WR
[2010] QCAT 298
•25 January 2010
CITATION: WR [2010] QCAT 298
PARTIES: WR
APPLICATION NUMBER: CSR24-09 and CSR183-09
MATTER TYPE: Children’s matters
HEARING DATE: 25 January 2010
HEARD AT: Brisbane
DECISION OF: Ms S Brooks (Presiding Member)
Mr N Jarro (Member)
Ms J Wiltshire (Member)
DELIVERED ON: 25 January 2010
DELIVERED AT: Brisbane
ORDERS MADE: [1]The Decision of 15 January 2009 (under s87(2)) to suspend the child K’s face-to-face contact with her mother is confirmed.
[2]The Decision of 14 August 2009 (under s87(2)) to restrict face-to-face contact and place conditions upon contact between the child F and his mother be set aside .
[3]The Tribunal makes the following substitute Decision in respect of F’s contact with his mother:
a.That the child F have supervised contact with the mother not more than once monthly.
b.That any such contact be for a maximum of one hour.
c.That contact be at a Child Safety Service Centre.
[4]The Decision to place the child F with the carer NP be confirmed.
CATCHWORDS : Restricted contact, supervised contact, Child Protection Act 1999 APPEARANCES and REPRESENTATION (if any):
APPLICANT: RESPONDENT: REASONS FOR DECISION
HISTORY OF THE APPLICATION
The Parties
[5]The Applicant is WR, mother of the children K and F. WR lives with her mother and brother and is supported in all her dealings by her mother, Mrs N.
[6]The Respondent is the Department of Communities (Child Safety Services), “the Department”.
[7]Ms WR has been known to the Department since the birth of her first child in 2004.
[8]The 2 children the subject of this Review Application are:
K (D.O.B. 11/08/04), and
F (D.O.B. 28/07/09).
BACKGROUND – K
K was born on 11 August 2004. The Department immediately sought an Assessment Order from the Brisbane Children’s Court. A Child Protection (Short Term) Order granting guardianship to the Chief Executive was made on 8 December 2004.
[9]In July 2006 a Long-term Child Protection Order pursuant to section 61 (f) (iii) of the Child Protection Act 1999 (Qld) (the CPA) was made granting Guardianship of K to the Chief Executive until 18 years of age.
[10]Contact between WR and K following the child being taken into care had been supervised at all times. WR’s mother, Ms N, has usually been present.
[11]Initially contact took place for one hour, four times per week. From December 2004 contact visits were reduced to two hours every Monday (supervised by the Department) and one hour on Thursday (supervised by staff from the Alina Families Program).
[12]As of 17 July 2006, with the granting of the Long Term Order, contact visits between Ms WR and the child K were reduced to one hour per fortnight supervised contact visits.
[13]On 15 January 2009 the Department made a Decision to refuse all face-to-face family contact between Ms WR and K. Ms WR brought an Application for the Tribunal to Review this Decision.
BACKGROUND – F
[14]F was born on 28 July 2009. The Department immediately sought an Assessment Order from the Brisbane Children’s Court. The Department subsequently applied for a Long Term Order.
[15]On 31/07/09 the Department made a Decision to place F with Carer NP, NP is also the carer of K. The Carer’s address was withheld. On 14/08/09 supervised Contact was further restricted.
[16]On 23/11/09 a Long-term Order was granted, placing the child under the long-term guardianship of the Chief Executive.
[17]In 2009 several Decisions, as indicated above, were made by the Department concerning both children.
[18]Applications were brought by the Applicant mother WR (numbers 024-09 & 183-09) seeking Reviews of these Decisions.
Decision Re K WR.
[19]An Application for Review was brought regarding the decision of 15 January 2009 under Section 87 (2) of the Child Protection Act 1999 (the CPA) to suspend face-to-face contact between the Applicant mother and the subject child.
Decisions Re F.
The Applicant sought Review of:
[20]A Decision of 14 August 2009 under Section 87 (2) of the CPA that contact between the applicant and subject child F be reduced to one hour a week, that such contact remains supervised and will occur at a Child Safety Service Centre, probably Enoggera,
[21]A further Decision of 14 August 2009 under Section 86 (4) of the CPT to refuse to inform Ms WR of where F is living. The Application for Review of this Decision was withdrawn at the Hearing.
[22]A Decision of 31 August 2009 under Section 86 (2) of the CPA which placed the subject child F in the care of NP, also the carer of K.
The Applicant sought that contact be increased with both children and that another placement be found for F.
EXTENDED NATURE OF THE HEARING
[23]The Applicant lodged her first Review Application (regarding restriction of contact with K), CSR 024-09 on 30/01/09 and a Preliminary Conference (PC) for that Review was held 03/03/09. At that PC the Tribunal refused to grant the Stay sought by the Applicant and set the matter down for a Hearing on 17 and 18 August 2009.
[24]The Tribunal, aware of Ms WR’s special needs, gave approval and supported an Application to Legal Aid, for the Applicant to be legally represented. After some time that was granted.
[26]On 28/07/09 baby F was born and placed in the care of the Department.
[27]Following submissions by the Applicant, on 14/08/09 that the Applicant was unwell, the Tribunal issued a Notice directing that the Review Application CSR 024-009 be heard at the later dates of 26 and 27 November 2009. The Parties were required to file witness statements relied upon at Hearing by 16 November 2009.
[28]F was placed with NP on 31/07/09; the residential address was withheld. And on 14/08/09 contact with the Mother was further restricted.
[29]On 18/08/09 Ms WR made an Application seeking Reviews of the Contact, 87(2), withholding information 86(4) and Placement Decision 86(2) in respect of F. That application disclosed no grounds for the objection to the Decision, except that F had special needs that needed to be managed.
[30]A Statement of Reasons for the Decision the subject of Application 183-09 was filed by the Department on 8 September 2009 and a Preliminary Conference for the same occurred on 23 September 2009. On 24 September 2009 an Order issued from the Tribunal in relation to Review Application number 183-09 formally joining it with Review Application number 024-09 for Hearing on 26 and 27 November 2009. The Tribunal again issued a direction to the parties for the filing of material and naming of witnesses 10 days prior to Hearing ie 16 November 2009.
[31]In addition to the above directions, on 11 November 2009 the Tribunal made an Order requiring the Applicant to file material by 4PM Friday 20 November 2009 stating fully the grounds upon which application 183-09 is made, including why the Decisions under section 86 are wrong. The Applicant’s solicitor requested and was granted an extension to provide such, until 23/11/09.
[32]The Respondent submitted in writing on 23/11/09 that it wished to place on record its frustration caused by the Applicant’s failure to prosecute its case in a timely manner and sought:-
a)That in accordance with Section 47 (2) of the Children Services Tribunal Act 2000, the Tribunal consider a proposal that the applications be determined solely on the documents filed and via oral submissions by the parties or their legal representative on Thursday 26 November 2009:
b)In the absence of any evidence or grounds (as at 20/11/09) in support of her respective applications, the Tribunal under section 41 (1) (a) (ii) of the Children Services Tribunal Act 2000 dismiss the applications “as no reasonable basis for the applications” have been disclosed by the applicant.
[33]The Applicant’s legal representatives did produce a document stating grounds on 23/11/09.
[34]The Tribunal noted the Respondent’s frustration at the delays but informed the Parties that the full Hearing of all matters would proceed on 26 and 27 November 2009. In spite of the delays it was the Tribunal’s intention, with respect to Section 51 and particularly to Section 52 (1) and (2) to provide a full opportunity to the Applicant to present her case – through her legal advisors.
[35]The Respondent further noted its frustration when the Applicant did not appear in person for the Hearing. A Doctor’s note was handed up on 26/11/09 stating that the Applicant was unwell.
THE ISSUES AND THE LEGISLATION
[36]The issues for the Tribunal are:
(a)Is it in K and F’s best interests to have increased supervised contact with their mother?
(b)Is it in the child F’s best interests to be moved from the care of his current carer?
[37]The legislation relied upon:
The Contact decisions under review in these Applications are decisions under the Child Protection Act 1999 (the CPA), S 87 (2) to restrict contact.
[38]The Placement Decision under review is a decision under S.86(2)
Under S.37 of the Children Services Tribunal Act (The Act), when the Tribunal makes a decision on an application, it decides the matter afresh and takes all reasonable steps to ensure it has all relevant material before it, which may include material that was not available to the original decision.
[39]Under S 38 of the Act the Tribunal may-
a) confirm, set aside or vary the decision; or
b) set aside the decision and substitute its own decision; or
c) set aside the decision and return it to the decision maker for reconsideration in accordance with directions given by the Tribunal,
[40]The Tribunal is guided by Section 5(1) of the CPA which provides:
‘This Act is to be administered under the principle that the welfare and best interests of a child are paramount’.
This is the fundamental proposition of the CPA.
[41]Under S7 of the Children Services Tribunal Act (the Act) the Tribunal must similarly have regard to the principle that the welfare and best interest of a child are paramount. Section 7 (2) outlines further principles that the Tribunal must have regard to in making its decision.
[42]The Tribunal also considered the other important principles, under S5 (2) of the CPA. These matters include:
S.5(2)(a) that ‘every child has a right to protection from harm’,
‘Harm to a child’ is defined in section 9(1) as ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’. Under section 9(2), it is immaterial how the harm is caused. Section 9(3) states that ‘harm can be caused by physical, psychological or emotional abuse or neglect; or sexual abuse or exploitation’,
S.5(2)(d) that ‘powers conferred under this Act should be exercised in a way that ensures actions taken, while in the best interests of the child, maintain family relationships and are supportive of individual rights and ethnic, religious and cultural identity or values:
S.5(2)(f) that ‘if a child is removed from the child’s family,
(ii) the child needs to maintain family and social contacts, and ethnic and cultural identity must be taken into account; and in deciding in whose care the child should be placed, the chief executive must give proper consideration to placing the child, as first option, with kin.
s.5(2)(i) that ‘if a child does not have a parent able and willing to give the child ongoing protection, the child has a right to long-term alternative care.’
[43]Section 74 also requires that as “far as reasonably practicable” the chief executive must ensure that the Charter of Rights for a child is complied with. The charter is set out in the first schedule to the Act.
[44]The Tribunal was very aware, in respect of S.51 and 52 of the Children’s Services Tribunal Act (the Act) that the Applicant is a person of high special needs, and took pains to provide her every opportunity through her Counsel to present her views. Attempts were made at regular intervals throughout the hearing to contact the mother for her evidence and to engage her in the process.
Respondent’s Documentary Evidence.
[45]The Respondent Department provided some 17 witness statements prepared for the Hearing, additional to extensive documentation and Reports prepared by them, the Children’s Representative and other professionals for earlier Child Protection Applications before the Children’s Court. The Tribunal therefore had the benefit of a detailed history of the interaction between the parties in respect of the children.
[46]The Tribunal commends the Department in that many of the Department Witness Statements, and other decision documents provided over time to the Applicant were in large print format, to assist the Applicant who has severe sight problems.
[47]The Department provided the following statements of witness from the Fortitude Valley (FVCSSC) and Alderley Child Safety Service Centres (ACSSC):
Statement of Nick Burchill Child Safety Support Officer (FVCSSC)
Statement of Drew McGowan Child Safety Officer (FVCSSC)
Statement of Diane Cornwall Team Leader (FVCSSC)
Statement of Tanya Abbott Child Safety Officer (ACSSC)
Statement of Erin Moffatt Child Safety Officer (ACSSC)
Statement of Michael Taylor Child Safety Officer (ACSSC)
Statement of April Sharrock Child Safety Officer (ACSSC)
Statement of Rachael McCall Senior Practitioner (ACSSC)
Statement of Irene Skiathitis Paediatrician Royal Brisbane
Children’s Hospital (Child Advocacy
Clinic)
Statement of NP Foster Carer
Statement of Thomas Flanagan Families Plus(Foster Care Agency
Support Worker)
Statement of Heather McCallum Director Child Care Centre (attended
By K)
[48]The Department also filed a Chronology of the Child Protection history of the children, annexing all psychological and social assessment Reports (see list below) in relation to the applicant and the subject children, since 2004. This provided a sound historical background.
Reports:
Dr John Linane Psychiatrist RBWH
Marie Bou Senior Clinical Psychologist RBWH
Robyn Murray Consultant Psychologist
Dr Michael Forrest Ophthalmologist
Jane Whitford Clinical Nurse Consultant Peri-Natal Mental Health RBWH
These professional people were also sent Notices to Attend by the Department.
[49]Notices to attend for evidence were issued to officers of the Queensland Police Service, and documents on the Applicant’s criminal history produced.
[50]The Respondent did not call any witnesses for oral evidence but relied on the filed documentation.
APPLICANT’S EVIDENCE:
[51]The Applicant provided no witness statements or documentation beyond the Review Application documents and the document of 23/11/09 which stated the grounds for the Applicant's objection to the Decisions made.
[52]Independently the Applicant had emailed to the Tribunal Registry numerous photographs including several showing a group of 9 babies about 8 months old. The Applicant had written the names of the children on their pictures and informed the Registry that the 9 babies were all her babies.
[53]The Applicant called no witnesses but did nominate witnesses of the Department that she wished to cross-examine. The Applicant attended the Hearing by telephone for about 5 minutes on Friday 27/11/09.
The Applicant’s Case
[54]The Applicant relied upon the written grounds provided on 23/11/09 and spoke to those grounds at the Hearing.
[55]GROUNDS FOR OBJECTING TO THE RESTRICTION OF CONTACT UNDER S87 (2) WITH K.
Ground one: the decision to restrict contact fails to take into account the Principles enunciated in section 5 (2) (f) (ii) of the Child Protection Act 1999 (QLD and Schedule 1 (c) Charter of Rights for a Child in Care of the Child Protection Act 199 (QLD).
[56]Ground Two: the reasons stated by the Department to justify non-contact, fail to take into account relevant circumstances and place too much emphasis on irrelevant circumstances.
As an example of this, Counsel specifically referred to the Child Protection History recorded on the first page of the CP Case Plan, which records a suspicion of an incestuous relationship and a police investigation. Counsel informed the Tribunal that a police investigation had occurred; DNA testing occurred; the testing confirmed that WR’s brother was not K’s father. Counsel argues that the Case Plan as a “key document”, and a document that was relied upon, should not contain incomplete and incorrect information. Counsel pointed out the number of times this “fact” had been included in further documents; it was prejudicial to his client. The Tribunal agrees that the repetition of this material in the Departmental records and in documents provided to other people, such as this Tribunal, is a serious issue and the Department should take steps to remedy it.
The Tribunal does not accept that the decision-maker took into account or relied on this suspected incestuous relationship as her oral evidence was that she was aware that the police had not proceeded with the matter.
[57]Ground Three: questioned the negative effects face-to-face contact was said to have on K. Counsel argued that while the Department relied upon multiple Reports regarding what the Department perceived as a reluctance of K to participate in contact with WR, this information was questionably valid.
[58]Ground Four: raised the argument that the minimal contact the Applicant has had with the Child since 2004 is itself responsible for the disjointed relationship that has developed. There has been little routine of contact; K’s reactions have not been considered in context; Due to the Department’s continual reduction of contact time between K and Ms WR it is easy to see it has resulted in a disjointed relationship. Minimal contact having been reduced to non-contact has had effect of changing the relationship between them which is not in line with s. 5 of the CP. Counsel argued that Ms WR has not been afforded an opportunity to gain K’s trust nor participate in a regular routine of contact that would allow for K to grow comfortable with a routine. It is clear that continuing non-contact takes away from K an opportunity to foster a relationship with her mother.
He referred to the fact that K had after many months of anxiety and fear developed a trusting relationship with her teacher; she could do that with her mother if both were given the right routine and support.
[59]Ground Five: stated that the relationship between the child and her mother has in fact been physically affectionate and enthusiastic. Counsel drew support for this statement from paragraph 33, of Mr Parker’s Report (15/06/07) which notes that the support worker, Ms Cooper, considered that K saw Ms WR as a “mother figure” and that she had formed a maternal bond.
[60]Ground six: reiterated the argument that the Decision to remove face-to-face contact between the child and the Applicant would unduly prevent the mother from playing an active role in the child’s life.
GROUNDS REGARDING F AND RESTRICTED CONTACT S87 (2)
[61] Counsel relied upon the grounds already raised in respect of K (see above)
and,
·The decision to restrict contact from four hours a week to one hour a week prevents any meaningful relationship from developing. If F is to have any chance at maintaining a meaningful relationship with his mother, it is not through a minimal contact but rather by ensuring that contact is occurring on a regular and extended time basis.
·The child K had more contact with the mother when she was the same age as F. Why was not F given the same opportunity to bond with his mother?
GROUNDS OBJECTING TO THE PLACEMENT OF F WITH CARER s86 (2)
[62]Ground 1 –the placement of F with NP is a placement that fails to take into account the principles enunciated in the Child Protection Act 1999 (Qld) because:
·The Placement is not conducive to supporting a relationship between Ms WR and F. Counsel quoted the statements of NP (the Carer) included in Mr Parker’s Report arguing that they indicate that “she does not appear likely to foster any mother-child relationship except as required by the Department”; the carer’s preference is for a superficial relationship that consists simply of an exchange of photographs and pictures. That is not sufficient.
·Counsel cited Paragraph 30 of Mr Parker’s Report as supporting his position. “Mr Parker is doubtful that NP would promote or encourage contact between the mother and the children.”
In summary it was the position of the Applicant through Counsel that NP was not an appropriate placement because:
“NP’s declared intention in this regard would suggest that the children’s right to know her birth family would be compromised.”FURTHER GROUNDS, RELEVENT TO BOTH REVIEW APPLICATIONS.
[63] Counsel raised additional grounds as follows:
·There is no evidence, nor allegation, that Ms WR has ever caused any of her children physical harm.
·Concerns regarding Ms WR’s ability to parent need not be a concern as all contact takes place under the supervision of Department or their agents.
·The Department have failed to take active steps to provide guidance, training and support that would allow Ms WR to be able to form a relationship and bond with her children. The extent of support was one attempt of a Program offered by Alina Families.
·The Department has failed to offer any additional or alternative programs that would support the relationship between Ms WR and her children. This is in spite of the identification that both Ms WR and her children are in a unique special needs situation. There is a universal recognition of the mother’s low intelligence and other issues that need to be taken into account and addressed.
·The Applicant had asked for help.
[64]Counsel further submitted that In respect of the threat made by the Applicant to kidnap her child and her notification to Police that someone else had kidnapped her child there was no real fear that the mother could carry out her threats because (and here Counsel quoted the Police Report):
“WR has no transport other than taxi and no persons at the house have the physical or mental ability to abduct infants or children.”
“The overviewing officer concurs with the decisions of the investigating officer that no further action be taken in relation to any abduction threats as it is apparent that WR has neither the mental nor physical capacity to perform this and has made no indication that these are her intentions.”
[65]As the Applicant called no witnesses the Hearing moved speedily to the Department’s presentation of its case.
The Respondent’s Case
[66]The Respondent relied upon its written evidence before the Tribunal, which included the 2 sets of written Reasons for its decisions, the evidence contained in the written witness Statements and Professional Reports and other documents detailing the history of their involvement with Ms WR. The Department called no witnesses for oral evidence but made available those witnesses requested for questioning by the Tribunal and/or required by the Applicant for cross-examination.
Reasons for Restricting Contact, under S.87(2).
[67]The Reasons given by the Department for the Contact Decisions in respect of both children were:-
a. the Applicant’s historical and continuing diminished level of functioning and her limited parenting ability as observed by workers and established by professionals over 5 years,
b. the Applicant’s inability to improve her skills in spite of assistance and role modelling,
c. the Applicant’s limited insight into both her lack of skills and the needs of the children,
d. the negative effect of Contact on the children, especially the older child K,
e. the poor quality of contact due to the Applicant’s inability to concentrate or interact with either child
f. The delusional nature of the mothers conversations and actions including on supervised contact,
g. the serious impact of the Applicant’s and her mother Ms N’s lack of personal hygiene
h. the Applicant’s threat to remove K from the carer and contacting the Police about kidnapping,
i. the Applicant’s failure to attend some 50% of contact visits with the baby F between his birth 28/7/09 and the Hearing (26/11/09)
[68]Department witness Diane Cornwall who also had provided a written statement was called for oral cross-examination by Counsel for the Applicant. She had been involved since 2004 with the family, first in 2004/5 with K and also since the birth of F.
[69]Counsel for the Applicant sought to establish through cross-examination of this witness the validity of the Grounds expressed by the Applicant for her objections to the Department Decisions regarding both children.
[70]Counsel put to the witness that the assistance provided by Alina Services (contracted by the Department to assist the Applicant mother before and after K’s birth) had been limited, inadequate, short-term and arbitrarily discontinued in 2005; Counsel challenged the witness that the Applicant had not been assisted to the extent necessary by Alina, or given any assistance since.
[71]The witness was able to refute these assertions, calling on her own knowledge and documentary evidence already before the Tribunal.
[72]The 21/12/06 Report from Alina Families Program, who supported WR through her pregnancy with K and for some 12 months after, summarised:
“Over the past 12 months………our goals have been limited to providing for an opportunity for appropriate contact between WR and K. ….her capacity to care for K, to meet her physical and emotional needs during contact is limited to very basic care, after prompting.”
[73]Counsel persisted in his suggestions that the Applicant had not been provided sufficient support to allow her parenting skills to develop either in 2004/5, with K or in 2009 with F. Had that been done, contact would be positive.
[74]Ms Cornwall denied this assertion, once again showing a sound knowledge of the Applicant, the application of the Legislation, and the Criteria used by the Department for assessing the suitability and success of contact. She also explained the change of focus that occurred after Long-Term, (as opposed to Short Term) Orders issued from the Children’s Court. Contact under Short Term Orders focussed on re-unification; upon the granting of Long term Orders the focus of contact was to keep up connections, but still with their best interests as the principal consideration. Both these children are on Long Term Orders. The Department, while fully aware of S.5 of the CPA believed it to be in the best interests of K that contact be discontinued and further restricted with F.
[75]Counsel then raised the issue of suitability of F’s placement with NP (also the carer of K). He sought to rely on a paragraph (70) of the Social Assessment Report of Frances Parker (15/06/07, prepared for the Children’s Court) which stated that the carer, when asked by Mr Parker had said it would be “tricky” to preserve a physical relationship between K and her mother. Counsel asserted that this Carer had not and would not facilitate contact between the mother and her children.
[76]The witness explained that that paragraph needed to be read in the context of the whole Report and in the context of the Department Policy. Under Policy it was the role of the Department to decide frequency and length of contact – it was not up to this carer, or any carer to decide. In the case of NP, she had facilitated all areas of contact the Department decided to allow and they (and the Report Writer, in the context of the whole Report) were confident she would continue to do so. She was trained in Child Care, committed to F (and his sister) and documentary evidence showed the efforts she was making to address F’s best interests including his special needs.
[77]Counsel for the Applicant then sought to establish that the mother had requested help, at least twice – once in 2005 and once in 2009, and had not received it. The witness acknowledged that the mother may have done so but that documents showed she historically did not follow through with courses that were suggested, that she frequently did not attend contact and that when she did her concentration was for about 5 minutes. Suggestions had been made by Service Providers, Psychologists and even the Police, that she seek help, but she had not done so.
[78]When subsequently questioned why F had not had a similar amount of contact with his mother as K had had when she was a baby, the witness responded that:
a. the mother had not attended 50% of the contact times that had been offered to her for contact with F since his birth,
and
b. when she did attend it was observed she could concentrate on the baby for only a few minutes, before turning her attention and conversation to herself.
c. She had to be prompted to take the most rudimentary cautions for the protection of the baby, for example supporting the baby’s head,
d. the Department had observed the mother since 2004 in contact with K as a small child. That had been negative and need not be repeated for F.
[79] In response to questions from the Tribunal the witness stated:-
a. the Applicant did not have insight into the problem contact posed for the children
b. as she had no appreciation of the problem she, in fact DID NOT ask for help as earlier suggested by Counsel
c. as the children were both now on Long-Term orders reunification with the mother would not occur; “connection” with the mother would only be maintained if the children benefited,
d. any contact needed to be in their best interests
e. it was important that both children came to know NP as their primary carer; she had informed the Department that she wished to care for the children long term,
f. the negative effects of contact upon K had become more pronounced as she grew older and became increasingly aware of her mothers’ (and the Grandmother’s) unhygienic and erratic presentation and speech. Face-to-face contact had become detrimental to the child K and connections with the mother were best kept alive through photographs and cards. This was supported by the Report of Frances Parker of 15/06/07 (for Children’s Court Proceedings) summarised:
“She is undoubtedly being cared for in a family situation of stability, mutual affection and stimulation. I would recommend this care continue.” And “I agree that contact should be preserved on the present basis until the child herself gives an indication of whether she is not comfortable for this to continue.
In the view of the Department K had given a clear and express indication that she no longer was comfortable seeing her mother.
g. Given that baby F had just been placed on a Long-Term Order (25/11/09) a new Decision, further restricting his one hour a week contact with the mother was likely.
h. She knew that the outcome of the Police investigation into alleged incest had established that the Applicant’s brother was not the father of the child and therefore that had never formed a consideration in her decision to restrict contact with K.
The Evidence of this witness was informed and professional and was accepted as highly reliable .
[80]Witness Bridgette Condon was then made available to Counsel for cross- examination. She had been the Investigating Officer in 2004 when the Department was seeking Child Protection Orders for K.
[81]This witness confirmed the scope and depth of assistance offered by Alina to the Applicant. Their assistance had been sustained, not fleeting. They had assisted the mother all through her pregnancy, at the birth, and continued to help supervise contact after they had terminated their “contracted” services after 18 months. Those services had been discontinued because the mother had shown NO improvement.
She confirmed that if the mother had asked for help subsequently, “I can guarantee I would try to provide it”.
When asked why she did not proactively suggest additional services for the Applicant, Ms Condon responded:
“Here we had a mother who could not self-care, could not soothe her baby (K) or even hold her head, yet she thought everything was fine; she did not understand her limitations; she would lose her attention and would talk about all her other children and show us photographs of them.”
[82]The witness supported the discontinuance of face-to-face contact with K in January 2009. She related that five years of history confirmed the Applicant’s inability to learn even basic parenting skills and as K grew she spoke of contact with her mother as “frightening”. The child was observed at contact to be wary, fearful and unwilling to go near her mother. Following contact she was upset and anxious. In the professional view of Ms Condon, contact with her mother had become an emotionally harmful experience.
[83]She referred to serious personal hygiene issues, also a repeated feature of workers reports and professional reports. Consultant Psychologist Robyn Murray noted in her 17/10/06 report that the Applicant had “a strong, unpleasant body odour and wore stained clothing. Her feet were bare and filthy and her hair unwashed.” Evidence from current workers provided in written statements confirmed that the Applicant’s clothing was very dirty and at times stained with blood and urine.
[84]Counsel drew the witness’ attention to the witness statement of K’s teacher, Heather McCallum. In that statement the teacher described how K had initially been terrified to be parted from NP, her carer, and would not be comforted or trust her as the teacher. Initially her behaviours had been extreme, but over months of gaining trust the teacher could report K was enjoying school. Counsel asked,
“Surely that sort of ‘settling down’ was possible with her mother, especially if the mother was assisted?”
[85]The witness responded by repeating that she had no confidence the mother had the capacity to learn or apply skills and, more importantly, K’s awareness was growing and she found the Applicant’s appearance, speech and behaviours alarming and frightening.
[86]During cross examination of this witness at about 3.40PM on the 27/11/09, Counsel was informed that the Applicant had agreed to give evidence to the Tribunal by phone. Ms Condon was temporarily stood down.
[87]The Applicant mother was on the phone for about 5 minutes. Her manner initially was excited and light hearted; her mother was in the background and giggling could be heard.
[88]There was then a rambling discourse, with the Applicant and her mother Mrs N talking to each other and the Applicant talking to the Tribunal about “Sam not being good enough”. The Applicant did say that she had asked for help once and that her mother had asked that help be provided once. When asked by Counsel she said she was “Yes, she was willing to do courses.”
[89]The Applicant went on to say that she and her mother were very popular at Chermside Shopping Centre. Lots of people would come up to talk to them, including aboriginal people.
It was clear that very little assistance could be gained by talking further with the mother.
[90]On resumption of her evidence Ms Condon stated that contact between K and her mother had been “routine and consistent between 2006 and 2009”, it had also taken place in “familiar surroundings” either at the Valley or Chermside Offices. Workers were proactive in role-modelling appropriate interactions. They tried to keep the Applicant focussed on her children. In spite of the routine, the familiarity and role modelling of the workers who supervised, there had been no improvement.
The Tribunal accepted the evidence of this witness as informed, professional and highly reliable.
Submissions
[91]Both parties gave oral submissions at the end of the Hearing and both also handed up written submissions on 27/11/09.
The Applicant’s Submissions.
[92]Counsel submitted that:
a)While the Department alleges that Ms WR suffers from intellectual and physical disabilities and he did not contest these assertions, ”it is conceivable that Ms WR, with assistance, may be able to overcome these difficulties in the future”.
The evidence produced by the Respondent does not support this submission.
[93]A Report of Marie Bou, Senior Clinical Psychologist (Consultation – Liaison Psychiatry, Royal Brisbane Hospital), dated 19/10/04 was cited in the evidence of the Respondent. That Report concluded:
“A prorating method of calculating intelligence quotients was used to establish a Full Scale IQ of 62 with a Verbal IQ of 67 and Performance IQ of 60. These scores place WR in the Extremely Low Intelligence Classification.”
[94]A further 2004 report by Dr Linane (Director, Consultation – Liaison Psychiatry Royal Brisbane Women’s Hospital Mental Health Service) stated the Applicant’s behaviour was arising from:
“a psychotic disorder in a young woman of mild intellectual impairment, living in an enmeshed socially-isolated family with shared delusional beliefs (with her mother),” or
“in view of the deliberate presentation of false evidence, photographs and ultrasound that have probably come from the world wide web…..one would include fantasy thinking related to intellectual impairment and indeed deliberate falsification as alternative explanations.”
[95]A November 2004 report of Keith Sedgman, Child and Family Counsellor engaged by the separate Representative for the 2004 Children’s Court Application for K to be placed in the care of the Chief Executive states:
“Ms WR (and Ms N, maternal grandmother) would appear to have little or no potential to markedly develop personal, relationship or parenting functionalities.” And
“the report writer is not confident that mother (Ms WR) daughter (K) contact even with significant input from helping professionals will markedly assist Ms WR in her functioning or in K’s development.”
[96]A Report by Consultant Psychologist Robyn Murray of 17/10/06 (who also provided an Addendum Report dated 12 04 07) provided an assessment of Ms WR’s level of cognitive functioning and her ability to parent. That report made similar assessment to those of Mare Bou from October 2004.
“On testing, WR’s Verbal Intellect falls within the Extremely Low Range and at the 2nd percentile.”
b)The presence of an intellectual disability should not automatically attract a decision of no contact or minimal contact between Ms WR and her children, but rather highlights the need for oversight and ongoing review of both the contact arrangements and also the services the Department offers Ms WR and the children to facilitate their relationship.
[97]Counsel referred to a recent doctor’s Report which stated the Applicant showed no signs of psychosis. This opinion was contrary to all other professional Reports provided to the Tribunal from a range of professionals.
[98]The Evidence of the Respondent was that the Applicant presented as far more challenging and complex than that which could be adequately described as an intellectual disability. This was supported by an Addendum Report of Robyn Murray, Consultant Psychologist (dated 12/4/07), prepared for an earlier Review Application which noted:
“While intellectual impairment would not of itself be sufficient to prevent her (Ms WR) from parenting K, it is the combination of a number of factors – limited intellectual capacity, shared delusional beliefs and social isolation that I consider would render her incapable of properly caring for her child.”
The Tribunal accepts the respondent’s evidence.
c)In the time that Ms WR has been involved with the Department, she has received little in the way of guidance in relation to her parentage of K or F and has received little to no assistance in relation to her health issues.
This submission is not supported by the evidence.
d)With proper support and guidance, it is foreseeable that Ms WR could address her problems and overcome her apparent difficulties. Indeed, in light of the children’s tender age, it is critical that we afford every opportunity to Ms WR to address her concerns and maintain her relationship with the children.
[99]Departmental evidence did not support this submission. Department evidence was that the Applicant had no insight into either her lack of skills or the children’s needs. Reports prepared by Professionals for Children’s Court Applications included statements such as:
·“Because of restrictions of insight it is unlikely she (Ms WR) would be able to fully appreciate her limitations with respect to parenting.”
·“WR lives in a chaotic, enmeshed household with few social supports, providing a fertile environment for psychopathology to flourish within the family.”
·“WR lacks the capacity to adequately intellectually stimulate her child and is likely to have significant difficulties adapting behaviour management strategies as K grows older.”
[100]The Applicant’s Forensic History includes convictions of cruelty to animals over time. The RSPCA removed animals from the family in 2000, 2001 and 2002. The Applicant has since been placed on a three year probation order.
The Tribunal accepted the Respondent’s evidence.
Conclusions Re Restriction of Contact;
[101]Having been provided with extensive cogent and congruent evidence from the Department witnesses, assisted ably by the Reports of other professionals, the Tribunal accepts the reasons given by the Department and the subsequent evidence that contact between the children and their mother be restricted under S.87(2) of the CPA.
[102]The Tribunal supports the Departments decisions to further restrict the contact for both children.
[103]Re K: The Tribunal agrees that face to face contact for the child K be discontinued indefinitely. It is not in her best interests as required under s.5 for the following reasons:
·Department’s best efforts to facilitate such and honour the principles laid down in s.5 (2) a-I of the CAT Act have not improved contact or the mother’s skills,
·The child is now in Long-Term Care of the chief Executive, which significantly alters the focus of contact with the mother.
·There is no value in a repetition of contact that has been detrimental in the past,
·The mother’s negative demeanour and behaviours on contact is unlikely to change as she has no insight
·It is in the best interests of the child that she be assisted to focus on and build primary attachments with her carer and strong bonds with her brother.
·Time and human resources can be better directed to cases where children may be benefited,
·K herself, with increasing awareness as she grows older, is frightened by the appearance, conversations and behaviours of her mother.
Re F:
[104]It is the view of the Tribunal that only very limited face-to-face contact between F and his mother is in the child’s best interests, for the following reasons:
·the child is now in the Long-Term Care of the chief Executive, which significantly alters the focus of contact with the mother, and may appropriately result in further Decision to restrict contact
·There is no value of contact that does not benefit the child,
·The mother’s negative behaviours and lack of parenting skills are unlikely to change
·It is in the best interests of the child that he be assisted to focus on and build primary attachments with his carer and strong bonds with his sister
·F is a special needs child and much time and effort needs to be focussed on treatment , activities and professional attendances to address his needs
·time and human resources can be better directed to cases where children may be benefited,
[105]The Tribunal also wishes to note that on the evidence before it the Tribunal accepts:
a)it is reasonable to conclude that face-to-face contact between the children and the mother gives rise to the likelihood of emotional abuse and places the children at risk.
Decision
[106]The Tribunal Orders:
a)That the Decision of 15/01/09 (under S.87(2) to suspend the child K’s face-to-face contact with her mother is confirmed.
b)That the Decision of 14/08/09 (under S87(2) to restrict face-to-face contact and place conditions upon contact between the child F and his mother be set aside .
c)The Tribunal makes the following substitute Decision in respect of F’ contact with his mother:
·That the child F have supervised contact with the mother not more than once monthly.
·That any such contact be for a maximum of one hour.
·That contact be at a Child Safety Service Centre.
d)The Decision to place the child F with the carer NP be confirmed.
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