WJC v Department of Communities (Child Safety Services)
[2012] QCAT 361
•25 July 2012
| CITATION: | WJC v Department of Communities (Child Safety Services) [2012] QCAT 361 |
| PARTIES: | WJC (Applicant) |
| v | |
| Department of Communities (Child Safety Services) (Respondent) |
| APPLICATION NUMBER: | CML168-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 12-15 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Elizabeth Benson Stott, Presiding Member Ms Jennifer Anne Felton, Member Mr John Anthony Milburn, Member |
| DELIVERED ON: | 25 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | That the decision of the Department of Communities (Child Safety) to restrict and impose conditions on contact between Mr WJC, and his three children RC, WC, and JC be varied. 1. RC: Telephone and face-to-face contact will occur as initiated by RC. 2. WC: Subject to WC’s views and wishes, supervised face to face contact will occur on a monthly basis at the Department Child Safety Service Centre or as determined by the Department. Supervised telephone contact with WC will occur each fortnight or as determined by the Department. As per WC’s views and wishes, an exchange of letters and photos can take place between Mr WJC and WC through the Department Centre and subject to the Department’s discretion. 3. JC: As per JC’s views and wishes, face to face or telephone or email contact will not take place at this time. As per JC’s views and wishes, an exchange of letters and photos can take place between Mr WJC and JC through the Department Centre and subject to the Department’s discretion. 4. The Department will provide de-identified information to Mr WJC at the Department’s discretion regarding information relating to the children’s schooling and medical information. |
| CATCHWORDS: | Review of decision to restrict and impose conditions on contact Child Protection Act 1999, s 87 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr WJC |
| RESPONDENT: | Department of Communities (Child Safety) (known herein as ‘Department’) |
REASONS FOR DECISION
History of the Application
This is the hearing of the application filed by the applicant Mr WJC to review the decision of the 10 February 2012 made by Child Safety Service Centre to restrict and impose conditions on contact between three children RC, WC, and JC, and himself.
On 27 September 2011 the Queensland Civil and Administrative Tribunal (the Tribunal) received Mr WJC’s Application to review the Department’s decision of the 26 August 2011 to restrict and impose conditions on contact between Mr WJC and his three children RC, WC, and JC. The three (3) subject children are of Aboriginal descent. A decision was made by the Department on the 26 August 2011 to cease Mr WJC’s contact with JC, and place restrictions around his contact with WC and RC. The reasons for this decision were extensive and included such things as but not limited to:
a)Historically Departmental intervention with Mr WJC had shown disregard and contempt for Childrens Court Orders or Departmental directives with the orders being breached on several occasions.
b)Supervised contact was to occur as there was an extensive history of Mr WJC encouraging the children to disregard the Department and their foster carers.
c)Observation during telephone contact has shown that Mr WJC has been verbally aggressive towards the supervising staff and was taking place in front of the children resulting in the contact becoming disruptive and contact being terminated.
d)Communication by Mr WJC with the Department has centred on accusations by Mr WJC of Departmental staff being racist and culturally inappropriate.
e)Following contact between JC and Mr WJC, JC became distressed that Mr WJC was going to remove him from his placement.
f)On 26 August 2011, JC advised Ms Janette Scott that he does not wish to speak to his father and that he was terrified that his father intended to remove him from his current placement.
g)On the 26 August 2011, WC advised the Department that he would like to have telephone contact with his father once a fortnight.
h)Not to inform the father of the name and address of the children’s foster carers as there is a demonstrated history of Mr WJC repeatedly contacting the children’s various carers and harassing them, threatening them, and verbally abusing them. The children have witnessed these events and it has caused them distress.
A decision was made by the Department on the 10 January 2011 to cease Mr WJC’s contact with JC and RC, and place restrictions around his contact with WC. The reasons for this decision were extensive and included such things as but not limited to:
a)On 26 August 2011 JC had advised the Department that he did not wish to have contact with his father and that he was scared to visit him at home.
b)RC had stated to the parties at the compulsory conference his views.
c)Following Mr WJC’s release from prison on the 25 November 2011, WC stated he would like to have face to face contact with his father once per month to occur at the Child Safety Service Centre. IFACSS was consulted with this venue who informed Child Safety Service Centre that they considered the venue as culturally appropriate.
d)The children’s views and wishes were taken into consideration and as such respected.
e)Mr WJC had demonstrated a history of making inappropriate comments to the children during phone contact, for example, telling the children he would have them home soon when this was not necessarily the case.
On the 12 December 2011, QCAT received an email from Bernadette Lacey from the Aboriginal & Torres Strait Islander Legal Service (ATSILS) that they were no longer representing Mr WJC as per his requests and instructions.
The QCAT stay and compulsory conference listed for the 16 December 2011 was relisted for the 17 January 2012 at the request of Mr WJC.
A QCAT stay hearing occurred on the 17 January 2012 with the compulsory conference being adjourned to the 6 February 2012. The application for a stay of the decision made on the 28 August 2011 by the Department of Communities (Child Safety) to cease and place restrictions on contact with the three (3) subject children RC, WC, and JC was not granted.
On the 6 February 2012 a QCAT compulsory conference was held. Procedural steps about contact agreements were arranged, and a directions hearing was scheduled for the 13 February 2012.
As agreed to in principle at the QCAT compulsory conference on the 6 February 2012, the following arrangements noted on the QCAT order for contact between Mr WJC and his three children were:
a)The contact restrictions for RC provide for telephone contact to occur as initiated by RC.
b)The contact restrictions for WC provide for supervised face to face contact occurring on a monthly basis, subject to WC’s views and wishes. Supervised telephone contact with WC to occur each fortnight, subject to WC’s views and wishes.
c)The contact restrictions for JC provide for as per JC’s views and wishes, contact would not take place at that time.
The Tribunal was informed by the Department at the hearing that the QCAT compulsory conference on the 6 February 2012 and the letter of the 10 January 2012 identified the reasons for the imposed conditions and restricted contact.
A directions hearing was held on the 13 February 2012. Mr WJC was to provide his statement of evidence, witness statements, and other relevant documents to the Tribunal by the 16 April 2012. The Department was to provide their statement of evidence, witness statements, and other relevant documents to the Tribunal by the 28 May 2012. Parties were informed that no party would be allowed to present any evidence at the hearing that was not contained in the statements without justifying the need for such additional evidence to the Tribunal. A separate representative was to be appointed for the children. The matter was set for a hearing for the 12 to the 15 June 2012.
On the 17 February 2012 Mr WJC informed the Registry that he was not happy with the directions hearing of the 13 February 2012 and sought another directions hearing.
On the 27 March 2012 QCAT received a response from Legal Aid advising QCAT that Legal Aid Queensland was not prepared to appoint a separate representative in QCAT as the children had a separate representative appointed for the current Childrens Court matter.
On the 18 April 2012 Mr WJC informed QCAT in an email that he had not filed his submissions as he stated he had not received the QCAT order.
At a directions hearing on the 19 April 2012, the matter was set for a hearing for the 12 to the 15 June 2012. Mr WJC was granted leave of extension to file a list of witnesses, witness statements and other relevant documents by the 11 May 2012. The Department was to file a list of witnesses, witness statements and other relevant documents by 1 June 2012. Parties were informed that no party would be allowed to present any evidence at the hearing that was not contained in the statements without justifying the need for such additional evidence to the Tribunal. Pursuant to rule 40 of the QCAT Rules 2009, service of documents on Mr WJC was to be sent to a specific email address noted in a QCAT order.
The Applicant, Mr WJC, had failed to follow the orders of the direction hearing. The Tribunal was satisfied that Mr WJC had sufficient time to comply with these orders and had received all the relevant documents and orders. The Tribunal gave oral reasons during at the initial start of the hearing on the 12 June 2012 as to why an adjournment being sought by Mr WJC was not granted.
The hearing of the review application took place before the Tribunal in Brisbane on 12 June to the 15 June 2012, across four (4) days. Most of the time spent during the hearing related to dealing with issues of concern to Mr WJC. The issues raised by him were largely irrelevant to the principal question to be determined by the Tribunal. Mr WJC raised many issues which were seemingly important to him but very often of little significance when considering the best interest of the children. Mr WJC raised many objections and the tribunal spent considerable time in hearing his objections, seeking response from the Department and providing its rulings progressively throughout the hearing.
At the conclusion of the hearing the Tribunal reserved its decision.
Relevant Law
The decision for review is about contact between a family member and a child and was made by the decision maker under section 87 of the Child Protection Act 1999 (CP Act).
Section 4 of the CP Act provides that the purpose is to provide for the protection of children.
A key provision of the CP Act is section 5(a). This section provides that the Act is to be administered under the principle that the safety, wellbeing, welfare and best interests of a child are paramount. Section 5(b) to 5(e) inclusive set out further principles requiring adherence.
Section 87(1) and (2) provide as follows:
(a) The chief executive must provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances.
(b) However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents or members of the child’s family, if the chief executive is satisfied it is in the child’s best interests to do so…
Section 87(3) and (4) provide that the Chief Executive must give written notice of the decision to each person affected by the decision in a form that complies with the Queensland Civil and Administrative Act 2009 (QCAT Act), s 157(2).
Section 81 of the CP Act applies as the Chief Executive has custody or guardianship of the child.
Division 3 of Part 1 of Chapter 2 of the QCAT Act sets out the legislative provisions governing the Tribunal’s exercise of its review jurisdiction. The subject decision in this instance is a reviewable decision as defined.
The issue for the Tribunal is – is it in the best interest of RC, WC, and JC for their contact with their father to be restricted and conditions imposed upon such conditions at this time?
The Parties
[26] Mr WJC attended the hearing and presented his own case.
[27] The respondent Department’s Court Service Advisor, Mr Tim Ferguson, put forward the respondent’s case. Ms Anita Rudd, Acting Manager of Child Safety Service Centre, and Janette Scott, Acting Senior Practitioner, Child Safety Service Centre, also assisted.
The Evidence
The Tribunal does not propose to canvass in detail the history of this matter. It is unproductive to dwell too much on the negative features of the past. The issues in this review are confined to a narrow compass.
In addition to the written material contained on the Tribunal file, and Exhibits received during the course of the hearing, all 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.
The Applicant, Mr WJC, did not have any witnesses and had failed to follow the orders of the direction hearing and supply a list of witnesses, witness statements, and any other relevant documents for the hearing. The Tribunal was satisfied that Mr WJC had sufficient time to comply with these orders.
Written statements were provided by a number of Departmental witnesses. Some of these witnesses were not required to provide oral testimony. The other witnesses supplied oral evidence by telephone link or in person.
Background to the Department’s Decision to Restrict and Place Conditions around contact
Child Safety Services records indicate a child protection history in relation to the family spanning from 1997 to the present time. Between February 1997 and July 2005 a total of nine child protection notifications were recorded in relation to the C family. Of these nine, five were recorded as substantiated/substantiated risk of harm, with Mr WJC and his partner at the time listed as the persons responsible.
From August 1998 to September 2004, concerns were received in relation to Mr WJC physically assaulting his son RC.
On 17 August 2007, the Childrens Court of Queensland in Brisbane granted a Child Protection Order granting the Chief Executive to supervise RC’s protection while in his parent’s care.
In May 2009 police received information from Sacred Heart Primary School Sandgate that they believed the children had been left at their address for a number of days without supervision. On that day the children RC, WC, and JC were taken into care on a Voluntary Assessment Care Agreement as the children were unable to nominate an appropriate carer or inform when their father would be home. The subject children’s father Mr WJC travelled overseas leaving his children unattended.
In May 2009, the Brisbane Childrens Court made Court Assessment Orders in relation to the subject children which granted the children’s temporary custody to the Chief Executive, and further ordered that Mr WJC not have contact with the children unless supervised by a Departmentally approved person. The orders expired on the 17 June 2009. In May 2009 application was made to the Sandgate Magistrates Court for an arrest warrant in relation to allegations that Mr WJC in May 2009 left a child under 12 years for an unreasonable time without making reasonable provision for the supervision and care of the child.
On the 15 June 2009 an extension of the Court Assessment Orders was granted with variations being made to the Orders which included Mr WJC was not to have contact with the subject children, and that an authorising officer or police officer enter and search a place believed to have the subject children at. The Department felt that both additional directions were necessary as Mr WJC upon his return to Australia could encourage and abscond with the subject children from their placement.
On the 3 August 2009, the Brisbane Childrens Court made child protection orders granting short term guardianship of the subject children to the Chief Executive for a period of two years.
At the commencement of the children entering out of home care in 2009, all three children were placed together with an approved foster carer. Placement details were withheld from the parents due to a previous history of Mr WJC disrupting the children’s placements and threatening carers.
On 17 June 2009 the subject children’s placement broke down and they were moved to an alternative placement due to ongoing harassment by way of telephone calls from Mr WJC, and fears that he may remove the subject children from this placement.
On 17 June 2009 a Child Safety Officer arrived at the school to collect RC and informed him that a placement was available for him and that the Department wanted him to be safe. RC excused himself to make a phone call, and following the phone call he absconded and remained in an undisclosed location.
In May 2011 Mr WJC returned to Australia and was arrested at the airport and charged with offences. He was convicted and sentenced to a prison term for leaving a child under the age of twelve (12) years unattended.
In July 2011 information was received that RC was residing with the parent of a school friend and the adult was assessed as a kinship carer for RC. In September 2011 RC self-placed with the mother of a friend.
WC and JC have remained in stable, secure and culturally appropriate placement since June 2009.
On 26 May, 2011 at the Brisbane Magistrates Court Mr WJC was convicted of failing to appear in accordance with an undertaking and sentenced to imprisonment for 6 months cumulative and convicted of an offence against section 364A of the Queensland Criminal Code, namely leaving a child under 12 unattended between 14 May 2009 and 18 May 2009 where he was sentenced to imprisonment for a period of 12 months cumulative. Both terms of imprisonment were made subject to parole release date on 26 November 2011.
On the 8 August 2011 the Childrens Court made an interim order granting temporary custody of the subject children to the Chief Executive for the period of the adjournment to the 12 September 2011. An Order was also made that:
a)A Separate Representative be appointed for the subject children and a social assessment report be prepared.
On the 12 September 2011 the Childrens Court made an interim order granting temporary custody of the subject children to the Chief Executive for the period of the adjournment to the 16 January 2012.
On the 16 September 2011 the Childrens Court made an interim order in relation to the subject children granting temporary custody of the subject children to the Chief Executive for the period of the adjournment to the 12 March 2012. An Order was also made that:
a)Mr WJC be interviewed by Mr M who has prepared the social assessment report in this matter, and
b)That a court ordered conference be convened on a date to be advised.
On the 12 March 2012 the Childrens Court made an interim order in relation to the subject children granting temporary custody of the subject children to the Chief Executive for the period of the adjournment to the 12 March 2012. An Order was also made that:
a)Mr WJC attend a social assessment interview, and
b)That a court ordered conference be convened at a date to be advised.
On the 30 April 2012 the Childrens Court made an interim order in relation to the subject children granting temporary custody of the subject children to the Chief Executive for the period of the adjournment to the 22 August 2012.
During the course of attempted case work by the Department with the family, Mr WJC has made numerous complaints, accusations and threats toward Departmental staff, including that he would use traditional law on any Departmental worker who came near his property. In addition to making statutory Departmental intervention difficult, communication has been a consistent barrier for the Department to provide child-focused case work to the family as Mr WJC has refused to provide his whereabouts to the Department or of his updated email contact. This has impacted on the children’s right to remain safe in their home.
Witnesses’ evidence
Anita Rudd (Acting Manager of Child Safety Service Centre)
Ms Anita Rudd supplied a written statement and provided oral evidence in person. The Tribunal accepts the content of her written statement.
She stated that she did not have direct involvement with the subject children prior to September 2011.
She has had historical involvement with Mr WJC in which Departmental staff have been harassed and threatened by Mr WJC. Prior to late May 2012, complaints from Mr WJC were to be made to either Anita Rudd or Janette Scott.
With regard to the children’s views and wishes Anita has had contact with the subject children and they have informed Anita:
a)WC: he has not been upset with current contact arrangements except when the contact has not occurred, and he does not want any more telephone or face to face contact than what is currently occurring. WC had stated he wanted the contact to occur at the Child Safety Service Centre and not at the Recognised Entity service.
b)RC was present at the previous QCAT stay and informed the Tribunal he only wanted telephone contact with his father Mr WJC which he would initiate. It is RC’s choice on how he would like contact to progress. RC has a transition from care plan as he turns eighteen (18) years of age this year.
c)JC: Anita has not been involved in direct casework with JC and has not seen him for a while, therefore she could not comment on his views or wishes. Anita is aware that JC has stated to his carers and Departmental workers that he would be unhappy with contact with his father Mr WJC and that he did not feel safe in his presence.
The subject children have had contact with an Indigenous worker in the Department and also the Recognised Entity.
The subject children WC and JC have activities every day except Tuesday, and they have sport activities on the weekend.
The Tribunal was impressed by Anita Rudd’s presentation, and considered her to be independent and objective. The evidence of Anita Rudd was not diminished in any way as result of the cross examination by Mr WJC.
Janette Scott (Acting Senior Practitioner of Child Safety Service Centre)
Ms Janette Scott supplied a written statement and provided oral evidence in person. The Tribunal accepts the content of her written statement.
Janette Scott gave evidence that the subject child RC visits her at the Department every three (3) to four (4) weeks.
Janette Scott gave evidence that the subject child JC is enrolled in a special education school for fifty (50%) of his enrolment time due to his mild learning disability. Ms Scott believes that JC is at an age and intellect where he can express his views and wishes.
She stated that the views and wishes of the subject children is that only WC wants face to face contact with the father Mr WJC.
The Department is seeking to maintain cultural connections for the subject children and have placed the subject children with Indigenous carers since June 2009. The subject children attend NAIDOC and other Indigenous community events, with WC involved in an Indigenous football team and JC wanting to learn the didgeridoo.
Janette stated that JC and WC have regular contact with their paternal grandmother JEC, and in September 2011 went to Victoria to visit her.
Janette stated that the subject children’s mother has not visited the children, however the children visited their mother approximately two (2) years ago supervised by an Indigenous Child Safety Service Officer.
JC is being referred to see an Indigenous social worker for counselling to look at contact issues surrounding contact with his father Mr WJC.
A lot of weight was placed on the subject children’s views which are outlined in the current contact arrangements. It is not in the best interest of the children to force them to have contact with their father Mr WJC.
Main concerns about the subject children’s contact with the father Mr WJC include, but are not limited to:
a)Need to be supervised due to Mr WJC making inappropriate statements to the subject children;
b)Mr WJC may again take the subject children and not inform of their whereabouts;
c)Substantiated concerns of emotional harm of the subject children occurring in the future.
Regular consultation has occurred with the Recognised Entity about contact of the subject children with their father Mr WJC. The Recognised Entity’s views are that they are supportive of the subject children’s views.
Mr WJC is currently on parole.
The subject children have been offered the opportunity to present their views at the hearing, but there has been no response if they want to address the Tribunal.
The Tribunal was impressed by Janette Scott’s presentation, and considered her to be independent and objective. The evidence of Janette Scott was not diminished in any way as result of the cross examination by Mr WJC.
JEC (paternal grandmother of children, mother of Mr WJC, and Aboriginal Elder)
Ms JEC supplied a written statement and provided oral evidence in person.
JEC stated that she is the paternal grandmother of the subject children.
She received a phone call from the subject child RC recently informing her that he did not want to have face to face contact with his father Mr WJC.
She stated that she has spoken with the subject children WC and JC who informed her that they are happy with the current contact arrangements as they are. WC has informed her that he has been disappointed with his father on a couple of contact visits. JC has informed her that he does not want to have face to face contact with his father as he is terrified of him.
She stated that Mr WJC lies. She mentioned that Mr WJC had his pilot’s licence taken off of him and was arrested at the airport and convicted of an offence.
Mr WJC does not belong to any Aboriginal group at present.
At moment the concern is for the subject children, and she feels that the subject children need protection from Mr WJC.
The Department has taken culturally appropriate measures while the subject children have been in care.
The Tribunal accepts the evidence supplied by JEC. The evidence of JEC was not diminished in any way as result of the cross examination by Mr WJC.
Diane Moore (Worker and Aboriginal Elder at Indigenous Family and Child Support Service – IFACSS)
Ms Diane Moore supplied a written statement and provided oral evidence in person. The Tribunal accepts the content of her written statement.
Diane informed the Tribunal that she felt she had a clear view of what the children wanted and she supports the Department’s decision regarding the contact arrangements. IFACSS has always had consultations with the subject children as to their views and wishes.
In 2009, Mr WJC was an extremely upset and irate person who would often ring people in organisations and use different names. In 2009 IFACSS decided that they would no longer have any involvement to do with Mr WJC due to the threatening behaviour. It has only been in the last twelve (12) months that IFACSS has been able to work with Mr WJC.
Mr WJC has been reluctant to work with IFACSS and has not given IFACSS or the Department any Indigenous names for the Department to contact. Mr WJC has not mentioned previously that he would like to take the children to their land at Island.
The subject children are old enough to decide for themselves what contact they would want with their father Mr WJC. WC is the only child who currently wants contact with his father.
The Department has applied culturally appropriate measures to the subject children. The Child Safety Service Centre is culturally appropriate for WC to have contact visits with his father at.
The Tribunal was impressed by Diane Moore’s presentation, and considered her to be independent and objective. The Tribunal accepts the evidence supplied by Diane Moore. The evidence of Dianne Moore was not diminished in any way as result of the cross examination by WJC.
Mr WJC (Applicant)
Mr WJC represented himself throughout the hearing.
Mr WJC informed the Tribunal that he wanted unsupervised contact with his children, preferably weekly on a Sunday between the times of 10am to 12 midday, but he would not be able to commit to every Sunday after August 2012 as he may be travelling overseas again. Mr WJC stated to the Tribunal he would like the following contact regime with the subject children:
a)RC: unsupervised telephone and face to face contact initiated by Mr WJC or RC.
b)WC: unsupervised contact, but agreed that this should be subject to WC’s views and wishes.
c)JC: unsupervised contact, but agreed that this should be subject to JC’s views and wishes.
d)To receive photos, cards, and relevant information such as school reports about the subject children.
On many occasions during the hearing he was loud, threatened Departmental staff and Tribunal Members, threatened witnesses, and expressed considerable negativity toward the Department and the legal system including the Childrens Court Judge. He persisted in this approach during his oral testimony saying that he had held these views for a very long time. His demeanour coloured his evidence, which included many unsubstantiated allegations. The Tribunal spent a significant period of time during the four (4) day hearing responding to the consistent objections that Mr WJC raised during the hearing.
Mr WJC informed the Tribunal that he had an Honorary Degree in Early Childhood received in 2011 from the T University overseas. He stated he worked in Australia as a consultant in land acquisition, and whilst overseas for two (2) years he worked as a Head Foreign Teacher.
Mr WJC was concerned that his mother JEC had lied during giving of evidence and that her evidence was not credible.
Mr WJC stated that the Department has been prejudiced and have not followed the child placement principles.
Mr WJC informed the Tribunal he has not done anything wrong and he has provided for his children.
Mr WJC stated he did not feel that the current contact arrangements are in the best interests of the subject children. He believes that people are manipulating the children into not wanting to have contact with him.
He married overseas in 2008.
When he left for overseas in 2009 he stated he had made arrangement for someone to babysit the subject children while he was away. He would not inform the Tribunal of the name of this person as he stated he would disclose this name in the Childrens Court. He stated he made a decision not to return to Australia when the Department became involved with the subject children while he was overseas. He stated he did not return to Australia as the subject children did not ask him to return.
He claimed privilege on stating if his wife from overseas was currently in Australia as he stated that he had received threats from the Department regarding his daughter.
Mr WJC could not inform the Tribunal of what he could do as a father to facilitate or improve his relationship with the Department only stating that the trust he has with the Department is not there.
Mr WJC stated that he has a pilot’s licence and this has never been taken from him.
Mr WJC stated that if another Child Protection Order is made this year then he would probably travel back overseas to live with his wife and his daughter.
Mr WJC stated that his parole finishes in November 2012 with the condition he cannot travel overseas without the permission of his parole officer.
Mr WJC stated that the Department is not being honest and that someone was influencing the decisions of his children.
Mr WJC stated that the communication with the Department has not been a problem on his behalf, however Mr WJC stated he does not want the Department to know his address or contact details.
Mr WJC stated the Childrens Court proceedings in August 2012 may be adjourned at his request.
Mr WJC stated that Diane Moore from IFACSS was not a credible witness and does not know about cultural appropriateness as she is not from his clan group.
Mr WJC stated that if it was the subject child WC’s view and wish to have contact at the Child Safety Service Centre then he would accept this and respect his wishes.
The subject children have not had physical contact with his wife from overseas.
He had been in jail in an Australian state but it was not related to stealing an aeroplane.
Mr WJC did not return to Australia during the two (2) year period from May 2009 until May 2011 as he felt he would be coming back to nothing and he stated he knew what would occur to him for leaving his children unattended. Mr WJC stated that during this two (2) year period away from Australia he had to leave overseas to renew his visa a couple of times before returning to overseas.
Mr WJC stated that he has changed and that he does have the best interests of the children at heart. Mr WJC stated that at the time he left for overseas for the two (2) year period he was attending to personal issues and he had uncertainty about his wife and child overseas.
Mr WJC stated that the Department is not applying culturally appropriate measures with his children.
Mr WJC stated that he has said sorry to the subject children RC and WC in person.
Mr WJC stated that he would need to build the trust back with his children.
It was difficult for the Tribunal to see how his behaviour and demeanour would encourage the three (3) subject children to respond positively toward him.
There were many inconsistencies in the substance of Mr WJC’s evidence. The tribunal found Mr WJC to be an unreliable and an argumentative witness.
Social Assessment Report
Mr M, social worker, provided a social assessment report dated November 2010 in relation to the current Children Court proceedings. Mr M was not required for cross-examination as during the course of the hearing his family member had become gravely ill and was in hospital.
The social worker concluded that the subject children WC and JC appear to be settled in their current environment.
He stated that the subject child JC expressed fear about communication with his father Mr WJC and does not like speaking to his father on the telephone.
He stated that the subject child WC expressed that he enjoys speaking with his father Mr WJC by telephone.
In his report Mr M did not supply any recommendations as to how the relationship between the children and their father might be repaired or about the current contact arrangements and suitability.
The Tribunal accepts the content of the report, however the report carries limitations in that the father Mr WJC has not been interviewed, and the child RC had not been interviewed. The Tribunal does not place much weight on the report due to the limitations of the report.
The Tribunal did receive information from the Childrens Court Separate Representative for the subject children, CD that numerous attempts have been made to have the father Mr WJC interviewed, however Mr WJC has either refused or has confirmed but not attended the appointments.
The Tribunal’s Interview with the subject children WC and JC
The Tribunal asked for the Department to ask the subject children if they would like to speak with the Tribunal members via telephone. The Tribunal telephoned the subject children, explaining what they were calling about and that the children had the right to say they did not want to talk with the Tribunal.
The Tribunal attempted to telephone RC but were unable to speak with him.
The Tribunal spoke with WC who declined to speak with the Tribunal.
The Tribunal spoke with JC who presented as a very mature young man for his age. He impressed as a confident, sensible, open, and assertive person. JC made it abundantly plain that he did not wish to resume any form of contact with Mr WJC except maybe by letters or photos being received through the Department. He gave acceptable reasons for this attitude.
After the telephone call with WC and JC had concluded the Tribunal briefly informed the parties of the outcome of the interviews.
Mr WJC’s submission
Mr WJC stated that he should have unsupervised contact with his children.
Mr WJC stated that the Department has lied, threatened, racially taunts, and does what they like while not considering the children’s views.
Mr WJC stated he respected the wishes of the children but felt that the children had been influenced by other people.
Mr WJC stated that Ms JEC had lied in her evidence and she was therefore not a credible witness. Mr WJC stated that JEC had influenced the subject child JC so that he did not want to have contact with his father.
Mr WJC stated that Ms Janette Scott had lied in her evidence and this shows how the Department operates.
Mr WJC stated that he did not agree with the evidence by Ms Diane Moore.
Mr WJC stated that he will most likely be attending QCAT in twelve (12) months time because the Department continues to not listen to the wishes of the children.
Mr WJC stated that he respects the subject child WC’s views and wishes.
Mr WJC stated that he felt he had not received natural justice through the Department or the Tribunal and that he would go back to the Indigenous community, Brisbane community, Island community, media, and overseas and inform them of all that has occurred in the QCAT hearing.
The contact remedy sought by Mr WJC was to allow the children to initiate unsupervised contact with him, and allow him to initiate unsupervised contact with the children. Mr WJC felt that contact should occur in the following regime:
a)RC should be allowed to initiate face to face and telephone contact with Mr WJC.
b)Telephone contact should be initiated by the subject children WC and JC.
c)The subject children should be allowed to receive gifts, letters, and photos from Mr WJC and the children should be allowed to send these to Mr WJC.
d)If the views of the children change in the future then the Department should put these views into practice and act on them.
e)Mr WJC is to be kept informed of information relating to the subject children such as school information and medical material.
Mr WJC said that he was not prepared to work with the Department to repair his relationship with the subject children as he felt that the human rights of the children are being violated, and that the Department has denied him natural justice.
Mr WJC stated that he wanted to help his children but he felt he could not help his children while they were in the care of the Department.
Department of Communities (Child Safety) submission
The Department’s decision to restrict and impose conditions on contact was triggered by specific incidences that occurred over a period of time.
The Department stated that any positive repair work will need to be driven by the children themselves and that the children’s views and wishes need to be considered.
The Department stated that with regard to the contact issue ‘a) RC should be allowed to initiate face to face and telephone contact with Mr WJC’, this issue was canvassed at the stay hearing and RC proposed that he wanted only telephone contact at that stage. The Department stated that they would not be opposed however if RC decided that he would like face to face contact as he was nearing eighteen (18) years of age.
The Department stated that with regard to the contact issue ‘b) telephone contact should be initiated by the subject children WC and JC’, the Department are committed to the contact regime of the 10 February 2012. The Department stated that allowing this contact to occur could dissolve the current placement of the children due to the previous harassment of Mr WJC toward the carers. The Department opposes this proposal and stated that any relaxation of the conditions of the current orders will need to be carefully managed. The Department stated that the current contact arrangements are in the best interests of the children.
The Department stated that with regard to the contact issue ‘c) the subject children should be allowed to receive gifts, letters, and photos from Mr WJC the children should be allowed to send these to Mr WJC’, the Department would agree to this, however this condition would need to be carefully managed by the Department to ensure that no harm occurred with the subject children.
The Department stated that with regard to the contact issue ‘d) if the views of the children change in the future then the Department should put these views into practice and act on them’, the Department stated that this cannot be placed as a mandatory injunction to comply with law. The Department stated that the views of relevant persons are taken into account however the Department is mindful that they may have to depart from the subject children’s wishes if it may result in harm to them.
The Department stated that with regard to contact issue ‘e) Mr WJC is to be kept informed of information relating to the subject children such as school information and medical material’, the Department stated that a clear decision and guidelines would need to be made by the Department if this was to occur to ensure that the children’s placements were not jeopardised and that practitioners were not harassed by Mr WJC. The Department stated that if school records were given to Mr WJC then these would be de-identified, and any medical information given to Mr WJC would have the practitioner information and the children’s contact details de-identified. The Department stated that any objectionable material would be removed before giving this to Mr WJC. The Department stated it wanted to preserve the stability of the subject children’s placement.
The Department stated that the evidence indicated that the Department was being guided by the children’s wishes and culturally appropriate decisions are being made.
The Department stated that in the father Mr WJC’s evidence he stated that he needed to earn the trust of the subject children, and that Mr WJC would need to start this process through working with the Department.
The Tribunal’s Views
The Tribunal is obliged by legislation to take many factors into account in determining this matter. However in this instance the overwhelming issue is the children’s expressed wish. The Tribunal is satisfied that the children are of an age, maturity, and intelligence to make such wishes. The views of the children are well considered, have not been influenced by inappropriate means, and are consistent with the children’s well being. It would not be in the children’s best interests to oblige them to have contact with their father Mr WJC if this was not their views or wishes.
The Tribunal was impressed by Anita Rudd, Janette Scott, JEC, and Diane Moore’s presentation, and considered them to be independent and objective. The Tribunal accepts the evidence supplied by these witnesses.
The Tribunal is satisfied that Mr WJC’s behaviour contributes to significant stress experienced by all of the children at contact. Witness statements and witness evidence consistently documented Mr WJC as being verbally aggressive and threatening to Departmental staff. It is patently clear to the Tribunal from witness statements and during the course of the hearing that the children are exposed to disturbing behaviours from their father.
The Tribunal is concerned that Mr WJC for the most part covers up and denies the emotional violence he exhibits. Mr WJC’s evidence in this regard is not accepted as credible. Mr WJC’s denial of aggression toward people is a significant barrier and has harmed rather than protected his relationship with his children.
The Tribunal accepts the Department’s submissions that the reasons are sufficient to support the decision for restricting and imposing conditions on contact. The Tribunal is satisfied that it is in the children’s best interests to restrict and impose certain conditions on contact with their father.
Conclusion
The decision for review is about contact between a family member and a child and was made by the decision maker under section 87 of the Child Protection Act 1999.
The issue for the Tribunal is – is it in the best interest of RC, WC, and JC for their contact with their father to be restricted and conditions imposed upon at this time?
The Tribunal considered written and oral evidence. The Tribunal concluded that conditions did need to occur with contact between the three subject children and their father Mr WJC to minimise impact of harm to the children. The subject child RC is almost eighteen years of age, and therefore it is important that contact is allowed to be initiated by RC at his discretion. The Tribunal also considered the children’s views and wishes that they presented to Departmental staff, IFACSS, or the Tribunal. In considering contact decisions the Tribunal needs to consider also the protection of the children including the safety, wellbeing, welfare and best interests of the children.
The Tribunal accepts the Department’s submissions to support the decision for restricting and imposing conditions on contact.
Mr WJC’s aggressive and emotional behaviour is not isolated to one occasion. There is significant evidence in Departmental records and witness statements of this being frequent behaviour. The Tribunal observed during the course of the hearing Mr WJC threaten Departmental staff and Tribunal Members if he did not obtain what he wanted.
The Tribunal accepts that there are significant concerns in relation to Mr WJC’s emotional stability, inability to control demonstrative and excessive emotional displays, lack of control in front of the children and insight into the effects of his behaviour on the children were presenting factors resulting in the children remaining in care.
From the material before the Tribunal, including primary records of criminal and domestic history, the Tribunal accepts that an in-depth psychiatric assessment, treatment plan and consistent participation in treatment is likely to be required to address Mr WJC’s long term behavioural dysfunction. The Tribunal accepts that Mr WJC’s unstable emotional and psychological functioning negatively affects his relationship with Departmental staff and other workers to the extent that his behaviour is verbally abusive.
If Mr WJC wishes to repair his relationship with his three children he will need to work co-operatively with the Department. The Tribunal does not argue with the Department’s submission that any positive repair work will need to be driven by the children themselves and that the children’s views and wishes need to be considered.
The Decision
The Tribunal concludes that the decision of the Department of Communities (Child Safety) to restrict and impose conditions on contact between Mr WJC, and his three children RC, WC, and JC, be varied to:
a)RC: Telephone and face-to-face contact will occur as initiated by RC.
b)WC: Subject to WC’s views and wishes, supervised face to face contact will occur on a monthly basis at the Department Child Safety Service Centre or as determined by the Department. Supervised telephone contact with WC will occur each fortnight or as determined by the Department. As per WC’s views and wishes, an exchange of letters and photos can take place between Mr WJC and WC through the Department Centre and subject to the Department’s discretion.
c)JC: As per JC’s views and wishes, face to face or telephone or email contact will not take place at this time. As per JC’s views and wishes, an exchange of letters and photos can take place between Mr WJC and JC through the Department Centre and subject to the Department’s discretion.
d)The Department will provide de-identified information to Mr WJC at the Department’s discretion regarding information relating to the children’s schooling and medical information.
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