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JW v Department of Children, Youth Justice and Multicultural Affairs[2022] QCAT 230

JW v Department of Children, Youth Justice and Multicultural Affairs[2022] QCAT 230

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JW v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 230

PARTIES:

jw

(applicant)

v

department of children, youth justice and multicultural affairs

(respondent)

APPLICATION NO/S:

CML376-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

14 June 2022

HEARING DATE:

1 November 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

Member Fitzpatrick

Member Felton 

ORDERS:

  1. The decision of the respondent made on 29 July 2021 is set aside and replaced with a contact decision in the following terms:
    1. (a)
      Face to face time each Wednesday from 2:45pm to 4:15pm at Sturdee Park or another agreed location, supervised by a Departmentally approved person;
    2. (b)
      During each school holiday periods (4 times per year), a face to face family time to occur from 10am to 4pm in the community, drop off and pick up to be supervised by a departmentally approved person;
    3. (c)
      During each school term (4 times per year), a face to face family time to occur from 10am to 2pm on a weekend in the family home of JW (once a safety assessment has occurred and her home is deemed suitable), supervised by a departmentally approved person. These visits are to be scheduled around the availability of all concerned.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where chief executive granted guardianship of subject child – where contact decision made by chief executive regulating contact between child’s grandmother and subject child – where grandmother seeks review of the contact decision – what is the correct and preferable contact decision 

Child Protection Act 1999 (Qld), s 5BA, s 11, s 12, s 87, s 99P, s 247, Schedule 2

Human Rights Act 2019 (Qld), s 25, s 26

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(4)(a)

PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Leanne Walsh, Court Services Advisor, Department of Children, Youth Justice and Multicultural Affairs

REASONS FOR DECISION

  1. [1]
    This matter has its genesis in an application for review filed by JW of a decision made by the respondent department regulating her contact with her grandson, DC. There have been a series of decisions about contact between JW and DC. The decision the subject of review was the decision of 26 August 2020. The respondent made new contact decisions affecting JW and DC: on 29 July 2021 and 15 December 2021.
  2. [2]
    Although the respondent was not invited by the Tribunal to reconsider its decision which would automatically mean that the reviewable decision was the reconsidered decision,[1] this is the position we have adopted. We note that this is the position generally adopted in the Tribunal.[2]
  3. [3]
    The decision of 15 December 2021 was made after the conclusion of the hearing but prior to the filing of final submissions. The focus of the Hearing was therefore the decision of 29 July 2020.
  4. [4]
    Given the new contact decision of 15 December 2021, the Tribunal issued directions directing JW to notify the Tribunal and the Department as to whether there was any utility in proceeding with the review, given the decision of 15 December would supersede any decision of the Tribunal on review; and whether she intended to withdraw the application to review.
  5. [5]
    JW advised the Tribunal in writing on 18 February 2022 that she did not wish to withdraw her application as she had not reached agreement with the Department as to contact with DC and she did not believe his wishes had been taken into account.
  6. [6]
    The issue for the Tribunal is, on the material before it, what is the correct and preferable contact decision in relation to DC and his grandmother, JW.

The reviewable decision

  1. [7]
    On 26 August 2020, the following contact decision was made:
    1. (a)
      Each Tuesday between 2:45pm and 4:15pm at Sturdee Park or another location;
    2. (b)
      Contact supervised by a departmental officer;
    3. (c)
      That JW confirm she will be attending the contact visit by 10am on the day of the visit;
    4. (d)
      Telephone contact is to occur every Thursday between 3pm and 4pm and that this is facilitated by a departmental officer.
  2. [8]
    On 22 October 2020, at the request of JW, a new decision was made moving contact to a Thursday.
  3. [9]
    On 29 July 2021 a new decision was made moving contact to a Wednesday and, at DC’s request, removing the telephone contact.
  4. [10]
    On 15 December 2021, after the hearing, a new decision was made as follows:
    1. (a)
      Face to face time each Wednesday from 2:45pm to 4:15pm at Sturdee Park or another agreed location, supervised by a Departmentally approved person;
    2. (b)
      During each school holiday periods (4 times per year), a face to face family time to occur from 10am to 4pm in the community, supervised by a departmentally approved person;
    3. (c)
      During each school term (4 times per year), a face to face family time to occur from 10am to 2pm on a weekend in the family home of JW (once a safety assessment has occurred and her home is deemed suitable), supervised by a departmentally approved person. These visits to be scheduled around the availability of all concerned.

Background

  1. [11]
    DC is in grade 6 at his local primary school. DC has challenging behaviours. DC’s school supports him with strategies to regulate his emotions and behaviours and he has an Educational Support Plan. He has previously had violent outbursts at school which have involved physical and verbal aggression towards teachers and students and property damage.
  2. [12]
    An assessment report by Gold Coast Health in February 2020 confirmed a diagnosis of Foetal Alcohol Spectrum Disorder and a secondary diagnosis of Attention Deficit Hyperactivity Disorder. DC has a NDIS plan which supports him to engage with psychologists, occupational therapists and speech therapists.
  3. [13]
    DC has been subject to consecutive assessment orders and child protection orders effectively since birth. On 23 February 2016 the Children’s Court made a child protection order granting long-term guardianship of DC to JW until he turned 18. However, on 24 April 2018, long term guardianship was granted to the chief executive and DC was placed in the care of his grandfather, BC.
  4. [14]
    DC has been living with BC since. BC is supported by a foster agency that provides him with fortnightly respite from Friday afternoon to Sunday afternoon.
  5. [15]
    BC and JW were previously partnered but have now separated. There is a current domestic violence order between JW as the aggrieved and BC as respondent. Order 4 of the Domestic Violence Order dated 18 August 2020 provides that “the respondent is prohibited from following or approaching to within 100 metres of the aggrieved”.
  6. [16]
    On 25 February 2020 the Children’s Court varied the child protection order and granted long term guardianship of DC to the chief executive of the Department until he turns 18.

Statutory framework

  1. [17]
    The source of the power to make contact decisions is s 87. Section 87 is in Division 4 of Part 6 of the Child Protection Act 1999 (Qld) (CP Act) which applies if the chief executive has custody or guardianship of a child.  Section 87 provides:

87 Chief executive to provide contact between child and child’s parents

  1. (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.
  1. (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.
  1. (3)
    If the chief executive refuses to allow, or restricts or imposes conditions on contact between a child and a person, the chief executive must give written notice of the decision to each person affected by the decision.
  1. (4)
    The notice mentioned in subsection (3) must comply with the QCAT Act, section 157(2).
  1. [18]
    A decision made under s 87(2) of the CP Act ‘refusing to allow, restricting, or imposing conditions on contact between a child and the child’s parents or a member of the child’s family,’ is a ‘reviewable decision’.[3]
  2. [19]
    Section 247 of the Act provides for the review of a reviewable decision and provides that an aggrieved person for a reviewable decision may apply, as provided under the QCAT Act, to the Tribunal to have the decision reviewed.
  3. [20]
    Schedule 2 of the CP Act provides that when a decision is made under s 87(2) the aggrieved person is ‘a person affected by the decision’.
  4. [21]
    The purpose of a review is to produce the correct and preferable decision, by way of a fresh hearing on the merits. The Tribunal must decide the review in accordance with the QCAT Act and the CP Act.
  5. [22]
    An application for review is a request for a new decision to be made by the Tribunal based on the information available at the time of the hearing. It is not the role of the Tribunal to determine if the reviewable decision was correct. However, the scope of the Tribunal’s decision is restricted by the scope of the reviewable decision.

JW’s evidence 

  1. [23]
    JW relied on a medical certificate by Dr Ross Bourne of 13 August 2021 which states she has ongoing anxiety disorder and is engaging in CBT on the background of stress, bullying and domestic violence. Dr Bourne recommended JW see a psychologist for a further 10 sessions. JW also relied on an earlier report by Dr Halangoda dated 10 December 2019 which referred JW having had an adjustment disorder with mixed disturbance of emotions and conduct, complicated by possible acute confusional state (delirium) due to medications, tramadol and pregabalin. Dr Halangoda states that since seeing JW her mental state was stable except for some non-specific anxiety symptoms of depressive, manic or hypomanic episodes.
  2. [24]
    JW said that she wanted to do things on the weekends with DC and that she could attend BC’s house to facilitate this. JW also said that she was able to maintain a neutral stance about BC to DC without supervision by the Department. JW denied saying to DC that a departmental employee was “nasty”, only that she had questioned her ethics with DC and that it was appropriate to have these types of conversations with children.
  3. [25]
    JW also said that DC had never ended contact early, that while he may have suggested it at the beginning, that he then forgets about it.

The Department’s evidence

  1. [26]
    The Department relied on the evidence, both written and oral, of Ms Alexandra Olsen, a senior mental health clinician with Evolve Therapeutic Services who have provided therapeutic services to DC since May 2020.
  2. [27]
    Ms Olsen emphasised that it was vitally important for DC to have a routine when having contact with important people in his world; for carers to be attuned to his needs, to ‘spot early warning signs’ and apply strategies to calm him; to be creative and flexible when those strategies do not work; that consistency and predictability were key; for him to learn emotionally correct responses.
  3. [28]
    Ms Olsen agreed that DC had improved in his behaviour and was coping better. She said it was difficult to know why but that the consistent care team and range of strategies now in place would have contributed to the improvement.
  4. [29]
    Ms Olsen was questioned by the Tribunal as to the implications for DC if contact was unsupervised and he wanted contact to end. Ms Olsen stated that supervision would provide DC with an extra level of security that his needs would be immediately met. If his needs were not met immediately, DC could, in her view, become highly dysregulated.
  5. [30]
    Ms Olsen was also asked by the Tribunal to comment on DC’s attachment to the carer and the risk to DC of potential fracture to that relationship. Ms Olsen said that was a difficult question because she had not seen DC with JW. Ms Olsen said that there was a strong bond between BC and DC. She said that she had observed DC seeking a physical connection with BC and talking lovingly about him. She said any disruption to this attachment would be a great loss to DC.
  6. [31]
    Ms Olsen said that any change in family time was likely to be disruptive to DC and strategies would need to be put in place to help him manage that disruption and change.
  7. [32]
    Ms Robles, the child safety officer with case management responsibility for DC since January 2020, said that supervised time was still required for the following reasons: it gave DC emotional support to and from visits; without it JW may make negative comments about BC which would leave him confused and negatively impact his placement; DC is very busy attending appointments and extra-curricular activities and he has no time for additional weekday time; BC and JW are at risk of having arguments in front of DC if contact between them occurs which would impact negatively on DC and jeopardise his placement. This has the consequence that changeovers between BC and JW would need outside assistance, making weekend and school holiday changeovers especially difficult.
  8. [33]
    Ms Robles also gave evidence about DC’s views: DC had said to her that he enjoys spending time with JW and would like more time with her; that he likes living with his ‘pop’; and finds telephone calls with JW boring.

Consideration

  1. [34]
    DC, on the evidence before us, has a close and loving relationship with both of his grandparents. He had in the past lived with his grandmother, JW but that relationship broke down. It appears that JW found it difficult to manage DC and after two years, the child protection order was changed by granting long term guardianship to the chief executive of the Department.
  2. [35]
    DC has challenging behaviour and requires a high level of support. He has a very busy schedule of after school appointments with therapists and after school activities. The evidence is that the supports DC is now receiving have led to a level of stability and moderation of behaviour not previously seen.
  3. [36]
    In our view, it would be potentially disruptive to DC for his routine, including his time with JW to be changed. There is a risk, given his diagnoses of FADS and ADHD, for any change to be unsettling for him and for it to manifest in negative behaviour by him. It could also, potentially erode the progress that he has made.
  4. [37]
    We understand the desire that JW has for her contact with DC to be unsupervised. The issue with that stems from DC’s emotional needs coupled with the current domestic violence order between BC and JW.
  5. [38]
    In our view, the contact decision under review needs to be considered with DC’s need for stability and predictability foremost in mind. DC is, by all accounts, doing well at the moment. DC has a busy weekday schedule and attends therapeutic appointments and after school activities most days. There is, accordingly, not much scope for visits with JW to increase during the week, which JW acknowledged. This means that if contact between JW and DC is to be increased, that school holiday or weekend contact is the best option. As we have said, there is a current domestic violence order in place between BC and JW which, in our view, supports the position of the Department that visits between JW and DC should not, at this stage, be unsupervised. We accept that, given the level of hostility between BC and JW, it would, regardless of the existence of a current DVO, not be in DC’s best interests for them to be in contact in his presence. It is also, in our view, in DC’s best interests that he feel supported during contact visits by maintaining supervision at this point in time.
  6. [39]
    We accept that DC’s relationship with JW has improved in the last year and that JW has been better able to regulate her emotions and, importantly, to refrain from making negative comments about BC in front of DC. We also accept that it is important for DC to spend time with his grandmother as well as with other members of his family who are not available during the week. JW has said that she would like to be able to do things with DC apart from just sitting in a park, which he gets quickly bored by. For JW to have this flexibility she would need to be able to spend longer periods of time with him, either during the weekend or in school holidays. JW would also like for DC to spend time in her home environment. We agree that it would be in DC’s best interests to accommodate both proposals. 
  7. [40]
    Accordingly, we set aside the contact decision of 29 July 2021 and substitute it with the following decision:
  1. (a)
    Face to face time each Wednesday from 2:45pm to 4:15pm at Sturdee Park or another agreed location, supervised by a Departmentally approved person;
  1. (b)
    During each school holiday periods (4 times per year), a face to face family time to occur from 10am to 4pm in the community, drop off and pick up to be supervised by a departmentally approved person;
  1. (c)
    During each school term (4 times per year), a face to face family time to occur from 10am to 2pm on a weekend in the family home of JW (once a safety assessment has occurred and her home is deemed suitable), supervised by a departmentally approved person. These visits are to be scheduled around the availability of all concerned.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 23(4)(a).

[2] PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350.

[3]  CP Act, Schedule 2.

Close

Editorial Notes

  • Published Case Name:

    JW v Department of Children, Youth Justice and Multicultural Affairs

  • Shortened Case Name:

    JW v Department of Children, Youth Justice and Multicultural Affairs

  • MNC:

    [2022] QCAT 230

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Traves, Member Fitzpatrick, Member Felton

  • Date:

    14 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350
2 citations
Jump To
Cite 1 - [2017] QCAT 350
Cite 2 - [2017] QCAT 350

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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