Mm v Department of Communities, Child Safety and Disability Services
[2013] QCAT 482
| CITATION: | MM v Department of Communities, Child Safety and Disability Services [2013] QCAT 482 |
| PARTIES: | MM (Applicant) |
| V | |
| Department of Communities, Child Safety and Disability Services (Respondent) |
| APPLICATION NUMBER: | CML120-12 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 18-19 March 2013 27 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Nathan Jarro, Presiding Member Ms Julie Ford, Member Ms Bernadette Rogers, Member |
| DELIVERED ON: | 13 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Department of Communities, Child Safety and Disabilities dated 12 July 2012 is set aside. 2. The decision of the Department Of Communities, Child Safety and Disabilities dated 22 October 2012 is set aside. 3. Contact between the Applicant and LB will take place each Monday at 9.00am until 10.00am and each Thursday at 10.00am until 11.00am. 4. Contact between the Applicant and LG will take place each Monday at 9.00am until 10.00am and each Thursday 9.00am until 10.00am. 5. Contact for both LG and LB will occur at the Nerang Child Safety Centre, 24 White Street Nerang and be supervised by a departmental officer. |
| CATCHWORDS: | Review of decisions to restrict and impose conditions on contact where contact is reduced, where children are indigenous. Child Protection Act 1999 ss 5A, 5B, 5C, 6, 87, |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MM represented by Ms Carolyn Buchan of Corporate and Property Lawyers |
| RESPONDENT: | Department of Communities, Child Safety and Disability Services represented by Ms Tracey Barrett Court Services, Ms Jane Rashleigh Team Leader Advisor |
REASONS FOR DECISION
LG and LB are twins who were taken from their mother’s care by the Department of Communities, Child Safety and Disability Services weeks after their birth on 31 August 2009. On 25 March 2011 the Southport Children’s Court granted the long term guardianship of LG and LB to the Department. In this context the applicant, MM, who has identified as an Indigenous person, has pursued a meaningful and close relationship with her children. She says it is important the children know their origins, that she is their biological mother and that she loves them. The Department says her efforts and behaviours during contact have caused distress to the children and have the potential to result in the children resisting contact with their mother in the future.
A Departmental Officer, usually Ms Julie Taylor who is an Indigenous Child Safety Support Officer, supervised all contact visits between the Applicant and her children. On Monday 9 July 2012 the children were on a regular contact visit at MM’s home. LG asked for a bath. MM ran the bath for LG then she undressed and got in the bath with LG. She then had a conversation with LG, with LB in the room, pointing to her stomach and telling the children they came from her stomach and pointing to her breasts and saying the children used to feed from her breasts. Ms Taylor asked MM to get out of the bath and then rang her supervisor to say she was concerned that MM’s behaviour was escalating. Based on concerns of previous events the Police were called to the house.
This incident is referred to in these Reasons as “the bath incident”.
Following this incident, on 12 July 2012, the Department made a decision to restrict contact from a previous arrangement of two hours twice a week in the Applicant’s home to 9.00am until 10.00am each Monday and 9.30am until 10.00am each Thursday supervised in the Child Safety Service Centre. On 22 October 2012 a second decision was made restricting the contact to one hour once a week supervised in the Child Safety Service Centre. These decisions are the subject of this application.
On 5 November the Tribunal, differently constituted, decided to stay the decision of 22 October 2012 but refused to stay the decision of 12 July 2012 and this decision, although modified, has been in operation since that time.
In determining the most appropriate contact regime the Tribunal must give effect to s 5A of the Child Protection Act 1999 which mandates the “safety, wellbeing and best interests of the child are paramount” and because MM and the children are Indigenous s 5C requires the Tribunal to also consider the long term effect of a decision on the children’s identity and connection with their family and community.
The Evidence
The Applicant called Mr GS, Ms Rosemary Norman-Hill, Dr Trevor Lotz, Dr Bersin and Ms Erica Begelhole and also gave evidence herself.
Mr GS said he has been dating the Applicant for three years. She is a strong woman, particular about taking her medication (for Bipolar Affective Disorder) and desperate to get her children back. He stated he was not there at the time of the bath incident but arrived shortly after and was not aware it had disturbed MM or the children. He said she did not appear agitated or distressed. When the Police arrived a few minutes later he did not speak to them. He said he has observed the children at contact and has not seen anything of concern.
Ms Rosemary Norman-Hill, CEO of the Kirrawee Indigenous Corporation stated she is an Indigenous worker with a background in child protection. She stated children need to be connected with their culture and family or they suffer a sense of loss and grief. She observed the children with their mother at their second birthday and their Baptism and had no concerns for their welfare. She said she is of the view that permanency planning is detrimental for Aboriginal children and she is prepared to work together with MM towards reunification. When asked about MM’s involvement with cultural activities she said there was not a lot going on but MM has been interested in cultural activities and participated when these activities were undertaken.
Dr Trevor Lotz is MM current treating psychiatrist. He states he first met the applicant 10 years ago and resumed treating her in March 2011. He says she has a bi-polar condition and is compliant with taking her medication. When asked what was meant in his report by “pressured thoughts” he described it as talking really fast. He said a person could have bi-polar under control but the behaviours, such as pressured thoughts can become part of her character traits. He said he had no idea of her original behaviours that led to the children being removed but doesn’t think MM is a danger to her children and she is capable of looking after them.
Dr Morris Bersin is a private psychiatrist. He gave evidence he was asked by Dr Lotz to see MM after the QCAT application for a second opinion but he has been aware of her case for six years. He says her condition has remained about the same since that time and is in keeping with a bi-polar condition. She has had a number of episodes of unstable mood and required hospitalisation. He described the decision of the Department to restrict contact and change venue following the bath incident as a “punitive overreaction” and felt the Department attached inappropriate values judgements to the incident. He said that while it can be difficult to communicate with MM, children aged three would not understand the content of her flight of ideas and would interact more on terms of emotional warmth.
MM gave evidence touching on the parenting courses she has completed, the fact she is compliant with her medication and the support she has developed around her. She spoke about her memories of the children as infants being removed from her care and her subsequent voluntary hospitalisation. MM also spoke about her relationship with her older children, especially B. The Applicant gave detailed information about her recollection of the bath incident which led to the decision of 12 July 2012. She described how after playing face painting with the children LG wanted a bath. LG invited her into the bath as well so she got into the bath. She did not think anything of it as she had bathed with the children before. She said Ms Taylor walked in on her when she was naked. She says there was no need for concern about her behaviours, it is perfectly natural for a mother to have a bath with her children and to discuss with them that they came from her tummy and how she breast fed them when they were small children.
When asked if she was made aware of how her actions during contact were affecting the children MM said she had met with Mr Stedman and spoken with him. She does not agree with the way incidents are reported by Julie Taylor and is of the view there are lots of things Julie is dishonest about. She remained steadfast in her belief that the children only have one Mummy and they should call her Mummy, however she stated it does not faze her when LB calls his carer, ‘D Mummy’.
At the completion of all the witnesses’ evidence MM spoke to the Tribunal a second time. She emphasised her love for her children and that she is never giving up her fight for her children. She said contact is always good, though it was better at her home than at the Department. She has pulled back from the children since the Contact Agreement and doesn’t give so much love. She will abide by the rules set by the Department while ever the children are in care.
Ms Erica Begelhole, a psychologist since 2008, gave evidence that she had been approached by the Applicant to prepare a report on the Applicant’s contact with her children. She observed two sessions of family contact, the second without audio. Circumstances prevented her from completing the report and she had not read the material provided. However commenting on her observations Ms Begelhole said there were good interactions during contact. MM had provided lots of activities. She was aware of cues from the children and responded appropriately though it can be hard to manage the demands of two children. She did observe the children initiate the exchange of affection with MM.
The Department called Dr Tredinnick, Ms Taylor, Mr Stanjovic and Ms Rashleigh.
Dr Tredinnick, a psychologist, provided reports at the request of the Department on 29 September 2012 and 10 March 2013. He said he formed his view that the Applicant’s behaviours are damaging to the children based on a cluster of factors. These include MM not accepting the children are in long term care, not accepting the children call their carer Mummy, not understanding the cues of the children, not accepting that LG is reluctant to go on visits and that the carer is reporting the visits are not having a significant effect on post visit behaviour. He expressed his view that the continued exposure is in fact moving the children away from their mother.
Dr Tredinnick said that based on his understanding MM’s bi-polar condition was stable his assessment focussed on her behaviours rather than her psychiatric condition. He is concerned that the Applicant does not believe the children should be in care and is showing no understanding of why they were removed from her care and are now in long term care. His recommendation is that there be contact, supervised, once a fortnight for an hour.
Ms Julie Taylor was responsible for supervising most of the contact both at home and at the Centre between the Applicant and her children. She acknowledged there has been a very positive change in the quality of contact since the first QCAT hearing and the agreement reached following it. Commenting on the bath incident Ms Taylor said it was not just the bath incident. Other things had been leading up to it that day, the children were becoming annoyed and there was a lot of ‘Mummy stuff’. In the past MM has escalated in front of the children and she did not want it to happen that day. That is why she rang the Child Safety Officer. When contact was in the home it seemed that MM was trying to do in two hours everything that would normally be done in twenty-four hours. The children would pull away and whine. It is better at the Centre, the children are more relaxed and choosing to give kisses and cuddles.
Mr Stanjovic is a Child Safety Officer with the Department and LG and LB’s Case Manager. He stated that in the past the number of activities and amount of food provided by MM resulted in a contact session of extreme intensity. It was harmful to the children. He believes that MM is trying to put fewer activities into the session and it is better now. He said the Applicant does not accept the children are in long term guardianship and their primary attachment is to their carers. The Applicant’s focus on her being the children’s biological mother was harming the relationship. Mr Stanjovic commented that the twins older sister, B, also in care with the same carers, has separated from her mother, she has starting using her carer’s name and she is not seeing her mother. He expressed concern the same thing could happen with the LG and LB. He commented that when the children were having contact in MM’s home she approached it is if the children were living in her home. Mr Stanjovic stated that things have improved since MM has followed the stipulations in the Contact Agreement and that is protection for the children.
Ms Jane Rashleigh is the Team Leader and decision maker from the Department. She said she obtained the report from Mr Tredinnick dated 26 September 2012 to give her an unbiased recommendation and she relied on that report in her decision of 22 October 2012. She believes fortnightly contact of two hours would give real parenting opportunities.
Discussion
Both parties provided written submissions following the hearing which have been carefully considered by the Tribunal.
In summary it can be said the case for the Applicant is based on her belief that her present good health, her compliance with treatment, the support she now has around her and the opinion of her doctor all demonstrate she is capable of caring for her children. It is her belief that the interests of her children would be best served by returning them to her but if this is not possible then contact should be as natural and extensive as possible. It is argued the present regime (or any reduction) prevents any more meaningful relationship developing.
The Department has expressed concerns that MM has engaged in behaviour that places her needs over those of her children. It draws attention to her lack of insight into the consequences of a long term order, the impact of her focus on reunification, the impact of her current behaviour on the children and the competing demands on the children’s time. It argues that at least the decision of 22 October 2012 should be confirmed but it is open to the Tribunal to take into account the recommendations of Mr Tredinnick and arrive at a different decision.
We accept the evidence of Dr Lotz and Dr Bersin that MM’s bi-polar condition is well controlled by medication and that she is compliant with her medication regime. She is to be commended for this. The evidence of her friend Mr GS also suggests that he would be able to notice if MM became unwell and needed assistance. For this reason our emphasis has been on the behaviours and insight of MM rather than her mental state.
The submissions of the Applicant argue that the Contract of Agreement reached after the first appearance at the Tribunal on 5 November 2012 had a beneficial impact on contact and that would have been a sufficient intervention, rather than restricting the hours of contact and changing the venue.
It is of concern to the Tribunal that MM appears to have complied with the restrictions that have been placed on her to continue to see her children without demonstrating insight or acceptance that her behaviours have impacted on the children. MM has responded to Ms Taylor’s reports of the children pulling away and whining when she is over effusive by forming the view Ms Taylor is being dishonest. Mr Tredinnick’s concern for the future relationship of LG and LB with their mother, based in part on the experience of B, is met with allegations of bias, an issue addressed in cross examination and emphasised in the submissions.
The evidence of Ms Begelhole, Ms Taylor and Mr Stanjovic all point to an improvement in the contact experience for the children. It appears to be more relaxed with fewer activities and less intensity and the children are initiating displays of affection with their mother.
The Tribunal has considered the children’s schedule, provided as requested with the Department’s submissions. It shows that on Mondays and Thursdays the children spend time with their mother and then are immediately taken to spend time with their father. This routine appears to be a sensible one.
In considering the additional obligations under s 5C of the Act to consider the long term effect of a decision on the children’s identity and connection with their family, it seems the important issue in the present instance is to ensure the relationship between the children and their mother is a healthy, pleasant and continuing one which will allow them to attend events and participate with community activities into the future. There was no evidence led by the Applicant to suggest otherwise.
We are very aware LG and LB will attend prep next year and it is probable their contact regime will need to change to accommodate their schooling. It would not be sensible to try to anticipate what arrangements might need to be made in the future.
The present arrangements are working well at this time and any adjustment would be unsettling for the children with potentially little benefit.
Balancing these considerations the Tribunal has decided to continue the arrangements set out in the Activity Schedule of LG and LB as at June 2013 and to set aside the decisions of the Department of 12 July 2012 and 22 October 2012.
It is the decision of the Tribunal that contact for LB will take place each Monday at 9.00am until 10.00am and each Thursday at 10.00am until 11.00am. Contact for LG will take place each Monday at 9.00am until 10.00am and each Thursday 9.00am until 10.00am. Contact for LG and LB will occur at the Nerang Child Safety Centre, 24 White Street Nerang and will be supervised by a departmental officer
0
0
0