CS and Anor v Department of Communities, Child Safety and Disability Services [2012] QCAT 573

CITATION: CS and Anor v Department of Communities, Child Safety and Disability Services [2012] QCAT 573 PARTIES: CS (aka KR) CM (aka KM) (Applicant/Appellant) v Department of Communities, Child Safety and Disability Services (DOC) (Respondent) APPLICATION NUMBER: CML164-11 MATTER TYPE: Childrens matters HEARING DATE: 1 November 2012 HEARD AT: Toowoomba DECISION OF: Gwenn Murray, Presiding Member Penny Feil, Member Prof Adrian Ashman, Member DELIVERED ON: 21 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the request for an adjournment of the hearing by CS and CM is refused. 2. That the decision of Department of Communities, Child Safety and Disability Services to refuse contact between CS and the children be confirmed. CATCHWORDS: ADMINISTRATIVE LAW – a review of the decision to refuse contact between the applicant and his children – where the applicant has never been allowed contact of the children – request for an adjournment by the applicant is refused – hearing on the papers Child Protection Act 1999, ss 5A, 74, 81, 87(2), 87(3) and (4), 99(M), Schedule 1(c) -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 4(b), 24(1)(a), 28(3)(e), 32(2), 95(4)(a), 122, 157(2) APPEARANCES and REPRESENTATION (if any): APPLICANT: No appearance RESPONDENT: Mr P Munro, Crown Law Ms Poonam Wijesoma, Court Services Advisor for the respondent REASONS FOR DECISION History of the Application [1] CS and CM have four children. Their two eldest children live outside of Queensland under child protection orders. The younger children who are the subject of the present application are KR (aka C) aged 7 years, and KS (aka C) aged almost 3 years. Temporary assessment orders were granted upon both children‟s births. Orders were made for supervised contact between CM and KR and KS, but contact is prohibited between CS and both children since their births. [2] Child protection orders and subsequent departmental decisions have remained in place since the birth of both children and child protection orders were made granting long term guardianship of KR to the Chief Executive on 17 July 2006 and KS on 8 February 2012. [3] CS and CM are not novices in legal proceedings. Between August 2005 and August 2010 CS and CM have commenced five appeal proceedings and three revocation proceedings in relation to various interim orders and the substantive child protection order made in relation to KR. Between December 2009 and February 2012, they initiated eight appeal proceedings about interim orders and the substantive child protection order made in relation to KS. [4] The circumstances surrounding the current matter before the Tribunal are characteristic of CS and CM‟s objections to departmental decisions. CS and CM sought a review of the decisions of the Department of Communities, Child Safety and Disability Services („the Department‟) in regard to the refusal to allow contact between CS and the younger children. The decisions were made on 7 July 2011 and 14 February 2012 and provided in writing to the applicants on the same dates. [5] The Department‟s decisions emanated from a review of case plans for KR and KS in July 2011 and considered psychiatric assessments of CS and CM undertaken by Dr Moyle. The current child protection concerns and domestic violence in the parents‟ relationship also formed part of the -- 2 of 11 -- 3 review1. Consequently, the Department decided to continue to refuse contact between CS and KR and KS. [6] On 21 September 2011, CS and CM filed a review application in QCAT about the Department‟s decisions. CS and CM already had appealed the child protection order in the Courts but QCAT accepted their application notwithstanding it had been lodged beyond the relevant timeframe (28 days) but the matter would not be listed until after the appeal had been determined. [7] On 11 November 2011 the Appeal Judgement concerning CS and MC‟s appeal was delivered by Judge Richards who set aside the order made on 1 October 2010 and remitted the matter to the Children‟s Court. Her Honour made Interim orders granting temporary custody of KS to the Chief Executive with no contact permitted between CS and KS and only supervised contact between CM and KS. [8] On 14 November 2011 the review application before QCAT was suspended by Judge Wilson pursuant to s 99M Child Protection Act 1999. [9] On 8 February 2012 the long term child protection order was made by Magistrate McLaughlin granting guardianship to the Chief Executive. [10] On 14 February 2012 the Department confirmed its decision made on 7 July 2011 to refuse contact between CS and his children. [11] On 19 April 2012 a QCAT compulsory conference was conducted. Directions were made requiring CS and CM to file in the Tribunal all material to be relied upon by 29 June 2012; requiring the Department to file all material to be relied upon by 20 July 2012; and setting down a directions hearing for 23 July 2012. All parties were granted leave to appear by telephone. [12] QCAT liaised with the Queensland Public Interest Law Clearing House (QPILCH) to ensure that CS and CM could gain assistance in the preparation of their material and for support in their QCAT application but CS and CM did not take up that opportunity for legal assistance. [13] CS and CM did not file any material in the Tribunal by the prescribed date. [14] On 23 July 2012 the directions hearing was held with CS appearing by telephone. A subsequent hearing was scheduled for 1 and 2 November 2012. CS and CM were directed to advise the Tribunal of material they would like the Department to produce by 24 August 2012; they were to notify the Tribunal of any persons they wished to attend the hearing to answer questions or give evidence by 24 August 2012. They were directed to file in the Tribunal by 24 September 2012 their statement of evidence, a statement from each nominated witness and any document referred to in a 1 Undertaken pursuant to s 87(2) Child Protection Act 1999. -- 3 of 11 -- 4 statement of evidence. They were also to notify the Tribunal of their preferred venue for the hearing by 8 October 2012. [15] The Department served material on CS and CM by registered post2 on 10 April 2012 and 19 July 2012 and further material was served on them in person by a Queensland Police Service Officer on 30 October 2012. [16] In response to the directions, CS and CM provided 14 pages of material to the Tribunal on 24 August 2012 including two pages from court transcripts, personal references, and certificates from TAFE and of attendance at training courses. There were no annotations or explanatory notes provided. [17] As CS and CM did not advise the Tribunal of their preferred venue for the hearing, the Tribunal set the venue as the Toowoomba Magistrates Court. CS and CM‟s address at that time was in Toowoomba. They did not seek leave of the Tribunal to be legally represented. The Department of Communities, Child Safety and Disabilities application for a hearing on the papers [18] The Department submitted that CS and CM provided scant documentation and in all prior proceedings failed to present their case and orders have been made in their absence despite numerous attempts by courts to have the parents present. The Department therefore applied to QCAT for the hearing to be heard on the papers pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal directed CS and CM to inform the Tribunal by telephone or in writing of their response to the Department‟s application by 26 October 2012. A QCAT case officer left several telephone messages on CS and CM‟s telephone answering service on 25 October 2012 to ensure they understood the directions and to assist their response. CS and CM did not respond by the prescribed date and further messages were left by the case officer on the morning of 29 October 2012. [19] In accordance with section 95 of the QCAT Act the Tribunal decided to refuse the Department‟s application for a hearing on the papers to ensure CS and CM had a reasonable opportunity to call or give evidence and examine witnesses and make submissions to the Tribunal in person. This decision was conveyed on the morning of 30 October 2012 to the Department by email correspondence and a telephone message was left for CS and CM at the same time. [20] Pursuant to s 122 of the QCAT Act the department formally requested written reasons for the decision to refuse the application for an on-the- 2 Court Services advised the Tribunal that service of material to the applicants has been affected by registered post as a result of CS and CM‟s conduct during previous child protection proceedings in the Children‟s Court whereby they have refused to accept service of documents and denied being the persons for whom the documents were to be delivered. As a result, on 25 November 2011 the Toowoomba Children‟s Court determined that service by registered post was appropriate (email correspondence to the Tribunal 31 October 2012). -- 4 of 11 -- 5 papers hearing. Oral reasons were read into the transcript at the hearing on 1 November 2012 in Toowoomba. [21] At 2pm on 30 October 2012 the Tribunal received by fax CS and CM‟s objection to a hearing on the papers. They stated that they wished to have a teleconference hearing as they had done before. The QCAT case officer telephoned the applicants on receipt of the fax and left another message advising that the oral hearing would proceed in Toowoomba as scheduled, and that they may attend by telephone if they wished. At 4.30pm that same day, CS telephoned the case officer and advised that he and CM would participate in the hearing by telephone and provided his landline telephone number. CS and CM’s request for an adjournment [22] On the morning of 31 October 2012 CS telephoned the QCAT case officer and told him they now wanted to attend the hearing in person but also wanted the hearing adjourned. CS said they had not been provided with documents and evidence from the Department. Furthermore, he said that they did not have the funds to travel to the venue. [23] The Tribunal requested the Department to provide a list of documents delivered to CS and CM and the date and mode of delivery of service. This was provided to the Tribunal on 31 October 2012 at 12.45 pm. [24] On 4.40pm on 31 October 2012 CS sent a fax to the Tribunal seeking an adjournment of the 1 November hearing. CS sought an adjournment for two weeks on the basis that: a) he is medically incapacitated in his mental and physical health; b) he is financially destitute and cannot afford transport costs; c) he did not receive paperwork from the Department until 30 October 2012; d) he needed adequate opportunity to seek legal advice; e) he did not receive all of the paperwork (which he did not particularise); f) CS and CM required adequate opportunity to examine the paperwork methodically; and g) they possess absolute evidence proving that the Department‟s paperwork is misleading to the Tribunal. [25] On the morning of the hearing, CS telephoned the Tribunal Registry and said he would not participate at the hearing. The Registry staff member urged CS to attend the hearing at least by telephone for the purpose of being heard in respect of the request for an adjournment. [26] CS and CM were paged in the Toowoomba Courthouse prior to the commencement of the hearing in the event that they had decided to attend in person. There was no response. The Tribunal phoned CS and CM‟s home at 9.30 am. There was no answer. The Presiding Member left a -- 5 of 11 -- 6 detailed message on CS and CM‟s answering service requesting that they telephone the Tribunal so that they could provide evidence as to their request for an adjournment. The message provided that a decision was likely to be made by the Tribunal in their absence. [27] The Tribunal considered each of CS and CM‟s reasons for the adjournment: i. He is medically incapacitated in his mental and physical health  CS submitted a Centrelink medical certificate from GP Dr Wagner dated 11 September 2012 stating that CS is unfit for work from 10 September 2012 to 10 November 2012. Dr Wagner referred to a diagnosis of endogenous depression and a secondary condition of diabetes mellitus. The Tribunal telephoned Dr Wagner during the hearing to ascertain the extent of CS‟s incapacity to the extent that he was unable to participate in the hearing, and if so, an estimate of the period for which he would be incapable of participating.  Dr Wagner informed the Tribunal that he was unaware of the hearing. Had he been aware, he would have made a house call and encouraged CS and CM to attend. He has not seen CS or CM since 11 September 2012 but believed that their mental health status has declined over the past two to three months. Dr Wagner said that CM has a psychiatric illness and when he last saw her she was very disturbed and unstable. Dr Wagner asked CM not to attend his practice as he did not consider he could be of further assistance to her. This illness has apparently affected CS‟s mental health and he has become more paranoid than previously about everyone with whom he has contact including Dr Wagner. Dr Wagner considers that CS will eventually live his life as a recluse.  Dr Wagner said that CS was not well enough to attend the hearing by telephone and opined that CS might overreact and give an inaccurate testimony to the Tribunal.  Dr Wagner could not indicate when CS and CM might be able to participate in a hearing but would not expect them to be well in two weeks. Dr Wagner thought that he might extend the Centrelink certificate for up to 24 months. ii. He is financially destitute and cannot afford transport costs [28] The Tribunal arranged for CS and CM to attend the hearing by telephone at no cost to them, which would eliminate transport costs. iii. He needed adequate opportunity to seek legal advice [29] In April 2012 CS and CM were referred to QPILCH for legal assistance, with which they agreed. QPILCH agreed to assist them, however, they did not avail themselves of that legal assistance. [30] The Tribunal made directions on 23 July 2012 that CS and CM could apply to the Tribunal to be legally represented. They failed to do so. iv. CS submits that he did not receive paperwork from the Department until 30 October 2012 -- 6 of 11 -- 7 v. He did not receive all of the paperwork, which he did not particularise vi. CS and CM required adequate opportunity to methodically examine the paperwork [31] By email and telephone on 31 October 2012, the Tribunal requested the Department to provide a list of the material and the date on which material was served on CS and CM. That list was provided that day and confirmed that documents were served on CS and CM as follows: (a) Statement of Reasons for the decision of the Department and exhibits A to S dated 19 October 2011 (DOC 1–307) served on 19 July 2012 by registered post. (b) Updated Information Statement and exhibits A to G dated 10 April 2012 (DOC 308-416) served on 10 April 2012 by registered post. (c) Updated Information Statement and exhibits A to I dated 18 July 2012 (DOC 417-455) served on 19 July 2012 by registered post. (d) Updated Information Statement and exhibits A to T dated 8 October 2012 (DOC 456-672) served on 30 October 2012 in person by QPS Officer. (e) Statement of Team Leader dated 8 October 2012 (DOC 672-679) served on 30 October 2012 in person by QPS Officer. (f) Outline of the Case prepared by Crown Law 30 October 2012 served on 30 October 2012 in person by QPS Officer. (g) The Tribunal received an Affidavit of Service from the QPS Officer. [32] In considering CS and CM‟s application for an adjournment and to ensure natural justice, the Tribunal determined that it would not consider any material of the Department filed and served after 8 October 2012 in accordance with Direction 6 made at the directions hearing on 23 July 2012. Those documents are: (a) Updated Information Statement and exhibits A to T dated 8 October 2012 (DOC 456-672). (b) Statement of Team Leader dated 8 October 2012 (DOC 672-679). (c) Outline of the Case prepared by Crown Law 30 October 2012. vii. CS and CM possess absolute evidence proving that the Department’s paperwork is misleading to the Tribunal [33] CS and CM have provided no evidence to the Tribunal to substantiate this claim. They were given specific directions on 19 April 2012 and 23 July 2012 to do precisely that. Request for adjournment refused [34] The Tribunal found that an adjournment allowing further time for the applicants would not be of assistance to CS and CM. Of significance, a delay would not be in the best interests of the children, as set out in s 4 of the Child Protection Act 1999. In fact, given the information currently before the Tribunal about CS and CM‟s mental health, as confirmed by Dr Wagner, it may exacerbate and prolong their mental health conditions. It -- 7 of 11 -- 8 might be many months, if at all, before CS and CM are able to participate productively in a hearing. [35] CS and CM have a history of (a) seeking adjournments or absenting themselves from legal proceedings; (b) failing to file material within required timeframes; (c) claiming that they have not been provided with material that has been appropriately served on them; and (d) asserting that they are on medication or are mentally and physically unable to participate in proceedings that they have initiated. CS and CM's response to the present proceedings is consistent with their legal challenges with the Court and the former Children‟s Services Tribunal. [36] Section 28(3)(e) of the QCAT Act provides that the Tribunal must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. The Tribunal is satisfied that it has sufficient material to proceed to hearing to review of the Department‟s decisions, excluding those documents to which reference has been made above in [32]. The Tribunal finds that such an adjournment is contrary to the objects set out in s 3 of the QCAT Act that requires the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. These objects are achieved through expedient resolution, which an adjournment would not achieve. The children require a resolution to the review application that was filed on 21 September 2011. [37] The Tribunal, therefore, refused CS and CM‟s request for an adjournment, having advised them in a telephone message on the morning of the hearing that it was likely that the hearing would proceed and a decision would be made if they did not participate. Background to the Department’s decision to refuse contact between CS and the children [38] The Department‟s material, including its Statements of Reasons, shows that the decision to restrict contact between CS and his youngest children was based on the following child protection concerns:  CS‟s significant criminal history that includes violent offences;  Domestic violence that has occurred over many years;  CS is considered to be a flight risk (in that he abducted his older child residing in another State who was in that State Department‟s care);  CS‟s significant mental health issues; and  CS‟s inability to address the child protection concerns. [39] The Department submitted material from Western Australia, South Australia and Queensland that shows a child protection history that contains long-standing domestic violence between CS and CM. There are police and medical reports that include domestic violence orders, restraining orders, breaches of orders, and medical treatment to CM for injuries caused by CS. Some of these injuries were sustained when she -- 8 of 11 -- 9 was pregnant. Many of these incidents were exacerbated by alcohol use. These incidents were recorded by police and in hospital reports as recently as May 2012. The Department provided material that showed that this lengthy history of violence between the parents presents significant and unreasonable risks to the children. [40] CS has a lengthy criminal history that includes 14 convictions for offences of assault, including aggravated assault on public officers, sexual assault, assault occasioning bodily harm and grievous bodily harm. There are also two convictions for escaping lawful custody. [41] Through notices to produce, there is an abundance of medical material before the Tribunal concerning CS and CM‟s mental health. The Department submits that there are 12 years of unresolved mental health concerns for both parents. The Department commissioned two psychiatric assessments and reports (2005 and 2011) but both parents refused to participate in the assessment processes. As a result, reports were prepared by Professor Nurcombe and Dr Moyle by reviewing CS and CM‟s medical records and brief phone conversations with CS and CM. [42] Professor Nurcombe stated in his report3 that there was abundant evidence from the material he reviewed that CS has an antisocial personality disorder and traits of a psychopathic personality. Professor Nurcombe found an absence of evidence directly relevant to reach a psychiatric diagnosis for CM but he formed a tentative opinion that she suffers from “Borderline Personality Disorder with intermittent depression and anxiety precipitated by vicissitudes in her unstable personal relationships”. [43] Dr Moyle considered a wide range of reports available to him from the late 1990s and early 2000s. Dr Moyle stated “CS‟s impulsive and aggressive history may be an impediment then and that there needs to be a sustained period of change and reports saying that change must occur before a child would be considered safe in his care. I don‟t see this has happened”4. [44] CS and CM have had periods in the Acute Mental Health Unit at the Toowoomba Base Hospital.5 [45] The Department‟s Statement of Reasons also set out concerns about alcohol misuse. Alcohol misuse factors feature prominently in incidents of domestic violence and records show that CS and CM have engaged with the Alcohol and Tobacco and Other Drugs Service for brief periods. [46] The Department submitted that upon reviewing all of the evidence that was available to the decision maker, the child protection concerns have not eased at all and that there remains significant risks to the children should they have contact with CS. CM has always had the opportunity to have supervised contact with both children. She has not taken advantage of this 3 Report commissioned September 2005. 4 Report commissioned September 2010. 5 Including for example CM admitted on an emergency examination order by Police in April 2007, CS was made subject to a seclusion order under the Mental Health Act 2000 in April 2007, in July 2010 CS was made subject to an Involuntary Treatment Order. There are many entries in the health records where they have been treated by doctors and in hospital with presentations of mental health conditions. -- 9 of 11 -- 10 contact and maintains that CS is required to be present during such periods of contact. [47] The Department submitted that until such time as CS and CM are able to engage in appropriate intervention to address the identified child protection concerns, it is not in KR‟s and KS‟s best interests to have contact with their father. The Department notes that since KR and KS‟s births, CS and CM have not participated in any case planning despite the Department‟s invitation to do so. Discussion Evidence taken into consideration [48] CS and CM sought review of the Department‟s decisions of 7 July 2011 and 14 February 2012. The Department‟s decision to refuse contact between CS and the children has been in place since the birth of each child, being a period of over seven years. [49] CS and CM also sought a review of the long-term guardianship orders over which the Tribunal has no jurisdiction. [50] CS and CM‟s application furthermore sought a review of the “historical, current and ongoing systemic abuse and corruption” of the Department. Again, the Tribunal has no jurisdiction to review this allegation. [51] The Tribunal accepted about 500 pages of material from the Department that sets out the child protection concerns that led to the decision to refuse contact between CS and his children. [52] CS and CM‟s review application has been before the Tribunal for 14 months. Initially, the Tribunal refused the Department‟s request for a hearing on the papers on the basis that all parties needed ample opportunity to present their cases. It was of particular concern that CS and CM had provided no substantive evidence to support their application, despite considerable assistance and many opportunities to do so. [53] CS and CM have had sufficient time and assistance to seek legal advice, but they have not done so. [54] To ensure natural justice was afforded to CS and CM, the Tribunal determined that it would not consider material filed by the Department after 8 October 2012 in accordance with Direction 6 made at the directions hearing on 23 July 2012. [55] The Tribunal is satisfied that CS and CM have had ample opportunity to file at the Tribunal and deliver material to the Department to substantiate their application for a review of the Department‟s decisions of 7 July 2011 and 14 February 2012 that prohibit contact between CS and his children, KR and KS. [56] The Department submits that CS and CM have never engaged with the Department apart from litigation. File material shows that CS and CM have been told that departmental officers need to see evidence of changes in the parents‟ behaviour, their willingness to engage with services including domestic violence assistance, mental health services and drug and alcohol -- 10 of 11 -- 11 assistance. The Department has informed the parents that until any of these changes occur; they are unable to change their decision. [57] The Department has continued to request CS and CM submit for a psychiatric assessment so they can better understand the nature of their mental illness, make appropriate referrals for services for them, and to undertake informed case planning for the children. File material shows that the parents have not submitted to such assessments. [58] There is an abundance of medical records concerning CS and CM filed by the Department that indicate significant mental health concerns. Dr Wagner, CS and CM‟s GP, also expressed his concerns for their current mental health. [59] CS and CM have not filed at the Tribunal any information in response to the child protection concerns of the Department. [60] The Department reports that CS and CM do not ask about the children, in fact, the only conversations the parents have with officers relate to litigation. The Department asserts that it has always allowed CM supervised contact with the children. She has never taken this opportunity. [61] The Department submits that the safety of the children (the paramount purpose of the Child Protection Act 1999)6 would be highly compromised if contact were to occur between CS and the children. It is also argued that such contact would not be of benefit to the children as they have not seen their parents since their births. [62] Departmental officers reported that the children are placed together with foster carers who are meeting their needs and are committed to the children long-term. The children are reported to be well, meeting milestones, happy in their placement and have contact with their older siblings interstate. [63] In summary, the Tribunal finds no evidence to show the documented significant child protection concerns for the children have abated. Significant risks to the children remain. There is no evidence to show that there are any changes to documented behaviours and mental health conditions of the parents. There is no evidence that CS and CM have engaged in counselling or psychological or psychiatric treatments or that there is any lessened risk of violent offences and domestic violence being perpetrated by CS. [64] The Tribunal finds no evidence that the parents are willing, or able, to address the child protection concerns in the best interests of their children KR and KS. [65] The Tribunal finds no evidence of protective factors that would counter the substantial risk factors. [66] The Tribunal, therefore, confirms the decisions of the Department to refuse contact between CS and his children, KR and KS, made on 7 July 2011 and 14 February 2012. These decisions are confirmed pursuant to section 24(1)(a) of the QCAT Act. 6 Section 5A Child Protection Act 1999. -- 11 of 11 --