JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : D [2021] WACIC 24

CORAM : C F HOLYOAK-ROBERTS

DELIVERED : 12 NOVEMBER 2021

FILE NO/S : CIC 370 of 2020
CIC 2274 of 2020

BETWEEN : D
Applicant

Catchwords:

Neglect claim – Assessment of award

Legislation:

Child Protection Act 2004, s 35
Child Welfare Act 1947
Children and Community Services Act 2004, s 101
Criminal Injuries Compensation Act 2003, s 3, s 9, s 17, s 19
Guardianship and Administration Act 1990
Public Trustees Act 1941, s 5

Result:

Compensation granted

Representation:

Counsel:

Applicant :

Solicitors:

Applicant : Ilberys Lawyers Pty Ltd

Case(s) referred to in decision(s):

C [2021] WA CIC 20
Re Carter [1984] 4SR (WA) 219
Re TLJ [2016] WADC 74

Reasons for Decision:

Background
1 Sean William Conlin under a power of delegation by the Public Trustee in accordance with section 5 of the Public Trustee Act 1941, made an application for compensation on behalf of D, who was born on 24 February 1999 (the applicant). The application is for compensation for injuries and losses suffered by the applicant as a result of offences alleged to have been committed between 1999 and 2013 as a result of neglect and failure to protect by his father, RE, and his mother, AE, as well as of common assault by his father. It was alleged the injuries sustained by the applicant arose from a number of separate incidents during the period claimed and when the applicant was aged between one and 14 years. On 5 July 2021 I awarded the applicant $21,650 compensation in respect of incidents which occurred between 1 January 1999 and 31 December 2003, allegedly perpetrated by his mother (CIC 370/2020) and on the same date made a separate award of compensation for incidents which occurred between 24 February 1999 and 31 December 2013 in the sum of $41,650 for alleged offences perpetrated by his father (CIC 2274/2020). The originating date in the awards is incorrect and should have read between February 2002 and 31 December 2003 with respect to his mother and between February 2002 and 31 December 2013 with respect to his father and by these reasons I amend the awards to reflect the correct dates. On the same date I refused the applicant’s application for compensation for incidents allegedly perpetrated by his mother after 2003 as I was not satisfied any alleged offences were committed by her after this date. I find the applicant’s mother had separated from the applicant’s father after 2003 and had separated from the family in 2003, leaving the care and responsibility of the applicant to the applicant’s father. I made no award with respect to the alleged assaults (CIC 2273/2020) by the applicant’s father as I found the alleged assaults formed part of the overall picture of alleged neglect which was the subject of the award made in relation to the father’s conduct.
2 By letter dated 6 July 2021 the applicant’s solicitors, Ilberys, requested my reasons for decision which are set out below.
3 The application was made pursuant to section 17 of the Criminal Injuries Compensation Act 2003 (the Act) which authorises an assessor to award compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of an alleged offence. Alleged offence is defined in section 3 of the Act to be a crime, misdemeanour or simple offence of which no person has been convicted.
4 Pursuant to section 3 of the Act, I must be satisfied on the balance of probabilities it is more probable than not an alleged offence occurred (Re TLJ [2016] WADC 74). The applicant bears the burden of proof (Re Carter [1984] 4SR (WA) 219).
5 The basis upon which the applicant claimed was set out in detailed submissions filed in support of the application by the applicant’s solicitors. It was alleged in those submissions the applicant sustained injuries as a result of separate alleged offences occurring between 1999 and 2013 as a result of the conduct of his biological parents. In addition, it was alleged the applicant suffered injuries as a consequence of specific instances of common assault as well as neglect and emotional abuse by his father. In general terms the submissions alleged the applicant was repeatedly violently punished, including being struck across his legs and was unsupervised wandering in unsafe places and living in a cluttered house. It was also alleged the applicant witnessed incidents of family and domestic violence, perpetrated by his father against his mother causing him trauma related injury and aggravating his behavioural issues. It was submitted the applicant’s father failed to provide him with the basic necessities of life by allowing the family home to be in a poor state of hygiene, cluttered and overwhelmed with rubbish. It was alleged those conditions in turn led to poor hygiene and nutrition for the applicant who would often attend school hungry, dishevelled and unwashed. It was also alleged his attendance at school was sporadic and he would also be on the street unsupervised whilst under the care of his father. It was further alleged the father’s lack of supervision allowed the applicant to watch pornography featuring incidents of deprivation of liberty. It was alleged his care was often left to his older sister who had substance abuse problems and entered rehabilitation in 2009. It was alleged these allegations were evidence of neglect pursuant to section 101 of the Children and Community Services Act 2004 (WA).
6 With respect to alleged neglect by the applicant’s mother, it was submitted she had limited contact with the applicant. It was alleged she was diagnosed with borderline personality disorder and struggled with illicit drug use and between 1999 and 2007, failed to provide the applicant with the basic necessities of life with the family home consistently in a poor state of hygiene. It was alleged the applicant maintained some contact with his mother until 2010. During this time, it was also alleged the applicant’s mother accused his father of raping her, which led to an argument witnessed by the applicant who it was alleged was vicariously traumatised by his mother’s allegations, aggravating his behavioural issues. It was alleged this was clear evidence of neglect and emotional abuse pursuant to section 101 of the Children and Community Services Act 2004 (WA).
7 The applicant’s solicitors submitted at the age of 14 years in 2013, the applicant was placed into care and was in a number of placements. Once placed in care, it was submitted he demonstrated significant developmental problems which improved whilst in care.
8 In support of the application, the Public Trustee on behalf of the applicant, provided a number of documents as outlined in their submissions including a statement of evidence prepared on behalf of the applicant which was unsigned and undated, an affidavit of Lucy Sierbys, senior child protection worker, dated 5 December 2013, an affidavit of Susan Temple, principle Cable Beach Primary School dated 19 June 2015, an affidavit of Cameron Hardy senior case manager Department of Housing, dated 25 June 2015 and an affidavit of Sandra Passmore, Broome Senior High School, dated 26  une 2015. In relation to medical documents the following was submitted; an autism spectrum diagnostic assessment report dated 23 October 2002, a report from Dr Shveter Patel developmental paediatrician dated 20 June 2013, an email of Lyn Jackson dated 22 October 2013, a report from Dr Siva Bala consultant psychiatrist dated 29 December 2019 and an email from Dr Siva Bala consultant psychiatrist dated 4 February 2020. In relation to police documents, incident reports dated 16 April 2010 and 1 January 2012 were provided together with an email from the WA Police department dated 9 February 2012. Documents relating to the applicant’s education were also provided. These included a student behaviour report dated 4 February 2012, reports from Broome Senior High School for 2012, 2014 and 2015 and Broome Senior High School suspension advice dated 21 May 2013. A number of documents from the Department of Communities were provided including case notes dated 10 November 2008, 8 June 2010, 15 February 2012 and 26 May 2014, an email of Michelle Jones, senior child protection worker, dated 30 July 2013, placement referral dated 23 March 2014, case plan dated 10 October 2014, and case plan review approved outcome report dated 12 October 2015. In addition, a tax invoice for the report from Dr Siva Bala dated 19 December 2019 was also provided. Whilst I have reviewed all of these documents in reaching my determination I will only make reference to some of them in these reasons.
9 Pursuant to section 19(1) of the Act, I issued a notice to the Department of Communities (DoC) for a genogram from 1999 to 2017 and a living arrangement summary report timeline of entry into and continuity of care including dates of placement between 1999 and 2017. I also issued a notice to Broome Senior High School for a copy of all records relating to the applicant. Documents were received from the DoC on 20 January 2021 and from Broome Senior High School on 2 March 2021. The documents from the DoC were extensive and helpfully included documents beyond the scope of the notice.
Circumstances giving rise to the claims on behalf of the applicant.
10 The applicant was born in Malaysia on 24 February 1999 to his biological parents RE and AE. According to a report from the Disability Services Commission it was recorded the family lived in Malaysia until February 2002 when they moved to Marble Bar. This is consistent with information contained in the DoC’s Placement Referral dated 23 March 2014 where it was recorded the applicant was born in Malaysia and moved to Australia (Marble Bar) as a toddler, later moving to Broome. He was diagnosed with autism on 1 November 2002 when he was aged three years, though I note Dr Patel referred to a diagnosis in 2003 of severe autism. Nothing in my view turns on the minor discrepancy in the dates as to when the applicant was diagnosed with this condition. Dr Patel, in a report dated 20 June 2013, said the applicant was almost completely non-verbal, except for saying a few simple words. He was able to write a very simple sentence at the age of fourteen and was good at using a computer as he had developed elaborate computer skills. He had interests in astronomy and taught himself how to read maps. He was good at remembering places and could travel by foot or bike for miles. In the past he had collected king brown snakes which he kept in a tub in the garden until he got bitten by one of them, and now collects chickens. He was described as very intelligent. At school he was attached to the special educational unit due to his autism. He was described as getting violent when he was bullied by local children. Socially, his father was the primary care giver. The applicant’s father was in poor health and struggled financially. His older sister had developed a drug habit and would not go to school and neither would his younger brother. The applicant was described as having very good fine and gross motor skills although basically no speech and language ability. He was able to dress and feed himself.
11 In an affidavit of Lucy Sierby on behalf of the then Department for Child Protection and Family Support, sworn on 12 December 2013, it was identified the applicant had two siblings, SRE who was a younger sibling to the applicant born on 26 September 2001 and SE who was an older sibling of the applicant born on 2  September 1997. Ms Sierby described in that affidavit the applicant’s father as a single parent who had been the main carer for the children since 2003 which is consistent with information contained in the DoC’s Placement Referral dated 23 March 2014. At the time, he was 64 years of age and suffered a variety of health issues, which affected his functioning. It was reported by his doctor, Dr James Edis the applicant’s father was severely disabled by his medical conditions and suffered excessive fatigue. He said he also suffered mental strain as a result of significant social stressors including being the primary carer for the children. The applicant’s mother and father separated in 2003. In the DoC’s Placement Referral dated 23 March 2014, it was recorded the applicant’s mother left the family home and was in and out of the family for a number of years and for the last two years had little to no involvement with the children. There is a significant age disparity between the applicant’s mother and father, his father having been born in 1949 and his mother in 1978. On 20 November 2013 the DoC met with the applicant’s mother who explained she felt that the younger two children ought to be taken into the care of the CEO of the DoC as she was struggling with drug and alcohol issues, mental health issues and homelessness, living in a hostel where there was a lot of drug and alcohol misuse. She agreed to remain in contact with the DoC despite being unable to care for the children but she did not do so.
12 Documents received from the DoC identified a number of issues with respect to the applicant’s father’s care of the applicant since 2008. Between 28 August 2008 and 19 November 2008, the DoC became involved in home visits to address a number of concerns including the applicants lack of supervision, wandering in unsafe places, a dirty unkempt and cluttered house, which had a foul odour, the applicant’s sister undertaking substantial care for both the applicant and his brother, which was not age appropriate, the applicant and his siblings not being in school and domestic incidents between the applicant’s parents. For example, according to a detected incidents report from the WA Police, on 16 April 2010 it was recorded the applicant’s father had custody of the children and their mother assisted with child support. On this occasion they argued in front of the children about money whilst the applicant’s mother was visiting. She spoke with police about access and custody issues. On 10 November 2008 a DoC Case Worker recorded attending a meeting with the Disabilities team to discuss support the DoC could offer given the applicant was prone to wandering off naked, the house being messy and concerns for the applicant’s sister. It was also recorded in this case note the applicant’s mother had moved back in the house causing problems for the applicant, his father and his siblings, coming and going when she pleased. On 26 March 2009 the DoC closed the case after a multi-agency plan of support was put in place. In May 2010 a parent support worker who had been working with the applicant and his family called for a multi-agency meeting and in June 2010 the DoC re‑opened the family’s concerns and initiated assessments. They met with the applicant’s mother in June 2010 who admitted to drug use, describing an unhappy forced marriage to the applicant’s father, with him being physically abusive towards her. A home visit was conducted on 8 June 2010 to assess the safety and wellbeing of the applicant and his siblings. The applicant’s father disclosed he was embarrassed about the state of the house, spoke at length about the applicant having problems with collecting things and bringing them back to the house, and blaming him as the cause of clutter. He described the applicant as out of control and due to his own poor health, he was unable to manage the applicant’s behaviours. He told DoC workers the applicant’s mother had attended the night before to settle the children to bed. He said she does not help with any of the domestic chores when she attends. He told DoC workers the applicant’s mother had not been around a lot because the children had found illicit drugs at her house which he was unhappy about. He said she also refused to care for the children when he went to hospital as he would not transfer their Centrelink payments to her. He told workers he and the applicant’s mother had broken up in 2007 as a result of her being on drugs and breaking relationship boundaries. I noted previously, Ms Sierby stated in her affidavit the applicant’s father had been the children’s main carer since 2003, consistent with information recorded in the DoC’s Placement Referral dated 23 March 2014. The applicant’s father asserted the applicant’s mother had been physically violent towards him, hitting him over the head with a chair four days before he was admitted to hospital for a heart attack. The applicant’s mother told the children on this occasion the applicant’s father had raped her which the applicant’s father believed related to when they first had sexual relations when they were living in Malaysia.
13 Documents from the DoC established the DoC financed the removal of rubbish from the yard and provided vacation care for the children over the school holidays. When engaging with the applicant’s father in the home, the smell of excrement was observed which the applicant’s father blamed on the applicant’s sibling not cleaning the cat litter tray. Concerns were raised about the applicant’s sister providing day to day care of her brothers beyond that which was age appropriate, the applicant not being provided with appropriate care and supervision which he required due to his autism, the uninhabitable nature of the family home, and the home not being maintained to a reasonable standard. The house was cleaned in June 2010 although the applicant’s father continued to complain about being unable to manage day to day domestic duties. There were allegations of inappropriate behaviour by others such as a pornographic home movie being made by a third party, whilst the children were on the beach due to lack of supervision by the applicant’s father. In 2010 concerns were raised for lack of school attendance by the applicant and his brother and with the applicant presenting to school as very dirty with unwashed hair. Despite intervention, the home again deteriorated, and the applicant’s behaviour also deteriorated with him showing signs of aggression towards staff members at childcare, attempting to abscond, placing himself at risk and playing with his penis in view of other children. The DoC was also contacted in 2011 by the principal of the primary school expressing concern the applicant was regularly seen wandering the street or riding his bike unsupervised and a long way from home, despite requiring constant supervision due to his autism. He was having violent outbursts at school and attending the home of his education assistant late at night. He was also observed to be taking all his clothes off at school to get a reaction from staff.
14 In February 2012 the DoC received a mandatory report advising the applicant had a video camera on which it was recorded the applicant naked, bending over and engaging in inappropriate activities. The WAPOL Detected Incident Report relating to this matter recorded the applicant brought a video camera to school and his Education Assistant had cause to look at the footage on 6 February 2012. It was recorded the footage displayed a person believed to be the applicant bending over displaying his bottom to the camera, engaging in inappropriate conduct in front of the camera. It was observed this video appeared to be recorded by a person other than the applicant, though after a police investigation no sexual abuse was substantiated.
15 In a case note dated 15 February 2012 it was recorded the applicant’s father attended DoC for a meeting regarding this issue. The applicant’s mother did not attend as his father said he could not rouse her from sleep. It is unclear to me whether she was living in the applicant’s household at the time. She was later transported to the DoC by a caseworker before the meeting commenced. The recorded material was discussed and the applicant’s parents disclosed an additional incident. DoC raised issues regarding the applicant being unsupervised.
16 Thereafter a plan was devised for the applicant’s father to provide adequate supervision to the applicant and his siblings and for his siblings to undergo protective behaviours training. When the applicant’s father was flown to Perth for medical treatment in 2013, the applicant and his brother were placed in respite care and a support worker was paid to clean the family home. Whilst doing so, the support worker was bitten by a snake and previously there had been a number of snakes in the home which the applicant had caught and brought home as pets. The applicant’s siblings were also experiencing symptoms of stress including his sister smoking marijuana and drinking alcohol to excess and his brother experiencing frequent headaches. In 2013, additional concerns over the applicant’s inappropriate sexualised behaviour were raised, with a support worker allegedly observing the applicant watching a pornographic DVD involving deprivation of liberty and allegedly masturbating whilst doing so. In June 2013, the applicant’s sister moved to residential rehabilitation. In August 2013, concerns were raised around the applicant spending nights camping out away from home, coming to school the following day hungry, being sleep deprived and dirty, living in uninhabitable home conditions for which the applicant’s father blamed the children and poor school attendance. There was also concern about the emotional impact of the applicant hearing his father saying he wanted to die, the applicant’s sexualised inappropriate behaviours, poor parenting, chaotic home with a lack of structure and routine, and the applicant’s father’s use of corporal punishment including self-reporting he had hit his younger son across the legs with a cable because he was out playing with friends instead of assisting him at home. The applicant’s father blamed the children for the home conditions and said their mother should be there to clean the house and take care of him and the children. He described his youngest son as lazy and the applicant as difficult and violent. He was unwilling to look at preventative strategies. These concerns about the conditions upon which the applicant and his brother lived continued until the applicant and his brother were placed into provisional protection and care pursuant to section 35 of the Children and Community Services Act 2004 on 6 December 2013.
17 Having examined the information provided to me, it was evident the applicant’s father and mother separated in 2003 with his mother having very little and sporadic contact with the applicant and his siblings after that date. I was satisfied there was occasional periodic contact between the applicant’s mother and the children but not enough to satisfy me she had the care or control of them. I was therefore satisfied on the information available to me the applicant’s mother had abandoned the home and the family in about 2003, engaging in periodic contact thereafter until around 2010.
Extension of time
18 Pursuant to section 9 of the Act an application for compensation must be made within three years after the date on which the offence to which it relates was committed or of more than one, the date on which the last of the offences was committed. An assessor may allow an application for compensation after the three year period if it is just to do so. On the information available to me the last of the offences occurred before the applicant and his brother were taken into provisional protection and care on 6 December 2013. Therefore, the applicant’s application ought to have been lodged on or before December 2016. The application was not lodged until 18 February 2020 and therefore an extension of time is required. Having regard to the circumstance of the incidents, the applicant’s age and his pre-existing vulnerabilities particularly his autism, and the fact an order of the State Administrative Tribunal (SAT) appointing the Public Trustee as the applicant’s plenary administrator and SLP as the applicant’s guardian, pursuant to the Guardianship and Administration Act 1990 was not made until 23 March 2017, I was satisfied it was just to extend time within which the applicant could bring his application.
Neglect Principles
19 In relation to the general principles regarding neglect claims I rely on the outline of the legislation and case law by Assessor Hafford in C [2021] WA CIC 20. From the information available to me I have jurisdiction to consider the applicant’s alleged neglect claims from 2002 (when the family moved to Western Australia from Malaysia). The time period for the claim arising for alleged neglect by the applicant’s parents ceased when the applicant was taken into provisional care in December 2013. For the period 2002 to 1 March 2006, the Child Welfare Act 1947 applied and for the period 2 March 2006 to when they were taken into care in 2013, the Children and Community Services Act 2004 applied. Whilst there is reference to inappropriate corporal punishment by the applicant’s father to the applicant and his siblings during the period he is alleged to have been neglected, I did not consider there was sufficient specificity provided in relation to those alleged offences to warrant a separate award of compensation based on allegations of assault. I therefore considered the applicant’s father’s conduct in physically punishing the applicant to be part of the overall neglect claim between the period specified.
20 Documents submitted by the applicant’s solicitors together with the documents obtained from the DoC provided a compelling summary of the circumstances and illustrated a number of particulars of neglect during the time the DoC were involved with the applicant’s family. In particular, the applicant’s poor living conditions, lack of nutrition, lack of appropriate supervision, unkempt appearance, lack of structure, inappropriate punishment, ill treatment, physical, emotional and psychological abuse and generally not being provided with the necessities of life were sufficient to satisfy me alleged offences pursuant to the relevant legislation to which I have referred were constituted. Whilst I had no direct evidence in the information available to me the applicant was subject to these conditions and experiences prior to the DoC’s involvement, I inferred the conditions under which the applicant was living had existed since his birth in 1999 and certainly since his time in Australia. I was therefore satisfied on the information available to me the applicant suffered neglect by his mother for which I have jurisdiction between 2002 and 2003 and at the hands of his father from 2002 until 2013 when he was taken into provisional care.
Assessment of the applicant’s application
21 The assessment of the applicant’s application is conducted against the background of his diagnosis of severe autism. There is no suggestion this diagnosis was in any way caused by or related to the alleged neglect perpetrated by his parents. In a report from Dr Bala dated 29 December 2019, it was reported the applicant suffered from autism spectrum disorder with accompanying intellectual and language impairment. He said this was a neurocognitive disorder manifesting early in life characterised by developmental deficits that led to impairments of personal, social, academic, and occupational functioning. Dr Bala concluded the development of that disorder was unrelated to the upbringing by his parents although it was worsened by the family environment. He said the applicant experienced significant attachment difficulties and neglect in childhood which affected his capacity to speak, self-regulate his emotions, self-care and exhibit appropriate behaviours. He concluded the applicant suffered from a reactive attachment disorder in childhood due to the severe neglect by his parents classified as a psychiatric injury rather than a cognitive disorder arising from the family environment. Since the death of his father and being under the care of others it was noted there was a significant improvement in the applicant’s psychiatric presentation because he had been provided with stability, security and a predictable routine. Dr Bala recorded the applicant was unable to provide any meaningful information given his intellectual disability and minimal speech. He was only able to vocalise with one-word replies, repeating stock phrases rather than responding personally. He could not provide meaningful comment for the purposes of the assessment and Dr Bala had to rely entirely on collateral information to assess his mental state.
22 Dr Bala concluded the applicant had a lifelong diagnosis of autism spectrum disorder with intellectual impairment. He experienced significant emotional and physical neglect as a child given the breakdown of the relationship between his parents and having been abandoned by his mother, who was using illicit substances. The physical environment of the house with his father was marked by neglect, hoarding, unhygienic conditions, lack of appropriate boundaries, and the applicant having been cared for by his siblings. He received inadequate care and treatment, demonstrated a variety of disinhibited behaviours, and suffered psychological injury during the time he was in the care of his parents, strongly suggestive of a reactive attachment disorder. Alternative diagnoses included severe adjustment disorder, posttraumatic stress disorder, and/or attention deficit hyperactivity disorder. His cognitive impairment was largely attributable to his autism spectrum disorder although childhood attachment disorder and social deprivation contributed to some extent.
23 His current carer Ms P said in an affidavit dated 26 June 2015, she was employed by Broome Senior High School as Head of Learning Area, teaching and coordinating students with specialised educational needs. It was in that capacity she met the applicant in 2011 to prepare him for entering high school. She recalled at the time he exhibited significant behavioural problems and she was involved in a year-long transition from primary to high school. She also acted as the applicant’s emergency carer. She described a period of improvement for the applicant whilst in her care, supporting the conclusion his pre-existing condition was attributable to his poor family conditions.
24 I accepted the applicant suffered significant psychological sequela as a result of the lack of care by his parents superimposed over a pre-existing severe autism spectrum disorder diagnosis unrelated to the conduct of his parents. I considered an appropriate award for injuries suffered by the applicant to be $60,000, $20,000 attributable to his mother and $40,000 attributable to his father. The application for compensation was made for incidents which occurred between 1999 and 2013. The applicant was born in Malaysia and resided there until 2002. As such, I had no jurisdiction to award compensation from the date of his birth until 2002 when they arrived in Australia. I therefore awarded the applicant the sum of $20,000 for injuries relating to the conduct of his mother between 2002 and end 2003. In addition, I awarded the applicant the sum of $40,000 for injuries caused by his father between 2002 and December 2013 when he was taken into DoC care. The applicant also made a claim for the report from Dr Bala in the sum of $3,300. I attributed 50% of the cost to the claim against the applicant’s mother and 50% against his father. I therefore awarded the applicant $21,650 for the conduct of his mother and $41,650 for the conduct of his father.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

C F Holyoak-Roberts, CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

12 NOVEMBER 2021