FA v Department of Communities (Child Safety Services) [2011] QCAT 725

CITATION: FA v Department Of Communities (Child Safety Services) [2011] QCAT 725 PARTIES: FA (Applicant) v Department Of Communities (Child Safety Services) (Respondent) APPLICATION NUMBER: CML004-11 MATTER TYPE: Childrens matters HEARING DATE: 14 July 2011 HEARD AT: Brisbane DECISION OF: Hon R J Bulley, Presiding Member Elizabeth Benson-Stott, Member Professor Adrian Ashman, Member DELIVERED ON: 14 July 2011 DELIVERED AT: Brisbane ORDERS MADE: That the Decision of the Department of Communities (Child Safety Services) to restrict or refuse to allow contact between the applicant and his stepchild be confirmed. CATCHWORDS: ADMINISTRATIVE LAW – a review of the decision to restrict or refuse to allow contact between the applicant and his stepchild – where the Queensland Civil and Administrative Tribunal interviewed the child privately – where the Tribunal relied on the expressed wishes of the child in making its decision FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 – OTHER MATTERS – where provisions of Queensland Civil and Administrative Act 2009 considered Child Protection Act 1999, ss 4, 5(1), 5(2), 5A- 5E inclusive, 87 -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009, Div 3 of Part 1 of Chapter 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: The applicant appeared on his own behalf RESPONDENT: Jeanette Mackintosh assisted by Janine Erb appeared for the respondent REASONS FOR DECISION History of the Application [1] This is the hearing of the application filed by the applicant FA to review the decision made by Thuringowa Child Safety Centre to restrict contact between his stepchild NM and himself. This decision was made orally on 24 September 2010 and confirmed in writing on 28 February 2011. [2] NM was born in February 1998 and so is approaching 13 1/2 years of age. Her natural mother is FS. FA began living with FS in 1999. At this time FS was expecting the child FH. FH was born in October 2000 and is therefore approaching 11 years of age. FA is the stepfather of FH. FA and FS subsequently intermarried. [3] NM, and after her birth FH, lived with FA and FS. [4] Pursuant to the provisions of the Child Protection Act 1999 (the CP Act) NM and FH were removed from FA and FS in October 2002 and placed in foster care. On 5 February 2003 these children were placed with Departmentally approved carers a Mr and Mrs CC. The children have remained in their care ever since. At all material times Mr and Mrs CC have lived with the children in north Queensland. FA and FS have resided in Brisbane. [5] On 24 October 2007 the Childrens Court in Townsville made child protection orders under the CP Act in respect of NM and FH granting long term guardianship of each child to the Chief Executive, those orders to continue in force until each child respectively turns 18 years. [6] In recent years in particular, FA and FS have had supervised contact with NM and FH. This has consisted of telephone contact fortnightly, and face to face visits in Townsville for 2 hours on 4 occasions annually during school holiday periods. [7] On 24 September 2010 a scheduled face to face visit took place in Townsville. This visit was cut short by Departmental staff and later that day information was provided orally to FA that all future contact between NM and himself, including telephone contact, would be refused. -- 2 of 6 -- 3 [8] As a result there has been no further contact between NM and FA save for one occasion of supervised telephone contact. This occurred on 9 December 2010 with NM’s consent. [9] On 6 January 2011 the Queensland Civil and Administrative Tribunal (the Tribunal) received FA’s Application to Review the Department’s decision to refuse contact between NM and himself. [10] The hearing of the review application took place before the Tribunal in Brisbane on 14 July 2011. At the conclusion of the hearing the Tribunal reserved its decision. Legislative Background [11] The decision under review was made pursuant to the provisions of the CP Act. The purpose of that Act as expressed in section 4 is to provide for the protection of children. A key provision is section 5A. This section provides that the Act is to be administered under the principle that the safety, wellbeing, welfare and best interests of a child are paramount. Sections 5B to 5E inclusive set out further principles requiring adherence. The provisions of section 5E which relate to Obtaining child’s views are particularly relevant in this review. [12] Section 87 of the CP Act relevantly states as follows: (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… It is pursuant to this provision that the Department of Communities (Child Safety Services) (the Department) made the decision under review in this case. [13] Division 3 of Part 1 of Chapter 2 of the Queensland Civil and Administrative Act 2009 (the Act) sets out the legislative provisions governing the Tribunal’s exercise of its review jurisdiction. The subject decision in this instance is a reviewable decision as defined. Historical Factual Background [14] The Tribunal does not propose to canvass in detail the history of this matter. It is unproductive to dwell too much on the negative features of the past. The issues in this review are confined to a quite narrow compass. [15] Written statements were provided by a number of Departmental witnesses. Two of these witnesses were not required to provide oral testimony. The -- 3 of 6 -- 4 other witnesses supplied oral evidence by telephone link from Townsville. In addition Jeanette Mackintosh the Manager of Thuringowa Child Safety Service Centre gave face to face evidence at the hearing. [16] Julia Hirning Community Visitor did not supply a written statement. She provided oral evidence by telephone from Townsville. She stated that she had been carrying out her role with NM and FH since late 2007. She said that in early 2009 NM first mentioned to her that she was unhappy having contact with FA, saying that she found it an uncomfortable experience. Julia said that NM continued to raise this matter with her consistently thereafter. She said that the matter came to a head in September 2009 when NM stated that she was quite unhappy with contact with FA and that she did not feel safe in his presence. [17] Julia said that after a visit with FA in July 2010 NM stated that she was given inappropriate information by FA about an alleged rape that FS had endured whilst in care, inferring that that could happen to NM in her current care. This information had not pleased NM. [18] NM further told Julia that she had found FA’s conduct at the visit in September 2010 as embarrassing and inappropriate. [19] Julia described NM as a bright, happy young lady generally, that she is open, that she enjoys her friends, that she likes where she lives, loves school, and loves cooking. [20] The Tribunal was impressed by Julia’s presentation, and considered her to be clearly independent and objective. [21] LT provided a written statement but was not required for cross- examination. The Tribunal accepts the content of her written statement. Thus NM has consistently maintained her decision not to have contact with FA. [22] Danielle Baldwin was the Child Safety Officer who was in charge of the supervision of contact on 24 September 2010. Danielle was cross- examined on her written statement. She provided evidence as to the events that occurred on that date, events which she later relayed to her Team Leader Carolyn Travers. These were events which apparently upset NM. [23] When he gave evidence FA provided a somewhat different version of the events of 24 September 2010. However he did not deny his reference to FH as having only one mother, his pulling out a tape recorder, and his trying to keep FH from leaving with Danielle. He did not disagree that he may have bumped Danielle on the shoulder. [24] There were consistencies in the substance of FA’s and Danielle’s evidence as to the sequence of events despite the fact that FA’s interpretation was somewhat different from Danielle’s version of events. -- 4 of 6 -- 5 [25] The Tribunal accepts the uncontested evidence supplied by Carolyn Travers, and the oral testimony of Jeanette Mackintosh. [26] Carolyn Seri, psychologist, provided a social assessment report dated 15 November 2010 in relation to NM and FA. Carolyn also supplied oral testimony. The Tribunal accepts the content of the report, as amended at the hearing, and Carolyn’s oral evidence. She corroborated the assertion that NM did not want contact with FA, and that there was no evidence that NM was being influenced in any way in her decision. [27] Carolyn expressed the opinion that if NM were forced to have contact with FA against her will it was likely she would act out, there would be mood disturbances, there would be anxiety, and I would be concerned for her emotional well being. [28] In her report Carolyn did not supply any recommendations as to how the relationship between NM and FA might be repaired. However whilst not suggesting any contact at this stage she thought that in time and with the co-operation of the Department FA might try writing to NM: she emphasised the need for FA to respect NM and to be positive about her and her life. [29] FS gave short oral evidence before the Tribunal before acting in the role of FA’s support person. She presented as a pleasant person who loves the girls very much. She said that NM was a straight A student. Whilst she is supportive of FA the Tribunal questioned her ability to control and contain FA’s propensity to make insensitive and inappropriate remarks whenever he wished to do so. [30] FA represented himself throughout the hearing. On a number of occasions he was loud, and expressed considerable negativity toward the Department and the CCs. He persisted in this approach during his oral testimony saying that he had held these views for a very long time. His demeanour coloured his evidence, which included many unsubstantiated allegations. [31] FA presented himself at the Tribunal as a loud, gruff, bombastic, self opinionated, domineering, and insensitive individual. It was difficult for the tribunal to see how his behaviour and demeanour would encourage an intelligent 13 year old girl to respond positively toward him. He seems to have learnt nothing from his contact experiences. How he could expect a 13 year old girl to respond happily to his sort of approach beggars belief. This is a girl who he describes as smart and intelligent. He said that he accepts that their relationship has broken down and needs repair. [32] FA told the Tribunal that NM is scared in [the place she lives] and asserted that she is being coerced to refuse contact even though he admits there is no evidence to support this contention. -- 5 of 6 -- 6 [33] FA said that he was prepared to work with the Department to repair his relationship with NM. The Tribunal’s Interview with NM [34] At the outset of the hearing the Tribunal interviewed NM by video link with Townsville. This interview occurred at NM’s request. She had an independent support person by her side. None of the parties attended the interview. Only the Tribunal members were present in the hearing room. NM’s support person gave no evidence and spoke only when the Tribunal was thanking NM and the support person for their attendance. [35] After the interview with NM had concluded the Tribunal informed the parties that NM had told them that she did not want any form of contact with FA. [36] NM made a deep impression on the Tribunal. She presented as a very mature young woman for her age. She is clearly intelligent. She was well presented and well groomed. She said that she does well at school, that she is happy at school, has friends at school and out of school, and is happy in her local community. She impressed as a confident, sensible, open, vivacious, and assertive person. She is ambitious with career objectives and stated that she was very happy in her home life and with the CCs. [37] NM made it abundantly plain that she did not wish to resume any form of contact with FA. She gave acceptable reasons for this attitude. Conclusions [38] The Tribunal is obliged by legislation to take many factors into account in determining this matter. However in this instance the overwhelming issue is NM’s expressed wish. The Tribunal is satisfied that she is of an age, maturity, and intelligence to make such a wish, a wish she has held constant for the past 2 years. This wish is well considered, has not been influenced by inappropriate means, and is consistent with her well being. It would not be in her best interests to oblige her to have contact with FA. The Tribunal is satisfied that it is in her best interests to refuse contact with FA. [39] If FA wishes to repair his relationship with NM he will need to work co- operatively with the Department. The Tribunal does not argue with the Department’s submission that any positive repair work will need to be driven by NM herself. [40] The Tribunal notes that NM is currently receiving counselling from a number of sources. The Tribunal‘s belief is that she is presently in a healthy state emotionally and therefore would caution against over- counselling. -- 6 of 6 --