DDY v Department of Child Safety, Seniors and Disability Service [2024] QCAT 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DDY v Department of Child Safety, Seniors and Disability Services [2024] QCAT 108 PARTIES: DDY (applicant) v DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (respondent) APPLICATION NO/S: CML313-22 MATTER TYPE: Childrens matters DELIVERED ON: 11 March 2024 HEARING DATE: 9 November 2023, 10 November 2023, 13 November 2023, 7 February 2024, 8 February 2024, 19 February 2024 HEARD AT: Brisbane DECISION OF: Member Goodman (Presiding) Member Lember Member Guthrie ORDERS: The decision of the Department of Child Safety, Seniors and Disabilities Services dated 14 June 2023, restricting and imposing conditions on contact is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – child protection contact decision FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OF TERRITORY JURISDICTION AND LEGISLATION – CHILD PROTECTION – where review sought of a contact decision – whether contact ought to be supervised – whether audio recording of contact by parent and siblings is harmful to the child – welfare and best interests of a child Child Protection Act 1999 (Qld) s 5A, s 5B, s 5BA, s 9, s 59, s 87, s 99C, s 99D, s 99Q, s 99S, s 99U, s 99ZD, sch 2 Human Rights Act 2009 (Qld) s 8, s 9, s 13, s 25, s 26, s 31, s 58 Invasion of Privacy Act 1971 (Qld), s 43 -- 1 of 22 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 24, s 28, s 29 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) APPEARANCES & REPRESENTATION: Applicant: Self-Represented Respondent: Court Services officers: Ms Patterson and Ms Lyon Ms Bui and Ms Youkoupis Separate Representative: Mr Kingston, Solicitor, Norman & Kingston REASONS FOR DECISION Background [1] To maintain confidentiality, as required by the Child Protection Act 1999 (Qld), these reasons for decision are deidentified. This includes removing references to the gender of the children mentioned in the reasons. Where evidence which was relied upon in making the decision contained a reference to “he” or “she”, the Tribunal has used a gender-neutral term. This has resulted in some alterations to reports and statements as set out in these reasons. We are satisfied that there has been no substantive change to the meaning of the evidence. [2] DDY is the father of three children - Y (currently 14), K (currently 13), and R (currently 11) (collectively, the children). [3] Y and R are subject to Child Protection Orders granting interim custody to the Chief Executive, Department of Child Safety, Seniors and Disability Services (the Department). [4] K is not subject to a child protection order, and lives with DDY and his flatmate/friend E. E is described by DDY as “family” and a “mother figure” to the children. K is not the subject of these proceedings. [5] Y lives in residential care. Y has sought and obtained orders in the Childrens Court regarding contact with DDY. Y is not the subject of these proceedings. [6] These proceedings concern contact arrangements between DDY and R. The Tribunal understands that there are contested proceedings in the Childrens Court regarding R, scheduled to take place in March 2024. Clearly, if no further orders are made by the Court granting custody to the Chief Executive, the Department will have no decision- making powers and any decision by this Tribunal regarding contact will cease to have effect. -- 2 of 22 -- 3 Legislative framework [7] In making this decision, we have applied relevant provisions of the Child Protection Act 1999 (Qld) (CPA), the Human Rights Act 2009 (Qld) (HRA) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and its Rules.1 [8] The main principle for administering the CPA is that the safety, wellbeing, and best interests of a child, both through childhood and for the rest of the child’s life, are paramount. 2 [9] Section 87 of the CPA provides that 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, but may refuse to allow, restrict, or impose conditions on the contact. Decisions made pursuant to section 87 are reviewable in this Tribunal.3 [10] The current contact arrangements between DDY and R are set out in a letter from the Department to DDY dated 14 June 2023. This is the reviewable decision. Current arrangements are: (a) During school terms: (i) Weekly face to face contact each Thursday 3.30pm – 5pm. (ii) Contact is to be at a location in the community such as a park, art gallery, café or a sports field. (iii) Contact is fully supervised by one departmental officer. (iv) K is approved to attend each contact. (v) E is approved to attend every second contact. (vi) DDY is to advise child safety by close of business on Monday prior to the Thursday contact his preferred location for contact. (b) Contact during school holidays: (i) Weekly face to face contact with DDY for up to three hours on Thursdays. (ii) Contact is to be at a location in the community with child appropriate activities, such as seeing a movie and if time permits lunch after, going bowling or community organised activities by local council or youth program. (iii) Contact is fully supervised by one departmental officer. (iv) K is approved to attend contact. (v) E is approved to attend every second contact. (vi) DDY is to advise child safety by close of business on Monday prior to the Thursday contact his preferred location for contact. 1 Queensland Civil and Administrative Tribunal Rules 2009 (Qld). 2 CPA, s 5A. 3 CPA, s 87, sch 2. -- 3 of 22 -- 4 [11] Telephone contact is not currently occurring between DDY and R but is sought by DDY. The review [12] The review is a fresh hearing on the merits, not an appeal, and we must determine the correct and preferable decision.4 Neither party bears an onus of proof. [13] The orders that may be made by the Tribunal in a review are to: (a) confirm or amend the reviewable decision, (b) set aside the decision and substitute its own decision, or (c) set aside the decision and return the matter for reconsideration to the decision maker for the decision with the directions the tribunal considers appropriate.5 [14] Upon review, DDY seeks that the decision be set aside and substituted with a contact decision involving: (a) Extended contact for increased time with R. This would include collecting R from school and attending school activities and sharing special occasions, like birthdays, together. (b) Arrangements for K and E to also share more time with R. (c) Access to a messaging app so that he can message R (he has no objection to messages being available to the Department). (d) Contact to be unsupervised, or supervised by E. (e) If the Tribunal is not persuaded that E is an appropriate supervisor, arrangements made so that another adult without a criminal history supervise the contact. [15] The Department seeks an order that the reviewable decision be confirmed. The Separate Representative agrees with one exception - he supports DDY’s submission that he and R have contact on birthdays. [16] In conducting the review, the Tribunal is acting as a public entity, as that term is defined in the HRA.6 Accordingly, it is unlawful for the Tribunal to act or make a decision in a way that is not compatible with human rights, or in making the decision, to fail to give proper consideration to a relevant human right7. A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA.8 The role of the Separate Representative [17] There was some discussion during the hearing about the role of the separate representative, undertaken in this proceeding by Mr Kingston. The separate representative must act in R’s best interests having regard to any expressed views or wishes and, as far as possible, present R’s views and wishes to the Tribunal. A separate 4 QCAT Act, s 20 5 QCAT Act, s 24. 6 HRA, s 9(4)(b). 7 HRA, s 58. 8 HRA, s 8(b). -- 4 of 22 -- 5 representative must not be called to give evidence or give evidence about a communication between themselves and R. 9 Confidentiality Orders [18] Prior to the hearing, a confidentiality order was made by the Tribunal.10 During the hearing, that order was varied to reflect the extent to which information had been subsequently disclosed to DDY. That variation is reflected in Tribunal Orders dated 7 February 2024. [19] Further confidentiality orders were made at the hearing over information contained in additional evidence provided to the Tribunal on 5 January 2024 and 7 February 2024. Those Orders have been issued by the Tribunal by decision dated 7 February 2024. [20] The effect of the confidentiality orders is that DDY has not been provided with the documents or information in respect of which confidentiality orders have been made. The orders were made under s 99ZD of the CPA, the Tribunal being satisfied that if it did not make the orders there would be undue interference with the privacy of a child or other person. 11 [21] In making the orders, and in the conduct of the hearing, the Tribunal was cognisant of its obligations under s 28 and s 29 of the QCAT Act. While the confidentiality orders mean that DDY was not able to directly respond to the specifics of the confidential information, during the hearing the Tribunal posed general questions to DDY so that we are satisfied that to the extent possible, and to the extent the confidential information is relied upon in making this decision, DDY has had the opportunity to respond to the substance of that information. Discussion of the evidence The format of the evidence [22] We have considered all the evidence before us, and the submissions of the parties, both written and oral, the salient parts of which are referred to in these reasons.12 [23] DDY records all interactions between himself and R, and all interactions he has with the Department and others involved in these proceedings. He sought to rely on the recordings (as transcribed by him or in their original audio form) at the hearing. The Tribunal allowed DDY to rely on his transcriptions as an aide-memoire so that he was able to provide his version of events. In doing so, we do not necessarily accept that the ‘transcriptions’ provide a true and accurate representation of what happened during contact. [24] The affidavits provided by DDY are very lengthy and contain transcripts of various conversations involving DDY, his family, the Department, and others they have interacted with. DDY claims that they faithfully restate conversations. Even if, for the purposes of this decision, we accept that to be the case, we consider that the transcripts 9 CPA, s 99Q, s 99S. 10 Confidentiality order made 8 November 2023 by Member Goodman. 11 CPA, s 99ZD(4)(c). 12 Applicant’s material comprises Exhibits 1-12 (inclusive) and written submissions handed up 19 February 2024; Respondents material comprises Exhibits 13-26 (inclusive) and written submissions handed up 19 February 2024; material provided by the Separate Representative (Exhibits 19, 27 and 28) and oral submissions made 19 February 2024. -- 5 of 22 -- 6 are of low probative value. That is because, while DDY says that he forgets that the recording is on, it is the Tribunal’s view that the interactions are tainted in the sense that they will remain unnatural and somewhat staged due to presence of the recording device, particularly given DDY’s stated intention to use the recording to “protect myself”, and “as evidence”. [25] We heard oral evidence from DDY and E, and from several child safety support officers who have supervised contact between DDY and R and made notes about those contacts. DDY’s concerns regarding the conduct of the Department [26] DDY’s materials includes a myriad of expressed concerns about the experience of his family since R and Y were removed from his care. Whilst we do not wish to diminish or to be dismissive of DDY’s expressed concerns, we observe that, for the most part, these complaints fall outside the scope of our review. [27] The Tribunal is limited on review to making the correct and preferable decision regarding DDY’s contact with R. The scope of the review does not extend to complaints that more properly represent customer service or misconduct complaints about the Department or its staff. The Flourish reports [28] DDY provided in evidence an interim and final report from Flourish, an organisation engaged within a domestic violence framework to have reflective conversations with DDY regarding his children’s lived experiences, DDY’s upbringing and his parenting in order to try and build insight, reflection and accountability and to render DDY eligible for upskilling programs.13 [29] DDY claims the Department, in particular officer de Klerk, influenced the final report of Flourish so that it was not as positive about him as the interim report had been.14 [30] As we understood officer de Klerk’s evidence, upon reading the interim report, she raised concerns with her superior that the report was ‘superficial’ and deficient in terms of the quoted scope of the work commissioned by the Department. We accept officer de Klerk’s evidence. We do not accept that there was an attempt to influence the authors of the report to align themselves with an outcome or recommendation formulated by the Department. [31] We have carefully considered the final report of Flourish in making our decision. [32] The final report of Flourish was finalised following the last day of intervention on 17 February 2023. The authors opine that: (a) DDY had increased his openness to parenting support and was open to learning different communication styles and exploring therapies for himself and the children as a family. (b) DDY’s negative view of Child Safety had been a barrier to service delivery. 13 Oral evidence of Officer de Klerk, 7 February 2024. 14 Exhibit 8. -- 6 of 22 -- 7 (c) Often DDY has been fixated on conversations or interactions with Child Safety and this has prevented him from having further development in his parenting as he believed the direction for this support is from Child Safety. [33] Flourish did not observe the use by DDY of any physical discipline in the home during their attendances. Discipline strategies used in the home were observed to be appropriate, as were all observed conversations between DDY, E and K, leading to no suspicion of domestic and family violence in the home. [34] Flourish recommended, amongst other things, ongoing intervention with a focus on supervising or supporting contacts to ensure appropriate and measurable reporting is being completed. Evidence of Ms Davis, psychologist [35] The Tribunal has before it two reports from Ms Davis, registered psychologist,15 who also gave oral evidence. [36] Ms Davis has extensive experience in assessment and intervention with children and adolescents and family functioning, particularly with severe and complex cases. Ms Davis has experience preparing independent comprehensive assessment reports to inform clinical treatment and court proceedings within the Children’s Court and Family Court systems, including clinical, cognitive, psychological, parenting capacity and risk assessments. [37] Ms Davis’s first report dated 15 December 2022 was completed following a consideration of a range of material, interviewing, and conducting assessments of R and DDY and others and observing contact between DDY and R.16 [38] Ms Davis’s second report followed a file review and is dated 12 December 2023.17 [39] DDY submits that we should not rely on Ms Davis’s reports because, amongst other things:18 (a) She was influenced too much by historical factors and did not realise the extent of the abuse perpetrated on the children by their mother when they lived with her. (b) She saw R for no more than 20 minutes, possibly less. (c) She talked about K being a conduit for information from DDY to R, but had no notes on what sort of information K would allegedly supply, and she mentioned R’s fear when asking questions about this, yet she was unaware at the time that R had expressed in a recorded interview with officer de Klerk that R could see K at school and they could not stop that happening. (d) Her notes that R came close and whispered that R wanted to be with DDY was misinterpreted by Ms Davis who suggests that R’s behaviour is indicative of 15 First report dated 15 December 2022 contained in Exhibit 14, attachment 14 and second report dated 12 December 2023 contained in Exhibits 20 (redacted version) and Exhibit 21 (unredacted version). 16 Exhibit 14 attachment 14 17 Exhibit 20 (redacted version) and Exhibit 21(unredacted version). 18 DDY’s written submissions [157]. -- 7 of 22 -- 8 fear of DDY. This conclusion is only open if Ms Davis’s views were tainted by beliefs that he committed violence. (e) She acknowledged that the existence of allegations of violence would always influence the recommendation she makes, and DDY stridently denies perpetrating any violence. (f) The courts have already indicated that the historical violence is of less concern, so her report is tainted. (g) The report does not address appropriate contact arrangements if the allegations of violence are untrue. (h) It is unclear to what extent her report has relied on the confidential information which should not have been disclosed to her before she completed her report. (i) Her opinion is informed by allegations contained in the Department’s material that are derived from unreliable sources. [40] We reject DDY’s submission that Ms Davis’s report should be given little to no weight. [41] Based on our plain reading of the report as a whole and Ms Davis’s oral evidence, we are not persuaded that her report is skewed, or tainted by a belief that violence was, in fact, perpetrated by DDY. We have given Ms Davis’s reports and oral evidence significant weight given her expertise. [42] Further, the observations and opinions expressed by her that we have relied upon were supported by the evidence of the child safety support officers and consistent with our assessment of DDY’s evidence and presentation. [43] For example, DDY’s evidence focussed on proving: (a) that Child Safety could not be trusted; (b) that they had failed to support him to satisfy their requirements so that his contact with R could increase; (c) indeed, that they had proactively worked against him to satisfy those requirements; (d) that they did not properly care for his children in their care; and (e) that any claims that he had harmed his children were false. [44] DDY remained steadfast in relation to responses to questions posed to him in cross- examination and questions from the Tribunal, regarding, for example his reasons for recording all contacts with R and interactions with the Department. DDY was unable or unwilling to concede or allow for the possibility that the recording of R might cause R harm and, to the extent he entertained that possibility, we understood his evidence to be that the benefit to him of recording R in order ‘to gather evidence’ outweighed any harm to R caused by the recording. [45] DDY’s evidence was focussed on establishing that he was innocent of the allegations of harm made against him. With the exception of the concessions he made in relation to one incident involving Y (the sign incident), he denied he had ever harmed any of -- 8 of 22 -- 9 his children or placed any of them at risk of harm. In terms of ‘harm’ his focus was physical harm. [46] Our impression of DDY through his own evidence and questioning of the child safety support officers was consistent with the opinions expressed by Ms Davis in relation to an inability to self-reflect or develop insight into the effects of his parenting approach. [47] Ms Davis interviewed DDY and R for her first report.19 Ms Davis states:20 R was observed to be highly anxious, guarded and hypervigilant during the interview. R responded I don’t know to nearly all questions asked of them. R was particularly hypervigilant in response to direct questioning around DDY and Child Safety decision making. R avoided eye contact, laid on the floor, and gradually moved across the floor until they were out of the room. R identified a Child Advocate …. through the Office of the Public Guardian as the preferred legal representative. … During the interview R reported that K was acting as a conduit for communication from DDY when they are at school. R whispered I want to go to dads in a mumbled voice, but appeared highly anxious and uncertain when saying this. When asked general questions about family members, R responded I don’t know. When asked to describe experiences living with DDY, a few descriptions of families (inclusive of loving safe families, abusive families, distant/non-communicative families etc) were posed to R who was invited to indicate what their experiences had been like. R indicated in this process that time in DDY’s care had been abusive (i.e., including yelling, hitting and being scared), though when this was clarified R changed their response to state that it had been loving and safe and engagement ceased. [48] Ms Davis observed contact between DDY and R for the purposes of her first report. Ms Davis reported in relation to the dynamics of the relationship between R and DDY:21 DDY’s relationship with R appears to be complex. They were observed to have fairly superficial interactions, even when taking into account the artificial environment and R is assessed to be anxious, hypervigilant and guarded in relation to DDY. R is documented to have made disclosures/allegations about abuse perpetrated by DDY and appears to be quite sensitive to the impacts of these statements and is assessed to be highly vulnerable to recanting allegations even if they are completely true. [49] In relation to DDY, Ms Davis reported:22 DDY presented as euthymic in mood with underlying agitation and appeared guarded. His affect was restricted and incongruent; he presented as controlled and unemotional. … He demonstrated poor insight. DDY’s pattern of responses (moderately elevated impression management and markedly elevated self-deceptive enhancement) [to a self-report questionnaire] 19 Exhibit 14, attachment 14. 20 Exhibit 14, attachment 14 at [9.3]. 21 Exhibit 14, attachment 14 at [8.7.3]. 22 Exhibit 14, attachment 14 at [8.1.1], [8.2.1], [8.5.2], [8.7.5]. -- 9 of 22 -- 10 is associated with narcissistic tendences. Individuals with this profile may show arrogance and/or lack self-insight. DDY stated that he used mild physical discipline when the children were young … but does not agree with the use of physical punishments such as smacking. He noted that he has referred to himself as being ‘old school’ in his parenting approach, which he suggested has been misconstrued to suggest he endorses the use of harsh discipline. He stated that he was referring to his views on manners and morals. The available information suggests that there are a number of limitations to DDY’s ability to safely parent the children and meet their emotional needs. He demonstrated poor insight into various aspects of the child protection concerns and the children’s needs. He is more readily able to identify with K’s needs, however this is informed by the enmeshed relationship. [50] Ms Davis in her first report states:23 It appears that DDY has focussed on the minutiae of the allegations that have been made against him, with his efforts being put into surveillance and evidence gathering rather than introspection and connection. [51] DDY’s evidence around the sign incident and the dog bowl incident together with the other of his evidence discussed in these reasons, left us with the impression that DDY is unable to wholly accept responsibility for his actions or, without support, empathise with another’s position. [52] DDY’s focus on minutiae was apparent in the thousands of pages of affidavit and other evidence which he filed in these proceedings, and from his cross examination of Departmental witnesses. DDY focused in his evidence and in his cross examination on proving that, where there were discrepancies between his recordings and the notes of the Departmental officers, he was correct and that the Departmental notes were riddled with lies. [53] By focusing, for example, on whether notes accurately reflected the order in which people left a room, or whether a wave was friendly in nature, DDY has missed the opportunity to understand, reflect upon, and address parts of the evidence which raise child protection concerns in a broader sense, such as the examples of recording or invasive question discussed later in these reasons. This presents a significant impediment to increasing contact time or reducing contact supervision arrangements. [54] DDY is unable to focus his energy and attention on rebuilding his relationship with R through natural parental interactions free of surveillance and monitoring. He is also unable at the current time to work openly, proactively, and cooperatively with the Department. Further, DDY is unable to appreciate that if he could do so that would in turn assist his relationship with R in the current circumstances. We make findings accordingly. The ‘sign incident’ involving Y [55] The sign incident has been referred to throughout the documents before us and was the subject of oral evidence from a range of witnesses including DDY and E. 23 Exhibit 14, attachment 14, [8.7.9]. -- 10 of 22 -- 11 [56] DDY and E’s evidence was consistent that Y was directed by DDY to stand in the front yard of the home holding a sign with words that reflected that they were a liar as punishment for lying to DDY. [57] DDY took issue with the description of the incident as it appeared in the respondent’s material and says that: (a) Y was not made to stand in the rain but came in as soon as it started raining, (b) the sign was not hung on Y’s head, but held, and (c) the street was not a busy street but a quiet cul-de-sac that you would not normally expect any cars to drive past.24 [58] While neither DDY nor E saw any problem with this form of discipline at the time nor for some time after the Department took action, DDY now says that he would not do this again and in response to direct questioning from us, said that it would have caused humiliation to Y. [59] DDY also reflected that he is now more aware of what Y would have gone through in Y’s mother’s care so that he should have acted differently in responding to Y’s behaviours when the children came to live with him. However, he also sought to diminish the action as objectively not that serious stating in his submissions:25 I have read the benchbook at page 17 and note that it approves of the comments of Dickey QC who says “In considering the best interests or welfare of a child the court naturally has to face the facts differ within the community and especially within Australia’s present day plurist and multicultural society on what is conducive to the good either of the children generally or of classes of children”. This is exactly the issue here. When E was questioned she didn’t see an issue with it at the time. There is debate within the community about this topic and many people have advised that they think it is a fair punishment while others disagree. I also note that there was not actually any evidence provided either way to the court as to what harm was likely to be caused and there is still great debate as to whether or not it should be allowed. Perhaps most tellingly, … Y who was subjected to the punishment told child safety that they understood why I did this and thought it was an appropriate punishment. [60] In her first report Ms Davis states:26 It is assessed that DDY is not able to appropriately discipline the children. The only issue that he agrees is accurate is the incident with the sign, and it is clear that his insight into the problematic nature of this discipline strategy is poor. He shows some superficial acknowledgement of it having been inappropriate, but this is assessed to be to placate the repeated concerns being raised through Child Safety involvement rather than genuine insight. There is information to suggest that multiple family members over time have described DDY engaging in violent, aggressive and cruel behaviours. DDY has maintained a stance of total 24 Oral evidence of DDY. 25 Applicant’s submissions [36]-[38]; Exhibit 1, p.3. 26 Exhibit 14 attachment 14, [8.7.7] and [8.7.11]. -- 11 of 22 -- 12 denial regarding these allegations which is supported by those aligned with him (E and K). This is a complex and challenging case. There are few facts that everyone agrees upon, and there are many examples in which parties have provided completely different and contradictory accounts of events and issues of concern. Due to this, and the lack of verified information, it is not possible to state with certainty what has occurred in this case – this will be a matter for the court to decide. Rather it is only possible within this assessment to consider all the available information and make an assessment on balance. In doing so, a concerning picture is noted with regard to violence risk. The available information …is suggestive of DDY having a history perpetrating violence that is characterised as early onset, … chronic, … diverse… and severe…. There is insufficient information to provide clarity on the motivating and perpetuating factors for this violence though it would appear to be related to strong need for control and power seeking and compliance. The violence would appear to be disinhibited by poor insight (inclusive of lack of capacity for accurate self-reflection) and lack of empathy. The ‘dog bowl’ incident [61] The other incident discussed in the evidence involves R being wet with water from a dog bowl. Again, DDY disputes aspects of the description of the incident as contained in the respondent’s material. DDY denies pushing R’s face into the water in the dog bowl but says he may have splashed R with water from the dog bowl when engaging in a playful water fight with his children. [62] For the purposes of these reasons, we accept DDY’s description of this incident and the incident involving the sign. We make no findings as to whether R has been subjected to or witnessed any physical violence perpetrated by DDY. Other child safety concerns, including engagement with the Department [63] Recognising the positive aspects to DDY’s contact with R, the evidence presented by child safety officers was consistent that: (a) DDY attends all contact visits as arranged. (b) DDY provides appropriate food and clothing for R. (c) DDY engages in appropriate and interesting games and activities. (d) There are no concerns in relation to drug or alcohol abuse by DDY. (e) DDY has not engaged in behaviour which has put R at physical risk, or which raised immediate safety concerns which would require the supervisors to intervene. (f) Contact was child focused when structured and supervised. [64] However, in terms of ongoing concerns about DDY, officer de Klerk gave evidence that DDY’s failure to acknowledge and take responsibility for harm caused to the children prevented his acceptance in the domestic violence course the Department views as an important support for DDY and the children moving forward, and a prerequisite to consideration of an increase in contact times or reduction of supervision requirements. -- 12 of 22 -- 13 [65] We note that the Department indicated that they could recommend a course which would be suitable for DDY to undertake which was not conditional upon him acknowledging past domestic violence. DDY, for his part, indicated a willingness to undertake such a course and improve his learning. We consider those arrangements, if made, will support contact arrangements that take R’s needs into account. Any other psychological support arrangements are a matter for DDY himself, perhaps informed by Departmental input if he is prepared to accept it. [66] DDY gave evidence that he was seeing his own psychologist. There is no evidence that DDY’s psychologist has the qualifications recommended by the respondent (adopting the recommendations of Ms Davis) including a clinical and forensic background. [67] In any event, we have no report from DDY’s treating psychologist and his evidence was that the focus of his sessions has been managing the stress associated with the various court proceedings and dealings with Department rather than focussing on his behaviour in relation to his interactions with his children and the Department. [68] We find that DDY has not developed the insight or skills needed to build a trusting and nurturing relationship with R. Recording contact [69] Much of DDY’s written and oral evidence centred around his deep distrust of officers of the Department. E clearly shares this distrust. Both DDY and E record all interactions with Departmental officers, and record contact with R. [70] Both DDY and E gave evidence that recording was necessary to obtain evidence to prove that officers lie or twist evidence and treat DDY disrespectfully and are motivated by painting him in a negative light to support Departmental decisions, including decisions about contact with R. They gave evidence that recording was necessary to protect DDY and the children. [71] DDY gave evidence that he is not sure if R is aware of the constant recording, but E gave evidence that R knew, that her device is not hidden when she records contact, and there is evidence that K’s recording device fell from their pocket during a sibling contact. [72] DDY said that if R did know, R was happy to be recorded, giving the example of R often recording him or other family members to post on TikTok, or asking him to video some of their interactions in the park. [73] The departmental officers who gave evidence were all aware that DDY records their interactions with him and the contacts generally, even if they did not see a recording device on a particular occasion. [74] Given the lengthy period that recording has been occurring, and the evidence of E and DDY, we find that R is aware of the recording. [75] K also records all interactions with R. K has refused to attend contact on Fridays with R because the Department does not allow recording at that contact. It is DDY’s evidence that “all experts” have said that K’s recording is not an issue, but the Department is asking him to overrule the medical experts and ensure that K does not record contact. -- 13 of 22 -- 14 [76] The Tribunal has not been provided with any expert evidence to support a claim that constant recording of interactions with R is not an issue. [77] In response to questions posed by us and through cross-examination of DDY, we are satisfied that short of child safety officers no longer supervising his contact with R, there is no circumstance in which DDY would cease recording. His evidence was that he would continue to record even if R asked him not to do so. He admitted he had been asked by departmental officers to cease recording but continues to do so. He says that the Department cannot legally prevent him from recording a conversation to which he is a party.27 [78] When asked to reflect on the possible downsides to recording R, DDY said he wished he did not have to record. He wished he could trust officers to report the truth. He said it was an annoyance, an intrusion and no one wants to be recorded day in and day out, although his children do not care about the recording. DDY said he did not see how R was at risk by the recording. He conceded that it might make R feel on guard but said R had never indicated to him that there were any problems with it. [79] In her oral evidence, Ms Davis said it was concerning that it had been over a year since R had been involved in family contact that was not audio recorded. Ms Davis described the recording as a level of ‘surveillance and monitoring’ that was ‘pervasive and consistent’. Ms Davis expressed the opinion that the constant recording was: (a) abnormal; (b) not appropriate or sufficient to ensure R’s safety; (c) not consistent with developmental needs and norms; and (d) not consistent with R’s rights to free engagement or being able to have interactions that were not fodder for a parent’s interests. [80] Further, Ms Davis gave evidence that the monitoring and surveillance would raise concerns about issues of control. Ms Davis states in her most recent report that:28 It is my view that this is a case where complex and sometimes subtle (though highly potent) dynamics related to coercion, control and emotional safety are key issues of concern. [81] We accept Ms Davis’s expert evidence in relation to the impacts on R of recording and make findings accordingly. We also find that DDY will likely continue to record R and departmental officers as he does not have sufficient insight into the detrimental effect this has on his relationship with R or on R’s wellbeing and safety. Evidence of R’s views and wishes [82] R has the right to express views about what is and is not in R’s interests.29 R also has a right to express views to the tribunal about matters relevant to the review.30 [83] We have not spoken directly to R. R has consistently over more than a year expressed a view to officers of the Department and to the independent Child Advocate (from the 27 Invasion of Privacy Act 1971 (Qld), s 43(2)(a). 28 Exhibits 20 and 21, DCSSDS 231at [3.1.8]. 29 CPA, s 5B(n). 30 CPA, s 99U. -- 14 of 22 -- 15 Office of the Public Guardian) that no change is sought to the current contact arrangements. In recent months, that position was confirmed to the Separate Representative.31 R also advised the Separate Representative of a recent change in schools, and that the name of the current school should be withheld from DDY, E and K.32 [84] DDY does not accept that R genuinely holds those views. [85] DDY claims that R has been influenced by officers of the Department to encourage R to say things that would lead the Childrens Court or the Tribunal to limit contact and leave R in the care of the Department. The officers who gave evidence denied influencing R against DDY and stated that they were not aware of any other officer attempting to do so. Ms Davis also gave evidence that she did not consider R had been influenced in any way by departmental officers. [86] We are satisfied that R’s expressed views and wishes have not been influenced by departmental officers. We are also satisfied that the child safety support officers have completed their notes based on their genuine observation of the contact they supervised to the best of their abilities being sure to raise any matters they considered to be of concern but also noting what worked well at the contact. [87] DDY believes that he and R share a close and loving relationship, and his evidence is that R has indicated to him that more time with him would be preferred. He says it is “dishonest” to suggest that R does not want to spend more time with him, or to live with him. He says that R has never asked for contact to be supervised, that it is a lie to say that R does not wish to have telephone contact, and that R’s carers are nasty to R if telephone contact proceeds. He understands that the child advocate in the Children’s Court has said that R wishes to have more contact with him. However, he conceded that it is possible that R is saying different things to him than to others. [88] We accept that R has expressed different views to different people. However, we have given more weight to the views expressed by R to the child advocate and separate representative in these proceedings as they are independent from the Department and do not have a decision-making role in R’s life. [89] Regardless of R’s expressed views, however, R has clearly stated that it is their wish that “the adults” (which we take to include the Tribunal in these review proceedings) are to make decisions about contact.33 R’s views and wishes are not, by any means, determinative in these proceedings. Supervision of contact [90] In their case notes child safety officers had recorded instances of DDY asking R repeated questions about topics including a motor vehicle accident R had been involved in as well as school lunches and attendance at school. DDY’s evidence is that these are simply benign, typical questions a caring parent would ask their child. 31 Affidavit of Mr Kingston filed 5 January 2024 (Exhibit 19). 32 Exhibit 19. 33 Affidavit of Mr Kingston filed 5 January 2024 (Exhibit 19) and letter from Child Advocate dated 8 December 2023 (Exhibit 22). -- 15 of 22 -- 16 [91] The child safety officers notes reflect that R had become obviously uncomfortable with repeated questioning on the same topic which continued after R had either answered it or signalled that they did not want to engage with the topic further. [92] We accept that the subjects of the conversations appear at face value to be subjects a caring parent might ask their child about. However, this is not a case where R resides with DDY, and these conversations are not occurring in mundane day to day family interactions. DDY has limited contact with R and shares the contact time with others. Therefore, what he chooses to speak to R about in that limited time takes on greater significance. [93] Context is relevant, including that the motor vehicle accident involved a departmental officer, that DDY gave evidence that K told him R did not have lunch at school and that DDY believed R had changed schools before he was officially notified.34 The repeated questioning of R appears to be an effort by DDY to obtain information from R to disparage the Department. Further, given the Chief Executive has responsibility for the care of R, questions regarding care arrangements could have been posed directly to the Department without any need to probe R for information. [94] Ms Davis gave evidence that DDY pressing R about, for example, what R had for lunch could be potentially indicative of an inability to read R’s cues and understand that R was unwilling to share that information. If unwanted questions were repeatedly asked then that would demonstrate an inability to prioritise R’s needs, wishes and views above his own. [95] In her oral evidence Ms Davis said that: (a) supervision requirements would depend on the environment but there is a need for risks around unsupervised conversations to be addressed; (b) there is a risk of a perpetuation of coercive control, particularly given the evidence of R’s sensitivity and anxiousness in unsupervised conversations; (c) unsupervised conversations may be sending messages of control; and (d) two supervisors are recommended when contact is in the community. [96] Ms Davis expresses concern around unmonitored conversations occurring during contact in the community:35 It is my view that there is a need to balance the benefits of the family having more natural interactions with the need for ensuring R’s physical and emotional safety through supervision. It is my view that the balance in this regard is currently tipped in the father’s favour, as there is evidence of unmonitored conversations occurring between family members as a result of environmental factors relating to contact being in the community (i.e., distance, noise, family member movement away from supervisor). There is information from Child Safety to indicate that there have been hushed or whispered conversations, conversations that cease upon the supervisor gaining proximity and observation of R appearing anxious when the recipient of unmonitored discussion from family members. Ideally, this could not be occurring, though to address it would involve pulling contact out of a naturalistic space back into an environment that 34 Exhibit 15 at DCSSDS 130 (lunch) and officer de Klerk’s oral evidence; DCSSDS 199 (motor vehicle accident); Exhibit 20 DCSSDS 242 (school); Exhibit 15 DCSSDS 160 and 169 (other examples). 35 Exhibit 20 DCSSDS 231 and 232 [3.1.9]. -- 16 of 22 -- 17 allowed for a higher level of monitoring (e.g. Child Safety office). On balance, it is assessed that this would not be in R’s best interests, though these issues remain a risk that need continued review and consideration. [97] The case notes of child safety support officers reflect several unmonitored conversations as referred to in Ms Davis’s report. In cross-examination, DDY suggested to officer Kirstenfeldt that she could have joined in skating to monitor conversations, but we accept (as officer Kirstenfeldt responded) that contact supervisors must balance monitoring conversations with being as unobtrusive as possible, and that they cannot actively participate in any activity taking place in the contact they are supervising. 36 [98] DDY submits that contact should be extended and should not be supervised by the Department because: (a) He agrees with the policy of not physically disciplining R. (b) If there were any concerns, R could report them to a treating psychologist or to the Department. (c) The report prepared by Flourish shows that he has an appropriate understanding of parenting with K. (d) He has the support of a psychologist that he sees regularly. (e) In every contact visit with R, he has demonstrated that he acts appropriately and there is nothing sensible which can be provided to criticise this. As a whole, contact has been successful and the Department itself acknowledges that it has improved. The Department has never raised with him any concerns about any contact visits. (f) He communicates reasonably with the Department and has done everything asked of him except tell lies and admit that he has done things that he has not done. (g) The object of the CPA is family reunification and unsupervised contact is the next step towards ultimate reunification. (h) Collecting R from school in the afternoon would allow them to spend time together and for him to help with homework. Overnight contact would be successful because they share a strong bond. [99] DDY says that, if contact must be supervised, then E is appropriate to supervise contact as R knows and feels comfortable with E and that E would act protectively towards R should action be necessary.37 E gave similar evidence. However, in response to questions posed by us, E said she would contact the police if DDY sought to physically harm R. [100] Based on the evidence of E we find that E would not contact the Department if DDY sought to harm R. We also find that E would likely only contact the police in the most serious incidents of physical harm. 36 Exhibit 15, DCSSDS 208 ‘Attachment 55’ and the evidence of officer Middleton. 37 Exhibit 11 and oral evidence of DDY and E as well as DDY’s written submissions handed up on 19 February 2024. -- 17 of 22 -- 18 [101] While E said she had reflected on the incident involving the sign and, through reading comments on a Facebook post, had realised it was not the best form of discipline, she was unable to articulate with any clarity why the incident was not appropriate. [102] We are not satisfied that E would be able to identity in the moment an incident that could cause emotional or psychological harm to R and nor could she effectively manage that situation to prevent or minimise harm to R. Further, E continues to record her interactions with R and departmental officers for similar reasons to DDY without acknowledging the risks of harm to R raised through these actions. As Mr Kingston succinctly submitted: “a supervisor who sees nothing wrong is not a supervisor at all”.38 [103] For all those reasons we find that E is not an appropriate person to supervise contact between R and DDY. [104] In the alternative, DDY proposes any other adult without a criminal history as a supervisor. We do not consider this suggestion either practical or appropriate to ensure the safety and wellbeing of R, in R’s best interests, or preferable to supervision by child safety support officers. The suggestion raises several concerns including how the adult might be vetted and chosen, and the prospect that the adult might be currently unknown to R so that they would have to develop rapport and trust. [105] For the same reasons that E is not appropriate to supervise, any other adult that might be chosen would have to have an open frank and trusting relationship with child safety. Further, the introduction of another person to the circle of adults involved in R’s life could destabilise R’s routine and environment. [106] We conclude that the only appropriate supervisors for contact are appropriately qualified child safety support officers to ensure R’s wellbeing and provide support for ongoing positive trusting and nurturing relationships between R and close family members and to maintain stability in R’s life. [107] Ms Davis offered this opinion in relation to contact arrangements for R:39 Decisions about contact need to be based solely on what is in R’s best interests, having consideration for all of the complexities and competing priorities in this case. It is vital that R’s perspective (referring to how R will understand and make sense of the decisions that are being made about their life, and the messages that R receives about their safety and wellbeing through these decisions) is carefully considered by the adults tasked with making and implementing these decisions. This is particularly important when considering the proposal that I have been asked to consider for R to have one on one contact with DDY in lieu of the weekly sibling time that has been technically available to the family. While it is understandable that consideration is being given to this opinion, it is important to note that given this contact visit has not been occurring over a long period of time, for R this would be a new contact visit and would be a significant increase in R’s time with DDY. Having considered the information available to me, it is my view that changes to R’s contact with DDY (i.e., increased time, reduced supervision) would not be in R’s best interests nor consistent with R’s stated wishes. 38 Oral submissions, 19 February 2024. 39 Exhibit 20 DCSSDS 232 at [3.1.10] and [4]. -- 18 of 22 -- 19 Application of the law R is a child in need of protection from harm [108] DDY does not see any reason why R cannot be in his care. We cannot make a decision that R no longer be in the care of the Department. That is a matter for the court. We must regard R as a child in need of protection.40 Whatever the court’s reasons for the order, the fact remains that the order was made.41 [109] The Tribunal must make decisions in the review that promotes the welfare and best interests of R.42 We have had regard to the principles in sections 5A, 5B and 5BA to the extent they are relevant to the review.43 General principle (a) provides that R has a right to be protected from harm or risk of harm. ‘Harm’ is defined to include any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is immaterial how the harm is caused. It can be caused by physical, psychological, or emotional abuse or neglect and can be caused by a single act, omission or circumstance or a series or combination of acts, omissions, or circumstances.44 [110] We have made findings that the constant recording of R places R at risk of harm to their emotional wellbeing and safety unless appropriate and supportive protective arrangements are in place. [111] We have also found that DDY’s failure to direct questions to departmental officers rather than R and his refusal or inability to form a co-operative working relationship with departmental officers likely has a negative impact on R’s emotional wellbeing. Contact to continue [112] We have taken into account general principles (e) and (f) - in protecting R, the State should only take action that is warranted in the circumstances and if R is removed from their family, support should be given to the R and their family for the purpose of allowing R to return to the child’s family if the return is in R’s best interests as well as general principle (k) - R should be able to maintain relationship with their parents and kin, if it is appropriate for R. [113] We have also taken into account that for ensuring R’s wellbeing and best interests, the order that should be preferred, having regard to the other principles, is the order that best ensures that R experiences or has ongoing positive, trusting and nurturing relationships with persons of significance to them including R’s parents, siblings, extended family members and carers and stable living arrangements with connections to the community, that meet R’s developmental, educational, emotional, health intellectual and physical needs.45 40 CPA, s 59. 41 Exhibit 7 in particular Exhibit L to the affidavit of DDY being the reasons of Judge Jarro dated 4 October 2022. 42 CPA, s 99C (a). 43 CPA, s 99D. 44 CPA, s 9. 45 CPA, s 5BA. -- 19 of 22 -- 20 [114] We therefore find that although contact with DDY exposes R to a risk of harm, the impacts can be minimised and managed such that the benefits of contact outweigh those risks at the current time. Supervision of contact [115] While R’s views are not determinative of our decision about contact with DDY, given the consistency with which R has expressed the view to retain the current contact arrangements, we have taken those views into account in line with general principle (n) and s 99U. [116] Any contact between R and DDY should be as natural and relaxed as possible for R. [117] In our view R requires support at contacts which can be provided only by supervision. We have found that there is no practical and/or appropriate alternative at this time to child safety officers supervising the contact. Location of contact [118] Community contact is consistent with s 5BA(2)(b) in terms of maintaining R’s connections to their community, that meet their developmental, educational, emotional, health, intellectual and physical needs. [119] We hold concerns that contact in the community poses difficulties for supervising Departmental officers who are charged with the responsibility of monitoring conversations between DDY and R and protecting R from involvement in unmonitored interactions. [120] Aware of observed “hushed or whispered conversations, …that cease upon the supervisor gaining proximity and… R appearing anxious when the recipient of unmonitored discussion from family members”,46 and the risk of harm this poses to R we considered whether contact should return to a more controlled environment such as a contact centre. However, none of the parties pressed for this, and we accept the views of Ms Davis that, on balance, returning to a more artificial contact environment is not currently in R’s best interests. [121] We also considered whether it would be in R’s best interests for two supervisors to be present during community contact as recommended by Ms Davis and as originally submitted by Mr Kingston,47 to minimise the risk of exposing R to harm from unmonitored conversations, coercion and control, and given our findings regarding DDY’s limited insight and ability to self-reflect in relation to his own behaviour in his interactions with R during contact and his communications with the child safety support officers. [122] Deciding whether to amend the decision to require two supervisors for community contact is, to borrow Judge Jarro’s words, a finely balanced thing.48 We are satisfied however, that, on balance, child safety officers are managing supervised contact under the current contact arrangements in a way that: 46 Exhibit 20, redacted report of Ms Davis, paragraph 3.1.9. 47 Oral submissions 8 February 2024; not pressed on 19 February 2024. 48 Exhibit 7, Exhibit L to the affidavit of DDY. -- 20 of 22 -- 21 (a) provides an opportunity for DDY to reflect upon and demonstrate his commitment to engaging in appropriate and child centred interactions and relationships with R and with the Department; and (b) strikes the appropriate balance between maintaining family relationships in line with general principles (k) and (f), promoting the wellbeing and safety of R, and respecting R’s views. Special occasions [123] Contact on birthdays is supported by R’s separate representative. However, DDY’s birthday, for example falls on a Saturday this year, and not a Thursday. Whether or not contact can proceed on a particular birthday will be dependent upon whether this additional contact can be accommodated by the Department and is compatible with R’s routine at the relevant time. While we are not opposed to consideration being given to additional birthday contact, this is a matter which can be discussed between the parties at the time. We will make no order as to birthday contact. Human rights [124] In making this decision, we have considered relevant human rights under the HRA. It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.49 [125] A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act50, and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom. [126] To give proper consideration to a human right, we have identified the human rights that may be affected by this process and decision and considered whether our decision would be compatible with those human rights.51 [127] We consider the following human rights are potentially impacted through this process and by this decision: (a) Section 25 - privacy and reputation - a person has the right not to have the person’s privacy, family, or home unlawfully or arbitrarily interfered with and not to have the person’s reputation unlawfully attacked. (b) Section 26 - protection of families and children - families are the fundamental group unit of society and are entitled to be protected by society and the State. Section 26 of the HRA also provides that every child has the right without discrimination to the protection that is needed by the child and is in the child’s best interests because of being a child; and (c) Section 31 - fair hearing. 49 s 58 HRA. 50 s 8, s 13 HRA. 51 s 58(5) HRA. -- 21 of 22 -- 22 [128] We are satisfied that the rights of DDY to a fair hearing have not been limited. The application has been determined by a competent, impartial, and independent tribunal after an oral hearing. DDY was provided with the opportunity to file evidence and submissions, present oral evidence, and cross-examine witnesses. The proceedings were conducted in private as required by the CPA. The parties are being advised of the reasons for the decision. We have also considered general principle (m) in delivering our decision as soon as possible following the hearing. Accordingly, the process and decision are compatible with the applicant’s human rights.52 [129] The provisions of the CPA are compatible with human rights as described in sections 25 and 26 and have been applied in reaching this decision. Our decision is lawful and not arbitrary. We have reached a decision we consider to be in R’s best interests based on all the evidence before us. To the extent that it might be considered that our decision limits a human right, we consider the limit is reasonable and justifiable in the circumstances of the case, taking into account the factors in s 13(2) of the HRA. This decision is, therefore, compatible with those human rights. [130] The purpose of any limitation on the human rights of DDY is the protection of R and what the Tribunal considers is the decision in the best interests of R. The decision is therefore compatible with R’s human rights as a child. [131] The decision does not prevent DDY having contact with R. While R remains in the care of the Chief Executive any decision made concerning R must be made applying the relevant general and other principles which include maintaining relations between the child and family members and providing support to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests. There is no less restrictive and reasonably available way to achieve the purpose. Alternatives to Departmental supervision of contacts were considered but we have found they would not provide adequate protection to R. [132] This decision is compatible with human rights. Decision [133] For the reasons given, we determine that the correct and preferable decision in the circumstances of the case is to confirm the reviewable decision. 52 s 8 HRA. -- 22 of 22 --