Criminal Injuries Compensation - W.A.

F [2022] WACIC 7 (16 May 2022)

by TRU Investigations

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : F [2022] WACIC 7

CORAM : R GUTHRIE

DELIVERED : 16 MAY 2022

FILE NO/S : CIC 1073 of 2021
CIC 1074 of 2021
CIC 1075 of 2021

BETWEEN : F
Applicant

Catchwords:

Child taken into care – Neglect and abuse – Single offence – Single statutory maximum

Legislation:

Child Welfare Act 1947
Children and Community Services Act 2004, s 31A
Criminal Injuries Compensation Act 2003, s 9, s 16 s 17, s 18, s 19, s 31, s 33, s 34, s 64
Public Trustees Act 1962, s 59(a)

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : DWYER DURACK

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

ABC [2011] WACIC 10
C [2021] WACIC 20
J [2009] WACIC 31
JYCD [2019] WACIC 16
X v McAllister [2021] WASCA 3

Reasons for Decision:

  1. By application lodged on 9 June 2021 “F” (the applicant) made a claim through his solicitors for criminal injuries compensation claiming compensation pursuant to section 17 of the Criminal Injuries Compensation Act 2003 (the Act) for alleged offences which took place between 7 January 1999 and 27 May 2004 (CIC 1073/2021). The applicant nominated the applicant’s mother (KJ) as the offender asserting she had committed acts of chronic neglect and physical abuse between 7 January 1999 and 27 May 2004 (the relevant period). A second application lodged on the same date nominated the applicant’s step‑father, (DE) as the offender as having committed neglect and physical abuse on dates unspecified prior to 27 May 2004 (CIC 1074/2021). A third application (CIC 1075/2021) nominated the applicant’s father (DB) as the offender, also committing acts of neglect and physical abuse of the applicant and physically abusing KJ whilst the applicant was present between 7 January 1999 and October 1999. The applications were accompanied by a detailed letter of submission also dated 9 June 2021.
  2. The applications were supported by a detailed report dated 26 October 2020 from Dr Danny Shubb, a specialist child adolescent psychiatrist, as well as a bundle of documents obtained via the Department of Communities and its predecessor which are referred to below.
  3. On 23 August 2021, I wrote to the applicant’s solicitors acknowledging receipt of the three applications and noting the range of dates concerning the applicant’s claim. I noted the 7 January 1999 was the applicant’s birthdate and 27 May 2004 was when the applicant was taken into care. I advised the applicant’s solicitors my preliminary view was the documents provided and the submissions made effectively asserted the named offenders had committed offences under the Children and Community Services Act 2004 and its predecessor legislation. I took the preliminary view that notwithstanding three applications had been made, the proper approach was to regard the behaviour of each named alleged offender during the relevant period as evidencing a continuum of abuse and neglect throughout that period and accordingly, a single statutory maximum pursuant to section 31 of the Act applied, namely, the maximum payable in this instance would be $75,000 as the applicable statutory maximum for the most recent date of the alleged offences in 2004. I referred the applicant’s solicitors to the decision of the Supreme Court in the matter of X v McAllister [2021] WASCA 3.
  4. By letter dated 25 October 2021 the applicant’s solicitors submitted the appropriate approach was to regard the applications as evidencing distinct periods of chronic neglect of physical abuse and that accordingly it was open for an assessor to make an award being twice the jurisdictional maximum for all of the offences by all of the offenders. Extrapolating those submissions, the statutory maximum in this case would be three times $150,000.
  5. On 27 October 2021 I acknowledged the applicant’s solicitor’s further submissions noting the applications concerned three distinct allegations of chronic neglect and physical abuse by the three named offenders who had the care of the applicant during the relevant period. In response to the applicant’s solicitor’s submissions, I observed in substance the applicant may have suffered injury as a result of long-term chronic neglect and abuse by three offenders who at times were acting separately and together to harm the applicant. I took the preliminary view that as there was no assertion there were offences different in nature to the allegations of chronic neglect and physical abuse, the appropriate approach was to view this matter as a single application asserting injury to the applicant by chronic neglect and abuse by three persons acting separately and together as part of a continuum of behaviours during the relevant period and therefore section 33 of the Act would apply so as to restrict the statutory maximum to $75,000. I did not consider the behaviours alleged triggered section 34 of the Act.
  6. The applicant’s solicitors responded by providing further submissions in a letter dated 12 November 2021. Those submissions concluded by asserting there were numerous records of the applicant witnessing incidents of domestic violence and physical assaults perpetuated upon the applicant’s mother and step-father acting alone. Those allegations were not specifically particularised in any of the submissions made to me, save for to referring me to the various materials provided. As noted below, I did not consider there was sufficient particularity in the materials for those submissions to be adopted. The applicant’s solicitors also asserted the incidents of domestic violence and physical assaults perpetuated by the father and step-father were capable of giving rise to separate claims pursuant to sections 16 and 17 of the Act in relation to each offender. Accordingly, applying the decision in X v McAllister, it was open to the assessor to find section 34 of the Act had been triggered in respect of each of the offenders nominated.
  7. On 24 November 2021 I made an award in favour of the applicant in respect of the three applications noted above. The award was made pursuant to section 17 of the Act in relation to alleged offences which occurred during the relevant period at various locations. I awarded $150,000 to the applicant on the basis I was satisfied there was evidence to trigger section 34 of the Act because I was able to take into account evidence of discrete instances of assault upon the applicant. It is implicit in the award I did not fully accept the applicant’s solicitor’s submissions section 34 was triggered in respect of each and every offender nominated. The facts upon which the award was made are set out below arising from the materials provided by the applicant’s solicitors.
    Background
  8. The details of the applicant’s background are summarised below from the documents and submissions supplied by the applicant’s solicitors. F is the son of KJ, his mother, and DB, his father, who separated before F was 12 months old. F has a half-sibling, SE whose father is DE and therefore the stepfather of F. Sometime in 2001, KJ sought assistance with respect to F’s behaviours. From 2001 onwards several agencies and specialists became involved in assisting F and his mother KJ including:
    (a) Princess Margaret Hospital (PMH),
    (b) Kwinana Community Mental Health Centre,
    (c) Ms Sally Williams (Speech Pathologist),
    (d) Dr Elizabeth Green (Paediatrician)
    (e) The Disability Services Commission (“DSC”),
    (f) The State Child Development Centre (“SCDC”),
    (g) The Department of Education and the Department of Communities – Child Protection (“the Department”).
    Notably DSC obtained reports which diagnosed F with autism however the SCDC and PMH did not consider F met the criteria for autism and viewed F’s behaviours in the context of delayed development and trauma symptomology.
  9. The Department first apprehended F on 12 December 2003 (just prior to his 4th birthday) but returned him to KJ on 29 March 2004. On 27 May 2005 Department again apprehended F and he remained in care until he turned 18 years on 11 January 2017 and has since been living in a supported home with Life Without Barriers. Between the age of seven and 17 years, F resided with foster carers TK and PK, whose surname he adopted in 2013. On 22 December 2016, the State Administrative Tribunal (SAT) appointed the Public Trustee of Western Australia to be F’s Plenary Administrator and appointed the Office of the Public Advocate (OPA) to be F’s Plenary Guardian.
  10. From the records provided from various sources noted above, KJ reported to Ms Sally Williams that DB was consistently abusive throughout her pregnancy with F. F was breast fed for 6 ½ months after his birth during which time DB would often strike KJ on the head or face whilst she was feeding him. Consequently KJ feared for F’s safety. KJ also reported to the SCDC a history of domestic violence, both before and after F’s birth asserting F had witnessed many instances of violence. I note F would have been an infant at this time and that KJ separated from DB in October 1999. KJ reported to PMH that when F was eight months old, she was “hit” and she went to “a safe place”. PMH notes record generally that F has been exposed to extreme domestic violence in a very hostile, over emotional family context from the moment of his birth…” DSC documents record “[p]revious reports indicate that F both witnessed and experienced abusive situations when he was a toddler and young child” and “F was ‘[e]xposed to noise, tension and domestic violence for the first 4 years of life. Early reports indicate F both witnessed and experienced abusive situations when he was a toddler and young child. Likely to have been psychically abuse(d) and suffered neglect”. Likewise, the Department noted “[i]t has been reported by KJ that as a young child, F witnessed domestic violence while KJ was in relationships with his father DB and his stepfather DE. F was often scape-goated by KJ and ‘put down’ by DE, who would call him names to the effect of calling him ‘slow’ or ‘retarded’…”. In October 2001, PMH referred F and/or KJ to Kwinana Community Mental Health Centre noting among other things:
    KJ felt the behaviour had escalated since his adenoidectomy in January 2001. At that stage he had also been rejected by DE…F had also been present in the past when KJ was physically abused by DE and there are concerns that some of this abuse may have extended to F.
  11. In October 2001, PMH also referred F to its Department of Psychology Medicine noting:
    “it was obvious that this child has been subjected to a very unsettled early life with family violence … The violence was extended both to KJ and it is thought to him”.
  12. In December 2001, Ms Williams opined “having observed him with KJ and his grandmother today, I believe that the family is greatly at risk”.
  13. In February 2002, KJ reported to SCDC that:
    at present the household comprises KJ, DE F and SE. F spends at least three days a weeks with his grandmother. F and DE were reported to have a fairly good relationship until SE’s birth four months ago … KJ feels that DE is now getting frustrated at F’s behavioural problems and starting to resent him.
  14. In May 2002, PMH notes recorded there was a “very disturbed attachment to DE following early violent & disrupted family life”; and F is being scapegoated in this family as being the cause of all problems”. In May 2002, F was admitted to PMH for “social problems”. Admission notes from PMH show:
    REDACTED was very upset at F possible discharge on Monday, wanted us to keep him ‘until he was better’…Both REDACTED are very negative to this boy & he behaves accordingly.
    When discharged PMH Psychology recommended 60 hours day care a week “in view of the severity of the difficulty in the relationship between this child and DE and the risk that the difficulties may escalate and result in harm to him … It may be that F needs full term fostering”. In a Psychological Report dated 20 August 2002, the SCDC noted F had been referred for an autism assessment however the report noted F
    presents with a complex and traumatic family background with stress that appears to have impacted on his early development and forming of primary relationships…F shows significant anxiety and difficulty regulating his emotions when distressed … It is possible these may reflect some earlier events for which F does not have verbal recall
    SCDC notes record that F did not meet the criteria for autism observing
    It was felt that his difficulties were better explained by a significant language delay and anxiety relate to his language problem, previous trauma and difficult family relationships.
  15. On 24 August 2003, F was taken to PMH’s Emergency Department after falling backwards onto a brick pillar. The PMH notes recorded KJ reported no loss of consciousness however there had been “numerous vomits since” and KJ “did not wait” leaving in less than an hour after presenting.
  16. On 12 December 2003, DSC contacted the Department’s Crises Care seeking a placement for F on the basis of “the high level of risk of harm to the child” if he was to stay in the care KJ. Given that last week she had hit F in the mouth and split his lip open.” DSC records noted: “
    during the incident, which precipitated F going into respite, KJ made no attempt to modify her behaviour despite the fact that there were three workers present. DE stated she had hit F across the face and made it bleed”. Following this incident F was placed in foster care but in April 2004 he was returned to KJ. Shortly thereafter KJ requested that F be placed in permanent foster care.
  17. On 2 May 2004, F was admitted to the PMH Emergency Department after a suspected overdose of dexamphetamine. The notes recorded F was also five years behind in immunisations.
  18. On 4 May 2004, DSC reported to PMH that KJ had begun to hit F again … had to ‘hose him down’ on weekend to stop his tantrum”. DSC was of the view that “F should have already been apprehended”.
  19. On 5 May 2004, DSC noted in a report to the Department F had been disciplined with a wooden spoon and (as noted above) with a garden hose when he was having a tantrum. It noted KJ regarded F as a naughty child with little insight into F’s needs and failed to implement behavioural strategies, unless she herself was supervised, but noted that F’s behaviour at school had improved with teachers setting boundaries for his behaviours. There were still reports of uncontrolled behaviours when F was under the supervision of KJ. School reports to DSC noted concerns KJ was manipulative. F was brought to school on many occasions in dirty clothes and not washed and KJ advised she was unable to dress F because of his tantrums, though at school he was able to be washed and have his hair done without incident. It was noted he would come to school with food on his face, and on one occasion had come to school un-showered and still in his pyjamas smelling of urine. It was noted that KJ said “I feel like hitting him and I don’t really want to have him”.
  20. On 27 May 2004, the Department apprehended F a second time and he remained in care until 11 January 2017. Whilst in care F continued contact with KJ under the supervision of a contact worker who noted KJ would not interact with F unless prompted to do so. On 25 January 2006, F was placed with PK and TK. Contact with KJ and SE continued with additional contact with F’s maternal grandmother, though it was noted in Department records that with “weekly contact with mother – behaviour deteriorates”. Likewise, in May 2008, the school recorded “[foster] parent reports that behaviour escalates following contact with his mother”.
  21. From the large volume of medical notes and reports provided by the applicant’s solicitors I summarise the various findings.
  22. He was noted to have serious delays in language development with only about 10 single words and no two-word combinations at age two years and 11 months consistent with physical abuse and neglect. He had no comfortable frame of reference for the first five-seven years of his life. In 2001 he was diagnosed with Attachment Disorder of Infancy. He was noted to have severe delays in socialisation and adaptive behaviours causing frustration and behavioural difficulties. In 2002 it was noted his behavioural problems were consistent with an initial diagnosis of Pervasive Development Disorder attributed to childhood trauma probably related to a depressed preoccupied and often angry mother as well as witnessing domestic violence. Some of those behavioural issues manifested in eating banana and orange skins, with uncontrolled defecation at home and school. A diagnosis of autism has been made at various times though this has not been consistently adopted by his various medical providers. He has been prescribed various medications (including Dexamphetamine) following observations he was sometimes violent with other school pupils. In December 2003 it was noted there was no medical basis for F’s outbursts which were more likely attributed to poor parenting, poor management of his social environment, favouritism of his step sibling SE and rejection by his mother KJ resulting in poor mother-child bonding.
  23. In 2004 whilst under the care of KJ he was admitted to PMH with an overdose of Dexamphetamine. After November 2004 when placed in foster care his school and Departmental records show improvements in F’s overall behaviour. His behaviour settled and his medications were reduced. By 2006 the provisional diagnosis of autism and/or intellectual disability were withdrawn, and recommendations were made to reduce his medications, though it was recommended he continue with psychological and psychiatric care. Contact visits with KJ however continued to result in escalation of erratic behaviour.
  24. In 2007 a diagnosis of PTSD was made with mixed anxiety and depressive disorder; reactive attachment disorder; language disorders and otherwise mixed developmental disorders; mixed conduct and emotional disorder. Although there were concerns in relation to F’s continued aggressive behaviour at school there was also recognition of his ‘huge progress in his academics and his verbal skills and articulation’. F was noted to be subject to self-mutilation and self-criticism and depression and it was “not possible to exclude [a diagnosis] of ADHD”. Despite improvements at school, following his placement into care, he was noted to have a low IQ with a need for ongoing therapies, and needing teaching aides if he was to continue in mainstream schooling. As at 2008 it was noted some medications might continue to be needed if there was any dissociative behaviours. Taking all these matters into account I am satisfied having regard to the significant volume of material provided on behalf of the applicant that:
  25. It is probable the applicant was genetically predisposed to psychiatric illness however his exposure to chronic violence, neglect and parental abuse, resulted in profound disturbance of his intellectual and emotional developmental.
  26. He has suppressed multiple traumatic memories and is unable to recall many adverse experiences consistent with PTSD, resulting in emotional outbursts requiring ongoing medication and therapy. This diagnosis and resultant developmental delay was caused or contributed to by his exposure to violence and parental neglect.
  27. As a result of the above the applicant is significantly psychologically impaired, which has affected his emotional and social development and impaired his capacity for work.
  28. It is unlikely the applicant would ever be able to maintain sustained full-time employment in the open employment market and as a consequence the scope of the applicant’s employment has been significantly reduced.
  29. As noted above, on 24 November 2021 I made an award in favour of the applicant in the sum of $150,000. In doing so I noted the decision of the then Chief Assessor in ABC [2011] WACIC 10, where the Chief Assessor recited the history of neglect claims with reference to the relevant statutory provisions under the Child Welfare Act 1947 and the Children and Community Services Act 2004. Until the decision in ABC, assessors had been reluctant to make awards in relation to claims for neglect and abuse. Such claims do not fit comfortably into the general matrix of the Act (see for example the decision in J [2009] WACIC 31), however since ABC assessors have accepted where there is evidence to satisfy an assessor there has been a breach of either the Child Welfare Act 1947 or Children and Community Services Act 2004, any injuries sustained as a consequence are compensable under the Act. In JYCD [2019] WACIC 16 following ABC, I noted the offences described in the Child Welfare Act 1947, section 31A and its successor constitute a single offence based on a continuum or amalgam of particularised behaviours either as a single act or several acts of behaviour contrary to those provisions. Because the prescribed behaviours constitute a single offence, the statutory maximum as prescribed by section 31 of the Act is a single statutory maximum. Attempts are often made by practitioners to trigger section 34 of the Act by multiple applications asserting a variety of prescribed behaviours to portray those behaviours as constituting separate and discrete offences and/or separate and discrete periods of offending. These matters were discussed in detail in the decision of C [2021] WACIC 20 at paragraphs 67-72, by Assessor Hafford. I adopt the reasoning of Assessor Hafford in determining this matter. I note the reasoning in JYCD was confirmed in the Supreme Court matter of X v McAllister, that is, by analogy only a single statutory maximum is available where the subject of the application concerns a breach of a single charged offence (such as neglect, persistence sexual conduct or stalking) notwithstanding the multiplicity of behaviours constituting the single charged offence. In practice the Department of Communities and its predecessors rarely proceeded to prosecution under sections of the Child Welfare Act 1947 and the Children and Community Services Act 2004 relevant to this application. This is because those provisions are usually called in aid to trigger applications for apprehension of children rather than the prosecution of the carers or parents. Accordingly, there are very few decisions of the superior courts save for those matters outlined in ABC.
  30. The task for the assessor is to determine the nature of the behaviours outlined in the papers submitted in support of the various applications lodged. There are no formal pleadings under the Act and by reason of section 18(2) of the Act I am not bound by rules or practice as to evidence or procedure. In addition, I have power to amend an application of my own initiative pursuant to section 19(1)(a) of the Act. It follows notwithstanding multiple applications are lodged and/or multiple submissions are made in relation to the nature of the claims made, it is for the assessor to ultimately determine how those alleged behaviours should be treated with reference to the relevant legislation. In effect, the scheme of the Act requires me to determine any claim for compensation having regard for the substance of the claim rather than the form. In this case I have set out above the facts and circumstances of the neglect and abuse of the applicant. From about 2001 onwards the applicant’s mother KJ sought the assistance of various agencies in relation to F’s behaviour. As those agencies became involved in the treatment and management of F various histories were recorded which disclosed levels of abuse and neglect. In terms of abuse and neglect the most telling evidence relates to the information obtained from F’s school. They disclose when he presented at school he was dirty and unwashed and could not be properly dressed because of tantrums. He would often present with food on his face and on occasion smelling of urine. As a consequence, I accept this was indicative of systemically poor parenting, neglect and abuse and this form of abuse was part of a continuum of behaviours over the relevant period, which I am satisfied were offences under the Child Welfare Act 1947 and the Children and Community Services Act 2004. At various points it would have been possible for the Department to apprehend F, prior to his final placement into care. I am also satisfied there were specific and discrete instances of assault, such as, the physical disciplining with the wooden spoons and other objects by KJ. Having found there was a high level of neglect and abuse and noting the debilitating impact of that neglect upon the applicant’s development both intellectually and emotionally I found he has sustained injury as a consequence of the offence of neglect and abuse. I found that as well as the pain and suffering experienced, he had suffered loss by reason of his significantly reduced capacity to engage in the workforce. That loss was substantial. Accordingly, I was satisfied the statutory maximum should be payable for those injuries and losses. I accepted section 34 of the Act was triggered by the evidence of the discrete assaults as outlined above. It was also apparent from the evidence, taken as a whole, the applicant’s mother KJ was the principal offender and cause of his injuries with DB and DE contributing to those injuries over the relevant period of 7 January 1999 and 27 May 2004. Looking at the substance of application CIC 1075/2021, which nominated DB as an offender together with KJ, I disregarded any contribution by DB. I took into account the short period of the applicant’s exposure to DB and the lack of particularity in relation to the allegations of abuse and neglect by DB. To that extent I disregarded DB’s purported role in the applicant’s upbringing and ultimate neglect. As to the contribution by DE, the applicant’s step-father, I noted application CIC 1074/2021 referred only to a contribution to the applicant’s injuries ‘prior to May 2004’. Upon a close reading of the materials provided I likewise noted a lack of particularity in relation to the contribution of DE as regards the neglect and abuse of F. I was satisfied he probably favoured SE and ‘scapegoated’ F for the dysfunction in the family but was not satisfied he made any material contribution to the applicant’s injuries. The evidence supported taking the relevant period as the overall period of offending rather than breaking it into three discrete periods as submitted by the applicant’s solicitors which I considered was an artificial construct. In effect the applicant had been injured as a consequence of offences between the periods 7 January 1999 being his date of birth and 27 May 2004 the date upon which he was apprehended. Those behaviours which were in the nature of abuse and neglect fell within the parameters set out in the Child Welfare Act 1947 and the Child and Community Services Act 2004. The applicant suffered injury principally as a product of the behaviours of the applicant’s mother who I find contributed significantly to his injuries, with minor and not material contributions by his father and step‑father at various points in time throughout this period. Those behaviours therefore constituted a ‘single offence’ following the decision of X v McAllister. As noted, I accepted there were discrete offences of assault documented above referencing the mother KJ in addition to the forms of neglect and abuse which triggered section 34 and consequently, having implicitly amended the three applications lodged to be treated as a single application, and refusing those matters as they related to DB and DE, I made the award of $150,000 which is the amount allowed having regard for sections 31 and 34 of the Act as at 27 May 2004.
  31. Pursuant to section 64(3)(a) of the Act I prohibit publication of any particular of these reasons that is likely to lead members of the public to identify the applicant.

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

R Guthrie, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

16 MAY 2022