CCPR/C/120/D/2798/2016
Minister in charge of the Department of Community Services from proceeding with court
action in the Wyong Children’s Court, by which the latter had sought orders to place the
author’s daughter in the care and custody of new foster parents while the High Court
determined the matter. The author also sought to take advantage of new rules applying to
the High Court that came into effect in January 2005, allowing unrepresented applicants to
file written submissions to the High Court to seek leave or special leave to appeal. Her
application was rejected by the Registrar on the basis of rule 6.07, according to which such
applications can be rejected by the Registrar if it appears on its face to be an abuse of
process of the Court, or to be frivolous or vexatious. The author submits that her application
did not fall in any of those categories.
2.13 The author sought federal legal aid assistance to lodge an appeal before the High
Court of Australia, but her application was refused. She explains that, without such
assistance, she could not proceed because she was not able to pay for a senior counsel to
assist in the appeal.
2.14 The author explains that, in April 2008, with the daughter now turning 18 years of
age, the Department of Community Services commenced proceedings to be in charge of her
guardianship. The author made an application to the New South Wales Guardianship
Tribunal to join the proceedings in order to seek a guardianship order in respect of her
daughter. The Tribunal did not permit the author or her daughter to provide evidence and
announced before the proceedings had ended that it was not considering issuing a
guardianship order in favour of the author. During the proceedings, a medical report was
disclosed stating that the author’s daughter was receiving “sexual assault counselling”. Due
to a lack of financial resources, the author’s counsel was unable to file an application in the
High Court of Australia to stay the proceedings in the Guardianship Tribunal and to request
the removal of the matter from the Tribunal to the High Court.
2.15 On 23 September 2013, the author’s counsel sent a letter to the National Children’s
Commissioner of the Human Rights Commission requesting assistance to help the daughter,
who was 23 years old at the time. 3 The counsel only received a brief telephone call in
response, informing that the Human Rights Commission could not assist in the matter.
2.16 The author provides letters and affidavits from different individuals testifying that,
throughout the years, her daughter consistently requested to live with her and complained
about sexual and other abuses by her father, stepmother and Department of Community
Services employees.
The complaint4
3.1
The author claims that her rights and those of her daughter under article 2 (1) of the
Covenant have been violated because the State party has not treated them with respect but
instead has used their status as vulnerable individuals with a mental disability as a vehicle
to deny or ignore and violate the rights they have under the Covenant, and to discriminate
against them. She claims that such discrimination has had very severe and ongoing
consequences, detrimental to their health and well-being.
3.2
The author also claims that the rights of her daughter under article 7 of the Covenant
have been violated by the State party by taking her, a child diagnosed as being on the
autism spectrum, away from the loving care and support of her mother and from her home,
and placing her in an environment that was unfamiliar, strange and hostile to her, where she
was abused, including sexually, mistreated and neglected, where her wishes were ignored,
where she was medicated against her will and where she was only allowed to have very
little contact with her mother. According to the author, this amounts to cruel, inhuman and
degrading treatment and punishment. She claims that her own rights under article 7 of the
3
4
4
The author provides a copy of the letter sent to the National Children’s Commissioner of the Human
Rights Commission, on 23 September 2013.
The author also claims a violation of her rights and those of her daughter under various articles of the
Convention on the Rights of the Child. As these allegations fall outside the scope of the competence
of the Committee, they have not been taken into account in this communication.