SJP v Department of Child Safety, Youth and Women Services
[2018] QCAT 277
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- Unreported Judgment
- SJP v Department of Child Safety, Youth and Women Services[2018] QCAT 277
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SJP v Department of Child Safety, Youth and Women Services[2018] QCAT 277
SJP v Department of Child Safety, Youth and Women Services[2018] QCAT 277
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | SJP v Department of Child Safety, Youth and Women Services [2018] QCAT 277 |
PARTIES: | SJP (applicant) |
| v |
| DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN SERVICES (respondent) |
APPLICATION NO/S: | CML037-18 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 25 July 2018 |
HEARING DATE: | 14 June 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Sheean Assisted by: Member Felton Member Matsen |
ORDERS: | The placement decision of the Department of Child Safety, Youth and Women Services placing ASW with ACL and BLC is confirmed. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY – review of Department’s decision in whose care a child should be – where Department happy with care – where father objects to carer’s same-sex relationship – safety, welfare and best interests of the child Child Protection Act 1999 (Qld), s 5A, s 5B, s 5D Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Briginshaw v Briginshaw (1938) 60 CLR 336 DZ v Department of Communities, Child Safety and Disability Services [2016] QCAT 453 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | P Wijesoma, Court Services Unit, Department of Child Safety, Youth and Women |
Separate Representative: | A Bertone, instructed by Separate Representative for the child, S Cleeland |
REASONS FOR DECISION
- [1]ASW is a 2½ year old child under a Temporary Child Protection Order granting custody to the Chief Executive of the Department of Child Safety, Youth and Women (‘the Department’).
- [2]On 8 December 2017, the Department placed ASW with ACL and BLC when ASW’s previous placement abruptly ended. At the time of the decision, ASW was in the care of the Department pursuant to an Assessment Care Agreement signed by ASW’s mother and the applicant. This Agreement expired on 14 December 2017. There were some interim steps taken in relation to ASW’s care which it is not necessary to recite, and the Order under which the Chief Executive was granted custody was made on 19 December 2017.
- [3]Initially, ASW was placed in ACL and BLC’s care on an emergency basis for the weekend. Subsequently, the Department decided to place ASW with them on a more permanent basis. The letter informing the applicant of this decision was dated 18 December 2017.
- [4]The applicant has sought a review of that decision.
- [5]
- [6]The applicant’s mother has commenced the process of seeking approval as a kinship carer for ASW. At the time of the hearing, that process had not been completed. In light of his mother’s application, the applicant requested the Tribunal to consider removing ASW from the care of ACL and BLC and placing ASW with his mother.
- [7]The Tribunal has previously decided that in reviewing a placement decision, and in determining the placement as not suitable, the only possible remedy is to set aside the decision and return the matter to the Department for a new placement decision to be made, with directions if appropriate.[3]
- [8]Therefore, the Tribunal did not consider the question of where ASW should be placed if it determined that the current placement decision was not suitable.
- [9]The only question before the Tribunal was whether ASW’s current placement was suitable. In deciding this question, the Tribunal must have regard to the paramount principle for administering the Child Protection Act 1999 (Qld) (‘CP Act’), that the safety wellbeing and best interests of the child are paramount.[4]
- [10]The Tribunal must also have regard for the other general principles contained in the CP Act including the principles about exercising powers and making decisions.[5]
- [11]The standard of proof required to determine this matter is the civil standard as stated in Briginshaw v Briginshaw.[6] The Tribunal does not need to be satisfied beyond a reasonable doubt.
The Applicant’s Concerns
- [12]The applicant identified that he was concerned about ASW’s placement on three bases:
- (a)The carers are a same-sex couple which goes against the beliefs he holds because of his Christian faith;
- (b)ASW has suffered an injury to his eye whilst with the carers and they failed to seek medical attention promptly; and
- (c)ASW has not been appropriately dressed when the applicant has had contact visits with him.
- (a)
- [13]During the hearing, it became clear that the concerns about ASW’s apparel at contact did not necessarily reflect upon the carers. ASW is collected from day care by the Department and taken to contact. In any event, the Department stated that it had addressed these concerns with the carers, the day care provider, and its staff. The applicant stated that ASW was appropriately attired at his latest contact visit.
- [14]The issue of the injury to ASW’s eye caused the applicant much concern. The injury occurred on a Saturday and ASW did not attend a doctor until the Monday. Both carers gave evidence that they considered that the injury was minor and that it did not require urgent medical attention.
- [15]BLC was with ASW at the time of the injury. He stated that the injury had occurred because ASW was running around, not looking where he was going and had bumped into a hallstand or little cupboard in the hallway of BCL’s parents’ home. BCL said that he had applied ice to the area and that ASW had cried initially but had quickly calmed down.
- [16]When ASW was seen by the general practitioner on the Monday, no treatment was given. The Department stated that the doctor’s notes indicate that he did not feel that the injury was alarming nor did he hold any lasting concerns about it.
- [17]The applicant was concerned that there were discrepancies between the descriptions by the carers given in relation to this injury. The piece of furniture into which ASW had bumped had been variously described as a hallstand, cupboard, set of drawers and a table in various documents prepared by the carers, the day care centre, the doctor, and the Department. The Tribunal does not consider that anything turns on these discrepancies. The Tribunal accepts that ASW suffered an injury, which, although it was described as being to his eye, appears to have been mainly to his cheekbone close to his eye. The Tribunal also accepts that the injury was minor and was appropriately treated when it occurred.
- [18]The delay between the injury occurring and the time when ASW was taken to a doctor was a matter of some concern for the applicant. The applicant was concerned that the carers were not likely to seek appropriate medical attention as quickly as they ought to do bearing in mind ASW’s best interests. This concern was understandable but misplaced. The Tribunal accepts that the carers have previously sought medical attention urgently when they were concerned about ASW’s temperature. On that occasion, they had taken ASW to hospital in the middle of the night so that he could be examined without delay.
- [19]The applicant’s concern in relation to the carers being in a same-sex relationship was based on his belief that such a relationship is unacceptable because of his Christian faith.
- [20]The Tribunal accepts that the applicant holds strong views on the issue of same-sex relationships and that he is a practising Christian, attending church regularly. The Tribunal acknowledges the concern the applicant feels for his child because of his beliefs.
- [21]The carers gave evidence that they celebrate Christian holidays such as Easter and Christmas. ACL stated that he would be comfortable reading bible stories to ASW. Both the carers were raised in families with strong ties to a Christian faith. Both of the carers stated that their own parents are very supportive of them and their relationship. ACL said that, because of their parents’ involvement in their church, they have plenty of people to guide them in the right direction in relation to Christian beliefs.
- [22]The underlying concern from the applicant appeared to be that ASW would be exposed to inappropriate sexual behaviour as a result of his placement with a same-sex couple. The applicant stated that he had no such concerns when ASW had been placed with carers he took to be in a heterosexual relationship. He acknowledged that he had not made specific enquiries as to the nature of the relationship between the previous carers, that he didn’t know their religious beliefs, sexuality, how many children were living in the house, or how they would raise ASW, and whether it would be in the way he would like it.
- [23]The issue that the applicant pointed to as a foundation for his concern was that ASW now kisses him on the mouth. The applicant states this is unacceptable.
- [24]The applicant’s father said that he has seen ASW each fortnight over the month before the hearing. He said that ASW had been receptive to hugs and that he was ‘a bit kissy on the mouth at times’ but that there was nothing sexual in it. The applicant’s father stated that ASW was quite well dressed when he saw him and appeared to be quite well. He said that ‘it would be wrong to say [ASW] wasn’t being cared for’.
- [25]The applicant says that ASW has progressed with his speech since he has been in the care of the current carers. The applicant also said that he was pleased with ASW and that his cough didn’t seem to be as bad as it had been.
The Suitability of the Current Placement
- [26]The carers’ evidence was that ASW was settled with them. They had briefly placed him in respite care while they attended a family event interstate. ASW had not reacted well to the respite care. As a result, the carers do not intend to access respite care in the foreseeable future. During the time that ASW has been in the care of the Department, he has had a number of moves, and the carers are sensitive to his need for stability.
- [27]ASW had taken quite some time to settle into a routine. He is now less aggressive at day care and, despite the disruption of respite care, has again settled into a routine with his current carers. When asked their opinion about ASW’s ability to manage change, the carers stated that he has not had to manage change lately because there has been no change for him.
- [28]The carers stated that they are happy to continue to care for ASW for as long as necessary. They are willing to take him to any appointments such as an upcoming medical appointment at Lady Cilento Hospital. They have also decided that they will not accept other children into their care so that they are able to devote their time to ASW.
- [29]The carers facilitate telephone contact with ASW’s mother each week. They encourage him to speak with her. ASW has face to face contact with his mother three times per week but the Department facilitates this, collecting ASW from day care.
- [30]The carers have stated that they would be willing to also facilitate telephone contact with the applicant and to facilitate contact with the applicant’s family.
- [31]The Department indicated that they have no concerns about how ASW’s current carers relate to the Department. On visits to the carers’ home, the Department have observed that the placement is clean and tidy. There have been no concerns raised as a result of these visits.
- [32]The Department noted that the carers have accessed emergency medical treatment for ASW on two occasions, when it was appropriate.
- [33]The Separate Representative submitted that there was no direct evidence that the carer’s lifestyle negatively affected ASW; the evidence was that the placement was having a positive effect on ASW.
- [34]The Separate Representative submitted that it would be contrary to ASW’s best interests to move him, particularly in light of the ongoing Court proceedings, and the current case goal of reunification.
The Tribunal’s view
- [35]The applicant was clear that the placement of ASW with carers in a same-sex relationship did not work with his faith. He clearly and frequently expressed the distress that he has been caused because of the placement. However, he also stated that, after he decided to resume contact with ASW (having initially decided to protest against the placement by refusing contact), some of his concerns have been calmed.
- [36]Although the applicant was unable to point to any particular harm that ASW has or may face as a result of his placement with carers in a same-sex relationship, the applicant remained adamant that he wanted ASW to be placed elsewhere.
- [37]There was general agreement that ASW had not reacted well to being placed in respite care while his carers attended a family wedding interstate. The carers’ evidence was that ASW took some time to settle into his routine again after his time in respite care.
- [38]The evidence is that ASW does not react well to change and that he could face some emotional harm if his placement is changed to another short-term placement. This is particularly so in light of the fact that the Department currently only has custody of ASW, and that the matter continues to be reviewed by the Court. There is also the fact that the applicant’s mother is undertaking the process seeking to be approved as a kinship carer for ASW.
- [39]The Tribunal found both of ASW’s current carers to be impressive witnesses displaying an understanding of ASW’s needs and sensitivity to the applicant’s concerns.
- [40]The Tribunal accepted the applicant’s father’s evidence that ASW appears to be well cared for and that his displays of affection were appropriate.
- [41]The Tribunal is not satisfied that the concerns sincerely held by the applicant have any real basis.
- [42]The Tribunal is satisfied that ASW is happy, well-cared for, and settled in his current placement and that any change would need to be very well managed and, preferably, on a long-term basis to avoid emotional harm to him.
- [43]The Tribunal therefore confirms the Department’s decision to place ASW with ACL and BLC.