T v Department of Communities, Child Safety and Disability Services
[2014] QCAT 473
•21 August 2014
| CITATION: | T v Department of Communities, Child Safety and Disability Services [2014] QCAT 473 |
| PARTIES: | T (Applicant) |
| v | |
| Department of Communities, Child Safety and Disability Services (Respondent) |
| APPLICATION NUMBER: | CML215-13 |
| MATTER TYPE: | Children’s matter |
| HEARING DATE: | 26, 27 May 2014 and 25 July 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Felton (Presiding) Member T Williams Member Pendergast |
| DELIVERED ON: | 21 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Department of Communities, Child Safety and Disability Services to restrict contact between T and her children, A and B, is confirmed. |
| CATCHWORDS: |
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APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented herself |
| RESPONDENT: | Represented by Ms Janine Erb |
REASONS FOR DECISION
The children, subjects of this matter, A, aged almost 8 years, and B, aged almost 6 years, at the time of final hearing of this matter were subject to Child Protection Orders granting custody to the Chief Executive for a period of eighteen months. On 6 June 2014, in the Hervey Bay Childrens Court, Deputy Chief Magistrate Rinaudo made orders to this effect and subsequently gave consent to release his written reasons to QCAT.
These current Child Protection Orders will continue in force until 6 December 2016.
These Child Protection Orders are the final outcome of an appeal by T of orders made on 26 August 2013 granting custody to the Chief Executive for a period of 18 months. Those orders were to expire on 26 February 2015.
During this period 26 August 2013 to 6 June 2014, the children were in both the custody of the Chief Executive and the temporary custody of the Chief Executive. It is noted that the children were in the custody of the Chief Executive under a previous Child Protection Orders from May 2012.
Throughout this time, the goal for the children’s case plans has been to reunify them back into the care of T.
A number of contact decisions were made by the Department during the course of proceedings before QCAT. On 8 October 2013, the Department made a decision to restrict contact between the children and their mother. On 4 November 2013, T sought a review of this decision to QCAT.
On 21 January 2014 a new contact decision, conveyed in writing on 19 March 2014 was made, involving an increase in contact to face to face. It was, however, still a restriction in contact and T continued with her review to QCAT.
The matter proceeded to hearing on 26 and 27 May 2014, with final evidence and submissions being taken on the resumed date of hearing, 25 July 2014.
During the adjourned QCAT hearing, another contact decision was made by the Department on 4 July 2014. This decision, in essence confirmed the days on which contact had been occurring since 12 May 2014.
This final decision of the Department specifies that contact would occur on a Monday and Wednesday for 1 hour and fifteen minutes after the children’s school day. Telephone contact was scheduled to occur on a Tuesday afternoon between 4pm and 5pm, with the proviso that if neither of the children wished to speak with their mother a text message would be sent advising T of this. This letter does not state whether either face to face or telephone contact would be supervised. In practice all contact was supervised and as the decision letter did not address the issue of supervision, it was accepted and not challenged by T that this would remain.
It is this decision of 4 July 2014, which was the decision in operation at the time of final determination by QCAT. Thus the decision under review by QCAT is the decision of 4 July 2014.
QCAT will decide this matter by way of a fresh hearing on the merits of the case in order to produce the correct and preferable decision.[1] Section 24 of the QCAT Act lists the options available to the Tribunal in confirming, amending or setting aside the Department’s decision. The question to be answered is: Should contact between T and her two children be restricted? In deciding this question, the Tribunal needs to have regard to the main principle for administering the Child Protection Act 1999 (CP Act), that the safety, well being and best interests of a child are paramount.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 20.
[2]CP Act s 5A.
The Tribunal must also have regard for the other general principles.[3] Included in these is the principle (f) that if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interest. This principle however, is overridden by the paramount principle above. Other principles highly relevant in this matter are principles (h), (k) and (l)[4] relating to a child’s ability, connection to family and community, the child’s development and other needs.
[3]CP Act s 5B.
[4]CP Act s 5B.
The standard of proof required to determine this matter is that stated in Briginshaw[5] which is the standard of reasonable satisfaction. The Tribunal does not need to be satisfied beyond a reasonable doubt.
PROCEDURAL ISSUES ADDRESSED AT THE HEARING
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
A number of procedural issues arose and were addressed during the Hearing of this matter.
The Tribunal considered whether the Hearing should proceed or whether proceedings should be suspended under s 99M of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT ACT) as the decision of the appeal against the Child Protection Orders was to be given on 30 May 2014 in the Hervey Bay Children’s Court. Neither Ms T nor the Department submitted that the QCAT hearing should be suspended. In view of the fact that T had travelled from Hervey Bay to Brisbane for these proceedings and the matter had been before QCAT since 4 November 2013, the Tribunal decided to proceed with the Hearing.
T had sought to tender some 400 pages of documents to the Tribunal at the commencement of the Hearing. The Department objected to such on the basis that it would lead to undue delay of the finalisation of this matter and it was not in compliance with the order made at the QCAT Directions Hearings on 11 April 2014, for T to have filed material to be relied upon at the Hearing, by 16 April 2014. The Tribunal refused to allow these documents to be filed on the grounds that there was no justifiable reason given to the non compliance with the Directions.
The Department sought to have a confidentiality order made, regarding part of the evidence given by Child Safety Officer, Tricia Rogers, on the grounds that it was it might pose a risk to the children if it was not to be made. The Tribunal made an order under s 99ZD of the CP Act. However, the Tribunal subsequently informed the parties that the content of the evidence subject of the Confidentiality Order had later been given by the witness in answering questions of the Department.
At the close of the second day of the QCAT hearing, the Tribunal requested of the Department, to inform the Tribunal of the outcome of the Child Protection proceedings before the Hervey Bay Childrens Court. On that basis, the Tribunal allowed into the proceedings, copies of the Child Protection Orders dated 6 June 2014 and a copy of the written reasons of DCM Rinaudo decision of the same date.
AGREED AREAS AND AREAS IN DISPUTE
By the completion of the third day of the QCAT hearing, the broad areas of dispute between the Department and T had significantly narrowed.
There is no dispute between the Department and T that the current goals of the case plans to reunify the children with their mother. Both the Department and T agree that contact between the children and their mother needs to occur in order for that goal to be reached.
Both the Department and T agreed that the conflict between Ms T and the paternal grandmother, in whose care the children have been placed almost continuously, since May 2012, needs to be addressed.
There remains a factual dispute about the identity of a male person who attended a contact visit between T and the children at her home.
The essence of what is in dispute, however, is the current level of contact. T is of the view that currently the children should be having three visits per week and overnight contact with herself in her home. The Department is of the view that the current level is appropriate, with the prospect of increasing time when a number a number of issues have been addressed and in the context of regular reviews.
THE APPLICANT’S CASE / THE CASE FOR INCREASING CONTACT
T argued that the children should have been reunified to her care by now. The goal of the case plans for both children was to be reunified in her care by mid 2013.
It is accepted that there was an attempt made in March, April and May of 2013 to reunify the children and their mother but this had been unsuccessful, due to a number of assaults made on T, and the children were subsequently returned to the care of the paternal grandmother.
T describes these events as her being vulnerable to making poor choices in relationships.
T accepts that her relationship with the father of the children was characterised by violence but states that she has undertaken counselling to address these issues.
T strongly denied, however, that the male present during a contact visit with her children was C with whom she had or has until recently a violent relationship. This is despite the fact the there was substantial evidence from a number of sources to the contrary.
T submitted that her social life is very limited. She is attempting not to associate with people who in her words may get her into trouble. With a degree of sadness, she describes her estranged relationship with her family.
She refutes that her relationship with C is ongoing and that the relationship had significant harmful effects on the children. Again despite their being evidence from a number of sources that A, in particular, has voiced fear of both C and being at T’s home should he appear.
T accepts that at least, at present, A, in particular, is displaying some reluctance to spend any increased time with herself but attributes this to there being a lack of normalcy in the contact visits and the paternal grandmother attempting to turn the children against herself.
T acknowledged that she suffered some mental health concerns but informed that she was being treated by Dr M. Her view of the severity of these concerns was not consistent with those held by the Department. She felt her being placed under an Involuntary Treatment Order and held in a Mental Health Unit in 2012 was her acting on poor advice. T did however agree at the QCAT Hearing, to undertake a mental health assessment to be held in mid August, as arranged by the Department, and to be guided by that assessment in terms of ongoing treatment.
T proffered that she has secure, stable accommodation, through a lease with the Department of Housing, until February 2017.
THE RESPONDENT’S CASE / THE CASE FOR RESTRICTING CONTACT
The Department submitted lengthy written evidence together with calling oral evidence from Departmental personnel, Lisa Broadmore, Tricia Rodgers and Kmala Zerner and report writer Peter Jordan.
The child protection concerns, dating back to 2006, relating to T’s capacity to care for her children were outlined in the Statement of Reasons and again in the written reasons of DCM Rinaudo.
The Department case for restricting contact in essence is based on those child protection concerns:
· T’s ongoing mental health concerns;
· T’s non acceptance of the impact of family violence on her children;
· T’s projection of blame onto other persons for the removal of her children from her care;
· T’s conflicted relationship with the children’s carer, their paternal grandmother, and the negative impact of this upon the children;
· T’s interrogation of the children at contact about circumstances in their grandmother’s home;
· T’s conflicted relationships with agency and staff involved in the attempts at reunification and facilitating contact, in particular Harmony House Contact Centre, Ann Maree Franklin of St Vincent de Paul Family Intervention Service, and CSO Tricia Rogers;
· The child A, expressed fear and reluctance to spend extended periods of time at T’s home.
The Tribunal heard evidence from Peter Jordan, report writer, that the critical issue impeding reunification and hence increased contact was the conflict between T and the paternal grandmother. He was of the view that this made particularly A, torn between the love for her mother and her grandmother.
Mr Jordan expressed a confident view that the male who had attended contact between the children and T was C and A had expressed fear of staying in her mother’s home as a result of this.
DCM Rinaudo in his written reasons, in particular paragraphs [24], [27], [42] and [91] refers to the need for T to undertake a comprehensive psychological assessment prior to contact increasing.
At paragraph [91], his Honour states:
Once the assessment has been undertaken and a formal diagnosis made and a treatment regimen settled on it seems to me that there would be no impediment to the mother receiving more and more unsupervised contact until overnight contact is achieved as a prelude to reunification. This would include an assessment that the other identified risk factors have been addressed such as, a support group to assist her day to day activities, permanent accommodation, a clear change in her attitude to the department, the paternal grandmother and others in authority (including teachers), and a clear change in her attitude to domestic violence, (including an acknowledgement of the role domestic violence has played in her life to date) and that drugs play no part in her life and a responsible attitude to alcohol use.
THE TRIBUNAL’S VIEW
The Tribunal placed significant weight upon the reasons of DCM Rinaudo, who had the benefit of a fulsome hearing of the child protection matters, including evidence from 22 witnesses and T. The evidence given and discussed related both directly and indirectly to the issue of contact which was the substantive issue before the Tribunal.
His Honour’s view relating to contact at paragraph [91] of his reasons have been referred to in full in the preceding paragraph of these reasons.
That view is the one with which this Tribunal accords.
The Tribunal is not of the view that the amount of contact between the children and T at this point in time is not meeting the current needs of the children.
The Tribunal is heartened by the fact that the Department expressed its view firmly on the final day of the QCAT hearing that it wishes to move forward with engaging and supporting T and the children in a positive manner. This would include the possibility of mediating the ongoing detrimental conflict between T and the paternal grandmother and assisting T widen her social supports.
The Tribunal noted the Department’s intention to investigate the possibility of facilitating some additional time for B and his mother, possibly through the engagement of a youth worker to enable such time to occur on a weekend.
The Tribunal also noted the agreement of T to undertake the psychological assessment arranged by the Department in mid August and to be guided by the intervention and treatment recommended in that assessment.
It is the view of this Tribunal that contact between T and her children A and B, be the subject of regular ongoing review, with regards being had of the issues referred to above.
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