LG v Department of Communities
[2012] QCAT 532
•19 October 2012
| CITATION: | LG and Anor v Department of Communities [2012] QCAT 532 |
| PARTIES: | LG LN (Applicants) |
| v | |
| Department of Communities (Respondent) |
| APPLICATION NUMBER: | CML059-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 15, 16, 17 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Shirley Watters, Presiding Member Professor Adrian Ashman, Member Pam Goodman, Member |
| DELIVERED ON: | 19 October 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the decision of the Department of Communities on 5 May 2011 that the applicants are not suitable persons as defined by s 23 of the Child Protection Regulation 2011 and refusal of their application to be approved as kinship carers under s 136 of the Child Protection Act 1999 is set aside. Certificates of approval are to be issued conditional upon the applicant LN and all adult household members securing current positive notices as required by section 135(1)(b)(iv) of the Child Protection Act 1999. |
| CATCHWORDS: | Kinship Carer approval – Where applicants deemed to be suitable persons to be approved as kinship carers Child Protection Act 1999, s 135 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | LG and LN represented by Jennifer Ekanayake of Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd |
| RESPONDENT: | Brooke Kruger, Manager, Central Screening Unit, Department of Communities represented by Tracey Barrett Court Services Advisor |
REASONS FOR DECISION
Background to Proceedings
Application history
This matter involves a review of a decision of the Department of Communities that denied a grandmother and step-grandfather kinship carer status of five children.
On 10 December 2010 the Central Screening Unit, Department of Communities refused a properly made application by LG and LN to be approved as kinship carers for the children HZ, HR, HD, HDA and HS. The applicants are the maternal grandmother and step-grandfather of the children.
On 11 July 2011 the Tribunal issued directions inviting the Department to reconsider the decision.
By letter dated 5 August 2011, the delegated decision maker determined the applicants were not “suitable persons” pursuant to s 135(1)(b)(ii) of the Act, and refused their applications.
An application to review that decision is now before the Tribunal.
On application from the respondent, the Tribunal issued an order on 20 September 2011, pursuant to s 99ZD of the Act, prohibiting parts of a social assessment report prepared by David Berry dated 9 March 2011 from being disclosed to the applicants.
A compulsory conference was held on 22 September 2011 and the Tribunal issued an order for notices to produce all records in relation to LN, LG, and GV to be issued forthwith to:
a) NSW Police Service;
b) NSW Director of Public Prosecutions;
c) NSW Department of Communities.
On request from NSW Police Service to narrow the notice to produce to a specific event or date range, the notice to produce was further specified as:
a) All documents in relation to the 1988 police investigation and subsequent prosecution of LN for offences against complainant GV including but not limited to charge sheets, court brief, records of interview with offender and victim;
b) NSW criminal and domestic histories of LN and LG.
The Tribunal issued a notice to produce to the Commissioner, Queensland Police Service on 7 November 2011 seeking any documents held in relation to:
a) LG;
b) LN;
c) IW; and
d) The applicant's address.
The application was set down for hearing at Brisbane for three days commencing 15 February 2012.
Notices to attend at the hearing and give evidence were issued to Ian Campbell, Psychologist; Steven Tyrell, Kalwun Recognised Entity; Sipa Tonga, Kalwun Recognised Entity; David Berry, Social Worker and Kathryn Prentice, Forensic Psychologist.
On 17 February, 2012 the hearing was adjourned to a date to be fixed. A further notice to produce was issued to NSW Police Service to produce material held in regard to allegations of sexual abuse made by GV against LN in 1988 including any relevant material held by the Child Maltreatment Unit and any record of interview of LN at Parramatta Police Station on 6 January 1989.
The parties were provided with 7 days to inspect the material produced by NSW Police Service and request that the hearing be reconvened. No further hearing was requested and the parties make final submissions by 20 April 2012.
Relevant Legislation
Jurisdiction
The relevant legislation that applies is the Child Protection Act 1999 (“the Act”) as amended and the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
The current Act came into force on 1 January 2012 and this Act is to be applied.
The Child Protection Regulation 2000 was the Regulation in place at the time of the original decision. This Regulation was repealed in 2011. The Child Protection Regulation 2011 is the Regulation (“the Regulation”) to be applied.
Decision Making
Section 5A of the Act states the paramount principle for administering the Act is the safety, wellbeing and best interest of a child.
Section 6 and 83 of the Act sets out additional provisions for the placing of Aboriginal and Torres Strait Islander children in care requiring the chief executive to provide an opportunity to a recognised entity for the child to participate in the decision making process and give proper consideration to placing the child in order of priority with, (a) a member of the child’s family; or (b) a member of the child’s community or language group; or (c) another Aboriginal or Torres Strait Islander person who is compatible with the child’s community or language group; or (d) another Aboriginal or Torres Strait Islander.
Chapter 4 of the Act outlines the regulation of care for foster and kinship care.
Section 135 of the Act contains the matters that must be satisfied in order for a certificate of approval to be granted or renewed. In particular, s 135(1)(b) applies to applications for kinship carers and provides:
(b) for a kinship carer certificate-
(i) the applicant is kin to the child to whom the approval relates; and
(ii) the applicant is a suitable person to be an approved kinship carer for the child; and
(iii) all members of the applicant’s household are suitable persons to associate on a daily basis with the child; and
(iv) the applicant and each adult member of the applicant’s household have a current positive prescribed notice or current positive exemption notice; and
(v) the applicant is able to help in appropriate ways towards achieving plans for the protection of a child placed in the carer’s care.
Section 23 of the Regulation defines a person as a suitable person to be an approved kinship carer of a child if the person:
(a) does not pose a risk to the child’s safety; and
(b) is able and willing to protect the child from harm; and
(c) understands, and is committed to, the principles of administering the Act; and
(d) has completed any training reasonably required by the chief executive to ensure the person is able to care properly for the child.
Sections 25 and 26 of the Regulation are relevant in determining if a person is a suitable person to associate on a daily basis with a child.
Section 132 of the Act states who may hold a certificate:
(a) Only an individual is eligible to hold a certificate
(b) Two or more persons may hold a certificate jointly
(c) A person living with his or her spouse may only hold a certificate jointly with the spouse.
Evidence
In addition to the written material contained on the Tribunal’s file, the parties were given the opportunity to provide oral evidence. The documentary and oral evidence, where specifically relied on by the Tribunal, is discussed below.
Child Protection History
Respondent's Evidence
The respondent’s Statement of Reasons identifies two child protection concerns received by the NSW Department of Communities:
a) On 9 December 1988 14-year-old GV, daughter of LG and step-daughter of LN, alleged sexual and emotional abuse perpetrated on her by LN over a number of years. GV alleged that she had disclosed the abuse to LG who did not take protective action and had physically abused her in response. GV was assessed as being at risk of harm if she returned home and was removed from LG’s care and placed in foster care.
b) On 19 September 1997 a female child alleged being kicked out of home by LN after a domestic violence incident.
The Department’s decision-maker Brooke Kruger placed significant weight on the NSW departmental records that confirmed LN as a person responsible for the sexual harm of a child in his and LG’s care.
Ms Kruger placed significant weight on the corroboration of NSW Department’s findings of sexual abuse allegations in 1988 by a forensic medical examination report finding repeated vaginal penetration of GV had occurred consistent with a penis like object. Weight was also placed on material in a submission by the LG that the NSW Police determined that they had sufficient evidence to proceed with criminal charges against LN.
The Queensland Department’s Statement of Reasons identifies six child protection concern reports made to the Department between 2004 and 2011. The outcome of departmental investigations of two of these reports resulted in substantiated harm and ongoing intervention by the Department to ensure children in LG and LN’s care were kept safe from harm:
a) On 4 October 2004 it was alleged that LN had raped a young GE, LG’s granddaughter and step-granddaughter of LN. GE is GV’s daughter. An assessment conducted that day resulted in an outcome of substantiated sexual and emotional harm of the female child, with LN identified as being responsible.
b) On 16 February 2010 child protection concerns were received for three children. The assessed outcome was substantiated risk of physical and emotional harm from LN. LG and LN entered into an Intervention with Parental Agreement (IPA).
Ms Kruger placed significant weight on LN and LG’s failure to display any understanding of abuse and harm issues and no acknowledgement of their role in the harm caused to children in the past. LG acknowledged past child protection concerns in regard to her family but did not acknowledge that LN was responsible for the harm caused to the child in 1988. LG’s ability to acknowledge the risk posed to children by LN and act protectively towards children in her care was questioned.
Ms Kruger considered LN and LG’s NSW and Queensland child protection histories indicated a pattern of behaviour whereby children in their care, or in close proximity to them, have made repeated disclosures of sexual harm by LN.
Ms Kruger considered that even a remote risk of sexual harm to children under the Department’s care is unacceptable.
Applicants' Evidence
LG and LN denied LN’s sexual abuse of GV. LG stated that GV was a problem child who sought attention by compulsive lying. LN’s submission and statutory declaration denied any sexual misconduct against GV. He claimed that GV was making friends with the wrong crowd and the parents were trying to stop that so that she wouldn’t get into trouble. GV got angry because the parents tried to control her movements and she tried to cause trouble. LG denied that GV or any of her daughters had previously disclosed any concerns about sexual abuse involving LN to her.
LG’s submission referred to the criminal proceedings against LN in relation to GV’s allegations of sexual abuse. She recalled that the judge said that there was not enough evidence to convict LN and, therefore, the charges were dismissed.
In oral evidence, LG said at the time of GV’s allegations of sexual abuse she and LN had six children living at home: three boys aged 16, 15, and 13 and GV (14) who were children from her previous marriage. LI (11 years) and LJ (8) were LG and LN’s children. LG claimed to be very protective, never leaving any of her children at home in LN’s care, as “she didn’t trust any man.” LG stated that she was the victim of sexual abuse as a teenager and as an adult, she has been very protective and a very good detective.
In oral evidence LN acknowledged that he had understood that he was charged with a sexual offence in 1988. He was now uncertain if that was the correct term for what had occurred. He claimed that he was not interviewed by Police, did not make a statement to Police in relation to these allegations, and was not interviewed by any staff from Child Safety. There was a court appearance involving LG, GV, two Child Safety Officers, and a solicitor representing LG and LN. As the outcome, GV was to reside with her maternal grandmother. LN claimed that the accusations of sexual assault against GV were latent until 2004 when GE made accusations of rape against him.
Domestic Violence History
Respondent's Evidence
Ms Kruger took into account Queensland Police domestic violence records that identified LN as the respondent to three Domestic Violence Orders (DVOs) in March 2002, June 2009, and December 2009.
Ms Kruger took into account Queensland Police domestic violence records that identified LG as the respondent to two Domestic Violence Orders (DVOs) in June 2008 and August 2010. Three children were listed as named persons on these orders.
The Department concluded that LG and LN’s personal history submissions failed to demonstrate insight into why incidents of domestic violence had occurred, the impact these incidents may have had on the children in their care at the time, and strategies LN has used to curb his domestically violent behaviour.
Applicants' Evidence
LG addressed the Domestic Violence Orders. She explained that LI made retaliatory applications in response to a Police application for a DVO against LI following an incident in April 2008 at LG’s home where LI caused serious property damage and threatened LG. LG explained that she had confronted LI about abusing the three children in her care (LOI, LM and GE).
LN stated that he and LG were having relationship difficulties in 2002 and 2009 resulting in the two DVOs with LN as the respondent and LG as the victim. He told the Tribunal that during 2009 he and LG were separated for 9 to 11 months following an incident involving GV and the removal of the H children from their home by Child Safety. During the separation he maintained his responsibilities for house payments and maintenance. He believes that LG calls the Police to frighten him and ensure that she is never placed at threat of actual violence. He doesn’t believe he is a violent man and doesn’t agree with LG’s approach to solving problems between them, saying that in my country “we talk.”
LG gave oral evidence about Police notes from the domestic violence incident on 21 May 2009 that state that she was “a victim of domestic violence from LN for more than a decade … continually threatened, assaulted and verbally abused.” LG claimed that the Police Officer had used his own words and she was more likely to have said, “I have suffered abuse for a while”. LG indicated that she had been in a long term relationship of domestic violence before she formed a relationship with LN, and it is likely that is the relationship she would have been referring to. She claims that she would not tolerate ongoing physical abuse and that the police record does not support this. She acknowledged that she and LN have been verbally abusive to each other but not in front of children. The three children now in their care (LOI and LM and GE) were living with LI between 2002 and 2009. LG acknowledged that LN “goes off the handle” when he drinks too much, but that “Things have quietened down now,” … “we are older and wiser.”
Applicants' Witnesses
LG and LN relied on four witness statements. Registered Nurse IH was LG’s supervisor when working on night shift at a nursing home. They worked together for five years and have known each other for 12 years as personal friends. IH described LG as forthright, outspoken about issues, doesn’t suffer fools lightly, but never dangerous or vindictive. LG is an extremely patient and attentive carer. She was aware of one Domestic Violence Order, which she assumed was fuelled by other family members. She had not observed LG and LN arguing and was not aware of physical violence between them. She was aware of some sexual abuse allegations against LN, but found this hard to believe of him. She understood LN to have drunk too much alcohol in the past and that LG is not tolerant of drug and alcohol abuse.
Police Officer BM has known LG and LN for over two years. She met LG during a community policing project and became a personal acquaintance thereafter, meeting perhaps six times over two years for coffee at LG’s home. She observed that LG was in charge of the house which was always in order and there was a “certain sense of calm” in the home. She assisted LG to manage some neighbour issues and was aware of some allegations against LN by a female relative but understood these to be resolved.
Aboriginal Community Elder WM has known LG and her family for 20 years as a friend and community service administrator. LG is a member and supporter of family-oriented community organisations including early childhood and youth programs, church activities, Elders Group and a nursing centre. He stated that LG always puts her children first. They are well clothed and looked after and LG is passionate about their education. He regularly sees the children in LG and LN’s care and has never heard them complain or had anyone complain about their care. He has observed LG and LN engaging in arguments but without aggression. He socialises with LG and LN and has observed LN to have one or two red wines but LG hardly drinks, even at her fortieth birthday party.
DSK is CEO of an Aboriginal and Torres Strait Islander (A&TSI) family support corporation. LG has been an active participant in their grandparents support program. The A&TSI corporation provided cultural and practical support for LG during the conduct of an investigation and assessment by Loganlea Child Safety Service Centre in October 2011. LG was fearful of engaging with Child Safety but conducted herself well when she felt safe with support around her. DSK stated that if LG gains care of her grandchildren, the A&TSI corporation could provide support including fortnightly in-home support and specialist support to manage complex behaviours. The children currently in LG’s care are engaged in community activities, have protective behaviours, can name five safe people and LG is proactive in meeting their needs. DSK is aware of the allegations of sexual abuse against LN and understands these to be allegations rather than criminal charges. She believes the protective factors in the household outweigh the risk factors.
Respondent's Witnesses
Child Safety Officer Nicole Gibson completed a Kinship Care Assessment of LG and LN in July 2011. Ms Gibson stated that the Kinship Care Assessment had been thorough and was conducted according to standard practice despite time constraints. She stood by the conclusions reached in the assessment that LG and LN are not suitable persons to be kinship carers of the subject children. Her refusal recommendation in the Kinship Care Assessment report was based on several concerns. These included LN’s assessment as the person responsible for the sexual abuse of GV and GE (a point also made by Lisa Shaw, Loganlea Child Safety Service Centre). Despite there being no criminal conviction, there is substantial evidence that this abuse did occur. This concern alone was sufficient for the assessor to conclude that the applicants are not suitable kinship carers.
Other concerns informing Ms Gibson’s refusal recommendation were:
a) LG did not protect her daughter and granddaughter from harm, did not support them, subjected them both to physical discipline as a result of their disclosures, and rejected them from the family unit.
b) LG and LN do not acknowledge or show insight into their behaviours.
c) LG’s own sexual abuse history may contribute to her inability to protect her own child and grandchild from sexual abuse.
d) LG and LN's lack of knowledge and understanding of the subject children’s complex needs including sexual abuse, emotional harm, and neglect are relevant even if LN is assessed as having a low risk of recidivism.
e) The appropriateness of LG and LN’s house to house five children with complex emotional and behavioural issues.
f) Household member IW does not appear to support the application and may not be a suitable person.
g) LG and LN's lack of support networks to assist in the kinship care role.
h) LG’s negative relationship with Departmental officers (a point supported by Jodie Lucarini, A/Team Leader), and the grandparents' lack of understanding of the Standards of Care (s 122 (1) (a), (c), (g), and (j) of the Act) demonstrated by their lack of insight into their own family dysfunction.
Child Safety Officer Diane King gave evidence that she “seconded” with Nicole Gibson in July 2011 when conducting interviews of LG and LN in regard to the Kinship Carer Assessment. She observed that IW declined to be interviewed about the Assessment and when asked about his agreement with the application he shook his head in what she considered was a “no” response.
Ms King also reported a number of inconsistencies in information provided by GE, LG, and LN.
Child Safety Officer Maggie Robson provided a statement of recalled sporadic conversations with GV during 2010-2011 in which GV identified that she, her sisters LI and LJ and her daughter GE had all been sexually abused as children by LN and LG beat them up when they told her of the abuse. GV stated that she didn’t want LG to ever have contact with her children.
Indigenous Child Protection Worker Gina Woodman provided cultural advice to the Department and assisted with identifying suitable family for placement of the H children for more than two years. She has had numerous conversations with GV and HDAV in which GV repeatedly and consistently has said she does not want her children placed with LG. Gina Woodman wouldn’t support any placement of the H children where there is a risk of sexual abuse. She is somewhat confused by the Department’s placement of other grandchildren in LG and LN’s household.
Jodie Lucarini A/Team Leader Maryborough Child Safety Service Centre was questioned about her briefing to the Social Assessment Report writer David Berry, in particular Mr Berry’s record (at paragraph 28) that:
‘The maternal grandmother and step grandfather have applied to be kinship carers of the children, yet LN sexually abused GV as a child, and there is quite significant medical evidence to bear this out, as well as a social history of the maternal grandmother having ejected GV from her household’.
Ms Lucarini responded that she had viewed the child protection records from NSW Department of Communities in which reference is made to the medical report but had not viewed the medical report. When details of the medical report were provided to her, the witness agreed that it could be concluded that there is not “quite significant medical evidence” identifying LN as the sexual abuser of the child GV.
Witnesses Subject to Notice
David Berry is a social worker and the Social Assessment Report Writer (March 2011) for separate representative Joanne Broughton in relation to long-term guardianship orders being sought in the Children’s Court for HDA, HS, HZ, and HR. The focus of his report was on GV’s potential to care for four of her children. His assessment is that GV’s claims of sexual abuse by LN from the ages of 3 years to 13 years are genuine. He stated that his experience indicates when adults disclose childhood sexual abuse they have nothing to gain by giving false claims. They are most often damaged as a result of being blamed, having the abuse covered up, and not being believed. The collateral in Ian Campbell’s 2010 report in relation to GE’s disclosures of sexual abuse by LN and Campbell’s assessment of GE as a reliable interviewee supports his assessment. He is of the view that if clear proof was available, the perpetrator would have done the time, but that often is not the case in child sexual abuse matters.
Ian Campbell, psychologist and Report Writer gave an assessment of LN based on the understanding that LN had been charged but acquitted of indecent dealing against GV in NSW and that he had two allegations of sexual offences made against him by GE but no criminal charges laid in Queensland. LN’s results of actuarial risk assessment, the SONAR and STATIC-99 tests, were zero, placing him in the low risk of sexual offence recidivism. Assessed against six factors empirically proven to predict sexual offence recidivism, Mr Campbell concluded that LN met a minimal number of criteria.
Mr Campbell observed that LN edited information and used language difficulty as a means to minimise his responses.
Mr Campbell assessed LG as demonstrating adequate understanding of risk and protective factors necessary to maintain the safety of GE, LOI and LM in her household. Mr Campbell remained concerned about perceived incongruence demonstrated by LG in the coexistence of hyper-vigilant protective behaviours, suspicions, and denial of offences having been committed by LN against GV and GE. He also noted that LG demonstrated a level of inconsistency in her reporting.
GE was reluctant to discuss her disclosures of sexual abuse by LN with Mr Campbell, initially responding that she did not recall incidents in 2004 and 2005. She confirmed that she had been indecently touched by LN but was unable to quantify or specify the nature and occasions other than that it ceased by the time she was in Grade 8. She expressed the view that LOI was not at risk of being abused as she was LN’s biological granddaughter. At paragraph 80 of his report, Mr Campbell reports on his questioning of GE about how protective her grandmother is:
“She is very protective. She loves us and doesn’t want us to get hurt.”
When asked the same question about her grandfather, GE became very unsure and apprehensive and there was a change in her affect. She stated that she “feels helpless.”
Mr Campbell formed the view that GE was a credible interviewee but that she was either unable or unwilling to recall the type of abuse, its frequency, and duration. He opined that there are a number of plausible explanations: that GE is genuinely overwhelmed and traumatised by the topic; she genuinely can’t recall; she feels obligated or has been coerced to not elaborate on the information.
When questioned by the Tribunal he indicated that an assessment of no risk is not achievable, regardless of a person’s background and history. On balance, he concluded at the time of his assessment that the applicants had more protective than risk factors.
Forensic psychologist Kathryn Prentice gave evidence that the placement of the H children in LG and LN’s household was a significant risk. She stated that the H children are highly vulnerable due to past sexual and other abuse and display significant sexualised behaviours including excessive masturbation and touching their own and other children’s genitals. They need significant physical, emotional, and psychological support and separate sleeping arrangements.
Ms Prentice pointed out that there is a substantial risk of placing children with sexualised behaviours in a household with a person who has a history of alleged sexual abuse and has never had therapeutic intervention to address the alleged sexual offences.
Based on Ian Campbell’s report Ms Prentice believes that LN demonstrates a number of significant risk factors which she documents in paragraph 1.2 of her report, including allegations of sexual deviation, substance abuse, relationship problems, past non-sexual violence, extreme minimisation or denial of sexual offences, attitudes that support or condone sexual offences and negative attitude towards intervention.
Based on Ian Campbell’s report Ms Prentice believes that LG lacks significant protective capabilities, which she documents in paragraph 4.5, 5 and 6 of her report including leaving the grandchildren alone for periods in the care of LN and inappropriate boundaries within the home, her ongoing denial of sexual harm to GV and GE, minimising historical abuse of herself and her children by LN and lack of protection of two of her daughters in agreeing to them moving out of home at the age of 13 years to avoid further household conflict.
Applicants' Submissions
LG and LN’s position is that they are suitable people to care for children in that they meet, or are able and willing to meet, all of the criteria of s 23 of the Regulation and s 135(1) of the Act. The maternal grandmother would be the primary carer. The applicants have the support of the other adults living in the home, GE and IW. The children would be safely cared for by family as provided for by the Act.
They assert that the Department has not provided any evidence that LN was interviewed or charged in relation to allegations of sexual abuse made by GV. The respondent’s decision is based on an assumption that charges were laid. The respondent has not provided direct evidence of significant harm caused to GV by LN. No weight can be placed on unfounded and untested allegations.
They assert that the Department has not provided evidence from a medical examination conducted by Mater Child Protection Unit following GE’s allegations that she was raped by LN in 2004. Departmental records at case closure state that the medical examination results were unable to confirm or refute GE’s claim. Furthermore, they argue that the Department has not provided evidence of ongoing or current alcohol abuse or domestic violence.
LG and LN state that David Berry’s Social Assessment Report in relation to the applicants cannot be given weight because he was reliant on third party reports and did not interview the applicants. Furthermore, that Ian Campbell’s assessment of GE’s evidence of sexual abuse perpetrated by LN is founded on incomplete information as he was not aware that GE had retracted her allegation of rape in 2005 and he did not differentiate between GE’s initial allegation of rape in 2004 and her claim of sexual abuse by indecent touching made during her interview with him in 2010.
In regard to the kinship care assessment, the Department has provided no evidence that all five of the subject children display extreme behaviours as claimed by Nicole Gibson. The respondent’s material by way of a case plan indicates that HR does not have behavioural problems. Ms Gibson’s conclusion about IW’s lack of support for the placement of the children in the household cannot be relied upon as other conclusions could be drawn from IW’s behaviour and communication.
There is a lack of acknowledgement of the applicants’ meeting all of the requirements of the IPA, confirmation of commitment to ongoing counselling arrangements for the children in the applicants’ care after IPA compliance requirements are concluded and significant positive progress of the children LOI and LM since coming into the applicants’ care in March 2010.
The Department’s three Child Safety Service Centres involved in this case have applied inconsistent standards in assessment and fail to take into consideration that LG and LN have demonstrated that they can work with the Department with appropriate cultural support and this has been evidenced in recent contacts with Woodridge and Loganlea offices.
Respondent's Submissions
The Tribunal accepts the respondent’s submissions at paragraphs 18, 20, 22, 24 and 62 in that LN and LG are joint applicants and the Tribunal must be satisfied that both fulfil the criteria of s 135(1) (b) of the Act.
The Tribunal accepts the respondent's submission that all adult members of LG and LN’s household must be suitable to associate on a daily basis with children in kinship care. The Tribunal accepts that IW is a member of the applicant’s household in relation to this matter. The respondent submits that the Tribunal should exercise caution in making a positive finding of suitability in the absence of clear information from and about IW.
The Tribunal accepts the respondent’s assessment that GE is a suitable person in accordance with the Regulation.
The Tribunal accepts the respondent’s submission that the applicants and each household member must have a current positive prescribed notice or current positive exemption notice issued by the Commissioner for Children, Young People and Child Guardian. Certificates of approval issued by the Tribunal must be conditional on LN and IW obtaining positive notices as prescribed by s 135(1)(b)(iv).
Allegations of sexual abuse against LN
In regard to allegations of sexual abuse by LN, the Department concedes that at the time that the reviewable decision was made the decision maker believed that LN had been charged and acquitted of a sexual offence against GV. The Department now conceded that there is no evidence that charges were laid.
It is accepted by the respondent that GE retracted her criminal complaint to Queensland Police of alleged rape by LN and that there is variation in the nature of alleged sexual abuse claims made by GE.
GV has sustained over time her allegations of sexual abuse as a child. Report writer David Berry assesses GV’s allegations as genuine abuse claims.
At the time of the decision there were two current allegations of sexual abuse against LN. Kathryn Prentice provided expert evidence that two allegations about the same person are more likely to have occurred.
The Tribunal accepts the respondent’s submission that it is not charged with the responsibility of making a positive determination that sexual abuse occurred as it has been stated, but with the responsibility of making an assessment on the evidence of whether there is a risk to the children to which this matter pertains.
The respondent submits that if the Tribunal is minded to entertain a possibility that GV and GE were sexually abused by LN, this would go to the heart of the suitability test as required by section 135(1)(b) of the Act in that a suitable person must be no risk to the children.
Section 135(1)(b)(v) Ability to meet the Standards of Care
In terms of s 135(1)(b)(v) of the Act, the Department submits that the Tribunal could not be confident that the applicants would consistently meet standards 122(1)(g), 122(1)(j) and 122(3) of the Statement of Standards in section 122 of the Act. In particular, the respondent questions the applicants’ capacity to take direction from the Department in a sustained way as required of an approved kinship carer; demonstrate a capacity to encourage the children to maintain family and other personal relationships and not expose the children to ongoing conflict between LG and GV in a manner that would be emotionally harmful; and provide positive guidance to the children when necessary to change inappropriate behaviours.
The Department asks the Tribunal to be satisfied that family violence has occurred in LG and LN’s household, the applicants did not give a real account of how relationships have changed to address the causes of conflict and there is a risk that the children may be exposed to the negative emotional effects of family violence in the applicant’s care. The ongoing association of excessive alcohol consumption with family violence has not been accurately reported.
The respondent submits that consideration of risk to the children’s safety as it applies to the definition of suitability in this matter must be distinguished from the harm or risk of harm threshold defined in s 9 of the Act as applied to the investigation of allegations of harm to LM and LOI in the care of the applicants.
The respondent submits that on the totality of evidence the Tribunal cannot be satisfied as required that the applicants meet the suitability definition and demonstrate a capacity to meet all of the standards required of a certificate holder.
Discussion of Evidence
The crux of the respondent’s concerns about the applicants' suitability stems from accusations of sexual abuse by LN of his step-daughter and step-granddaughter. The Department argues that on the evidence, LG has not demonstrated that she has acted protectively towards her daughter and granddaughter in both of these circumstances. The Departments of Communities in NSW and Queensland in their investigations and assessments have concluded that the abuse allegations in both cases were substantiated, with LN identified as the person responsible.
LN and LG deny both allegations and argue that the Department has provided no evidence that LN was responsible for the harm and, therefore, no weight can be placed by the Tribunal on these unfounded and untested allegations.
LN and LG have argued that their relationship with GV has been fractured since she was a young teenager. They have not provided a plausible explanation as to why their granddaughter, GE, who currently lives with them and who they acknowledge is an honest, quiet, good kid would make two allegations of abuse over a period of time, naming LN as the perpetrator.
The Tribunal is satisfied that there is no evidence, despite the serious nature of both of these accusations, that LN was interviewed by Police in relation to the accusations of sexual abuse in 1988 in NSW and in 2004 in Queensland. Furthermore, there is no evidence of charges being laid in either state. There is also no evidence that LN has been interviewed by either of the Departments of Communities in substantiating their assessments of harm.
The Tribunal is not satisfied that there is a substantial body of evidence supporting the claim that LN sexually abused GV in 1988.
The Tribunal has not tested GE’s allegations against LN. No evidence was heard from GE. The Tribunal notes that GE was not living with the applicants when she made a complaint of rape by LN while asleep in her bed in 2004. The Tribunal notes that at the time of the kinship carer assessment interview in July 2011, GE was living with the applicants, was over 18 years old, an adult, and not under the supervision of the Department of Communities.
Two expert witnesses, David Berry and Kathryn Prentice, opined that the existence of two people alleging abuse by the same person increases the likelihood that the abuse occurred. David Berry and Ian Campbell separately assessed that the persons alleging abuse, GV and GE, presented as credible in their allegations.
The Tribunal accepts the expert opinion that in general two people alleging abuse by the same person increases the possibility that abuse occurred. In this matter, this general proposition needs to be weighed up against the particulars.
The Tribunal considers that the untested and inconsistent reporting of abuse by GE and the actions of GV in leaving her young daughter in the long-term care of LG and LN significantly reduces the weight the Tribunal is able to place on GV and GE’s allegations.
The Tribunal accepts the respondent’s submission that it is not charged with the responsibility of making a positive determination that sexual abuse occurred as it has been stated. In considering the application of the decision in the matter of M v M (1988) 166 CLR 69 as guidance, the Tribunal would extrapolate the following from that decision:
a) For the purpose of determining the applicants' suitability to be approved as kinship carers, the Tribunal is not required to arrive at a definitive conclusion on the issue of the applicants' guilt or innocence in relation to allegations of sexual abuse. The Tribunal is not a court exercising criminal jurisdiction.
b) The role of the Tribunal is to weigh up the risk and protective factors in evidence before the Tribunal and make an assessment on the evidence of whether the applicants pose a risk to the children’s safety to whom this matter pertains.
The Tribunal accepts the Department’s submission that consideration of risk to the children’s safety as it applies to the definition of suitability in this matter is distinguished from the harm or risk of harm threshold defined in s 9 of the Act, being a detrimental effect of a significant nature. The Tribunal does not accept that the consideration of risk as it applies to the definition of suitability requires the Tribunal to find that there is no risk to children in the care of the applicants.
The Tribunal accepts that Ian Campbell and Kathryn Prentice identified a number of risk factors and potential risks to children if placed in the applicants' care in their evidence at paragraphs 60 and 68 of these reasons. Ian Campbell concluded that despite indications of some lifestyle instability and intimacy problems between LN and LG, some indicators of fractures in LG’s mental health and GEs disclosures about LN, that the protective factors outweighed the risk factors in relation to placement of LOI and LM and GE in LG and LN’s care. Kathryn Prentice concluded that there was significant risk in placing the H children in LG and LN’s household due to the vulnerability of the H children, inadequate therapeutic intervention to address alleged sexual offences and LG’s lack of significant protective capabilities.
In deciding if the applicants are suitable persons to be approved kinship carers for the subject children, the Tribunal has determined that there have been a number of significant risks in LN and LG’s relationship and family functioning over the course of their marriage.
The Tribunal assessed that the applicants have a number of protective qualities. They have sustained a long term marriage of 36 years through considerable adversity. They have a strong work ethic and own their own home which by all reports is maintained in good order. Character and community referees identified LG as a respected elder in the local Indigenous community and contributor to a number of family focused community organisations.
LG is reported to be very proactive in meeting the needs of the children in her care and has demonstrated that she is committed to maintaining their therapeutic support needs beyond the requirements of departmental intervention and is very committed to ensuring the children receive the benefit of participation in education. The applicants are kin to the children to whom the application relates and LG is strongly committed to her role and responsibilities as grandmother of her Indigenous grandchildren and the positive benefits of the children being cared for by able and willing family within their own culture.
LN and LG currently have the care of three children who were subject to departmental intervention. The evidence before the Tribunal is that these children are stable in their placement, and that there have been no current concerns identified about their care and safety despite ongoing and recent departmental scrutiny by Loganlea and Woodridge Child Safety Service Centres.
[100]Witnesses called by LN and LG impressed the Tribunal as providing a strong informal and formal support network able to assist the applicants in their care of children, including assistance with caring for children with special or complex needs.
[101]LG impressed the Tribunal as being in control of her household and as a grandmother who is able and willing to protect children in her care.
[102]In assessing the risk and protective factors, the Tribunal is satisfied that the applicants’ relationship and family dynamics have been unstable and dysfunctional through a significant period of their marriage. The applicants have not had therapeutic assistance to address the alleged sexual offences and the dysfunctional dynamics in their relationship with each other and with other family members.
[103]On the evidence of the applicants' witnesses and police records however, the Tribunal is satisfied that the family dynamics are now more stable. There is no evidence before the Tribunal that children in the applicants' care have been exposed to domestic violence initiated by either of the applicants. There is no evidence before the Tribunal that children in the applicants' care have been exposed to violent, aggressive or harmful behaviour arising from alcohol use by the applicants. The Tribunal is satisfied that the most significant risks are historical risks and the applicants' household functioning is now more stable and has been providing a safe family environment for the three children living in their care for over two years since March 2010.
[104]The Tribunal accepts that the applicants have demonstrated a capacity to act in accordance with the chief executive’s reasonable directions during the Intervention with Parental Agreement and does not accept the respondent’s submission that the applicants do not meet Standards of Care 122(i)(g), 122(i)(j), 122(3).
[105]The Tribunal accepts that IW’s suitability has not been adequately assessed and makes no finding on his suitability.
Conclusion
[106]On the totality of the evidence, the Tribunal is satisfied that LG and LN meet the suitability definition and demonstrate a capacity to meet all of the standards required of a kinship care certificate holder.
Decision
[107]The Tribunal accordingly makes the following orders:
a) That the decision of the Department of Communities on 5 May 2011 that the applicants are not suitable persons as defined by s 23 of the Child Protection Regulation 2011 and refusal of their application to be approved as kinship carers under s 136 of the Child Protection Act 1999 is set aside.
b) Certificates of approval are to be issued to the applicants conditional upon LN and all adult members of the household obtaining current suitability notices as prescribed by section 135(1)(b)(iv) of the Child Protection Act 1999.
0