AMI v Department of Child Safety, Seniors and Disability Services [2024] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AMI v Department of Child Safety, Seniors and Disability Services [2024] QCAT 69 PARTIES: AMI (applicant) v DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY AFFAIRS (respondent) APPLICATION NOS: CML237-23, CML253-34, CML267-23 MATTER TYPE: Childrens matters DELIVERED ON: 12 February 2024 HEARING DATE: 31 October 2023 HEARD AT: Brisbane DECISION OF: Member Kanowski (presiding member), Member Matsen and Member Arthur ORDER: The decision of the Department of Child Safety, Seniors and Disability Services set out in its letter to AMI dated 21 November 2023 is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILDREN – PARAMOUNT CONSIDERATION: BEST INTERESTS OF THE CHILD – GENERAL PRINCIPLES – where contact between parent and child limited – whether in best interests of child Child Protection Act 1999 (Qld), s 5A, s 5B, s 5BA, s 5C, s 87 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: N Bui, K Durante and N Trimarchi Children: A Kingston REASONS FOR DECISION Introduction [1] The applicant and his partner are the parents of five children. For privacy reasons, we will not refer to the applicant or the children by name. We have used the name AMI -- 1 of 10 -- 2 for the applicant. We will refer to the girls as GLA (aged 17), GLB (aged 15) and GLC (aged 9), and to the boys as BYA (aged 13) and BYB (aged 11). [2] The children are under the long-term guardianship of the chief executive of the department, under Childrens Court orders made in May 2021. GLA and GLB live together in residential care. The boys live together in a foster placement. GLC lives in another foster placement. [3] These proceedings are reviews of certain decisions of the department about family contact. Section 87 of the Child Protection Act 1999 (Qld) (‘Child Protection Act’) deals with contact decisions: 87 Chief executive to provide contact between child and child’s parents (1) 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. (2) However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents or members of the child’s family, if the chief executive is satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents or family member to have the contact. … [4] The contact decision in force at the time of the tribunal’s hearing on 31 October 2023 included supervised whole-family contact every fourth Wednesday for two hours from 3.00 pm. A recurrent problem, highlighted by the applicant during the hearing, was that actual contact was often being shortened because of the late arrival of some of the children and a fairly rigid finishing time. The start time did not allow enough travel time to cater for traffic delays or slow departure by the children from school. In light of this, the department advised the tribunal that it was minded to make a new contact decision to adjust for this problem. The tribunal decided to invite the department, under section 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to reconsider the contact decision. Directions were made to facilitate this and for the parties to then make written submissions. [5] On 21 November 2023, the department made a reconsidered decision. It provides for: (a) contact between the parents and the five children on the fourth Wednesday of each month at a park, from 3.30 pm to 5.30 pm, but with the duration extended to three hours during school holidays; (b) contact between the parents and the boys on the third Wednesday of each month at a park; and (c) contact between the parents and GLC at a park for two hours on one occasion in each school holiday period; and (d) Christmas family time on 20 December 2023 for three hours. [6] The department’s letter says that if the applicant wishes to invite ‘extended family members or close connections to the children, please advise the Child Safety Officer prior to visits …’. The letter also describes the arrangements for inter-sibling contact. This includes a monthly sleepover by the boys at their older sisters’ place. The letter -- 2 of 10 -- 3 also says that phone calls by the father to the children on birthdays need to be supervised by the department, and so will occur on the closest working day. [7] Under section 23 of the QCAT Act, the department’s decision of 21 November 2023 has become the reviewable decision. Written submissions have been received from the applicant, the department, and the separate representative for the children, solicitor Anthony Kingston. The children’s mother has not taken up an opportunity to become a party to the proceedings and has not otherwise participated. Outline of parties’ positions [8] The applicant seeks weekly contact between the parents and the children, and phone or video contact with the children on the day of their birthday and on other special occasions such as Easter and Christmas. He says GLC should be included in sleepovers with her siblings. He also says that when the parents take the children to theme parks, the department should pay the children’s costs, as it does when carers take them. [9] The department submits that its decision of 21 November 2023 should be confirmed by the tribunal. The separate representative agrees. Evidence and submissions [10] The applicant’s written material consists of: (a) his three review applications; (b) ‘Submission to QCAT’ concerning GLA and GLB (undated); (c) ‘Submission to QCAT’ concerning BYA and BYB (undated); (d) ‘Submission to QCAT’ concerning GLC (undated); (e) document headed ‘Passports and Family’ dated 3 September 2023; (f) email from the applicant to QCAT dated 10 September 2023 attaching an email chain; (g) submissions dated 5 December 2023; and (h) email to the tribunal dated 9 January 2024 attaching various documents including ‘Reply to Department Closing Submission’ and ‘Reply to Separate Representative Closing Submission’. [11] The department’s written material consists of: (a) papers filed in various batches, numbered pages 1 to 401; (b) opening submissions dated 27 October 2023; and (c) closing submissions dated 14 December 2023 with decision letter dated 21 November 2023. [12] The separate representative’s written material consists of: (a) his affidavit dated 25 October 2023; and (b) submissions filed on 18 December 2023. -- 3 of 10 -- 4 [13] At the hearing on 31 October 2023, oral evidence was given by several witnesses. We will discuss this later in the reasons. [14] There was discussion at the hearing about whether the tribunal should proceed without a further social assessment report. The separate representative suggested early in the hearing that such a report might be useful, particularly as the children had not been very forthcoming with him. He indicated he could commission such a report. By the end of the hearing, however, he had come to the view that there was ample evidence of the children’s views and wishes. The applicant favoured the obtaining of a further report because he feels that existing reports had focussed on negatives. The department considered that another report was unnecessary. [15] We consider that a further report is not necessary. A comprehensive report was written by social worker Shayne Fogarty in January 2023. There have not been significant changes since then. The report could be described as negative, in the sense that it does not support the applicant’s case for more contact. However, as we will discuss, we do not regard it as biased. Legislative framework [16] The purpose of a review is to produce the correct and preferable decision after a fresh hearing on the merits.1 The tribunal may confirm or amend the reviewable decision or set it aside and make a new decision or return the matter to the department for reconsideration.2 [17] The tribunal must apply the Child Protection Act. The paramount principle in administering that Act 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’.3 Other relevant principles include: (a) a child has a right to be protected from harm or risk of harm;4 (b) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;5 (c) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;6 (d) a child has the right to express the child’s views about what is, and is not, in the child’s best interests;7 (e) an action is to be preferred that best ensures the child has stable living arrangements and ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers;8 1 QCAT Act, s 20. 2 Ibid, s 24(1). 3 Child Protection Act, s 5A. 4 Ibid, s 5B(a). 5 Ibid, s 5B(k). 6 Ibid, s 5B(l). 7 Ibid, s 5B(n). 8 Ibid, ss 5BA(2)(a) and (b). -- 4 of 10 -- 5 (f) where the child is an Aboriginal child: (i) the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account;9 and (ii) a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person.10 [18] Families are the fundamental group unit of society and are entitled to be protected by society and the state.11 Every child has the right, without discrimination, to the protection that is needed by the child, and is the child’s best interests, because of being a child.12 Aboriginal people must not be denied the right to enjoy, maintain, control, protect and develop their kinship ties.13 Human rights may be limited but only under law to reasonable limits that can be demonstrably justified.14 Evidence and submissions [19] The reasons given by the Childrens Court in 2021 for making long-term guardianship orders indicate that the court accepted evidence that the children had suffered harm at home including excessive physical discipline and poor living conditions. This was associated with a personality disorder of the applicant, with predominant narcissistic and paranoid features, and a lack of insight. It was also associated with the mother’s intellectual impairment. The court concluded that the children were in need of protection, and this could be achieved only by long term guardianship orders. [20] At the tribunal hearing, attention was given to whether the children have Aboriginal background and identity. The applicant clarified that they do. The department’s position is that it had not been able to make much progress previously in clarifying this, but that going forward with this additional information it can take appropriate steps. [21] In its letter of 21 November 2023, the department notes that the new 3.30 pm start time for the family contact will better allow for travel time after school. The department says the children do not want more contact than is allowed for in its decision. [22] The department submits that the contact decision best promotes stability for the children; increased contact could cause further trauma to the children; there are ongoing concerns about the applicant’s ability to prioritise and respond to the children’s needs; and he has not demonstrated insight into the impact his behaviours have on the children’s emotional and psychological needs. Overall, the department submits, the children’s best interests are served by limiting contact in the manner that it has. [23] The separate representative advises that the two older girls did not want to engage in a discussion with him about contact; the boys seemed to indicate they wanted no 9 Ibid, s 5C(1)(b). 10 Ibid, s 5C(2)(e). 11 Human Rights Act 2019 (Qld), s 26(1). 12 Ibid, s 26(2). 13 Ibid, s 28(2)(c). 14 Ibid, s 13. -- 5 of 10 -- 6 change; and the youngest girl was unable or unwilling to engage in discussions with him. The separate representative considers that the 21 November 2023 contact decision is consistent with the children’s wishes as expressed to various persons, and with the recommendations of social worker Ms Fogarty in her January 2023 social assessment report. [24] The applicant describes favourably the situation some years ago when full family contact happened two afternoons per week. He says the children enjoyed that contact and were ‘settled because each week they knew what was happening’.15 In his Reply to Department Closing Submission, the applicant says: How can a positive, trusting and nurturing relationship be developed with 1 visit for 2 hours each month with the girls? And the visit is with all the children, so very little quality time is spent with any one child. Boys day (after 3 years of requests from boys and parents) has helped. [GLC] has made many requests to spend more time with siblings and parents which have been ignored. Despite an agreement during a compulsory conference to 1 visit per month with [GLC], Mum and Dad the department only allows 1 visit during school holidays.16 [25] The applicant says: I have continually stated that if my children state that they do not want to see me, then I will not ask to see them. But I want this to be a genuine response from the children. The children have stated to me that they want to see me …17 [26] The applicant submits that the children are conscious of the power of the department, and so tell departmental officers what they understand the officers want to hear about contact. He questions whether appropriate questions have been asked to elicit the children’s views. [27] The applicant also submits that the department attributes upset in the children to the actions of the parents, ignoring the upsetting uncertainty for the children about whether contact will actually occur and whether it will be cut short. That uncertainty results from the department’s lack of planning and organisation, and from decisions made on whim, the applicant contends. He says the department and carers sabotage contact in various ways, such as taking the girls to a movie the day before the girls are due to see the same movie with their mother. In relation to inter-sibling contact, the applicant says that this has come about only because of long persistence by the parents. Even now, he says, GLC is not included in sleepovers despite asking for it in July 2023 and January 2024. [28] The department acknowledges that GLC has expressed a wish to attend sleepovers. The department says GLC’s request is ‘still under consideration pending further discussions and planning with the care team’.18 The applicant submits that a child safety officer during a phone call on 4 January 2024 said that ‘they were trying to get 15 Applicant’s submissions dated 5 December 2023, third page. 16 Reply to Department Closing Submission, third page. 17 Applicant’s submissions dated 5 December 2023, third page. 18 Departmental closing submissions, [10]. -- 6 of 10 -- 7 approval’19 for sleepovers. He provided an audio recording. The applicant continues: ‘So why the conflicting stories? Which one is the truth?’20 [29] The applicant’s description of the phone call oversimplifies it. Considering the whole of what the departmental officers said, what they were conveying was that the department was taking things step by step; GLC would be spending time with her siblings and getting used to the environment where her sisters live; and the department was ‘working on’ sleepovers but GLC was not ready for a sleepover yet. [30] The applicant also submits that the department has done very little to arrange contact between the children and extended family. Since the children were removed from the parents more than four years ago, the applicant says, the only such contact has been by the older girls with a great aunt once or twice. [31] Ms Fogarty provided a detailed social assessment report dated 8 January 2023. The assessment was commissioned by the children’s then separate representative in an earlier tribunal proceeding. Ms Fogarty interviewed the children, the parents, foster carers, departmental staff and others; observed an occasion of family contact; and reviewed records. She noted that contact had been reduced by the department to monthly because it had concluded that weekly or fortnightly contact negatively affected the children’s progress in home, school and peer relationships. The department, Ms Fogarty commented, had received reports from a range of stakeholders ‘that individual children were experiencing severe stress and dysregulated behaviours before and after contact’.21 Reduction in contact was associated with improved behaviour and attitudes of the children, it was reported. Only BYA had requested more regular contact. Carers did not want the children overloaded or pressured. Ms Fogarty said it was in the children’s interests to have regular quality contact with their family if it was safe, in order to promote a sense of belonging and connection. Ms Fogarty recommended that the family contact remain monthly, along with the additional contact that had been introduced between the parents and the boys and between the mother and the girls. [32] The department also relied on two earlier expert reports. [33] One was a 2020 social assessment report by psychologist Nicole Andersen. One of Ms Andersen’s observations was: The children have internalized their experience of being cared for by their mother and father as chaotic and unpredictable. Unfortunately, the parents’ ways of relating to the children prevents the children from being able to form a secure attachment and gain a sense of safety with either parent.22 [34] Psychologist Lauren Davis prepared a psychological and parenting capacity assessment report about the applicant in 2020. She considered that he demonstrated poor insight into the child protection concerns and the children’s needs. She said that he had been unable to accept that the children’s views and wishes differed from his own. Further, it was apparent, she said, that ‘the children present with varying degrees and manifestations of cumulative harm through chronic neglect and abuse’.23 19 Applicant’s Reply to Department Closing Submission, fifth page. 20 Ibid. 21 Departmental papers p 294, [11.6]. 22 Ibid, p 230, [195]. 23 Departmental papers, 249, [8.7]. -- 7 of 10 -- 8 [35] Ms Fogarty, Ms Davis, and Ms Andersen were all cross-examined at the hearing. [36] The tribunal also heard oral evidence from a number of other witnesses: a residential coordinator, a contact supervisor, and current or former child safety officers. Some of the cross-examination related to specific incidents such as one in July 2023. It was reported to the department that the applicant had been present at a contact approved only for the mother and some of the children, and that he had ‘scooters in the car (maybe using them a reason to be there)’.24 The applicant has not provided a written statement setting out his version of events. However, from his questions in cross- examination, it was apparent he contends that he had merely been dropping off his partner and that the parents always carry scooters in the car so that they can be used by the children at contact visits. [37] Another incident related to a contact supervisor’s evidence of an occasion involving the family dog. She said the applicant encouraged the children to yell at the dog to sit. Again, there is no statement from the applicant, but it was apparent from his questioning that he believes the supervisor misunderstood the interaction. [38] The separate representative submits that the tribunal should confirm the 21 November 2023 contact decision. He notes that the changed starting time for after-school contact will be beneficial. It should ensure that the children have a full two hours of contact. Further, it will reduce the anxiety of the children arising from their awareness that their father is upset by the late arrival of children. [39] We note that on 19 January 2024, the applicant filed an application for miscellaneous matters in which he contended that a child safety officer had knowingly supplied false and misleading information and documents, and had given false and misleading testimony on oath. He also contended that the legal team for the department allowed these things to happen. As to what orders were sought, the form prompts an applicant to apply for ‘the following orders (please specify legislative basis)’ and then there is a box for the answer. The answer inserted by the applicant was ‘section 123 of the Criminal Code Act 1899, Sections 347, 348 and 349 of the Criminal Code 2002’. We note that the application was filed after the deadline (set in tribunal directions) of 9 January 2024 for the filing of the applicant’s submissions in reply. So it is not apparent that the applicant wants us to take into account the contentions as part of his submissions. Even if he does, no specifics are given about what was false and misleading, or how it was false and misleading. Therefore the contentions do not develop the applicant’s submissions on the merits. Further, the application does not specify what orders are sought. In any event, our powers in the review are confined to confirming, amending, or setting aside the reviewable decision. Our powers do not extend, for example, to imposing a sanction if criminal conduct was proven. Discussion and findings [40] In relation to incidents such as the ones described in paragraphs 36 and 37 above, such occasions can be open to misunderstandings and different interpretations. There is no first-hand account of the first incident. We do not consider that anything turns on what exactly happened on those two occasions. We do not draw any adverse conclusions against the applicant from that evidence. 24 Ibid, p 339. -- 8 of 10 -- 9 [41] The applicant’s cross-examination of witnesses did highlight repeated frustrations in his dealings with the department, such as experiences of the children arriving late for contract and miscommunication about venues. [42] On fundamental issues, however, concerning the needs and wishes of the children, and anxiety in the children about their father’s reactions to problems, the cross- examination did not expose any real weaknesses in the department’s position. The witnesses who have had ongoing contact with the children were largely able to explain and justify their statements or other records. They did not give the impression of being biased or of being blind to the positive contributions of the parents to the children’s lives. We regard those witnesses as well-informed and impartial. Similarly, the cross- examination of the expert witnesses, Ms Fogarty, Ms Andersen, and Ms Davis, did not expose any flaws in their objectivity or reasoning. [43] The applicant wants to be as involved as possible in the children’s lives. He is a tireless advocate for what he believes is their best interests. Those are positive qualities. However, we do share the view that he has a lack of insight. This is illustrated by the practice of the parents raising with the department at contact visits, in the hearing of the children, a very sensitive topic for the children: in the applicant’s words, ‘the topic of extra contact’.25 The applicant also appears to be overly suspicious of the actions and motivations of departmental staff and carers. [44] We prefer the evidence of the department’s experts and other witnesses. That evidence is to the effect that the children have a background of trauma; they are anxious about their father’s reactions to problems; they value having contact with their father but they want it to be controlled, limited, and not increased. We find accordingly. [45] We appreciate that children sometimes say what they believe adults want them to say. That applies to their communications with their father as well as with others. In the circumstances, we place more reliance on what they have communicated to others. [46] Further, the fact that the children may have been delighted with frequent contact when they were younger is not necessarily inconsistent with them now wanting limited contact. The children would have matured, reflected, and developed wider or different interests. [47] The applicant submits that there have been inconsistent versions given by the department about the proposal for GLC to attend sleepovers. We earlier set out some details of the evidence. We do not accept there is inconsistency. Should the contact decision of 21 November 2023 be confirmed, varied, or set aside? [48] It is important for the children to maintain contact with their parents, if appropriate for the children, and with each other. That contact serves to foster their sense of belonging and identity, their understanding of their background, and family and kinship ties. [49] We have mentioned the principle in the Child Protection Act that an action should be preferred that best ensures that a child experiences ongoing positive, trusting, and nurturing relationships with persons of significance to the child. The department submits that the relationships between the children and their father are not of that 25 Applicant’s Reply to Department Closing Submission, fourth page. -- 9 of 10 -- 10 character.26 We accept that the present relationships could not be said to have that character, though there are elements of positivity, trust, and nurture. Maintaining contact that is limited and supervised provides a setting for those elements to grow. [50] We consider that the present level of contact appropriately balances the various factors including promoting family cohesion and protecting the children from harm. It is consistent with the expert opinion of Ms Fogarty. Further, the children’s views are not determinative, but should be given considerable weight when there is a real risk of renewed stress and instability in the children’s lives if contact with the father is increased. We also accept that supervision of phone calls is warranted, and so it is not feasible to always ensure phone or video contact on actual birthdays or other special occasions. We also consider that the gradual approach of the department in introducing sleepovers for GLC with siblings is appropriate. The best interests of the children are served by confirming the decision of 21 November 2023. [51] To some extent this limits the human rights of the applicant and the children relating to family and kinship ties. On the other hand, it safeguards the human rights of the children to the protection they need as children. We consider that the limitation of rights is reasonable, lawful, and justified. [52] Two other outcomes sought by the applicant are not within the tribunal’s jurisdiction, which is limited to reviewing decisions under section 87 of the Child Protection Act. The first of these matters relates to the funding of trips to theme parks. The second relates to contact with extended family. The contact decision of 21 November 2023 does not purport to limit such contact, and envisages that the applicant can invite extended family members to contact visits. Whether the department should be doing more to foster such contact is a separate question. Conclusion [53] For the above reasons, we have decided to confirm the reviewable decision. 26 Department’s closing submissions, [53]. -- 10 of 10 --