Fesolai v Director-General, Department of Justice and Attorney-General [2017] QCAT 100

CITATION: Fesolai v Director-General, Department of Justice and Attorney-General [2017] QCAT 100 PARTIES: Aulafo Fesolai (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML129-16 MATTER TYPE: Childrens matters HEARING DATES: 17 January 2017; 28 February 2017 HEARD AT: Brisbane DECISION OF: Member Joachim DELIVERED ON: 5 April 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General to issue a negative notice to Aulafo Fesolai is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue card – where application has convictions for assault against children in her care – where applicant received suspended gaol sentence – where children removed from her care – where Department of Communities, Child Safety and Disability Services had previously warned applicant about excessive discipline against children – where applicant has strong church connections – whether protective factors outweigh risk factors – whether case is exceptional Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 -- 1 of 9 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 360 Commissioner for Children and Young People & Child Guardian v Maher & Anor [2004] QCA 492 APPEARANCES: APPLICANT: Aulafo Fesolai represented herself RESPONDENT: The Department of Justice and Attorney- General represented by Ms H Marunda REASONS FOR DECISION [1] Ms Fesolai lives in the Ipswich area and is a native of Samoa. She applied for a blue card in 2012 and was subsequently issued with a negative notice on 5 March 2013. Blue Card Services subsequently received an application to cancel the negative notice issued to the applicant. Following a reassesment Blue Card Services issued her with a negative notice. [2] Ms Fesolai says she wants a blue card so that she can provide childcare in her home, and also to teach children at her church. She has two biological children of her own who are now adults, and some years ago adopted four Samoan children of a family member. [3] When she was 44 years of age she was charged with a number of offences involving assaults in respect of some of the adopted children. Most of the charges involved assaults occassioning bodily harm whilst armed and in company. Ms Fesolai pleaded guilty in the Ipswich Magistrates Court to assaults occasioning bodily harm whilst armed and in company, and charges of common assault. Convictions were recorded. Ms Fesolai was sentenced to 15 months imprisonment and was released on parole immediately. She was also placed on probation for a period of 18 months. [4] Ms Fesolai seeks a review of the decision of Blue Card Services to issue her with a negative notice. None of the offences are serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Consequently, Ms Fesolai is entitled to receive a positive notice and blue card, unless it is considered that hers is an exceptional case such that it would harm the best interests of children for her to have a positive notice.1 [5] Blue Card Services considered Ms Fesolai’s case an exceptional one. 1 Working with Children Act, s 221. -- 2 of 9 -- 3 [6] The purpose of the review is to produce the correct and preferable decision.2 The Tribunal may: a) confirm or amend the decision; b) set it aside and substitute its own decision; or c) set it aside and return it to the Director-General, Department of Justice and Attorney-General for reconsideration.3 [7] Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special. [8] I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances. [9] The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act. [10] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. [11] Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not. [12] In order to issue a positive notice to Ms Fesolai I need to be satisfied on the balance of probabilities bearing in mind the gravity of the consequences involved that an exceptional case does not exist. The case put by Ms Fesolai [13] Ms Fesolai acknowledged that what she did was wrong and apologised for it. She submitted that she had learned from it and is growing in her heart. She indicated that at the time of the offences she was very stressed as she was looking after not only her two biological children, but four adopted children from Samoa and that this was too much from her. [14] In addition, her brother and his wife, along with their eight children came from New Zealand to live with them. Ms Fesolai advised that she and her husband had to support all of them with money, food and school fees etc for six months. [15] In oral submissions Ms Fesolai stated that she loved her children, including the adopted children and that she disciplined them with her heart. She 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20. 3 Ibid, s 24. -- 3 of 9 -- 4 acknowledged that one child ran away and that the others did not wish to live with them. She says that the door is still open to them. [16] Whilst Ms Fesolai has no contact with the four adopted children, she stated they still talk with her two children. She advised that she took the children on school days to work in the family cleaning business because they could not afford to take on staff and they needed to buy items for the children. She stated that she wanted the children to have a better life and that was the reason why she brought the adopted children to Australia. She stated she was remorseful for what she did and she wants them to have a good future and the best in life. [17] Ms Fesolai stated she is a changed person and doesn’t want to go back to the past. Ms Fesolai advised that she had changed in a number of ways. She said she is able to control her temper, she no longer swears, she walks away when she gets annoyed and that she now keeps quiet when she disagrees with others. She also says she does a lot of reading. She acknowledged that she should not have asked the children to work, but they were struggling financially, and if she used the children the money would stay in the family. She states that she has learned her lesson. She stated that her adopted children don’t feel that she was good enough to them and she does not blame them for thinking this as she said she didn’t love them enough. [18] In support of her application, she called evidence from her biological son and daughter, both of whom attested to having a loving and caring mother who was the best mother anyone could have. Both acknowledged they receive physical discipline from their mother, that being in the form of a slap on the backside or on the wrist. Both stated their mother never used a belt or other instruments on them. They had seen their mother physically discipline the adopted children but never saw their mother use any implements. [19] Valencia, Ms Fesolai’s daughter, did recall bruises on the children but was unaware of the reasons. Valencia was aware that all the children, including herself, were removed because of the way the parents had disciplined the children. She indicated that her mother used to speak to them a little aggressively, but now addresses things more softly. In relation to interacting with children, Valencia says that her mother loves children and compliments them. She stated she used to get up at 3:00 or 4:00am in the family business and the cleaning had to be done by 7:00am. She stated this occurred only on weekends. This evidence contradicted what the applicant said, who said the children worked on school days. [20] Tavita Vaoivea gave evidence on before of Ms Fesolai. Tevita had been Branch President of the Church of Jesus Christ and Latter Day Saints to which Ms Fesolai attended. He referred to her as one of the chosen ones with a lot of potential with respect to the community. He stated ‘we really need her to have that blue card’. He was aware of police involvement but had not read the reasons document of Blue Card Services. -- 4 of 9 -- 5 [21] Mr Vaoivea described Ms Fesolai as trying to solve issues in the family which led to some differences with some of the adopted children. He stated he was aware of the assault noting that Ms Fesolai may have made mistakes in the past, but plays a very important role in the church. He thinks she is a changed person now and has moved forward in faith. He was aware children had been removed from her care. [22] Mr Vaoivea stated that Ms Fesolai had gone through counselling with church leaders and he has seen a change in her and that she has learned from past mistakes, using strategies such as referring to the teachings of the gospel. He has not seen her interacting with children, but is aware Ms Fesolai advises mothers regarding finding peace in life. He has known her for approximately 20 years. He stated she now has a maturity and has fully repented. [23] Ms Fesolai’s sister-in-law, Samantha Solomona, gave evidence for Ms Fesolai. Ms Solomona stated that her children love Ms Fesolai and that she feels that they are safe with her. She was not aware of the incidents which led to Ms Fesolai’s criminal history. She had heard that there had been some family argument and that it went to court. She has known Ms Fesolai since 2012 and sees her every two to three weeks. She was not aware that Ms Fesolai had adopted children and was not aware of the involvement of child safety. Why Blue Card Services say Ms Fesolai should not be issued a positive notice [24] The submissions of the Director-General note that I need to take s 226 of the Working with Children Act into account in determining whether an exceptional case exists. Section 226 outlines a non-exhaustive list of matters that I need to take into account, including the circumstances of any charge and or conviction. [25] Ms Fesolai’s criminal history includes 15 criminal offences which are directly child related, recorded on her criminal history from December 2007 to March 2008. It was in this period that Ms Fesolai repeatedly assaulted her adopted children who were aged between 11 and 16 at the time of the offences. [26] The Director-General argues that her actions constituted a serious breach of her position of trust as the children’s adopted mother, in that the offences involved continuous and violent attacks on the children using objects such as golf stick, timber and a plastic container. The children’s injuries included bruising to various parts of their bodies, a perforated eardrum and broken rib injuries that were not healing properly. It appears that Ms Fesolai’s 11 year old adopted daughter was knocked unconscious on two occasions after having been hit by the applicant. It also appears that none of the children received medical attention at the time for their injuries. [27] Ms Fesolai was in a position of trust and authority and had a duty of care to provide basic protective functions of a parent. The Director-General argues -- 5 of 9 -- 6 that her actions were in direct contrast with providing a protective environment and by offending over multiple occasions she failed to demonstrate any insight into the harm caused to her children as a result of her actions. [28] The Director-General also obtained material from the Department of Communities, Child Safety and Disability Services (‘DCCSDS’) relating to its involvement with Ms Fesolai and her family. [29] In May 2004, concerns were raised that Ms Fesolai’s biological children had been inappropriately physically punished by Ms Fesolai who used an implement on one of the children which left some bruising. Ms Fesolai was interviewed at the family residence about this and she made admissions to hitting the children, but denied using any instrument. On further questioning she admitted to using a belt on the child. As a result, DCCSDS found substantiated harm to the children and noted the children would be at future risk should the parents continue to use inappropriate and excessive physical discipline techniques. [30] DCCSDS noted that Ms Fesolai and her husband were honest in admitting that they tended to use physical means as the usual way to discipline children and agreed that the amount of force they had used was excessive and inappropriate. Ms Fesolai was essentially put on notice in relation to the use of excessive discipline. The parents had indicated a strong commitment not use to excessive and inappropriate physical discipline in the future. [31] Nevertheless, in March 2008, concerns were raised in relation to Ms Fesolai’s four adopted children. As a result of the offences referred to earlier, and as a result of DCCSDS’ investigations, the Director-General observed it was clear that the adopted children had been physically harmed by Ms Fesolai and her husband; that this was of a violent nature using instruments such that the children sustained injuries involving significant bruising. The assaults came to light after one child ran away from Ms Fesolai’s house. All children, including the biological children were subsequently removed from Ms Fesolai’s care. Whilst the biological children returned to Ms Fesolai, the four adopted children refused to do so. [32] Blue Card Services submitted that I should note the Court of Appeal in Commissioner for Children and Young People & Child Guardian v Maher & Anor4 (‘Maher’), accepting the approach of considering risk and protective factors in deciding whether a particular case is exceptional. The Director- General suggested that the protective factors included the following: a) Ms Fesolai provided information suggesting she participated in an offender’s program and engaged in counselling; 4 [2004] QCA 492. -- 6 of 9 -- 7 b) Ms Fesolai provided many references from people who have known her for a significant period of time and who speak positively of her and her positive interactions with children; and c) Ms Fesolai’s two biological children commented positively on her parenting ability. [33] The Director-General submitted that there were also risk factors present, which included: a) Ms Fesolai having repeatedly assaulted children in her care. Such assaults involving sustained violence causing injury; b) Ms Fesolai at the time was a mature adult in a position of trust and the pattern of behaviour indicated repeated violence on the children; c) Ms Fesolai used weapons in the commission of the offences; d) The children required medical treatment for their injuries; e) The assaults were witnessed by other children in her care; f) Ms Fesolai minimised the seriousness of her conduct by way of stating in submissions made in June 2016 ‘I know I was a bit hard on them but I wanted nothing but the best for them’ and she ‘disciplined her children the way any mother would’; g) The use of children in her care in paid work suggests she was willing to neglect the needs of children in favour of her own and was not prepared to prioritise their health and wellbeing; and h) Ms Fesolai stated in evidence that she just smacked the children hard was inconsistent with the police and hospital material. [34] The Director-General submitted that the risk factors render this case an exceptional one such that it would not be in the best interests of children and young people for Ms Fesolai to be issued with a positive notice and blue card. The Tribunal’s view [35] I agree with the submissions of the Director-General. I give little weight to the evidence of Ms Fesolai’s children as they, of course, would like her to be seen in a favourable light. I have no doubt that they love their mother and that love is reciprocated. I have no doubt that they truly believe she is a loving mother and has done the best for them. [36] It concerns me greatly that the offending behaviour took place at a time when Ms Fesolai was already heavily involved with the church. She cannot rely on her church involvement now to argue that her risk of causing harm to children in the future has been eliminated. -- 7 of 9 -- 8 [37] I accept that she is remorseful for what she has done. I do not consider that Ms Fesolai’s insight is at a sufficient level that I could be comfortable with her acting appropriately at all times with children. On a number of occasions when she gave evidence she avoided answering questions, she did not want to talk about the past and she did not acknowledge in any real sense the impact of the assaults on her adopted children. [38] The Director-General argued that whilst Ms Fesolai attended counselling it was likely that this was tactically to get a favourable decision because it was done whilst the court proceedings were on foot. The Director-General argued that insight is the most important factor for the Tribunal to consider. I agree. [39] Whilst Ms Fesolai argued before me that there was no use of implements, she has already admitted this to DCCSDS. I cannot go behind the material presented to the Court and the Court’s factual findings and the fact the charges were pleaded guilty to. [40] It concerns me greatly that Ms Fesolai was involved with DCCSDS in 2004 and where she received warnings about discipline. She is said by DCCSDS to have understood that what she did was wrong. Four years later she physically assaulted children in her care for which she received a gaol sentence, although it was suspended. [41] I have considered the various matters in s 226 of the Working with Children Act. The offences are of direct relevance to employment or carrying on a business that involves or may involve children. I note the penalty imposed consisted of a term of imprisonment, although this was immediately suspended and Ms Fesolai was placed on probation and parole. I note the period of offending was across a short period of time. [42] I also note that the adopted children were used in Ms Fesolai’s cleaning business requiring them to wake up hours earlier than normal and to work unpaid for a number of hours before attending school. Ms Fesolai threatened physical harm to at least one of the female complainant’s if she disclosed what happened at home. [43] I accept what the Director-General has said with respect to s 226. The seriousness of the offending makes it difficult, in my view, to place Ms Fesolai in a position of trust. Children’s welfare depends upon adults exercising proper judgment to protect children from harm. It was only in her final submissions that Ms Fesolai noted that she was under a lot of stress. The Director-General argues that Ms Fesolai’s triggers have not been addressed. Indeed, until Ms Fesolai made her submissions, there were no identified triggers. [44] Apart from her involvement with the church, Ms Fesolai has not identified what she is currently doing to address stress type triggers. I accept that Ms Fesolai is heavily involved in her church and received some counselling. These are strong protective factors. -- 8 of 9 -- 9 [45] I consider, however, that the risk factors outweigh the protective factors and that this is an exceptional case such that it would harm the best interests of children for her to have a positive notice and blue card. I will confirm the decision of the Director-General, Department of Justice and Attorney- General to issue Ms Fesolai with a negative notice. -- 9 of 9 --