TDV v Department of Communities, Child Safety and Disability Services
[2016] QCAT 523
•29 November 2016
CITATION: | TDV v Department of Communities, Child Safety and Disability Services [2016] QCAT 523 |
PARTIES: | TDV |
| v | |
| Department of Communities, Child Safety and Disability Services | |
APPLICATION NUMBER: | CML010-16; CML091-16 |
| MATTER TYPE: | Childrens matters |
HEARING DATE: | 20 October 2016; 29 November 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Joachim, Presiding |
DELIVERED ON: | 29 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | In CML010-16: 1. The decision of 10 October 2016 of the Department of Communities, Child Safety and Disability Services to restrict contact between IR and LV and their father TDV is confirmed. In CML091-16: 1. The decision of 15 April 2016 of the Department of Communities, Child Safety and Disability Services to place EV in the care of LC is confirmed. Confidentiality Order: 1. The Tribunal prohibits the disclosure to the Applicant of paragraph 2 of page 9 of the kinship carer assessment report prepared by Ms H. Jansen. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILD PROTECTION – where Department of Communities, Child Safety and Disability Services restricted contact between applicant and two of his children – where applicant sought increased contact and removal of a third child from current foster carer – where father has had little contact with children – where father has regularly threatened departmental staff – where father uses abusive language to staff supervising contact in front of children and unable to regulate his behaviour – where father concerned about behaviours of foster carers – whether in children’s best interests for increased contact or removal from current foster care Child Protection Act 1999 (Qld), s 5, s 6, s 83, s 86, s 99ZD |
APPEARANCES: | |
APPLICANT: | Mr N Richardson, Solicitor represented TDV on 20 October 2016 TDV represented by himself on 29 November 2016 |
RESPONDENT: | The Department of Communities, Child Safety and Disability Services represented by Alicia Kelly, Manager of Beaudesert Child Safety Service Centre, for CML010-16 The Department of Communities, Child Safety and Disability Services represented by Rae-leigh Cross, Acting Manager of Beenleigh Child Safety Service Centre, decision maker for CML091-16 |
SEPARATE REPRESENTATIVE | Jennifer Boulton, Solicitor |
CHILD ADVOCATE: | Skye McKenzie, Office of the Public Guardian. |
REASONS FOR DECISION
TDV is the applicant in these matters. He is the father of EV (DOB 16/11/2001), IR (DOB 08/02/2006), LV (DOB 20/03/2008). TDV has other children who are not the subject of these applications. EV, LV and IR are all subject to child protection orders granting long term guardianship to the Chief Executive of the Department of Communities, Child Safety and Disability Services (the Department).
The Department has restricted contact between the two younger children, IR and LV and TDV. This contact is limited to a supervised telephone call once per fortnight, face to face visits during school holidays, consisting of two two-hour visits fully supervised. This decision was made on 10 October 2016. This will be referred to as the contact decision. Earlier in the year, TDV’s contact with the children had been suspended.
For simplicity, the Tribunal is conducting a review of the current decision with which TDV vehemently disagrees.
In relation to EV, TDV seeks a review of the decision of the Department to place her in the care of LC. That decision was made in April of 2016 and communicated to TDV in writing on 16 May 2016. This will be referred to as the placement decision.
The Tribunal decided to conduct a hearing of both matters concurrently. Both the contact decision for the younger children and the placement decision for EV are reviewable decisions under the Child Protection Act 1999 (Qld) (the Act).
The Tribunal is conducting a review of the merits of the Department’s decisions by way of a fresh hearing.[1] The Tribunal needs to apply the same law as the Chief Executive. The Tribunal has to take into account sections 5(a) and (b), 6, 83 and 86 of the Act. In particular, the Tribunal needs to take into account the main principle for administrating the Act: that is that the safety, wellbeing and best interests of the child are paramount. There are a number of other General Principles that the Tribunal needs to consider in s 5(b) of the Act. There are additional principles relating to children who are Aboriginal or Torres Strait Islander children. These are contained in s 5(c) and s 6. Section 83 contains the additional provisions for placing Aboriginal and Torres Strait Islander children in care, which the Tribunal takes into account. TDV is an Aboriginal man.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.
The purpose of the review being conducted by QCAT is to produce the correct and preferable decision.[2] The Tribunal may confirm or amend the Department’s decision or set it aside and substitute its own decision or set it aside and return it to the Chief Executive for reconsideration.
[2]QCAT Act, s 24.
The views of IR
The three children were given an opportunity to express their views and wishes to the Tribunal. Only IR wished to do so.
The Tribunal met with IR prior to the commencement of the hearing on 20 October 2016. This was done in the presence of the Child Advocate, Ms McKenzie. IR impressed the Tribunal as a very mature and intelligent ten year old. Her views were as follows:
a)She has heard that her father wants to see her every weekend. She wishes to see her father two days during each school holidays for between two and two and a half hours;
b)She likes to go to public places such as shopping centres, bowling or a park. She has spoken to her kinship carers about this;
c)Referring to Wayne Hocking (a child safety officer who supervises contact), she says she gets on well with him and would like him or someone she trusts to be there when contact with her father occurs. She wouldn’t know where to go if her father ‘goes off’;
d)She enjoys playing the violin, plays lots of sports and she likes feeding birds;
e)She told the Tribunal of her love for school and learning.
Written material
The material before the Tribunal consisted of a number of documents including:
a)An affidavit from Heidi Jansen, a Clinical Psychologist who conducted the kinship carer assessment for LC and MK and to the affidavit was exhibited a copy of the assessment;
b)An affidavit from Luke Hall, a child safety officer at the Beenleigh Safety Centre;
c)An affidavit from Tracey Crabtree, a senior team leader of the Department at Beenleigh;
d)A social assessment report written by Denise Giles at the request of the separate representative;
e)The departmental statement of reasons for both decisions.
All of these documents refer to TDV as being difficult to deal with, in that his behaviours involve verbal aggression, threats of harm to others, a lack of insight into his behaviour when in front of his children and an inability to regulate his behaviour.
The first day of hearing
On 20 October at the commencement of the hearing, Mr Richardson from Richardson McGhie who was representing TDV applied for an adjournment on the basis that his office had received hundreds of pages of material for the hearing only a few days prior to the hearing and it was insufficient time to consider this material and receive instructions.
The Tribunal granted the adjournment and made directions.
The second hearing 29 November 2016
It is not the Tribunal’s intention to canvas all of the evidence given in this hearing. We will only refer to the most relevant of evidence needed to conduct the review as well as submissions made by the parties.
TDV attended the hearing without representation. The Department requested that the Tribunal make a confidentiality order under s 99ZD of the Act in respect of information provided to the assessor for kinship carer suitability by MK.
The Department made the application on the basis that some material provided to the assessor should be kept confidential, in particular, paragraph two of page nine of the report of Ms Jansen.
TDV objected to the application saying that it should be disclosed. The Tribunal considered the information highly personal to MK and that it was not necessary to be considered for these proceedings. The Tribunal made a confidentiality order under s 99ZD(4)(c).
The Tribunal was satisfied that there would be undue interference with the privacy of another person if this information was not kept confidential.
Moreover, the Tribunal considered that the information contained in that paragraph was highly personal and related to a very distressing event which occurred during MK’s childhood and of no relevance to these proceedings.
Placement decision
The evidence of Ms Jansen is that she considered LC and MK as suitable kinship carers. They indicated they would support EV’s cultural identity and connection. They were willing to undergo foster care training. Ms Jansen indicated that she had given consideration to LC’s being a young parent, but LC was committed to giving EV support. She saw EV frequently and had a close relationship with her. The vulnerabilities for the placement were noted on page 19 and 20 of the report along with supports that could be implemented to resolve or mitigate the identified vulnerabilities. The vulnerability includes a strained relationship between LC and MK with the parents of EV, MK and LC’s small network of support and LC’s own history of abuse as a child.
Ms Jansen advised TDV that she was not employed by the Department and writes reports as a private practitioner on contract from the Department.
It is worth noting at this juncture that EV had 11 primary placements since entering care and wished to stay with LC as she has a sense of belonging. TDV had wanted EV to live with another daughter, FV and her foster carers where EV had previously lived. The Department however was concerned about EV’s behaviour threatening FV’s placement. The Department made submissions that EV has a sense of belonging now for the first time since entering care and if she had to move, it would be into residential care. The Department submitted that it was in her best interest to remain where she was.
TDV sought to cast doubt with LC’s character by reference to her having three children at a young age with two separate partners.
LC advised of an incident which was reported to the Department whereby her partner MK had threatened to throw a can of beer at LV when the three children were together on an outing. The Department investigated this matter and arranged parenting classes.
A further incident which concerned TDV involved EV having access to alcohol on a camping trip. This was reported to the Department by the carer, LC. The carers have taken steps to ensure this does not happen again.
Ms Crabtree, Senior Team Leader, gave evidence that EV had indicated that she wished to be with family and in particular with LC. Ms Crabtree considered that the placement was going well, that EV feels a sense of belonging and that the carers have a good relationship with EV. Importantly Ms Crabtree advised that EV does not wish to move and this is the first time she has commented positively about a placement.
Ms Crabtree advised that, contrary to TDV’s wishes, both EV and FV had indicated they do not wish to be placed together. To overcome the issues relating to previous outings, the Department has determined that IR and LV are not to be transported with LC and MK.
The Department has expressed concerns to MK regarding alcohol and being drunk in front of children as EV has a history of being exposed to alcohol.
EV’s views were also expressed by Mr Luke Hall, a child safety officer who last saw EV on 28 November 2011, where she expressed that she loved living where she is and definitely wants to stay in the placement. Mr Hall advised that both EV and FV have said repeatedly that they do not wish to see TDV. Mr Hall advised that when he communicates this to TDV he gets very angry and usually hangs up. Mr Hall has terminated calls in the past after serious threats have been made to him.
TDV wants EV moved out of the house because of the carer threats to throw a drink can at his eight year old daughter. He wondered whether EV is in any danger at the house. He advised that he has not spoken to EV for two years and does not understand why this is so.
The Separate Representative, Ms Boulton advised that the placement being provided to EV is meeting her needs. She noted that EV has expressed to the Office of the Public Guardian, Ms Crabtree, and Ms Giles, the social assessment report writer, that she wants to stay where she is. She submitted in respect to the concerns raised about the carers that they had been open in dealing with this, prepared to work with the Department and the non-government service provider and that there had been steps taken by the carers to ensure that incidents of this kind do not occur again.
In relation to the placement decision for EV, the evidence is overwhelming that EV should remain where she is. Her best interests are met by remaining in that placement. There is not alternative foster arrangement evident to the Department. TDV’s suggestion that she be returned to live with FV is not acceptable to the Department nor the children. There was a break down in that arrangement because of EV’s behaviour. It would be totally unproductive to place her back with FV. The only other option is residential care.
It is clearly in EV’s best interest to remain with LC. This is her preferred placement. The evidence is that this is the most settled she has been since she has been in care. Whilst there has been a couple of incidents that have occurred, the Department has fully investigated these, the carers have been fully open and honest about what happened and steps have been taken to avoid any further incidents of this kind occurring. The decision of the Department will be confirmed.
Contact decision between TDV, IR and LV
The evidence of Mr Wayne Hocking in relation to the contact decision was compelling. Mr Hocking reports that face to face visits have generally gone well for the two girls apart from the September visit where TDV become upset and the situation was uncomfortable for everyone. He advised that telephone contact generally goes well. He gave evidence that the children still wished to have visits with their father.
IR had indicated that she wished to have contact twice during the school holidays and LV would also enjoy that. He advised that the children would have heard negative comments regarding department staff on the September visit. He said TDV was elevated and threatening towards staff and the children didn’t know what to do. They moved towards their mother away from the situation.
Mr Hocking advised that he usually talks to TDV after contacts visits on the phones and that they usually end acrimoniously.
On the September visit, TDV was upset because the children lost some money that he gave them and he blames the Department for not providing the children with wallets in which to keep their money.
In his affidavit, Mr Hocking describes the September contact at the Browns Plains shopping centre. After the children lost some money TDV became escalated and frustrated. He started swearing at departmental staff in the earshot of the children. TDV subsequently became increasingly agitated, loud and threatening toward Mr Hocking and Ms Griffith, a child safety officer who was assisting with the contact.
TDV commented that the was uncomfortable with the level of supervision. TDV’s behaviour was noted by other people in the food court on several occasions. Despite many attempts to redirect TDV back to the focus of contact, this could not be done as he continued to discuss his views about departmental processes and made threatening gestures towards Mr Hocking and Ms Griffith’s head. Both children indicated they felt uncomfortable during the visit.
Denise Giles, the social assessment report writer, gave evidence that she was concerned that TDV would be very difficult to manage if he behaves similarly to the way be behaved in September. In her view, TDV needs to remain child focused and if this went well on the first visit during the school holidays then he could be offered a second visit. In her opinion, TDV does not appreciate the consequences of his actions on his children. He exposes them to inappropriate behaviour. She advised the children had said they are fearful of TDV when he gets angry. Ms Giles had observed the first hour of contact at the September visit and had noted abusive language towards departmental staff, bad language, the children trying to stop TDV escalating and trying to distract and refocus him. She reported that TDV had been extremely abusive to her and that this style of behaviour is consistent with how he behaves towards the Department. She considered that TDV would cause harm to the children if he continues that behaviour in front of the children.
TDV submitted that contact had to be revisited because his two younger children love him and the visits and the phone calls have been going well. He showed the Tribunal Father’s Day presents that the children had given to him. He wants to spend the whole day with his children and perhaps go to Lone Pine.
The Department submitted that the visits for the children need to be safe and that the Department needs to be able to cease contact if necessary. The Department agreed that fortnightly phone contact goes well and is appropriate and positive and enjoyable for the children. The Department does not believe face-to-face visits should be increased at this time.
Ms Boulton advised the Tribunal that it would appear that the children love their father and he loves them, but he has no insight into the effect of his behaviour on them with the children trying to distract the father as they are anxious to stop his behaviour escalating. She submits that there is a risk of emotional harm to the children spending time with the father when he cannot control his behaviour. She submitted that is inappropriate for young children to be walking on egg shells to manage adult issues.
She agrees with the recommendations of Ms Giles that the father should commit to changing his behaviour and accept the contact decision letter conditions which he has hither to failed to agree to. She submitted that as the telephone communication is working well, this should not change. She submitted that the two hour’s each school holidays with the option of another two hours after the first visit has gone well should be put to the father but only if he agrees to the conditions regarding contact which relate specifically to the way he behaves toward departmental staff, his not being under the influence of alcohol or other substances, his not swearing in front of the children and his remaining child focused.
It should be noted that TDV’s contact with his children IR and LV has been extremely spasmodic for many years. Face-to-face contact resumed in September 2015. TDV would not agree to sign an agreement outlining conditions regarding his behaviour and presentation. Telephone calls were also established, and further face-to-face contact occurred in December 2015, January 2016, April 2016 and May 2016. An arranged contact visit on 1 July 2016 did not occur as TDV had mixed up the times. His subsequent telephone contact with the Department thereafter demonstrated extremely poor behaviour with a high level of aggression toward departmental officers.
It is the Tribunal’s view that TDV is unable to regulate his behaviour when things do not go his way. He becomes very aggressive and threatening. He uses inappropriate language and behaviour in front of his children. They become scared, even though his anger is not directed towards them.
The Tribunal was very concerned about TDV’s behaviour towards Ms Giles, the report writer, in his contacts with her as she was preparing her report for the Separate Representative. That behaviour reflected the way in which he interacted with departmental staff. It is totally inappropriate. The Tribunal sees no justification for increasing the amount of contact TDV has with his children. The Tribunal is satisfied that the decision of the Department is appropriate at this time in the best interests of the children. They are happy to see their father and it was IR’s view that she was happy with the amount of contact which she was receiving.
In order for TDV to have further increased contact with his children, particularly face to face, he must moderate his behaviour.
The decision of the Department in relation to contact between TDV, IR and LV will also be confirmed.
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