SH and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2015] WASAT 131
•26 NOVEMBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA)
CITATION: SH and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2015] WASAT 131
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 13 AND 14 AUGUST 2015
DELIVERED : 26 NOVEMBER 2015
FILE NO/S: CCS 5 of 2014
BETWEEN: SH
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Children Protection order Review of care planning decisions Risk to children Best interests of the child paramount
Legislation:
Children and Community Services Act 2004 (WA), s 7, s 44, s 45, s 47, s 67, s 68, s 69A, s 89, s 90, s 91, s 92, s 93, s 93(4), s 93(6)(a), s 93(6)(b), s 94
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2) s 29
Result:
The application is dismissed
Summary of Tribunal's decision:
A review application was made by the grandfather of a child the subject of a protection order under the Children and Community Services Act 2004 (WA). The application was for a review of care planning decisions in relation to that child. The application, in essence, sought unsupervised contact with the child by the grandfather, in substitution for the existing contact arrangements which provided that any contact must be supervised. The Tribunal dismissed certain elements of the application on the basis that those matters were beyond its jurisdiction. In relation to the remainder of the application, the Tribunal determined that contact between the grandfather and the child ought to be supervised. The finding was not based on the grandfather posing a risk to children generally. Rather, the Tribunal found that the child had particular vulnerabilities, and that the contact could remain supervised without disrupting the child's relationship with his grandfather. The Tribunal accordingly dismissed the application.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr D Matthews and Ms N Eagling
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
DH & SH and Department for Child Protection [2014] WASAT 151
DH and SH and Department for Child Protection [2011] WASAT 146
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 8 October 2014, SH filed an application with the Tribunal under s 94 of the Children and Community Services Act 2004 (WA) (CCS Act) for a review of a decision made by the Chief Executive Officer (CEO) of the Department for Child Protection (Department). The application relates to care planning decisions made by the CEO within a care plan for a child, A, the grandson of SH. A has been placed in the CEO's permanent care.
SH, has made a number of previous applications to the Tribunal under the CCS Act, in relation to both A and to SH's granddaughter, C.
This matter was heard before the Tribunal on 13 and 14 August 2015, at which time I reserved my decision. My decision and the reasons for it are set out below.
Background facts
The background facts to this application are summarised in the CEO's statement of issues, facts and contentions, and are set out below. These facts are not contentious.
A's background
A is the child of DH and SJM. SH is DH's father and A's paternal grandfather. A was born severely brain damaged. He required a tracheostomy to enable him to breathe, a gastronomy to enable him to be fed and an extremely high level of care. From the time of A's birth, concerns were raised by staff at his hospital about his parents' reluctance to access and accept support to assist them in A's care. On 21 September 2006, when A was two and a half years old, he was taken into the provisional care of the CEO, essentially for reasons of neglect. On 2 May 2007, a Protection Order (until 18) was made by the Children's Court in relation to A. DH did not attend the Children's Court, and SJM provided her written consent to the order. On 19 February 2010, A moved into the permanent care of Departmental carers, LL and KL. LL is recently deceased.
Background to the application
On 11 November 2013, the CEO published a care plan in relation to A (Care Plan). Point 5.3.2 of the Care Plan relevantly states:
[SH] and [NH (SH's wife)] to have supervised contact on a monthly basis for a period of 23 hrs with [A] in a neutral location in accordance with [DH's] contact. The Supervisor of these visits is to be [DH] in accordance with the Signs of Safety document and Safety Plan dated (21.12.2011) and comply with the conditions of 'supervision' and 'safety' which means that [DH] will ensure that [SH] will not be left alone with [A] for any reason and or any amount of time.
On 23 April 2014, SH applied to the CEO for review of various aspects of the Care Plan. The CEO referred this application to the case review panel (CRP) under s 93(4) of the CCS Act. The CRP's response to the CEO was, in essence, that it had only considered SH's application for review in relation to point 5.3.2 of the Care Plan because the other issues raised by the applicant were in relation to his son, DH.
The CRP recommended to the CEO that point 5.3.2 of the Care Plan be confirmed.
On 18 September 2014, the CEO through the Acting Director General of the Department provided SH with a statement advising him that she had decided to accept the recommendation of the CRP to uphold point 5.3.2 of the Care Plan. A statement of the reasons for that decision was provided to SH, which included the following:
1)A requires specialist care and supervision at all times including contact.
2)The Department is focussing on developing A's relationship with his father, DH. DH informed the Department in 2012 that he did not want A to have unsupervised contact with SH. He has provided no information to contradict this position.
3)A's carers have requested that all contact between SH and A be organised through the Department.
4)An issue has arisen concerning domestic violence by NH, SH's wife. While NH advised the CRP that her mental health was improving since the time of the alleged domestic violence, she is still suffering from postnatal depression. A is a vulnerable child and should not be exposed to any potential risks of violence.
On 8 October 2014, SH filed his application for review with the Tribunal.
SH's history before the Tribunal
SH has a long legal history in relation to access to his children and grandchildren.
In or around 2006, after a lengthy trial in the Family Court, Justice Martin delivered a decision to the effect that SH was not to spend time with either of his daughters.
In 2009, in the Tribunal, Judge Eckert dismissed SH's application to review the decision of the CEO with respect to certain care planning decisions made in relation to A. One of those decisions was that SH only have supervised contact with A. In coming to her decision, Judge Eckert said she was concerned not by allegations of abuse but by SH's diagnosis of an everpresent, longterm personality disorder and psychiatric issues.
In 2011, in the Tribunal, Justice Chaney dismissed an application by SH for review of a decision of the CEO concerning the November 2010 care plan for C, A's sister; DH and SH and Department for Child Protection [2011] WASAT 146 (2011 Decision). SH had sought increased contact with C, including unsupervised contact. Justice Chaney referred to the findings of Judge Eckert and noted that a cautious approach should be taken in light of unresolved concerns about SH. Justice Chaney expressed the view that SH had demonstrated a lack of perspective as to an appropriate level of involvement by him in C's life.
In 2014, I dismissed an application by SH for review of a decision of the CEO with respect to unsupervised contact between SH and C. I held that part of the application was misconceived and the other part was an abuse of process, being a relitigation of issues already determined by the Tribunal; DH & SH and Department for Child Protection [2014] WASAT 151.
Other relevant background
The CEO says that although there have been some improvements in recent years, A still has high medical needs and is consequently very vulnerable.
Application to the Tribunal
In his application to the Tribunal, SH seeks the following orders:
1)that A has four hours contact every month with his paternal grandfather and the paternal grandfather's family or other instances as offered by A's carers;
2)that medical supervision is to be provided by either A's carers, a third party qualified person or member of the grandfather's family who has undertaken the required training, the cost of the provision of that training to be paid for by the paternal grandfather;
3)the Department is to identify the required training and to facilitate the provision of the required training; and
4)the contact is to be unsupervised.
At the hearing, I reminded SH that the Tribunal's powers of review are limited to a review of decisions made by the CEO under s 93(6)(a) or s 93(6)(b) of the CCS Act.
Further, I was concerned that SH's application to the Tribunal did not reflect what he was in fact asking the Tribunal to do.
I therefore felt it was necessary to clarify the terms of SH's application.
I confirmed the extent of SH's application with SH in the exchange below:
THE D.PRESIDENT: So 1 and 2 [of the orders sought by SH in his application] are just a bit more flexible than what's currently going.
[SH]: Yes. Basically the third one is just for the Department to tell us what is required. He no longer needs (indistinct) training. We no longer need to (indistinct) him out every 10 minutes. So it's just saying these are the needs. I mean, I expect the Department will do it anyway, but it just states (indistinct).
THE D.PRESIDENT: All right. That's fine. So we won't get too excited about 3. So you will understand that therefore the elephant in the room is number 4.
[SH]: Yes.
THE D.PRESIDENT: The contact is to be unsupervised.
[SH]: Yes.
THE D.PRESIDENT: Now … that's your application, and I am happy to proceed on the basis that that's your application.
[SH]: Okay.
THE D.PRESIDENT: I just wanted to know if that is your application.
[SH]: Yes. That is my application.
(T: 75; 14.08.15)
I take from this exchange with SH that his application is in fact confined to the four orders sought in the application form filed in October 2014.
Legislation
The relevant provisions of the CCS Act are as follows:
7. Best interests of child are paramount consideration
In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.
…
89. Care plans, preparation etc. of
(1)In this section
care plan means a written plan that
(a)identifies the needs of the child; and
(b)outlines steps or measures to be taken in order to address those needs; and
(c)sets out decisions about the care of the child including
(i)decisions about placement arrangements; and
(iia)secure care decisions referred to in section 88G; and
(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child's life.
(2)As soon as practicable after a child first comes into the CEO's care, the CEO must prepare and implement a care plan for the child.
(3)Subsection (2) does not apply in the case of a child taken into provisional protection and care.
Note:Section 39 requires the CEO to prepare and implement a provisional care plan for a child taken into provisional protection and care.
(4)The CEO may modify a care plan at any time if the CEO considers that it is appropriate to do so.
(5)Without limiting subsection (4), the CEO must, in the case of a child who is about to leave the CEO’s care, modify the care plan for the child so that it
(a)identifies the needs of the child in preparing to leave the CEO’s care and in his or her transition to other living arrangements after leaving the CEO's care; and
(b)outlines steps or measures designed to assist the child to meet those needs.
(6)As soon as practicable after the CEO prepares or modifies a care plan, the CEO must ensure that a copy of the care plan or modification, as the case requires, is given to
(a)the child; and
(b)each parent of the child; and
(c)any carer of the child; and
(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
…
90. Review of care plan
(1)The CEO must carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months.
(2)In the course of the review the CEO must have regard to any views expressed by
(a)the child; and
(b)a parent of the child; and
(c)any carer of the child; and
(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
…
91. Terms used
In this Subdivision, unless the contrary intention appears
applicant means a person who makes an application under section 93(1);
care plan has the meaning given to that term in section 89(1);
care planning decision, in relation to a child, means a decision set out in a care plan for the child but does not include a secure care decision referred to in section 88G;
case review panel means the case review panel established under section 92;
parenthas the meaning given to that term in section 42.
92. Case review panel
(1)The CEO must establish a case review panel for the purposes of this Subdivision.
(2)The case review panel is to consist of not less than 3 members appointed by the CEO.
…
93. Initial review
(1)An application for the review of a care planning decision may be made to the CEO by
(a)the child; or
(b)a parent of the child; or
(c)any carer of the child; or
(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.
(2)The application
(a)must be in writing; and
(b)must set out the grounds on which a review is sought.
(3)The application must be made within
(a)14 days after the day on which the applicant received a copy of a care plan or modification of a care plan setting out the relevant care planning decision; or
(b)any longer period that the CEO in special circumstances allows.
(4)The CEO must refer the application, together with such other material as the CEO considers relevant, to the case review panel.
(5)On a referral under subsection (4) the case review panel must consider the application and other material (if any) and report to the CEO on its recommendations in respect of the application.
(6)The CEO, after considering the report of the case review panel and any other information available to the CEO, must
(a)confirm, vary or reverse the care planning decision; or
(b)substitute another decision for the care planning decision; or
(c)refer the matter back to the case review panel for further consideration and report.
(7)The CEO must give the applicant written notice of his or her decision under subsection (6) and written reasons for it.
(8)If an application is made under subsection (1), the decision that is the subject of the application continues to have effect pending the review unless the CEO otherwise directs.
94. Review of CEO's decision
A person who is aggrieved by a decision made by the CEO under section 93(6)(a) or (b) may apply to the State Administrative Tribunal for a review of the decision.
Care plans only apply to children who are the subject of protection orders.
Responsibility for making protection orders rests with the Children's Court (CCS Act s 45). There are a number of types of protection orders. Section 47 provides for a protection order (supervision) which is an order providing for the supervision of the wellbeing of a child by the CEO for a specified period. A protection order (supervision) does not affect the parental responsibility of any person for the child except to the extent necessary to give effect to the order (CCS Act s 47).
Applications for protection orders may be made under s 44 of the CCS Act.
Section 67 of the CCS Act provides that a party to the initial proceedings may apply to the Children's Court for the revocation of a protection order. Under s 68, the CEO may apply to the Court for the revocation of a protection order and the making of another protection order in respect of a child. Pursuant to s 69A, a carer of a child who has been the subject of a protection order may apply for revocation of the protection order and the making of a protection order (special guardianship) in respect of the child. As the Tribunal said in the 2011 decision, it can be seen that questions of the longterm care, and parental responsibility, in respect of a child fall within the jurisdiction of the Children's Court. The question of parental responsibility, and the duration of orders conferring parental responsibility, is not therefore a matter to be dealt with by way of a care plan. Nor is it appropriate for the Tribunal, in its review jurisdiction in relation to care plans, to make decisions inconsistent with the nature of the protection order to which the relevant child is subject.
The relevant provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) are as follows:
27. Nature of review proceedings
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
…
29. Tribunal's powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
The issues to be determined
I agree with the CEO's formulation of the issues to be determined in this matter. Those issues are as follows:
1)Is SH a risk to the sexual, physical, psychological or emotional safety of A, born 4 January 2004?
2)Is it in the best interests of A to have unsupervised contact with SH?
3)If it is in the best interests of A to have unsupervised contact with SH, what should the arrangements for that contact be?
Evidence
Both SH and the CEO filed bundles of documents in relation to this matter (marked Exhibit 3 and Exhibit 7 respectively). The index to SH's bundle indicated it was to be read concurrently with other documents previously filed with the Tribunal including bundles SH had prepared in response to a strike out application by the Department.
SH prepared a witness statement for the purpose of these proceeding (filed 1 April 2015 and included in SH's bundle). He supplemented his evidence with oral testimony at the hearing and was cross examined. SH's wife, NH, also prepared a witness statement (marked Exhibit 4) but was not called to give further evidence or crossexamined at the final hearing.
SH filed a report of clinical psychologist Anand Kamalesh (who prefers to be addressed and referred to simply as Kamalesh) dated 30 November 2014, who also supplemented his evidence with oral testimony at the final hearing (Exhibit 6).
The CEO filed a witness statement of MC dated 14 July 2015 (Exhibit 1). MC is employed by the Department in the Assessment and Intervention Team.
The CEO also filed a witness statement of clinical psychologist Margaret Cherubino dated 16 June 2015 (Exhibit 5).
Exhibit 2 was a document entitled 'affidavit of Dr Daniel Schub'. Dr Schub was not called to give evidence at this hearing.
SH's evidence
SH's evidence is summarised below.
SH is around 52 years of age and has been married to NH since 2012.
SH graduated with a degree in Metallurgy in 1986 and has over 34 years' experience working in the mining industry. He is currently employed as a Senior Process Engineer and has been working 'flyin flyout' in Solomon.
In relation to his children and grandchildren, SH says as follows.
SH and NH have one child, DATH. SH gives evidence that he has a loving relationship with both NH and DATH.
SH has three daughters. KBN is 14 years old and has a diagnosis of anxiety. SH says that KBN has a good relationship with NH and DH, but a stressed relationship with him due to torn loyalties between her family and SH. Another daughter used to live with SH but now lives in Albany. S lives in Bunbury with her mother. SH had been in a dispute with S's mother in the Family Court of Western Australia since before S was born. SH gives evidence that S's mother's behaviour is extreme and that because of this his contact visits with S had to stop. S said the conflict was causing her stress, and that she didn't want contact with SH, which SH has respected.
SH has two other sons. His eldest son lives with his halfbrother in Kalgoorlie.
SH's other son, DH, is A's father. DH lives with SH and NH. SH says that DH is now 32 years old and their relationship is more that of friends. However, he says, the Department puts a strain on this relationship. SH says that the Department has accused him of being controlling and manipulative of DH. For this reason, he says they try to live their lives apart. SH says that he unconditionally helps DH wherever he can, and that DH helps him with DATH.
C is SH's granddaughter, A's sister and DH's daughter. C lives in care away from A. SH says that he sees C as much as he can within the limited time frame available, and that he has a good relationship with C.
SH also mentions J, who he considers to be his daughter. He has known J since she was two years old and has previously been in a relationship with J's mother.
SH says that his relationship with his two eldest sons' mother ended when they were in primary school and that they shared parenting until she moved away. At that time, SH became a single parent. He says that one of his biggest problems with the mothers of his daughters is that they simply want 'ownership of their children', and are not willing to cooperate or compromise.
In relation to his own upbringing, SH says as follows.
He was born in 1962 and is part of a generation of children who were forced from their mothers for adoption. He describes this as a harrowing experience for his biological mother, and is involved in the Forced Adoption history project. He describes his adoptive parents as loving and accepting and he had two brothers. When he was 26 years old, he made contact with his biological mother and halfsister. More recently, he made contact with his biological father and his four children, who he says have accepted him into their family.
SH says that he describes his family history to explain to the Tribunal why family is so important to him, particularly that it gives a sense of belonging and place. He says that he has had excellent parenting role models. He says that he never told C that 'only biological people are family'. He says that C is going through the same 'issues of identity' that he went through.
In relation to his relationship with A, SH says that he has known A since birth and has been closely involved with him. He describes one instance where the hospital 'wanted to shut off his life support' and allegedly told SH that they would have parental responsibility transferred to himself and A's maternal grandmother if he would agree to this. SH says that he would not agree to turning off life support.
He says he used to regularly go and spend time with A at the hospital, and he felt that this did A good. He says that A's mother, SJM, was daunted by the situation and did not like to attend the hospital. He says that this became worse after C's birth and that in order to lighten the load on DH, he was visiting A around two to three times a week.
SH says that A started to improve against all expectations. SH says that A was taken into care because DH was looking after both C and A. SH says that DH was told he could only look after one child, and was forced to choose between them.
SH says that the problems started when C was taken into care and he indicated he wanted to care for C. He says that the Department's case worker told him she would not allow him to apply to be C's carer. He says that the Department's case worker tried to 'stonewall' the family from seeing C. He says that he asked if there was another level he could appeal to, and was told that the decision rested with her. It is now SH's belief that C's foster mother had wanted a young child to raise as her own and that the Department's case worker had agreed to this proposal.
SH says that from this point onwards the Department and in particular the aforementioned case worker had 'embarked on a program of vindictiveness'.
SH says that when he went to visit A at his high care facility, he was told by staff that they had been contacted by the Department and were told that he was no longer allowed to see A. He said the staff at the facility were upset because of the strong relationship he had with A and the benefit that it was giving to A. He says that the Department later on organised for supervised contact but that 'this became farcical'. SH says that although DH could not be trusted to see A without the Department's supervision, he could be trusted to be the provider of A's complex medical treatment requirements.
SH also says that the Department had trouble organising supervision, and of his first 10 contacts with A, only half occurred as scheduled. He said that DH and he would arrive at the high care facility and wait inside until the supervisor arrived, before approaching A. He said that the Department then told them that they needed to wait outside the facility, which caused problems. He also says that the Department 'stopped us visiting [A] when he went into hospital. There he would be left in a cot for hours with simply the TV for company[.]'
SH says that the best thing for A was when LL and KL became his carers. SH says that LL adored A but also accepted that he had a biological family. He says that LL ensured A remained part of his family. He says that this was 'despite the efforts …. to try and keep a separation'. He says that the Department has a 'blind prejudice' against him and has misrepresented his actions in the past.
SH says that he and DH and C had regular meetings with A at this stage (while A was still living in the high care facility). He says there were no incidents of concern and that they took advantage of 100% of the contacts offered. SH says the contact reports all confirm that the contacts were positive.
When A moved in with LL and KL, SH says the contacts became less frequent. SH says they still took contact visits where possible but that it was difficult for A as he had to travel from a country town. He says that contacts were often in a conference room at the Department's district office, which had 'no real facilities'.
SH describes how, over time, he would regularly bump into LL, KL and A and that a custom developed of SH and DH ringing them and arranging to meet informally to spend time with A. SH says that this was always cooperative and respectful and 'at [LL's] say so'. LL also on occasion supervised contact with C on behalf of the Department. He says that LL and KL were involved in his wedding to NH.
SH states that when they disclosed this 'informal and successful' arrangement to the Department, they stopped it immediately, and later stated that SH had been harassing LL and KL. SH says this did not occur. He says that because of 'the Department's displeasure', they made a point of never ringing LL and KL or making contact, as they did not want to risk A's placement. DH was told to organise contact, but SH says that because DH does not drive and because of the demands of C and her contact, they are now only seeing A approximately yearly. C was also only seeing A at this frequency.
SH says that he misses A, and that A seeks his company and is fascinated by DATH. He says that C and DATH should see A more frequently.
SH also says that LL told him A feels abandoned by his family. SH says that this is the Department's fault and that they have no reasons for their concerns regarding him.
SH also gives evidence in relation to his Family Court matters involving his children, which he said were highly complicated. He says that a significant amount of material relied on by the Department comes from this period prior to 2004, or is 'based on the fruit of this period'. He says that the matters were essentially resolved in his favour so that by 2008, he was having physical contact with his daughters and that that contact was supervised 'not [for] any concern for the girl's safety, but the time period and the long history of the matter, and antipathy of the parties'. He says that by 2009/10 he was having unsupervised contact with KBN.
SH says that over the many years this matter has been ongoing, he has made repeated offers to the Department to get an independent psychological assessment of himself. He says that in his experience in the Family Court, seeking such a report unilaterally is 'frowned upon', and that reports are generally obtained through court order. However, he says that in previous proceedings before the Tribunal, he realised that this was not the case at the Tribunal and sought a report from an appropriate professional.
SH says he subsequently sought the professional opinion of Kamalesh. He says he made all court documents available to Kamalesh and attended several interviews with him. NH and DH also attended. SH says that prior to the commencement of these proceedings, he contacted the Department offering them the opportunity to submit documents to, or meet with Kamalesh. He says this was refused. SH says that he was totally honest with Kamalesh.
SH says that the Department's position is based on personal opinions and superstition rather than evidence, and this is reflected by the refusal of the Department to cooperate with him. SH says 'the ongoing actions of the Department make it extremely difficult for us' and that he is concerned about one day needing to explain the situation to C.
In relation to the decision of the case review panel, SH says as follows. He says the case review panel 'consisted purely of women' and that 'their behaviour and attitude was extremely misandristic and chauvinistic'. He says the case review panel was aggressive towards him, but compassionate towards NH 'whose behaviour had fallen under the category of domestic violence'. In relation to the decision of the CRP, SH makes the following points:
1)The CRP 'quotes dated documents, but does not quote from later documents and reviews in which the Department's lack of evidence' is highlighted.
2)One psychologist who was involved in giving evidence before Judge Eckert, Mr Cohen, has been 'reprimanded and sanctions imposed upon him for professional misconduct'.
3)'Justice Martin made her decision in 2004, not 2006, and was making orders for contact in 2005'.
4)He is concerned about the behaviour of the Department in not investigating the alleged behaviour of C's carer, about which he has previously raised concerns.
5)He is not living in a relationship of domestic violence. He says that he raised one incident in an attempt to seek assistance for NH. He says, '[a] single incident does not create a situation of domestic violence and I am not asking to have [A] overnight'.
6)In relation to his alleged breaches of contact conditions, the Department is being deliberately misleading and 'obtuse'.
7)SH has never been formally determined to be vexatious by the Children's Court, the Tribunal or the Family Court.
In crossexamination, SH was asked whether he considered himself a risk to A. SH responded '[i]n my mind based upon the knowledge that I have and the information that is a before me, I'm not a risk to A': T: 111; 13.08.15. SH also confirmed that KL is referred to as A's father, and that he has flourished under the care of KL and LL. He also agreed that it is better for A's sake that SH gets along with KL.
Under cross examination, it was also put to SH that there was some risk to his job currently, and that if he were to lose his job this would be a 'risk factor' for him emotionally and mentally: T: 117; 13.08.15.
It was suggested to SH that between 1998 to 2010, his personal life was 'tumultuous': T: 119; 13.08; 15. SH agreed that in recent years NH has been a positive influence on his relationships with members of his extended family: T: 133; 13.08.15. He was crossexamined in relation to his relationship with NH and in particular the need to tell a support agency about the 'domestic violence situation'. SH was asked whether he and NH simply experienced 'normal ups and downs' in their relationship, to which he responded 'Far less than I've had in other relationships': T: 134; 13.08.15.
SH was also asked why it has taken him a significantly longer amount of time to challenge the care plan for A than for C. It was put to him that he was satisfied with the care arrangements for A with KL and LL and he said 'I think that was probably my best my best answer': T: 133; 13.08.15.
NH's evidence
NH prepared a witness statement for the purposes of these proceedings but did not give further evidence at the final hearing.
NH is 32 years old and A is her stepgrandchild by marriage.
NH says that she has known SH since approximately 2002 to 2003 and has lived with him since 2011. They married in May 2012. NH explains that she has one child with SH, DATH, who was born in August 2012. SH and NH share parenting roles as equally as possible given SH's full time work commitments. When SH has to go away, DATH misses him as he idolises his father.
NH explains that KBN has regular contact with herself and SH, and can be quite challenging. NH says that SH's parenting is appropriate and that he sets boundaries for both KBN and himself.
NH confirms that DH lives in their household and that the relationship between SH and DH is one of mutual respect and friendship, with neither of them being dominant or controlling of the other.
NH says in relation to C that she is a regular visitor to their house and is a joy to have around. NH says C clearly loves DH and SH. She says that C and DATH are happy playing together.
NH also gives evidence in relation to SH's three other children. This evidence is supportive of SH's evidence in relation to his children. NH also speaks of SH's close relationship with his stepdaughter, J.
In relation to her own circumstances, NH says as follows. She was born in Canada in 1982. She moved to Halifax when she was 14 years old, where she completed her education and worked as a cleaner. NH worked her way up to being a shift supervisor. NH met SH online. They chatted for many years as she assisted him with his Family Court matters, both as a proof reader and a friend. She says SH was very open and honest with her. They chatted daily. NH says that she was the one who wanted to pursue a relationship and that 'this relationship came about because of my determination rather than [SH's] supposed predatory behaviour'. NH says that she feels she is an equal in her marriage with SH, and neither party is dominant or controlling. She says that they can both be stubborn, and if she is firm enough then SH will defer to her.
In relation to the allegations of domestic violence raised by the Department, NH says as follows. After the birth of DATH, NH suffered from postnatal depression. She sought appropriate help, but in February 2014, SH was 'laid off' and this caused her to relapse. SH helped NH seek appropriate help. NH says that with the certainty of SH obtaining another job, she has gone on to make a full recovery. NH says that during these times some things occurred which she was not proud of, but the relationship did not end. NH says her relationship with SH continues now stronger than ever.
NH says that after one of these episodes, SH sought help from an agency who told him they would need to report this to the Department. SH asked them not to as 'he believed [the Department] would only use this against him'. She says that she has never been approached by the Department regarding this incident. She says that '[i]t was strange that when I went to the [CRP], they were very supportive of me and compassionate as to my circumstances … [y]et, they were scathing with respect to [SH]'.
NH says that she and SH have the occasional argument like most married couples, but that this is within a normal range.
With regard to their relationship with A's carers, NH says that while she and SH rent a house in Perth, they also have his older home in Bunbury, where they spend a lot of weekends. LL, KL and A lived in Boyanup and NH says they would quite often meet at the shops and in Bunbury. She says that A was always happy to see them, and that they would chat because it seemed ridiculous to pretend they did not know each other. NH explains how they began to make arrangements a few times to meet at a park. She says that they never tried to hide those visits and told the Department at the next case planning meeting. NH says the Department told them the meetings were inappropriate and stopped them. NH says that they now rarely see A, despite never having any problems at these visits.
NH says that LL took on a motherly role for her and that LL helped her plan her wedding and do the shopping. She says that LL and KL helped on the day of NH and SH's wedding. NH explains how they bought DATH a baby capsule when he was born. NH says that having to break off contact with LL and KL led her to feel a sense of isolation and may have contributed to her postnatal depression. She explains that LL's death has been a big loss for her family.
NH describes A as a strong willed boy who loves his foster parents as well as SH. NH explains that their contact with A is arranged through DH but due to unfortunate circumstances it has been difficult to see A and that they are now only seeing him about once a year. She says that C and A are not seeing each other. NH says that LL had mentioned that A is feeling abandoned by his family, and that they feel as if they are being forced to abandon him.
MC's evidence
The Department's only witness of fact is MC, who prepared a statement dated 14 July 2015 and also a chronology of relevant events. She was crossexamined by SH at the final hearing.
MC is employed by the Department as a Team Leader for the Assessment and Intervention Team. She graduated from Curtin University of Technology with a Social Work Degree in 2003 and began working for the Department in 2004.
MC's evidence outlines A's personal history and the Department's involvement with his family.
In relation to the scope of the current application, MC says that the CRP had advised SH that it would only hear his application for review in relation to Point 5.3.2 of the Care Plan. The other issues raised by SH were in the CRP's view in relation to his son, DH.
MC outlines the position of the Department as follows. MC says it is the Department's position that SH should not have unsupervised contact with A due to the potential risk that he poses to A. She says that this position is supported by numerous psychological and psychiatric reports about SH. In particular, MC points to the following documents:
a)A psychological report of Denise Cull dated 30 June 2003.
b)A psychiatric report of Dr Srna dated 27 August 2007.
c)Psychological reports of Stephen Cohen dated 2 February 2007 and 15 December 2008.
d)A psychological Report of Carmela Yom-Tov dated 18 March 2004.
MC says that it is not in the best interests of A to have unsupervised contact with SH for the following reasons:
a)The risk SH poses to A;
b)DH has consistently held the position through various forums such as the CRP and the Tribunal that he does not want A to have unsupervised contact with SH;
c)A's medical conditions place him in an extremely vulnerable position and he requires specialist care at all times; and
d)SH is living in a relationship of domestic violence and A should not be exposed to any potential risks of violence.
MC says that the view that all contact should be supervised has also been taken by numerous CRPs and Judges of the Family Court and also this Tribunal.
MC says that she has reviewed the report of Kamalesh dated 30 November 2014. However, she says that it does not alter the Department's position. She says it is merely one report which must be viewed alongside all the other material which is available to the Department. Furthermore, MC says that the report is in relation to contact between SH and C and accordingly takes no account of issues particular to A.
MC says that the recent psychological report of Ms Cherubino dated 16 June 2015 also supports the Department's position that contact should be supervised.
MC says that the care planning decisions indicate that DH is to supervise contact between SH and A and if he is unavailable then DH is to negotiate with KL to supervise contact. The Department is not supportive of SH making direct contact with KL as, MC says, SH has in the past made KL uncomfortable. The Department is of the view that if KL is to supervise contact, then DH or the Department would need to liaise with KL in relation to the visit.
At the hearing, MC supplemented her written evidence. She confirmed that what she says in her statement remains the position of the Department. She also confirmed that KL's current position in relation to contact is that his preference is that contact be through DH and that he does not want SH to know his address or phone number: T: 26; 13.08.2015. She said that KL would be happy to call SH if there were any issues with getting in contact with DH. MC also said that KL would prefer contact to be on a Saturday, but that he is happy to liaise with SH if this does not occur: T: 27; 13.08.2015.
SH crossexamined MC at length regarding her evidence. SH's cross examination of MC was largely to the effect that MC had been selective and incomplete in the chronology of events and information which she had provided to the Tribunal with her witness statement. It was also suggested to MC that much of the information relied on to support the Department's position was outdated or historical. At one point, counsel for the Department interjected:
… I object further to the further crossexamination of the nature to which the witness is being subjected in relation to the chronology. The point has been made by the [T]ribunal, in my respectful submission, the chronology is not intended to be and would certainly not be treated as gospel by the … [T]ribunal will need to have reference to source documents.
(T: 40; 13.08.15)
With respect, I agree with counsel on this point.
Ms Cherubino
Ms Cherubino is registered to practice as a psychologist in Australia. She holds the specialist endorsements of Clinical, Counselling and Forensic Psychologist with the Australian Health Practitioner Regulation Agency, as well as being a member of a number of professional organisations. She was awarded a Bachelor of Psychology in 2003 from Murdoch University and completed a Master of PsychologyCounselling in 2006 from Curtin University. Ms Cherubino has been working as a counsellor and psychologist since 2003. Ms Cherubino operates a general clinical practical which involves the treatment of children, adolescents and adults referred by general practitioners, psychiatrists, paediatricians and others. She has acted extensively as an expert witness in the Children's Court and Family Court. She has provided reports related to family conflict, adjustment of children and adults post separation, mental health of children and adults, children's living arrangements and contact arrangements, intrafamilial sexual abuse, drug and alcohol abuse, family and domestic violence, parental alienation, religion and culture, relocation, name changes and misattributed paternity.
Ms Cherubino advised the Tribunal that she had conducted interviews with A, KL and SH. In relation to the psychological assessment of SH, Ms Cherubino administered the Personality Assessment Inventory (PAI) and the Millon Clinical Multiaxial Inventory (MCMIII/III). The PAI is a selfreport measure of symptoms related to mental health issues, and the MCMIII/III is a selfreport measure used to assess personality disorders and clinical syndromes.
Ms Cherubino sets out the relevant background and previous psychological evidence in this matter, most of which is unnecessary to repeat. However, Ms Cherubino's report notes two areas in which have, in the past, been identified as potential risks in SH's relationships with children. Those areas are:
1)Family violence and abuse
Ms Cherubino noted that in the past, SH had numerous allegations made against him relating to the harm of children. These included allegations of neglect, physically disciplining children, sexually inappropriate behaviour, exposing children to domestic violence and threatening to abscond with children. The allegations of sexual impropriety included bathing naked with children and rubbing against them. In relation to the domestic violence issue, Ms Cherubino noted an email of SH to the Mental Illness Fellowship of WA describing his wife NH as being violent and frightening. She also notes previous concerns held by the Department that SH provided a mental threat to children due to his vexatious and litigious nature. Ms Cherubino also records that violence restraining orders have been applied for against SH and that he has at least one conviction for malicious damage. She notes that some of the alleged incidents may have occurred in the context of mental health issues that were present for SH at the time.
2)Mental Health
Ms Cherubino notes a lengthy history of possible mental health issues presented as a result of assessments of SH that have been undertaken. Ms Cherubino summarises the various assessments as follows. The South West Mental Health Service (SWMHS) diagnosed SH with chronic depression in the context of personal stressors in relation to adoption and difficulty fulfilling a parent role. The SWMHS reports described SH as very intense, obsessional and intelligent. The SWMHS also noted other issues which were gross sleep disturbance, major depression, weight gain, compulsivity, reduced libido, anhedonia, depressed mood, the absence of humour, elevated irritability, fleeting suicidal thoughts and a desire to inflict selfharm. In addition, SWMHS noted elevated anxiety, untidy presentation, obsessive behaviour, enmeshment in legal difficulties, poor memory function, suicidal ideation, urge to self-harm, avoidant and chaotic lifestyle, relationship difficulties, deteriorating relationships with his two sons and general mood dysfunction and fluctuation. Psychologists using the MMPI suggested that SH had narcissistic and passive personality problems and poor insight. She notes that one psychologist refused to work with SH indicating that they felt abused after each session.
Ms Cherubino was asked a number of specific questions in relation to both SH and A. These are the questions and her answers to each of those questions:
What is your diagnosis of SH's current condition, including any personality disorder?
Ms Cherubino states that the PAI results produced a valid profile. She says the PAI clinical profile revealed no marked elevations that would indicate any particular diagnosis present. Based on SH's selfreport, Ms Cherubino found that he did not meet the full criteria for any particular diagnosis. The results showed some difficulties consistent with relatively mild or transient depressive symptoms, and a mild degree of stress. Ms Cherubino states a possible diagnosis could be an adjustment disorder with depressed mood, which is a psychological response to an identifiable stressor that results in the development of clinically significant emotional behavioural symptoms.
The MCMIII/III also produced a valid profile and did not suggest a personality disorder to be present. SH's personality traits included avoidant traits, a mild fear of rejection and social disapproval but not leading to major personality difficulties, some antisocial traits and some selfdefeating traits. No anxiety or mood disorders were indicated and there was no information suggesting alcohol and drug dependence.
Ms Cherubino notes that in the past, mental health professionals have been unable to agree entirely on a diagnosis for SH. Ms Cherubino therefore explored a variety of different possibilities. Given SH's history, she was concerned that some of his symptoms may have been misinterpreted. Ms Cherubino noted that SH had a history of alleged socially inappropriate behaviour, as evidenced by reports previously subpoenaed from WA Police. There was also an allegation that the school principal for SH's children was concerned that SH spent a great deal of time engaging in discussions with other children at the school. Another alleged incident involved SH approaching a girlfriend of his son DH to ask that she consider being a surrogate. Ms Cherubino also says that it seems SH has limited friendships with males.
Ms Cherubino notes that although it is not her area of expertise, she considered whether some of the symptoms described as being present for SH might relate to an autism spectrum disorder. She notes that this disturbance would be likely to cause some significant impairment in social, occupational or other areas of functioning.
Ms Cherubino also expressed a concern that the obsessive compulsive qualities that are alleged of SH's personality may have been previously assessed independent of any other concern being present.
Ms Cherubino notes that the situation may have caused significant distress for SH as, in his view, his behaviour has been normal. She considers that it may be advisable to determine whether there is a possibility that an autism spectrum disorder exists for SH.
Is (any) condition likely to be permanent?
Ms Cherubino says that the answer to this question is difficult to ascertain. She says given SH's profile, it is likely that depressive symptoms have existed for some time and it appears that transient depressive symptomatology is likely to continue throughout the course of SH's life. Ms Cherubino says the SH's depressive symptomatology is unlikely to assist in a change of behaviour in terms of his relentless advocating for family members who he considers are vulnerable and marginalised. Ms Cherubino opines that this position can impact on the mental health issues that exist for him given the manner in which he seeks legal and moral restitution and the stress that this places on him. She says it is not certain if other issues present may also contribute to SH's continued pattern of litigation.
Does he pose any risk (sexual, physical, psychological, emotional) to the wellbeing of A?
Ms Cherubino notes that this is a complex question given that there have been so many previous judgments and viewpoints in this regard. She says that currently, based on the information available, it would seem that there may be some level of risk to the wellbeing of A if placed in SH's unsupervised care. Ms Cherubino does not suggest that SH would intentionally try to harm A in any way, and in her opinion he is a caring and compassionate individual who would seek to be protective. However, she says that because of the extent of the issues present for SH and A, together with the judgments and opinions that have previously been provided, it would seem there is some level of risk. She says the extent of this risk is difficult to determine. Ms Cherubino suggests that there is little to no risk involved in A spending supervised time with SH.
Can you comment on whether SH is able to act in a childfocused manner and act in the best interests of A?
Ms Cherubino says that it would seem SH considers he is acting in the best interests of A in terms of the current proceedings. He considers that A should have access to his grandparents to develop a relationship with them and that A does not have adequate time to spend with SH, NH and DATH. Therefore, in SH's view in bringing these proceedings he is behaving in a childfocused manner in respect of the best interests of A.
What is your opinion of the level of assistance required by A in terms of his daytoday needs?
Ms Cherubino states that A requires a very high level of assistance in terms of his daytoday needs. He is reliant of his carers to feed him, change him and supervise him to ensure his safety. KL indicated that at times A tended to be susceptible to catching viruses. He also appeared to wake at night, but is familiar and comfortable in his home environment with KL, who has cared for A independently since the death of LL. A attends school and is well supported in that environment, and also goes into respite care on Thursday afternoons and Sundays.
What is A's ability to communicate?
It appears that A is nonverbal although KL has indicated that he is able to say some limited phrases such as 'I love you'. At times KL indicated that A would shake his head to indicate 'no' and nod to indicate 'yes'. KL considered that there is a possibility that A could read. Generally, however, KL reported that if A wanted attention he would tend to scratch.
A's ability to communicate his needs is limited and relies on the experience of those who are familiar with his care to determine what his needs may be. A has come to know KL's family as his own. When A desired attention during the interview, he would tend to rock his chair. This led to a risk of A overturning his chair, and he required continual observation in this regard.
What vulnerabilities does A have?
Some of A's vulnerabilities are summarised by Ms Cherubino as follows. First, A requires ongoing supervision in terms of providing for his safety and daytoday needs. At times A can return home from school with pinch bruises and this suggests there may be some intolerance from other children whereby they may bully A at some level. A is also susceptible to infections and viruses and requires a clean home environment. He also requires a level of restraint when in the wheelchair as he has difficulty manoeuvring himself outside of a wheelchair. He is particularly susceptible to being neglected. He is not in a position to inform others of situations that may cause him danger. His inability to disclose incidents, whether they be good or bad, makes him vulnerable to harm and abuse from others.
Based on what you have read in the documentation and your observations what is your assessment of SH's capacity to care for A unsupervised?
From the information available, Ms Cherubino holds some concerns about SH's ability to care for children unsupervised. This relates to various allegations throughout the course of his children's and grandchildren's life whereby there has been some indication that he can neglect, use physical discipline, be sexually inappropriate with children and did not consider the ramifications of his ongoing legal action with respect to the best interests of children. There has also been some indication in the past that SH's home has been cluttered and unclean requiring intervention. While the state of SH's home is not certain currently, it must be noted that a young child is currently residing with him. Given the high needs of A and the previous information available with respect to SH, Ms Cherubino states that SH's capacity to care for A without supervision is limited.
Ms Cherubino also notes SH's depressive symptoms which have been enduring throughout his life. She notes that at times he may experience bouts of depression which minimise his ability to manage the unsupervised care of A.
Is A at risk of any type of abuse, including emotional abuse, if SH is permitted to have unsupervised contact with A?
Ms Cherubino notes a number of differing opinions in terms of whether SH provides a risk of abuse of any kind to children. From Ms Cherubino's observation, SH is a kind, considerate individual who would not intentionally or consciously try to hurt a child in his care. Unfortunately, due to the issues present for him, there may still be some level of risk to A in his unsupervised care.
Ms Cherubino does however note that it is important to address the current supervision arrangements, which seem outdated and not appropriate for the current situation. Ms Cherubino notes that it is important, based on the dynamics between DH and SH, to promote more of an independent relationship for each of them with A. Her report details some suggestions on how this could be achieved.
Kamalesh
Kamalesh is a registered clinical psychologist: BA Hons. Melbourne University 1974, M. Psych (Clinical) University of Western Australia 1976. He worked as a clinical psychologist for the Department of Community Services from 1976 to 1991. For seven of the last eight years he held the position of Intervention Consultant for the Department. His clinical work during this period was primarily related to incest: treating offenders, victims and their families. He has produced numerous medicolegal reports for court both during this period and since being in private practice since 1991. In private practice he has prepared numerous reports that related to indecent dealings and child pornography charges. Kamalesh prepared one written report which was filed in these proceedings. That report is dated 30 November 2014, and was in fact prepared for the purposes of previous Tribunal proceedings in relation to C. At the hearing, Kamalesh confirmed that the last contact he had with SH was in late 2014: T: 9; 14.08.15. Since preparing the report, Kamalesh had been provided with a copy of Ms Cherubino's report. It was only at this stage that he became aware of the details of A's special needs: T: 11; 14.08.15.
Kamalesh's written report was based upon:
1)a previous assessment he conducted on SH in 2007 that consisted of a single interview and administration of the MCMIII/III and the Minnesota Personality Inventory;
2)five interviews with SH throughout 2014. NH and DATH were present for one of these;
3)an interview with NH in November 2014;
4)an interview with DH in November 2014;
5)various emails from SH replying to his requests for clarification in November 2014;
6)the Beck Depression Inventory completed in November 2014; and
7)the following documents:
a)Justice Martin's judgment and orders in the Family Court dated 8 October 2004;
b)a psychological report by Stephen Cohen dated 9 January 2007;
c)SH's response to Stephen Cohen's report dated 21 January 2007;
d)Stephen Cohen's additional report following SH's response dated 2 February 2007;
e)Dr Zdenek Srna's report dated 27 July 2007;
f)Dr Danny Shub's report dated 9 October 2008;
g)Her Honour Judge Eckert's decision dated 21 October 2009;
h)a Psychologists Registration Board of Western Australia letter about the outcome of SH's complaint about Mr Cohen;
i)a report of the findings of the Department of Child Protection case review panel on 23 April 2014;
j)MC's witness statement;
k)Magistrate Kaesar's judgment and orders in the Family Court dated 9 June 2014; and
l)an extracted summary of subpoenaed file information regarding Departmental communications and C's foster mother.
Kamalesh provided a summary of his report to the Tribunal. That summary included the following points relevant to this review.
Kamalesh considered that SH was in good mental health, despite having a background of depression. He has some personality vulnerabilities but Kamalesh found that these do not fulfil the criteria for a personality disorder. Kamalesh does not think SH poses a risk to children.
Kamalesh noted that SH has not suffered from significant depression since 2007 apart from three months in early 2014 when his unemployment led to worry and a depressed mood. Kamalesh notes that the symptoms in early 2014 did not meet the diagnostic criteria for a major depressive episode. He has not been hospitalised and for most of the period since 2007 he has not been taking antidepressant medication. Since 2007, SH has had regular employment as a metallurgist (apart from the three months in early 2014).
In relation to the sexual abuse allegations, apart from allegations made by C's fostermother in 2009, Kamalesh could find no other records of concern. Kamalesh notes that SH has not been charged, interviewed by police or convicted of any such offence and that allegations of this nature have never been substantiated.
Kamalesh also found that SH does not presently suffer from a personality disorder, and because such a diagnosis is immutable, this calls into question previous diagnoses. Kamalesh notes that differing opinions have been presented over the years that SH suffers from a variety of personality disorders. Despite personality disorder not being predictive of sexual misconduct, its diagnosis in SH has in Kamalesh's opinion led to a somewhat erroneous perception of risk. Kamalesh notes that despite seven years having passed since the last assessment, the prediction continues to be unfulfilled.
In relation to his family relationships, Kamalesh notes that SH has regular weekend contact, more extensive over school holidays, with his daughter KBN, with no concerns about SH behaving inappropriately. SH has continued to have regular contact with his stepdaughter, and she spoke to Kamalesh in unqualified positive terms about SH, who has fulfilled a father role for her for as long as she can remember. Kamalesh notes that NH spoke of SH respectfully and said their relationship was one of equal influence and, based upon his one session with them, Kamalesh says this appears to be the case.
Kamalesh concluded his report by indicating that he could see no reason why contact with C should be supervised.
Areas of agreement and differences between the experts arising out of concurrent evidence
At the hearing, Ms Cherubino and Kamalesh were examined concurrently. They confirmed that they were 'fairly much on the same page' in terms of their assessment and diagnosis of SH. They both agreed that SH did have some depressive symptomatology, but there was nothing consistent with a personality disorder: T: 9; 14.08.15.
The only real disagreement between them seems to be in relation to the level of risk that unsupervised contact between SH and A could pose.
Ms Cherubino stated that it was important for both SH and A to have a relationship 'without further allegations being made because I think that will interrupt the flow and the nature of how they develop their relationship': T: 10; 14.08.15. Ms Cherubino believes that supervision would help facilitate a relationship between SH and A because it would keep any further allegations being made to a real minimum.
Ms Cherubino also in her witness statement expressed the view that because of the nature of the issues present for both SH and A, unsupervised contact may be of some risk to A.
In contrast, Kamalesh only expressed one reservation regarding unsupervised contact between SH and A. Kamalesh stated that he had only learnt of the details of A's medical concerns by reading Ms Cherubino's report: T: 11; 14.08.15. In relation to unsupervised contact with A, Kamalesh said:
I think [SH is] a very responsible, reliable person who really is concerned about his children and about and values highly children's contact with family … so my only concern would be about whether whoever was having access to [A] had the medical knowledge to be able to respond to his needs and that would be … whether it was his father or his grandfather or whoever.
(T: 11; 14.08.15)
Kamalesh said that this reservation does not just apply to SH but anyone whom A was relying upon to respond to his needs.
Crossexamination of the witnesses
Much of the examination of Kamalesh related to his opinions about previous Tribunal decisions and psychological reports: T: 15; 14.08.15. However, it is not necessary to set out that crossexamination here or to consider it.
Kamalesh was also crossexamined regarding his opinion that a personality disorder is not present. His response was that '[i]t needs more than problems in relationships to warrant that as a diagnosis': T: 19; 14.08.15. Kamalesh was also questioned about the extent to which certain personality traits exist in SH, such as selfcentredness and 'intransigence when he believes he's right': T: 20; 14.08.15. Kamalesh replied that while SH did have those traits to a certain extent, so do most people: T: 20; 14.08.15.
Kamalesh admitted that he had not seen SH with A, so could only make a prediction about whether SH would be able to pick up on A's physical and emotional cues: T: 21; 14.08.15.
Kamalesh explained that he was seeking to address a perceived bias against SH: T: 21; 14.08.15.
Kamalesh was also questioned about previous instability in SH's personal life and commented that being in a stable relationship with NH seems to have a positive effect on SH's mental health (although that relationship has also at times been volatile): T: 23, 25; 14.08.15. When asked how SH would cope with A if NH were not present, Kamalesh stated that he felt unable to make that prediction: T: 26; 14.08.15.
Kamalesh also stated that if SH were to lose his employment, that may trigger a vulnerability to depression, and that this may affect his relationships: T: 30; 14.08.15. However, Kamalesh also acknowledged that when SH experiences problems with his mental health he takes appropriate actions: T: 32; 14.08.15.
It was put to Ms Cherubino during her examination that some of the historical information on which she based her report may have been biased or incorrect: T: 44; 14.08.15. Ms Cherubino responded that she had provided an unbiased report and had tried to be as comprehensive as possible: T: 45: 14.08.15. She stated that she had a lot of information before her, and that she 'wouldn't consider that every person that provided information was biased': T: 47; 14.08.15. She also noted that SH was free to provide her with any information he thought was relevant: T: 44; 14.08.15.
Ms Cherubino was questioned about her suggestion that an autism spectrum disorder may be present for SH. She confirmed that this was merely a suggestion and not a diagnosis: T: 48; 14.08.15. She also outlined some of the factors on which she based this suggestion:
If I look at the diagnostic criteria for Asperger's disorder, failure to develop key relationships appropriate to development level, a lack of emotional reciprocity, which has been mentioned by Kamalesh he talks about a lack of empathy … .
We're also talking about some patterns of preoccupation with things … can we see it as encompassing a preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus.
(T: 61; 14.08.15)
In relation to Ms Cherubino's point regarding a lack of empathy, Kamalesh clarified, 'I said that you do display empathy, but that that's not an overriding factor in your actions sometimes': T: 61; 14.08.15.
Ms Cherubino was questioned about her statement that supervision of contact is desirable to preserve the relationship between SH and A and prevent further allegations. She confirmed that this was not 'laziness' but in her opinion a measure that was protective of both SH and A: T: 4950; 14.08.15.
SH then asked Ms Cherubino whether supervision was something that was 'nice to have', or whether it was essential. Ms Cherubino responded:
… I'm suggesting it is essential and … from my perspective, it is essential for a number of reasons certainly to protect and preserve the relationship between you and [A]; certainly to prevent further allegations in the future; and thirdly, to ensure that [A's] needs are met adequately, and he is comfortable in an environment with you … .
(T: 53; 14.08.15)
Ms Cherubino confirmed she was unable to comment on the extent to which SH could already respond adequately to A's medical needs: T: 55; 14.08.15. However, she also confirmed that she was not concerned simply about A's medical needs but also about safety concerns for A: T: 58; 14.08.15. Ms Cherubino noted that A had particular nuances of which KL was aware, such as a tendency to fall from his wheelchair: T: 58; 14.08.15.
Ms Cherubino was also examined in relation to previous allegations that had been made against SH. I reminded SH at this point:
The allegations have been made. Ms Cherubino is aware of those allegations. Ms Cherubino has never at any point during the course of her testimony said anything about substantiating the allegations or the truth of the allegations. She is just simply observing, as you must observe and everybody else in this room observes that there have been allegations, a long time ago.
(T: 57. 14.08.15)
I put to both witnesses whether there would be a risk of any nature to A in having an unsupervised, overnight visit with SH.
Ms Cherubino stated that there could be a psychological risk to A in that A is very dependent on KL, and because placing a child in an overnight scenario with an individual with whom he has had minimal contact could be rather distressing, at least initially, for any child: T: 63; 14.08.15. This is a risk over and above any medical and safety risks that may exist specifically for A. Kamalesh expressed similar concerns, although also expressed a view that this psychological risk could be overcome by introducing contact with the new environment more gradually: T: 64; 14.08.15.
Summary of CEO's submissions
The CEO considers that part of SH's application should be struck out on the basis that it is misconceived and the Tribunal lacks jurisdiction.
The CEO submits that it is only those care planning decisions which have been to the CRP which are reviewable by the Tribunal. If the CRP refuses to hear an appeal against a care planning decision on the basis that it is not a care planning decision, or that SH does not have a sufficient interest in the matter, then the CEO says there is no right of review in this jurisdiction.
The CEO therefore says that numbers 2 and 3 of the 'Decisions Sought' section of SH's application should be struck out as they concern matters that were not reviewed by the CRP. To the extent that SH is seeking to add any other grounds of review in this matter, the CEO says that these should be struck out on the same basis.
In relation to the remaining sections of SH's application, the CEO says as follows.
Firstly, there have been many psychological and psychiatric reports about SH in recent years which diagnose SH with a longstanding personality disorder and raise concerns about SH's ability to safely spend unsupervised time with A. While there have been psychological reports to the contrary, the CEO says that the majority of the reports support the view that SH should not spend unsupervised time with A. Some of the reports adverse to SH were commissioned by SH himself.
The CEO also mentions the decision of Judge Eckert not to remove the requirement for supervision of contact.
The CEO makes note of SH's reports of domestic violence in his relationship.
In summary, the CEO says it does not consider that it is in A's best interests to have unsupervised contact with SH for the following reasons:
a)The risk that SH poses to A.
b)The fact that DH informed the Department in 2012 that he does not want A to have unsupervised access with SH, and has provided no contrary view.
c)The fact that A's foster carer is not supportive of SH having unsupervised contact.
d)A's medical conditions place him in an extremely vulnerable position and he requires specialist care at all times.
SH's further submissions
SH had filed submissions in relation to an application by the CEO to strike out this matter, which was made at an earlier point in this proceeding. SH has not filed further written submissions since that time, but relies on his submissions relating to that strike out application. SH also made oral submissions at the final hearing.
In relation to the jurisdictional issue raised by the CEO, SH says:
1)A decision was made in a Care plan that significantly altered the Care plan or which was otherwise identified as a decision.
2)An application for the review of the above as Care Planning Decision was then submitted to the CEO compliant with the provisions of [s 93(1), s 93(2) and s 93(3) of the CCS Act].
3)This was accepted as the CEO confirming compliance.
4)The CEO sent the application to the Case Review Board and received their advice as well as potential advice from other parties and made a decision.
5)The applicant was aggrieved by these decisions and made an application to the SAT that complied with the requirements of the SAT Act.
6)Thus the SAT has jurisdiction.
SH's position in relation to the substantive issues in this matter is well reflected by his witness statement, the contents of which I have already outlined above.
Decision
Jurisdictional issue
The CEO applies for part of SH's application to be struck out on the basis that the Tribunal lacks jurisdiction. I agree that orders 2 and 3 in the 'orders sought' section of SH's application are not matters which were considered by the CRP. These are therefore not matters in relation to which I have jurisdiction to consider.
Substantive issue
As I have already noted, the task of the Tribunal in review proceedings is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act. My focus in determining these proceedings has therefore been on the most current and uptodate evidence before the Tribunal.
I have determined that SH's application, the essence of which is to have unsupervised contact with A, should be dismissed.
In coming to this conclusion, I have considered various allegations in the past that SH poses a risk to children generally. However, it is unnecessary for me to make any finding in this regard.
The reason for my decision is that, because of A's particular vulnerabilities, there is a risk to A in spending unsupervised time with SH, or indeed any adult whom he has been seeing infrequently. While I accept that it may be beneficial for A to develop a relationship with his natural family, I cannot see why this benefit could not be realised by some measure of supervised contact with SH. Unsupervised contact, however, does not enhance any such benefit but does present a risk to A. The risk is in relation to the potential medical, safety and psychological risks to A. It is the interests of A which must be my paramount consideration, not the wishes of SH.
Supervised contact between A and SH is already contemplated by the care plan for A.
Order
1.The application is dismissed and the CEO's decision is affirmed.
I certify that this and the preceding [167] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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