessment Order was made during which their custody was granted to the chief executive.
On 12 June 2009 the Department applied to the Children’s Court for long term guardianship orders to the chief executive to be made in respect of FN, FC and FB.
On 22 June 2009, an interim order was made granting custody to the chief executive of the above named children. The order included the direction that IM and FG not have contact, direct or indirect, with the three children other than when a Departmental representative is present. The order also provided that the children be separately legally represented.
By letter dated 8 July 2009 the Manager “C” Child Safety Service Centre, Department of Communities (the Department) advised of her decision to place FN, FC and FB together in a residential care placement operated by Accommodating, Responsive and Creative Disability Services (ARC). ARC is a community based organisation, supported by Disability Services Queensland that provides support services to children and adults who have disabilities. FN, FC and FB are accommodated in a house where they are the only residents. The letter advised of the location of their children’s placement. The letter also advised IM and FG that the children had resided at this placement since 14 May 2009.
By letter dated 13 July 2009, the Departmental decision maker decided to restrict and place conditions around contact between the three children and their parents. The contact decision provided for twice weekly contact on Monday and Friday from 3.30pm to 4.30pm, a total of two hours per week. This contact schedule of two hours contact per week has remained constant since the children were placed in foster care.
The letter conveying the decision identified the reasons for the restricted contact as being:
(i)Two contacts per week assessed as sufficient in meeting the children’s needs for contact with their parents.
(ii)Significant concerns noted during contact visits including the parents not being child focused, the parents not attending contact visits on time, the parents repeated questioning of the children in relation to the child protection concerns and the parents using the contact time to ‘question and slander’ the Department of Communities.
(iii)The Department’s intention to apply for long term guardianship and commence permanency planning rather than a case plan goal of reunification with the parents.
IM and FG applied to the Children Services Tribunal (the Tribunal) to have a number of decisions reviewed under sections 78, 86(2),86(4), 87(2) and 89 of the Child Protection Act 1999 (the Act). The application for review was for a stay of the decisions. The application was received by the Tribunal on 1 July 2009.
A Preliminary Conference and Stay Hearing was held on 5 August 2009.
At this hearing, the Department made a submission for the President to dismiss the application under section 40(3) of the Children Services Tribunal Act2000 (CST Act) on the basis that the Children’s Court will in the near future decide and make orders in relation to the matter to which the reviewable decisions relate.
On 6 August 2009, the Tribunal made the following orders:
(1) The application for a stay of the decision made on 13 July 2009 to restrict and place conditions around contact between IM and FG and their children was not granted for the following reason:
(a)The decision in relation to contact was an original decision therefore the Tribunal has no jurisdiction to grant a stay.
(2) The application for a stay of the decision made on 8 July 2009 to place the children in a residential care environment is not granted for the following reason:
(a)The President of the Tribunal has suspended the application in relation to the placement of the children pursuant to section 40(2) of the Children Services Tribunal Act 2000.
(3) The application in relation to section 86(4) of the Child Protection Act 1999 was dismissed as IM and FG were advised in writing on 8 July 2009 the location of the subject children’s placement.
(4) A hearing relating to the contact decision was set down to take place at the Cairns Courthouse on Thursday, 5 and Friday, 6 November 2009 commencing at 10am.
(5) A Separate Representative was appointed for the children.
(6) Leave was granted for the applicant to be represented by a lawyer or agent (s66 CST Act).
(7) At least 14 days prior to the hearing date, each party shall supply to the Tribunal a list of witnesses, witness statements and all other documentation to be relied on at the hearing.
On application, permission was granted for the separate representative, Michael Purcell of Purcell Taylor Lawyers and the report writer, Mr Robert Walkley, Psychologist to attend by way of telephone.
A further application was received by the Tribunal on 29 September 2009 in relation to contact. These applications were dealt with together at the hearing.
The Issues and the Legislation
On 12 June 2009, the Department made application to the Children’s Court for long term child protection orders granting guardianship to the chief executive for each of the children until they attain the age of eighteen years.
An interim hearing was held on 22 June 2009 and interim orders made granting temporary custody of all three children to the chief executive and directing IM and FG not to have contact direct or indirect, with the children other than when a departmental representative is present.
The hearing in the Children’s Court remained on foot when the Tribunal conducted its hearing in relation to contact. The Department’s application was being contested by IM and FG.
The application in relation to placement of the children, suspended by the President of the Tribunal on 6 August 2009, may be enlivened by the applicants IM and FG after the Children’s Court makes a final determination about custodial orders.
The issue for the Tribunal therefore at the hearing conducted on 5 and 6 November 2009 - is it in the best interests of the children for their contact with their parents to be restricted to two hours contact per week at a venue outside of the family home at this time? The issue of supervision of contact, being subject to the interim order of the Children’s Court, was not within the Tribunal’s review jurisdiction at this time.
The legislation relied upon in this matter:
The application by the applicants was made on 1 July 2009 under the Children Services Tribunal Act 1999 (CST Act). On 1 December 2009, the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) was enacted and the CST Act repealed. The hearing of this matter was conducted on 5 and 6 December 2009. The transitional provisions in section 271 of the QCAT Act therefore apply to this matter:
s271 Conduct of proceedings generally
QCAT must deal with the matter the subject of the existing proceeding under this Act or an enabling Act
However, in relation to the matter – QCAT has, and only has, the functions that the former entity had in relation to the matter under the former Act; and
QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.
The enabling Act referred to in s271(1) relevant to this matter is the Child Protection Act 1999 (CP Act) as amended by the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009.
Section 4 of the CP Act provides that the purpose is to provide for the protection of children.
Section 87 of the CP Act provides that if the Chief Executive restricts contact between a child and the child’s parents, the parents may apply to the Children Services Tribunal for a review of the decision.
Section 87 (1) and (2) provide as follows
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
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 . . .
Section 20 of the QCAT Act provides:
(1)The purpose of the review of a reviewable decision is to produce the correct and preferable decision
(2)The Tribunal must decide a review of a reviewable decision by way of a fresh hearing on the merits
Section 24 (1) of the QCAT Act provides that in proceeding for a review of a reviewable decision the tribunal may:
(a)confirm or amend the decision or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the tribunal considers appropriate.
In reviewing a decision the tribunal needs to take account of Section 99D of the CP Act - the principles for the tribunal in matters relating to this Act, which requires the tribunal to have regard for the Principles for Administration of the CP Act as laid out in s 5, most notably that the Act is to be administered under the principle that the welfare and best interests of a child are paramount. Subsection 2 of that Section outlines other principles that must be adhered to.
THE PARTIES
The Applicants, IM and FG, were not represented at the hearing. They presented their own case.
The respondent Department’s Court Services Advisor, Janine Erb put the Department’s case. She was supported by the decision maker, the Manager, “C” Child Safety Service Centre. the Senior Practitioner, the Acting Team Leader and the Court Coordinator also assisted.
The children were represented by a separate representative, Michael Purcell, solicitor with Purcell Taylor Lawyers.
EVIDENCE ABOUT THE DECISION
In addition to the written material contained on the Tribunal file, all of the parties attending 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
IM and FG have four children FN, FC and FB who are the subject children of these proceedings and FD (born 1989).
All four children are diagnosed as having severe Autism Spectrum Disorder. All four children have limited verbal communication ability and high support needs in relation to both their behaviour and personal support needs. FN is reported as being the highest functioning of the children.
IM and FG have been the primary carers for their four children throughout their lives until the most recent child protection intervention. They have had assistance from Disability Services Queensland mainly in the form of funding for monthly weekend residential respite support. IM has worked in various jobs to support the family including a period at “ C” TAFE during 2003-2005 assisting students with special needs. Mitch told the Tribunal that he hasn’t worked since 2006 when the ‘first significant child safety intervention’ occurred. FG has been a stay at home mother.
FN, FC and FB attend “C” High School Special Education Unit. FB remains living at home with his parents.
The family have been in receipt of a high band support package through the Department of Communities, Disability Services (DS) since June 1999. Disability Services report that the family have developed their own informal communication system including the use of gestures. Disability Services observations, support and provision of ‘considerable resources’ over a number of years has led them to conclude that intervention has been unable to improve the parents’ child behaviour management techniques or provision of appropriate play, life skills and other learning activities within the home.
In a report prepared by MB, Acting Manager Professional and Specialist Services Disability Services, dated 12 June 2009, Disability Services expressed ongoing concerns about the children’s welfare in the domestic setting, the children’s and mother’s safety from domestic violence and the parents’ ability to continue to care for the children in the home as they develop and mature. The report notes a history of violent events reported to Disability Services and other statutory agencies over a number of years including observations from support workers of FN appearing to be frightened and intimidated by his father and both parents not having developed appropriate and effective strategies for diffusing Ned’s challenging behaviours, instead reacting impulsively using violence and physical restraint.
The report writer notes that:
“The family are facing serious issues associated with adolescence, sexuality and the long term prospects of six adults living in the home. The situation is expected to continue for a number of years until all the children reach maturity.”
Further that:
“The family home environment is not high in stimulation or quality parent-child interaction ...” and therefore doesn’t provide the consistent development opportunities the children need to transition into adulthood.
Child Safety Services records indicate an extensive and ongoing child protection history in relation to the family spanning from July 1995 to the present time. Over this period, 8 Child Protection notifications were recorded, 7 of which were recorded as substantiated harm to the children with the parents being responsible. On 3 of these occasions (February 1998, November 2006 and March 2009), Departmental assessments determined the children to be at unacceptable risk of future harm and the children in need of protection.
Departmental intervention on these three occasions was to enact casework support to assist IM and FG to meet the children’s care and protective needs and work with the department to minimise the risk of future harm to the children.
During the most recent Protective Supervision Order application period from March to May 2009, the Department’s Statement of Reasons indicates that multiple attempts were made to communicate with IM and FG without success. IM and FG are reported as refusing to engage in a Family Group Meeting or case planning processes and the Department continued to receive concerns in relation to the children’s safety.
Applicants Proposition
The contact remedy sought by IM and FG was to increase contact from two hours weekly at the contact centre to week-end contact to occur at the family home. They believe that weekend would be less confusing and more enjoyable for the children.
IM and FG saw this as a contact option that supported a ‘transition to reunification’ of all three children with their parents. It was difficult for IM and FG to separate the contact issues from the placement issues as they were currently contesting the placement matter and had the view that the Department would not be successful in obtaining a long term guardianship order. They do not believe that the children are better off in their current placement.
IM and FG described the current contact as ‘going stale’ and ‘feeling hollow’ and the children, particularly FC and FB as getting more distant. This was attributed to the limited contact the children were having with their parents and the limitations of contact occurring at a contact centre.
Weekend contact in the family home is more conducive to family interaction and would allow different activities such as FG taking the children to the weekend market, the children having access to their familiar possessions at home such as their personal computers and FC’s favourite teddy.
In relation to what the Department describe as a ‘pattern of inappropriate behaviour’ by IM during contact, IM acknowledged that there were a number of issues that upset him that impacted his behaviour towards Departmental personnel at contact. The main issues were:
(i)Ned not attending contact for a period of 6 weeks;
(ii)Ned missing an opportunity for a day on the Endeavour due to poor communication between the Child Support Officer (CSO) and IM about parental consent requirements;
(iii)the attendance of Robert Walkley, the social assessment report writer, at a regular scheduled contact visit which was seen as intruding on contact time uninvited;
(iv)transaction of Departmental business and communications by the CSO during scheduled contact time;
(v)impact of the contact supervisor. IM described a short period where contact was supervised by a male Departmental worker which was ‘calmer’ and everyone had a good time laughing and singing during contact;
(vi)general frustrations with the relationship and communication with the Department due to raising issues and getting no responses. IM thought that his behaviour at contact improved after he had a meeting with the senior members of the Department on 22 September 2009 to discuss these issues and frustrations.
IM and FG, when asked to comment on the contact rules established by the Department, indicated that they were not involved in any discussion to establish and agree on the rules with the Department and that there were a number of the rules that they didn’t agree with such as having an arrangement for approval of additional contact attendees if family members are visiting on short notice and more communication through a communication book about how the children are going from week to week if these issues are not appropriate to discuss with them at contact.
In relation to evidence that IM and FG were regularly up to 15 minutes late for their one hour contact session, IM acknowledged a number of occasions when they were late due to transport issues or delays in FD’s carer arriving. He didn’t agree with the magnitude and frequency of lateness as reported by the CSO.
IM expressed the view that the children have always positively progressed in their development except for the recent regression experienced by FN in 2008-2009.
ARC Disability Services
CJ is a House Facilitator with ARC and has worked with the three children since their placement in the ARC facility in May 2009. BL is a Support worker with ARC who has also worked with the three children since they came into care in May 2009. CR is the Coordinator of ARC supported accommodation services and her report is compiled from staff files and also her own observations attending the facility where the children reside once per week or once per fortnight. All three gave evidence in person and in written statements. A witness statement was also provided by MJ, support worker, who was not called on to give oral evidence.
Overall ARC reports the three children to be settled and thriving in their residential facility after an initial period of being unsettled. The children are reported to be embracing the routines and responsibilities required of them in the house, enjoying the structure and their chosen range of activities in the house and in the wider community All three children are reported to have increased skill in independent living tasks such as showering, food preparation and maintaining meal time behavioural standards. They interact with their support workers well and are able to initiate conversation. FN is reported to display OCD behaviours to the extent that they regularly inhibit his daily routine. Generally, FN is reported to have adapted least to the change of living circumstances and is understood to blame himself for the children no longer living at home.
On a number of occasions, CJ has observed increased obsessive compulsive behaviour (OCD) from FN before and after contact has occurred. When FN demonstrates OCD behaviours prior to contact, CJ has discussed with FN his preference to attend or not attend contact. CJ informed the Tribunal that on some occasions a number of staff have been involved in determining if FN wishes to attend contact including CR of ARC, himself and BC the Child Safety Officer (CSO).
CR told the Tribunal that FN has not or has not been able to articulate reasons for not wanting to attend contact but is clearly able to express when he does not wish to attend by saying ‘don’t want to go’. On a number of these occasions FN has not attended contact. FN has also been distressed when contact has not gone ahead. On these occasions, CJ believes FN’s OCD behaviour has been easier to manage in the residential home as he is more relaxed there. CJ acknowledged that FN displays OCD and self harming behaviours at other times such as when he feels pressured to do something he does not wish to do (e.g. have a shower). BL identified OCD behaviour in relation to FN’s school attendance at times. CJ told the Tribunal that at times FN needs to be restrained to prevent him from self harming (e. g. hit his head on a brick wall). During the September / October 2009 school holidays all three children attended access visits regularly including JN who was observed to be happy and relaxed before and after contact.
CJ’s observations of FC after returning from contact is that she tends to be more withdrawn and will often go to her room. CJ observes all three children to frequently be more hyperactive after contact, he believes as a result of them eating ‘junk food’ provided by their parents at contact. CJ and the CSO discuss what the children have eaten and drunk at contact and he has observed a pattern between the food and drink consumed and the children’s behaviour. RC confirmed that staff report this occurring on average once per week.
ARC has a clear and modest system of rewards e.g. a weekly treat of a biscuit and soft drink which FB and FC are said to have adapted well to. All the ARC workers reported improved social interactions between the children and with others.
Cairns State High School Inclusion Program Staff
The Tribunal received written statements from the following staff of “C” State High School:
Head Special Education Services, since 1998, administrator of Inclusion Program
Inclusion Program Teacher, since 2006, has taught FB and FC Leisure for 2 years
Special Education Teacher, since 1995, has taught FB Independent Living and Performing Arts for two years and FC various subjects since she commenced high school including Independent Living and Performing Arts for the past year
Special Education Teacher, since 1997, has taught FN Newsletter for 3 classes per week
Special Education Teacher, since 2007, teaches FB Independent Living and English, teaches FC Independent Living, English and Catering , teaches FN Catering and English is FB’s, FC’s and FN’s form teacher and school Case Manager
Teacher since 2006, teaches FB Functional Maths and Cooking and FC Functional MathsIn addition, the Head Special Education Services and Inclusion Program Teacher appeared in person.
The Tribunal positively noted the experience and specialist qualifications of the staff team as well as their employment history at “C” State High School and length of engagement with the children. The Head Special Education Services particularly impressed the Tribunal with her extensive specialist knowledge and experience in working with children with intellectual disabilities and autism over a twenty year period within schools, in residential settings and in behaviour management roles. She has been at “C” State High School since 1998 and has known the children over a number of years since each of them have entered High
School. She had a period of leave in 2009 from May to August and was therefore not at the school when the three children were first placed in care.
She has observed IM and FG to love their children, to want the best for them and to be strong advocates for them. The relationship between the school and IM and FG has been both positive and difficult at times when different views have arisen about what is best for the children. She told the Tribunal the relationship between the school and the family, despite differences of opinion on some matters, has never been non co-operative.
When asked to describe any differences she has observed in the children’s behaviours and presentation from prior to them residing at ARC and the present she described each of the children:
FC as now presenting at school in a more clean and tidy state, more stable and calm, engaging in less self harming behaviours, crying less and having a greater capacity to participate in a wider range of activities.
FB as now presenting at school in a more clean and tidy state, more rested and alert and able to participate and ‘more ready for learning’. For example, the Inclusion Program Teacher reported that FB used to sleep in one out of three of her classes per week but no longer does this. FB is demonstrating less inappropriate and sexualised behaviour such as invading FN and FC’s space and inappropriately thrusting against FC.
FN has been demonstrating increasing anxiety behaviours for a period of time since 2008 which has affected his capacity to participate in programs and communicate. FN’s behaviour continued to escalate in 2009 and three days prior to the September 2009 holidays a decision was made for FN to have a break from school as it was considered his behaviours were making him vulnerable to offending his dignity. In term 4, the school has
received additional educational resources for FN of 3 hours per day that he is eligible for as a child in care. This has enabled more one on one attention for FN which he is responding to well to the extent that it was said ‘we are starting to see some of the old FN now’.
One Special Education Teacher notes improvements in FC and FB’s attendance rates in her classes. FB and FC are noted as being absent 7 times in term 1, three times in term 2, no times in term 3 and no absences to date in term 4.
The drivers of FN’s increasing anxiety responses are complex in the Head Special Education Services’s view and would include factors to do with FN’s ASD, the complexity of the family relations resulting from 3 siblings also with ASD and the significant demands of providing the high level support, structure, routines and consistency necessary to minimise stress, confusion and anxiety of 4 children with ASD. She understood FN to be needing time out from his family prior to being taken into care, particularly from FB with whom he does not have a good relationship.
Overall, in her view the current care arrangements for the three children have supported an improvement in the children’s school performance. When questioned by IM, she expressed the view that improvements in FN’s behaviours are more likely the result of his care arrangements than changes made to his school support and routine. This view is consistently supported by all of the evidence from teachers in relation to FB and FC but less clear in relation to FN. Another Special Education Teacher notes that FN has displayed symptoms of severe stress, anxiety attacks and compulsive behaviour though-out 2009 but also notes that FN’s anxiety attacks have not occurred in the past two months in Term 4 in her class.
Since FN has been in care and living at ARC, the Head Special Education Services has observed that he displays increasing anxiety behaviours at school the day after contact. Staff at the school have not observed different behaviour from FC and FB after contact.
In relation to any changes or increases in the contact schedule, the Head Special Education Services cautioned about the impact of routine changes on children with ASD in increasing confusion, anxiety and stress.
When questioned by IM and the Tribunal the Head Special Education Services did not recall having had a conversation with IM about ‘things never having been better between the school and the family’ just prior to the children going into care as stated in IM and FG’s evidence at ILI 024.
Departmental Submissions
The Manager “C” Child Safety Service Centre, BM, Child Safety Officer and RJ, Acting Administrative Officer provided written submissions. BM and the Manager also provided oral evidence.
BM is the Child Safety Officer responsible for case managing the family since June 2009. Her role includes acting as the contact supervisor. She informed the Tribunal that she has worked in the areas of adoption and child protection for 10 years in the United Kingdom before taking up this role with child Safety Services in “C” in 2006.
BM described her contact role as ‘observational’. She informed the Tribunal that she does not raise issues as they arise at contact because when she has done so in the past, suggestions have been dismissed by IM whom she said ‘did not like being told what to do’. She felt that the relationship and interaction between IM and the Department had become
a ‘battle’. If issues need to be raised she does so through her Team Leader. BM understands from other contact supervisors that there are examples of a less conflictual relationship between IM and the Departmental supervisors who have provided relief supervision.
BM gave evidence that during contact, the children spend most of their time on the computers available at the contact facility.
IM spends most of his time berating the Department in ways that BM described as ‘constant, loud, abusive’. IM does not actively engage with any of the children in activities. IM does intervene when there are issues between the children with appropriate diversionary strategies. IM and FG are said to persistently question the children about the house they are living in.
BM described FG as being more child focused at contact. FG brings food for the children, she is physically affectionate giving all of the children kisses and hugs, particularly FC, with whom she spends time brushing her hair. FG does not actively engage with the children in planned activities or with them on the computers. BM described FG as often ‘distracted’.
BM gave evidence that IM and FG attended most of the organised contacts but were ‘routinely’ 10 to 15 minutes late including on 7 September 2009 when Robert Walkley attended for the social assessment. Often no reasons are offered and on one occasion when BM enquired, IM advised that he had problems with his car.
RJ, who participated in two contacts to assist BM and take notes described IM on these occasions as often ‘abrupt’, ‘rude’, ‘angry’, ‘agitated’, ‘aggressive’. On one of these occasions, IM left the contact for much of the time to purchase food from KFC. RJ described the children as much calmer when IM was not there.
AP provided a written submission following the Preliminary conference of this matter where the issue of the location of contact was raised. IM and FG had raised at the Preliminary conference the option of contact occurring in the family home. AP conducted a home visit on 9 October 2009 with GJ, Senior Practitioner to assess the family home as a suitable contact venue. AP’s assessment concluded that the family home would not be a suitable venue for contact as it would be confusing and potentially distressing for the children as they may not understand, due to their autism, why they had to leave after the scheduled contact time.
Robert Walkley’s Social Assessment
Robert Walkley (Robert), a Forensic and Clinical Psychologist with twenty years experience, undertook a social assessment on behalf of the Separate Representative. Robert provided evidence by telephone. At the time of giving his evidence, Robert had not completed his report for the Separate Representative. He was awaiting a report from ARC Disability Services. He informed the Tribunal that he was awaiting this material to finalise his assessment of whether there are demonstrable improvements in FN, FC and FB’s stability and behaviour as a result of being in care, prior to finalising his report in the next week. He informed the Tribunal that his current view, pending the ARC report, was to support the Department’s application before the Children’s Court.
In undertaking his assessment, Robert attended a contact session to observe FG, IM and the children on 7 September 2009 for the scheduled1hour contact period. FN was not at this contact. Robert did not interview the children separately. He informed the Tribunal he attempted to do this but formed the view that there was nothing to be gained due to the limited verbal capacity of the children. It is also noted that IM and FG did not participate in an interview with Robert which Robert attributed to the influence of Dr Viljoen’s negative views about psychologists being taken on board by IM. IM confirmed that his decision not to participate in an interview for the social assessment was influenced in this way. He said he did not intend to be disrespectful of Robert Walkley but would have preferred to have the social assessment undertaken by a psychiatrist.
The Tribunal notes Dr Viljoen’s views are documented in an undated letter (at ILI-018) written between March and April 2009 to the Cairns Magistrate’s Court. In this letter Dr Viljoen complains about the Department of Child Safety’s decision making in removing the children from their parent’s care and attributes this to the Department employing psychologists whom he believes ‘are not trained to deal with psychiatric patients and are well known for their corrupt, vindictive, un-empathetic and bizarre decisions and total lack of accountability”. Dr Viljoen advises that he has been the family GP for fifteen years. The Tribunal also notes that the Department’s Statement of Reasons (DOC-004) documents that the parents continuing to participate in counselling with Dr Viljoen for relationship issues was one of the requirements of the 2007 case plan.
In general, Robert Walkley observed the relationships between IM, FG and FC and FB to demonstrate close, involved and loving bonds. In his view, the parents have evolved a skill set over a long period of time, under extremely difficult circumstances. Robert acknowledged that most parents would have make mistakes in similar circumstances and foresaw that the future presented even greater challenges due to the three children’s physical growth, development and sexual development needs.
When questioned by the Department about IM and FG’s interactions, Robert said he observed ‘a somewhat unequal’ relationship where IM is the power player/ authority role. He did not however observe any inappropriate or derogatory interactions between IM and FG.
Robert observed examples of both IM and FG using behaviour management techniques in managing the behaviour of both FC and FB appropriately. He also observed an incident where FB hit FC and the behaviour between them ‘got out of control’ and neither parent could effectively manage the children.
The main issue in relation to contact, in Robert’s assessment, is IM’s behaviour at contact in his interactions with Departmental personnel. Robert was confident that the observations he made of these interactions were consistent with how IM would behave in his absence, despite IM understanding that Robert’s role was to observe and report on contact issues as part of the overall social assessment report. On more than one occasion, Robert himself asked IM to ‘settle down’ or discontinue what he was saying and at no time did he have a sense that IM took his feedback and instruction on board or demonstrated an awareness of the impact of his behaviour on the children and others around. Some of IM’s behaviour was inappropriate to the extent that Robert said he would have terminated the contact if he was the decision maker.
Robert observed IM on a number of occasions engaging in angry, inappropriate ‘railing against’ the Departmental worker and ‘the system’. He observed this behaviour to upset the children leading to FC engaging in self harming behaviour and FB screaming. IM was observed to have an incapacity to insulate the children from his angry behaviour towards others and limited insight into the impact his behaviour had on the children emotionally and behaviourally.
Robert Walkley’s observations of contact led him to conclude that there are currently significant issues with the quality and nature of contact not being child focused due to IM’s behaviour. In his view, current and future contacts need to be child focused, involve the parents in structured activities with the children and require IM to demonstrate moderate and controlled behaviour at all times and maintain a focus on the children, their needs and his interactions with them.
FG‘s role and interaction, while not engaging in ongoing interaction with either FB or FC, included a range of mothering tasks and behaviours throughout the observed contact such as providing food and affectionate physical contact with the children, particularly FC.
In relation to the contact venue, Robert observed FC and FB to be at ease, familiar and secure at Choice. He believes the current venue at Choice to be a suitable venue for contact. Other venues may also be suitable if quality child focused activities and engagement are maintained. He was not able to comment in depth on the risks and benefits of contact occurring in the family home but was unsure of the benefit to be gained. He expressed the view that supervision would still be required if contact was to occur in the home and that Mitch’s current behaviour at contact at Choice raises issues and potential concerns about the safety of the Departmental worker who supervises contact.
Separate Representative’s Views
The Separate Representative accepted that there has been marked improvement in the three children in recent months. He submitted that the quality of contact rather than the quantity is most important. If IM was able to insulate his negative behaviour from the children at contact, a ‘suck it and see’ approach to increasing contact might be taken. However, there is a significant risk that increases in contact could prejudice the improvements the children have made in recent months.
Department of Child Safety Services Final Submission
As there was no time at the hearing for final submissions from the parties, the Tribunal agreed to accept final written submissions. Child Safety Services provided a final written submission. No other submissions were received.
In its final written submission the Department submitted that contact remain as it currently is, that is:
Continue at the current location
Remain as supervised as ordered by the “C” Children’s Court
Continue as twice weekly for one hour
In summary, the Department’s reasons for maintaining the current contact schedule and conditions are:
(1)The parents have not provided a consistently child focused environment for the children during supervised contact;
(2)They have consistently provided ‘copious amounts of soft drink and junk food’ for the children at contact despite ongoing protestations from the Departmental about the impact of this food on the children’s behaviours after contact;
(3) Both parents consistently attend contact fifteen minutes late.
(4) There is a lack of interaction and engagement between the parents and the children at contact and the children are left to entertain themselves by using the computers provided at the contact venue. The Department considers that contact is not ‘meaningful’ because of a lack of interaction and engagement by the parents of the children.
(5) The family home is assessed as not being a suitable venue for contact as it is the place where the children have suffered harm, would be confusing for the children when leaving , is unlikely to entail meaningful contact between the parents and the children as the children would by IM’s reports spend their time in their own rooms. The report writer has assessed that the current contact venue at Choice appears appropriate and the children are at ease there.
(6) Contact should remain supervised so that appropriate support and direction can be given to the parents. The Department advised that this is their ongoing position and submission to the Children’s Court.
(7) Clear evidence before the Tribunal that the subject children have made significant improvements since they have been placed out of the parental home and limited contact with the parents has occurred.
IM’s behaviour at contact has remained consistently aggressive towards departmental staff in front of the children for the period from May to November 2009 that the children have been in care. IM needs to examine his behaviour at contact and demonstrate positive change to his behaviour over a significant period of time before the contact regime can be reconsidered and possibly amended.
There is a real and appreciable risk of the children regressing in their progress at school and in their placement if contact is changed without significant improvements in IM’s behaviour at contact.
The Department acknowledged that in general the evidence is that the children look forward to seeing their parents at contact despite there being a period in August and September 2009 when FN demonstrated high levels of obsessive compulsive behaviours prior to contact and chose not to attend.
THE TRIBUNAL’S VIEW
The Tribunal accepts the submissions from the Department as outlined in paragraphs 1, 5, 6, 7, 8, 9 above.
The Tribunal is satisfied that IM’s behaviour at contact is not child focused but rather focused on his issues with the Department. The Tribunal is satisfied that IM’s behaviour has contributed to unnecessary stress experienced by the children at contact. This is unfortunate for the children who are reported to mostly look forward to contact with their parents and whose autistic conditions would most benefit from experiencing contact in a calm and predictable environment. It is also unfortunate as it puts at risk the children’s ongoing contact and maintenance of their relationships with their parents if IM’s aggressive and inappropriate behaviour continues.
The Tribunal has not found any evidence that FG’s behaviour at contact is in any way inappropriate and in any way causes stress to the children. The Tribunal is concerned that IM’s behaviour not jeopardise FG’s contact with the children in future.
Issues have been raised about FG being distracted and not actively engaging in activities with the children. FG is also said to be nurturing and affectionate with the children at contact. The Tribunal experienced FG to demonstrate distracted and self contained behaviour at the hearing, spending significant time drawing. FG did however contribute issues when she had something to say which would indicate that she followed what was happening at the Tribunal despite appearing to not focus on what was being said. The Tribunal did not gain much insight into the issues that lead FG to act in a way that appears distracted or disengaged. The Tribunal formed the view that FG’s contact with the children is positive and affirming and is therefore meaningful. The Tribunal is mindful that FG’s relationship with the children in the context of running a household where there have been four children with high support needs may not have had much opportunity for shared fun activities of the kind that can readily occur at a contact centre. FG spoke about her desire to be able to take the children on outings such as to the week-end markets. FG is likely to need support from Departmental staff to identify a variety of appropriate activities that might occur at contact.
At the hearing the Department provided evidence by way of police records of the parent’s criminal record and a pattern of police intervention at the family home on complaints of domestic violence spanning from 2003 to 2008. The Department rightly raises its concern about how conflict plays out in the family home and the impact this might have on the children.
The Tribunal is not convinced that the historical record of police presentations to the family home for reported incidence of domestic violence is directly relevant to parental contact. The Tribunal is mindful that this evidence is contested by the parents and none of the matters have been tested in a court. The Tribunal is also mindful that a number of factors, such as alcohol and substance misuse and the constant pressure of caring for 4 children high support needs, that may have been in play leading to reports of domestic violence, are not present in the contact situation.
The Tribunal is concerned about the potential impact of any conflict in the environment of the three children including the contact environment. However, there is limited evidence of conflict and violence between the parents during contact visits. BM’s detailed report of contact reports on two occasions on 14 August and 21 September where she describes IM’s behaviour towards FG as ‘derogatory’ and ‘verbally abusive’. Examples of derogatory behaviour and verbal abuse on these occasions included IM clicking his fingers at FG when he wanted her attention, shouting at FG to clean up the food and accusing FG of being lazy and ‘a child’. IM is reported to have thrown a cap at FG when she answered back on 14 August.
In its final submission, the Department’s characterises the parent’s presentation at the hearing as IM ‘persistently verbally corrected or stopped FG in a chastising manner’. The Department concludes that the style of interacting reflects a conflicted couple. The Tribunal agrees with the Department’s characterisation of IM’s behaviour at the hearing but does not necessarily reach the same conclusion that they are a conflicted couple. BM’s report of the interaction between IM and FG on 14 August highlights the potential for the interaction to move beyond authoritarian into conflict when FG does not acquiesce. The Tribunal witnessed FG’s lack of protest and reaction at being verbally corrected and chastised by IM. The Tribunal also witnessed FG being very firm in her statements about not being intimidated by IM. The Tribunal has regard for Robert Walkley’s assessment that the style of interaction and communication between IM and FG is authoritarian.
The Tribunal accepts the Departments submission that contact needs to be supervised so that the Department can provide appropriate support and direction to ensure that optimal care is provided at all times. The Tribunal does not accept that this role is currently being provided by the Departmental supervisor. BM, who is the main contact supervisor, gave evidence that she does not raise issues anymore because they are not heeded by IM and she is concerned to protect the children from unnecessary stress of a negative and aggressive reaction from IM were she to do so. The Tribunal is empathetic to BM’s reasons. However an example of how a lack of active contact support and direction has allowed an issue to become much bigger than it need be is that of the Department’s concern regarding the provision of ‘copious amounts’ of ‘junk’ food and drink to the children at contact. This issue has been of some concern to a number of Departmental officers and staff at ARC for some time because of the immediate post contact impact it is having on the children’s behaviours and also possible long term health consequences. The Department’s final submission claims that the parents have a lack of insight into this issue ‘despite ongoing protestations from the Department’. In her oral evidence, BM specifically said that she had raised this issue once but dismissed raising it further because IM doesn’t like being told what to do so she said nothing because she didn’t want to stress the children. The department acknowledged that the amount of soft drink and junk food provided by IM and FG had decreased in recent weeks. This issue was discussed when senior Departmental officers met with the parents in October and there is evidence that they have responded to the Department’s concerns. The Department could consider if a change of contact supervisor is justified at this time to ensure that consistent and appropriate support and direction is provided to the parents. This would need to be an experienced CSO who could maintain a strong and consistent focus on the expected contact standards and behaviours while assisting the parents to engage the children in planned activities.
IM and FG need to be accorded sufficient opportunity to understand the standards and expectations of them at contact. The Tribunal has heard evidence that there is a set of contact rules that need to be adhered to. IM and FG expressed a number of disagreements with the rules when each was discussed with them, some of which may be reasonable issues as noted in paragraph 45. The Tribunal was provided with conflicting evidence about whether IM and FG had agreed and signed the current rules. In going forward, the Tribunal suggests the Department facilitate a meeting with the parents where a fresh set of contact rules are agreed and signed. Rules excluding the discussion of wider issues at contact around the children’s placement and care need to be applied equally to Departmental personnel as they do to IM and FG. Future breaches of these rules should carry sanctions that consistently maintain the agreed behaviours but minimise any immediate disruptions or stress for the children at the contact. If IM continues to breach any of the contact rules, sanctions applied to him should not be extended to FG’s contact without cause.
The Tribunal is mindful that at the time of the hearing, the guardianship application remained on foot. The Tribunal is also mindful of the applicant’s suspended application in relation to the decision to place the children with ARC. At the hearing, the applicants raised a number of issues about their difficult relationship with ARC over a number of years. They informed the Tribunal that ARC is the only provider of specialist disability residential care in the locality. They also informed the Tribunal that they have a pending case against ARC in relation to an alleged injury suffered by FB while in their care some years ago. While not the focus of this application, the Tribunal is mindful that if the children remain in ARC’s care, that the unresolved issues between the parents and ARC may continue to have negative ramifications for the children’s placement security and stability. The Department might consider if mediation might be attempted to mend this relationship in the children’s best interests. The Tribunal would encourage this course of action. The applicants also may wish to consider if they have review rights under s 99M(5) and (6)of the Child Protection Act if these issues remain unresolved and they have concerns about whether the placement of the children with ARC is in their best interests.
The Tribunal is concerned that FN was not present during the social assessment of contact nor interviewed for the assessment particularly as he has articulated that he does not want to attend contact on a number of occasions. The Tribunal is however confident that FN has relationships with a number of care givers at school, at ARC and with the CSO who are very alert to his communications and needs in so far as he is able to express them. The Tribunal notes that FN has been attending contact in recent times and on these occasions and there have been not incidence of distress before or during contact. Further assessments of FN’s participation in contact may be required if there are further periods where FN expresses that he does not wish to participate.
CONCLUSION
The Tribunal concludes:
That contact at the family home is not a suitable venue in the short term while the matter of long term guardianship is being determined.
That the current contact venue is a suitable venue for contact between the parents and their three children. Other venues and locations may also be agreed between the Department and the parents to facilitate agreed contact activities.
That the current contact schedule of two hours per week is sufficient to maintain family bonds and an appropriate amount of contact while long term guardianship is being determined.
That any increase in contact time requires IM to satisfy the Department that he has demonstrably changed his behaviour and can conduct himself in a calm, positive and child focused manner at all times during contact.
THE DECISION
The decision of the Department of Communities (Child Safety Services) to restrict and impose conditions on contact between the parents and their three children is CONFIRMED.
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