CMS [2014] QCAT 339

CITATION: CMS [2014] QCAT 339 PARTIES: CMS APPLICATION NUMBER: GAA2716-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 12 May 2014 DELIVERED AT: Brisbane ORDERS MADE: Until further order, the Tribunal orders that CC and any person advocating for, or representing CC, is prohibited from inspecting the Tribunal’s file about CMS and is prohibited from obtaining copies of any documents on the file that are likely to reveal past or current contact details about CMS. CATCHWORDS: GUARDIANSHIP – where adult with impaired decision capacity – where adult becomes distressed and anxious when asked about contact with mother – where adult has expressed wish not to have contact with his mother – where guardian appointed – where decision made to not allow contact between adult and his mother LIMITATION ORDER – where adult could be located through information on tribunal’s file – where confidentiality order sought to prevent release of information that could be used to locate adult – whether order necessary to avoid serious harm or injustice Guardianship and Administration Act 2000 (Qld) ss 109, 230 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] CMS is a young man with an intellectual disability. He had been under a long term guardianship order with the Department of Communities, Child Safety and Disability Services until he turned 18 years of age. [2] He had had no contact with his mother, CC, for some years as a result of decisions made by the Department to refuse contact by CC. CMS had been given an alias when at school due to threats by CC to abduct him. [3] CC applied to the tribunal to be appointed his guardian and administrator when he turned 18. In her application CC acknowledged that she had had no contact with her son for over 6 years and she wanted to get to know him and have a relationship with him. [4] Evidence produced to the tribunal revealed that CC had an extensive criminal history. She had convictions for manslaughter, aggravated assault, serious assaults, assaults occasioning bodily harm, unlawful stalking, threatening violence, breach of a suspended sentence, common assault, using a carriage service to menace, harass or cause offence, breach of a probation order, wilful damage to property, driving with blood alcohol content was .10%, stealing offences, obscene language and breach of bail. [5] Evidence was produced to the tribunal in the form of a social assessment report prepared by a psychologist in June 2012 following a request from CMS’ then representative in the child protection proceedings. In preparing that the social assessment report, the psychologist interviewed CC and CMS as well as child protection staff. It was reported that CMS shook his head vigorously when asked about the prospect of spending time with his mother in future. The psychologist did not support the idea of placing CMS onto the care of his mother and he could not recommend that CMS have any contact with his mother. It was noted that any discussion of his mother invokes a significant amount of distress in CMS. The psychologist reported that CC did not appear to have any understanding of the effect of her hostile behaviour directed to departmental staff has on her son. [6] At the hearing of applications for the appointment of a substituted decision maker, CMS told the tribunal that he did not want to speak to his mother, he did not want to live with her and he did not want her as his guardian. Evidence was given to the tribunal that there had been 13 years of significant conflict between CC and the child protection staff working with her son. The tribunal found that CMS has some impaired decision making capacity and needed a substituted decision maker. The tribunal determined that CC was not an appropriate person to appoint as guardian -- 2 of 4 -- 3 or administrator for CMS and the Adult Guardian and The Public Trustee of Queensland were appointed as substituted decision makers. [7] CC applied to the tribunal for an order that the tribunal direct the guardian to allow her to have contact with CMS. In her application, CC stated as her reasons for seeking the order: ‘I need to see my son. If I don’t before I die then I wish every “A-H” dead’. [8] In a report to the tribunal, the guardian stated that a decision had been made for CMS not to have contact with his mother. This decision had been based on concerns raised about CMS’ anxiety regarding contact with his mother which had resulted in behavioural incidents and a decline in his mental health. Reports had been made to the guardian that CMS had expressed concerns about his mother looking for him. The guardian was aware that CC had attempted to locate her son through the Department of Communities, Child Safety and Disability Services, The Public Trustee of Queensland and the police. [9] The guardian informed the tribunal that CMS’ right, as an adult, not to agree to have contact with his mother should be respected. The guardian made a decision not to allow contact and also not to release information about the location of CMS to CC. The then advocate of CC was informed that the reasons for those decisions were the difficulties that CMS was experiencing in transitioning into adult support systems, the deterioration of his mental state and his high level of anxiety about having contact with his mother. The guardian met with CMS and gained direct input from him that he did not want to have contact with his mother. [10] The tribunal dismissed the application by CC for an order that a direction be given to the guardian to allow contact. [11] The guardian applied for an order limiting access by CC to any information on the tribunal’s file that would tend to locate CMS. Notification of this application was given to CC in a letter dated 25 March 2014 and she was asked to provide any response by 19 April 2014. No response was received from her. A notice was sent by the tribunal on 22 April 2014 giving notice to CC that the tribunal would hear the application for a limitation order on 12 May 2014. The notice set out that there would be no oral hearing but a decision would be made on the basis of the information received by the tribunal. CC was informed that she could file any written material at least three days prior to the hearing date. [12] No written material was filed by CC. No one on her behalf contacted the tribunal before the hearing date to provide any response to the application from CC despite her having some six weeks notice that orders would be sought restricting her access to information on the tribunal’s file. [13] The tribunal is a court of record.1 Any person may inspect documents filed in the tribunal registry subject in some cases to paying a fee.2 1 QCAT Act s 164. -- 3 of 4 -- 4 However the general right to inspect filed documents can be displaced by some form of confidentiality order.3 As the documents relating to CMS have been filed in guardianship proceedings, the limitation orders provided by the Guardianship and Administration Act 2000 (Qld) are relevant here. [14] Section 109 provides that the tribunal can withhold a document, part of a document or other information from a person if the tribunal is satisfied that a confidentiality order is necessary to avoid serious harm or injustice to a person. The evidence produced to the tribunal was that CMS had been anxious that his mother was trying to locate him, that his mental state had deteriorated and his behaviour had escalated into harmful incidents when he was anxious. Furthermore the evidence was clear that he did not want to have any contact with CC. CMS is an adult and his wishes must be taken into account by his guardian. [15] I was satisfied that there was a real likelihood that releasing through the tribunal’s records information about the past and current location of CMS could lead to CC attempting to contact her son contrary to his wishes. Such contact could result in serious psychological harm to CMS. I accepted the evidence that his mental state is worsened when he becomes anxious. He has an awareness of the desire and past efforts of his mother to locate him. [16] I was satisfied that CMS had expressed clear intentions not to have contact with CC and that his wishes should be respected. CMS is an adult and is under no obligation to maintain contact with any member of his family. He can maintain whatever contact he chooses with his family. It would amount to an injustice and would be contrary to the General Principles and the obligations on the tribunal to act against the wishes of CMS in the circumstances where he had expressed his wishes directly to the tribunal as well as through his guardian and a psychologist in recent years. His wishes have been consistent for some years and the distress, anxiety and adverse mental health effects caused by the possibility of contact explain the grounds for the position he has taken. [17] The tribunal had been satisfied that a confidentiality order should be made under section 109 and an order was made prohibiting CC or anyone advocating for her, from inspecting the file about CMS and from obtaining copies of any documents likely to reveal past or current contact details about him. 2 Ibid s 230(2), (3). 3 Ibid s 230(4). -- 4 of 4 --