WB v Department of Communities (Child Safety Services)
[2010] QCAT 26
•14 January 2010
| CITATION: | WB v Department of Communities (Child Safety Services) [2010] QCAT 26 |
| PARTIES: | WB Department of Communities (Child Safety Services) |
APPLICATION NUMBER: CSR183-08
| MATTER TYPE: | Children’s matters |
HEARING DATE: 14 January 2010
| DECISION OF: | P McGrath, J Bakermanns, M O’Regan |
DELIVERED ON: 14 January 2010
ORDERS MADE: Supervised contact granted on one occasion per week at the local Child Safety Service Centre for a period of 1 to 1.5 hours duration, as agreed between the relevant Departmental officer and the mother and failing agreement, as directed by the relevant Departmental officer.
| CATCHWORDS : | Supervised contact with child, sections 5(1) & 87 of the Child Protection Act 1999, sections 7(1) & 35 of the Children Services Tribunal Act 2000 |
REASONS FOR DECISION
History of the Application:
On 27 November 2008 the chief executive’s delegated officer made a decision to restrict and place conditions on contact between WB (also known as SM) and her son WJ (also known as SA). The decision, in effect, reduced the contact from 11 hours per week over seven days to 1.5 hours one day per week.
A Review of that decision and a stay application was filed with the Tribunal on 28 November 2008 and a Preliminary Conference/Stay hearing took place on 5 January 2009.
On that date the Stay was granted. By interim order, the Children Services Tribunal (“the Tribunal”) ordered that WB’s contact with her son occur three times per week, so far as possible on Monday, Wednesday and Friday, for a minimum of 2 hours on each occasion. At least one of the contacts was to be at WB’s residence, and, if possible, one contact occasion to occur at the local Church.
The matter was listed for hearing on 1 and 2 April, 2009 and a Separate Representative was appointed for the child. WB was granted leave to be represented by a lawyer or agent at the hearing.
On 12 March 2009 the Tribunal ordered that the hearing dates of 1 and 2 April 2009 be vacated and that the a further Preliminary Conference be allocated at a date to be fixed following the conclusion of Child Protection Proceedings then pending in the Children’s Court.
On 14 July 2009 in the Children’s Court, Magistrate Dowse made a Child Protection Order granting short term guardianship of the child WJ, born in 2008, to the chief executive. The order is to remain in force until 13 July 2011.
On 7 August 2009 the chief executive’s delegated officer made a further decision changing the contact between WB (“the applicant”) and WJ. The decision was that the Monday and Friday contact occasions were to remain at the applicant’s residence and the Wednesday contact was to take place at the local Child Safety Service Centre as WJ’s case work had moved, in line with departmental procedure, to the Service Centre most local to his placement. This placement has been with the maternal grandmother, YR, since shortly after WJ’s birth.
At a Preliminary Conference held on 24 August 2009, the hearing of the matter was set for 17 and 18 November and leave was granted for the applicant to be represented by a lawyer or agent. Directions were also made for each party to file documentation at least 14 days prior to the hearing date.
On 8 October 2009, the chief executive’s delegated officer made a further decision changing contact between the applicant and WJ. All three weekly contact occasions were to occur at the local Child Safety Service Centre. This decision was as a result of the applicant allegedly yelling at and verbally abusing a Child Safety Officer on a contact visit. This incident allegedly occurred in front of WJ and the delegated officer was concerned that WJ would be exposed to emotional harm by such continuing conduct by the applicant. The applicant was informed that assistance with travel to the local Child Safety Service Centre to enable future contact to occur was available to the applicant.
The Issues and the Legislation
The issues for the Tribunal are:
The amount and frequency of contact between WJ and his mother, WB.
The Legislation Relied Upon:
10. The decision under review is a decision under Section 87(2) of the Child Protection Act 1999. S87(1) authorises the chief Executive to provide opportunity for contact between the child and the child’s parents as often as is appropriate in the circumstances.
S87(2) states:
“however, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents….if the chief executive is satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents to have the contact.”
11. The Tribunal has jurisdiction to review a decision under Section 35 of the Children Services Tribunal Act 2000. Section 36 enables the tribunal to hold a hearing for a review. Section 37 enables the Tribunal to decide matters afresh and Section 38 sets out the powers of the Tribunal on review.
Section 38(1) states:
“after reviewing the reviewable decision, the tribunal may(a)confirm, set aside or vary the decision; or
(b)set aside the decision and substitute its own decision;
(c)set aside the decision and return it to the decision maker for reconsideration in accordance with the direction given by the tribunal.”
The principle of the welfare and best interests of a child as the paramount consideration (section 5(1) of the Child Protection Act and Section 7(1) of the Children Services Tribunal Act) is the primary focus of the Tribunal.
The Evidence:
In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views where, specifically relied upon by the Tribunal, are discussed below.
Evidence:
12. The applicant is aged 28. She has two children from a marriage to WAO, namely WAO ( born:2004 ) and WJL ( born:2005 ). The applicant and WAO separated in 2005. In 2006 interim orders were made by consent in the Family Court of Australia providing for WAO and WJL to live with their father and for him to be responsible for the children’s day to day care, welfare and development. The order also provided for supervised contact between the children and their mother. Following a Family Court hearing in October 2008 final orders were made granting parental responsibility for the children to WAO with supervised contact to the applicant.
13. In mid-2006, the applicant met SA who was then aged about 57. They had a relationship for about 2 years with SA visiting the applicant regularly notwithstanding that he was living at home with his wife. The applicant subsequently fell pregnant to SA and their child WJ was born in 2008. SA was not involved in the birth and to date has not seen his son.
14. The Department of Communities (Child Safety Services), (“the Department”) had previously recorded a number of notifications relating to the applicant’s parenting ability with WAO and WJL. Prior to WJ’s birth the Department had received advice from a Hospital that it had been assessed that the applicant would not be able to meet the needs of a new-born baby without 24 hour support.
15. A Temporary Assessment Order was granted on 28 April 2008. A Family Meeting was held on 29 April 2008. Following this meeting, it was arranged for YR to be provisionally approved as WJ’s carer upon his discharge from hospital. The applicant was also to live with her mother and have 24 hour access to WJ.
16. YR informed the Department that the applicant’s aggressive behaviour resulted in her asking the applicant to leave. This occurred within a few days of WJ’s discharge from hospital.
17. On 10 June 2008, the Psychological Report of the applicant with respect to the Family Court proceedings regarding WAO and WJL was completed. The psychologist stated:
(a) According to the Beta 11 records WB intellectual capacity is in the borderline to low average ranges. She is achieving Betas IQ in the range of 72 to 90 which is measured in the 10th percentile indicating a performance better than the lowest 10% of the population:
(b) WB would not require assistance in living skills or personal care but is likely to struggle with more challenging tasks that can arise in parenting children that may have special needs:
(c) WB’s psychopathology assessment results reveal she experiences significant paranoia and poor interpersonal skills that manifest themselves in passive-aggressive, schizoid and avoidant features:
(d) Personal counselling is recommended.
18. Between WJ’s birth and the initial departmental decision, of 27 November 2008, to restrict the applicant’s contact to him, the applicant had been having daily contact with WJ for periods of from 1 ½ to 2 hours. These contact visits were supervised by either departmental officers or by YR and occurred at the local Child Safety Service Centre, the applicant’s home, at a playgroup or on a community setting on weekends. On one occasion per week contact also included WAO and WJL.
19. The Department in their Statement of Reasons for the decision of 27 November 2008 gave a rationale for the decision as follows:
(a) The applicant has systematically presented challenges to the contact arrangements due to her behaviours;
(b) The applicant demonstrates a changeable emotional presentation in contact, making statements intimating suicide and self harm;
(c) The applicant’s emotional presentation impacts on WJ’s contact time and she has been unable to manage her distress and her inability to recognise WJ’s needs as an infant in the contact time;
(d) The applicant has demonstrated that she is unable to contain her aggression and frustration in front of WJ during contact;
(e) The applicant is unable to safely meet WJ’s basic physical and emotional care and poses a risk to his physical and emotional well-being;
(f) There are significant concerns about the applicant’s capacity to form an attachment to her children. Concerns have been raised in all of the assessment reports about the lack of attachment;
(g) Whilst the applicant has had the benefit of multiple agency support, and has expended considerable effort on her own part to gain the necessary skills to parent exhibited by her multiple certificates of completion of various courses, she has not been able to integrate the practices from her courses into her parenting to provide consistently safe contact without supervision;
(h) The applicant has had the opportunity to engage with services that will assist her in addressing the child protection concerns but her refusal to work with the Department and her anger have presented a barrier to engagement;
(i) WJ’s experience of contact is not wholly a nurturing and responsive engagement between himself and the applicant. WJ has demonstrated in contact that the applicant’s inability to respond to his cues impacts on him. The applicant has
demonstrated her distractibility from WJ in contact either by her anger, frustration and distress or other issues on hand at the time.
20. Following the Tribunal’s order regarding contact of 5 January 2009, contact continued at both the Child Safety Service Centre, and since July 2009 at the local Child Safety Service Centre, and at the applicant’s residence. There have been various occasions of contact at which the applicant has verbally abused contact officers and other Departmental staff. This has resulted in contact being restricted to the local Child Safety Service Centre.
21. The applicant has displayed poor anger management as well as a continued inability to meet WJ’s needs. Some contacts have limited interactions between the applicant and WJ and the departmental officers have reported that WJ has a poor relationship with the applicant and the frequency of contact is not conducive to his development.
22. The Departmental officers report that the emotional warmth and attachment between WJ and the applicant is very limited. The applicant has not been able to provide the quality of emotionally warm care that is predictable, secure and responsive to WJ’s physical and emotional needs.
23. The Department reports that the applicant continues to demonstrate her inability to manage her emotions and continues to demonstrate attempts to manipulate situations to her advantage. Her resulting reactions and behaviours are unacceptable, reflect the core child protection concerns, and occur in front of WJ.
24. At the commencement of the hearing the applicant’s lawyer informed the Tribunal that legal aid funding for him to represent the applicant had been refused and that as he could not act for the applicant on a pro bono basis he would have to withdraw. Leave was granted to withdraw and the applicant’s support person BT was granted leave to act as her agent.
25. The applicant gave oral evidence to the Tribunal. She stated that WJ often got disinterested during contact and the supervising departmental workers attempt to interact with the child. This upsets the applicant as she is of the opinion that the workers should supervise the contact and not interact with WJ.
26. The applicant said that she does not want contact to occur at the local Child Safety Service Centre. She is not willing to travel on public transport to avail herself of contact at this centre as she says that the public transport can be unpredictable. She said that she does not like the Child Support Officer at the centre and if contact with WJ remains scheduled at the centre she will not attend, which has been the case since 7 October 2009.
27. The applicant said that she is prepared to attend on contact if it were held at another office, but that she might not attend if there was a lessening of the frequency of contact.
28. The applicant stated that she did not know how to improve the quality of contact with WJ. She commented that contact is taking up her time and money and that she wants to have a life of her own. She said that she is currently paying $72.95 per fortnight in Child support for her three children, including $30 per fortnight for WJ.
29. The applicant stated that WJ need stability in his life and that she doesn’t know what is best for him. Although the issue of where WJ is to live in the short term was not before the Tribunal, the applicant said that she did not want him living with her mother, YR. YR, the applicant said, does not recognise WJ’s Greek heritage and places the child in day-care instead of a Greek playgroup. The applicant said that she and the child’s father had considered placing WJ up for adoption with a Greek family if contact by herself to WJ is reduced, and that she has already contacted Adoption Services Queensland in this regard.
30. The applicant told the Tribunal that she is regularly depressed and whilst she has seen her Psychologist, on a number of occasions, she cannot afford to have regular counselling sessions. The applicant agreed that she hadn’t complied with the Case Plan which had been developed following a Family Group meeting on 14 July 2009 and tendered to the Children’s Court Magistrate.
31. When asked what she wanted to occur regarding her contact with WJ, the applicant referred to her affidavit of evidence prepared by her former lawyer and dated 12 November 2009. Paragraph 4 of the affidavit states as follows:
“What I want to do done
a. GA to be taken off my case ( GA is the Child safety Officer);
b. Three days a week contact;
c. Contact to come back to the house;
d. WJ to attend church and the Greek playgroup;
e. WJ to go see his nonna at her place as she does not drive;
f. More notice to be given from DOCS when they have to do make up contact;
g. Myself to do WJ’s vaccinations and child health appointment;
h. WJ to have a Greek/Cypriot lady to visit him three days a week to come and speak this language to him;
i. WJ to attend church on Saint Andrew day so he can receive communion on 30 November 2009;
j. WJ to only have his vaccinations done at a specified Medical Centre as well as this to be the only doctor he is to see;
k. I want WJ for four hours on his birthday and mine so I can have little party with who attended his party last year;
l. I want photo contact with my son on Mother’s day and days that he is sick and on Birthdays and Christmas day and days that I don’t have contact because of holidays or other reasons;
m. My case to be moved back to the previous centre.”
32. BG gave evidence to the Tribunal. She said that she was a Team Leader for the Department at the Child Safety Service Centre and had been involved with the applicant and her family since January 2006. BG assumed team Leader responsibility for WJ on 1 October 2008.
33. BG said that she had observed numerous contact occasions between the applicant and WJ. She has also had various conversations with the applicant regarding her inability to move forward to address to the child protection concern and her inability to see WJ as her priority. BG stated that the onus is on the applicant to address the child protection concerns.
34. BG said that she was concerned about the applicant’s “all or nothing approach” regarding contact. She commented that the applicant will not provide her phone number to departmental officers to enable contact with WJ to be arranged. BGsaid that by refusing contact the applicant is placing the prospect of her reunification with WJ in jeopardy.
SUBMISSIONS:
35. BG made submissions on behalf of the Department. She submitted that the thrice weekly contact between the applicant and WJ did not meet WJ’s’ needs for a number of reasons:
(a)The applicant is unable to respond to WJ’s needs in contact in a physically and emotionally safe manner;
(b)The applicant has been unable to hear and act upon advice provided to her by multiple departmental officers;
(c)WJ has been involved in a number of incidents that have resulted in him continuing to be exposed to emotional harm due to the applicant’s actions;
(d)WJ has been placed at risk of physical harm on multiple occasions within contact visits;
(e)WJ demonstrates behaviours that do not reflect a positive attachment with the applicant despite extensive contact arrangements;
(f)The applicant continues to present as being unable to manage WJ’s normal developmentally appropriate behaviours that require boundary setting and consistency;
(g)The applicant has been unable to apply parenting education provided to her from multiple agencies, workers and programs.
36. BG submitted that WJ tends to disengage with the applicant. There has been positive attachment between WJ and his mother after 18 months of contact. There is no evidence that the applicant has attempted to manage her own behaviour. BG said that the applicant is of the view that contact decisions need to be made in “her” favour rather than in the child’s favour.
37. BG further submitted that thrice-weekly contact between the applicant and WJ is disruptive to the child and does not meet his physical and emotional needs. She said that one contact visit per week is sufficient to enable WJ to settle into a routine and still have some bonding arrangement with his mother.
38. It was submitted that the length of contact should reduce. BG said that the 2 hour duration is not beneficial to WJ, as the connection to his mother is not sufficient to sustain contact of such duration. The contact should be of no more than 90 minutes in duration.
39. BG submitted that the applicant doesn’t allow the Child Safety Officers to suggest contact skills to enable contact to be more beneficial. She said that the applicant cannot manage her behaviour in front of Departmental staff as well as WJ. As a result of this behaviour WJ remains at risk and contact should continue to be supervised. This supervised contact should continue to occur at the Child Safety Service Centre as this is the centre closest to WJ’s residence.
40. CD, the Separate Representative for WJ provided written submissions to the Tribunal. She referred to the reports of a Social Worker, which had been prepared for the Family Court proceedings between the applicant and her husband and which related to the residence and contact of the children, WAO and WJL.
41. The social worker noted in one of his reports that the applicant “through her harsh reaction to any advice-has a problem with any authority and a reactive disposition to anything that she perceives as control. WB’s anger control poses a very real risk to the children at times of stress”.
42. CD referred to two Social Assessment Reports prepared by another, Social Worker, for the Children’s Court proceedings. In the first report, dated 25 September, 2008, this social worker commented that the applicant “presented as self focussed, putting her needs first, her inability to consider points of view different from her own. This raises concerns in terms of her ability to learn from others and also in terms of her ability to modify her behaviour”.
43. The second report was dated 21 October 2009. In it the social worker commented that:
(i)WJ has been harmed and placed at risk of harm from his mother’s behaviour during contact visits. He has also been placed at risk of harm from his mother’s lack of parenting skills in that she has not protected him from obvious dangers.
(ii)A fundamental purpose of contact visits is to promote bonding between parent and child. Despite frequent contact which has included visits in her home environment, it is evident that a secure attachment has not developed between WJ and his mother. It is assessed that WB’s behaviour has been a causative factor. She has been unable to exercise self control and she has exposed WJ to angry outbursts. Further, she has prioritised her feelings and needs over those of WJ.
(iii)WB has not complied with the goals set out in the Case Plan, submitted to the Children’s Court in 2009, which are designed to assist her in the reunification with WJ, and has not demonstrated any progress in working on the identified issues. She does not present as having developed an insight into the impact of her behaviour.
44. CD further submitted that the current contact, being of two hours duration three times per week is not in the best interests of WJ. Whilst the contact should remain supervised, CD submitted that it should be reduced to one occasion per week for no more that 11/2 hours.
45. BT made some submissions on behalf of the applicant. He said that what WB wanted to happen was contained in her affidavit (see para. 31 above). He said that as far as WB was concerned it was an all or nothing approach with regard to the location, timing and frequency of contact.
CONCLUSION:
46. The issue in this review is as to what contact the applicant, WB should have with her child WJ and how frequently such contact should occur.
47. The applicant has had frequent contact with WJ since his birth and more recently since the interim decision of this Tribunal on 5 January 2009. Notwithstanding the efforts of the Departmental officers charged with arranging and supervising the thrice-weekly contact, the applicant has seen fit to frustrate such contact or refuse to attend such contact because it did not fit in with her plans or lifestyle.
48. It is clear that the applicant has not formed a substantial parental bond with WJ notwithstanding the frequency of contact and that this lack of bonding may result in the failure of the applicant to reunify with WJ at a future time.
49. The applicant presents as self- centred, and not having the interests of WJ at heart. The Tribunal was concerned at the applicant’s comment as to her placing WJ up for adoption if she could not get the contact conditions that she required. Such a comment, in the Tribunal’s opinion, does not focus appropriately on the needs of the child.
50. The existing contact regime is disruptive to WJ’s wellbeing and upbringing and is not currently having a beneficial influence on him. The contact has had to be supervised owing to the applicant’s ongoing failure to control her anger and behaviour issues so that they impact on her parenting ability.
51. The recommendation of both the Department and the Separate Representative is that both the frequency and duration of contact should be reduced and the Tribunal is of the view that the evidence presented to it during the hearing supports this recommendation.
THE DECISION:
The Tribunal orders that the applicant WB have supervised contact with her son WJ born in 2008 on one occasion per week at the local Child Safety Service Centre for a period of 1 to 1.5 hours duration.
It is furthered ordered that the time of such contact be as agreed between the relevant Departmental officer and the mother and failing agreement, as determined by the relevant Departmental officer.
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