FX v Director General, Department of Justice and Attorney-General [2016] QCAT 513

CITATION: FX v Director General, Department of Justice and Attorney-General [2016] QCAT 513 PARTIES: FX (Applicant) v Director General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML106-16 MATTER TYPE: Childrens matters HEARING DATE: 26 October 2016 HEARD AT: Coolangatta DECISION OF: Member Joachim DELIVERED ON: 8 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Public Safety Business Agency that the applicant’s case is exceptional is set aside and is substituted with the Tribunal’s decision that the applicant’s case is not exceptional. 2. The publication of information that may identify the applicant and her children is prohibited. 0CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – where applicant has criminal history involving drugs and assault charges or convictions – where applicant was a child in care – where applicant suffered abuse and neglect as a child – where applicant entered two violent relationships – where applicant has had extensive counselling and is undertaking study – whether her case is exceptional Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 -- 1 of 12 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Re TAA [2006] QCST 11 APPEARANCES: APPLICANT: FX represented herself RESPONDENT: Mr J Thompson represented the Director General, Department of Justice and Attorney- General REASONS FOR DECISION [1] FX is 45 years old and lives in a regional city of Queensland. She is a mother of four children, two of whom are adults and two of whom live with her. She applied for a blue card in order to complete university studies. [2] FX was issued with a negative notice by the then Public Safety Business Agency (‘PSBA’) which means she did not receive a blue card. The PSBA is responsible for the issuing of blue cards. In considering her application the PSBA took into account her criminal history as well as her involvement with various child protection agencies interstate. [3] Most of her offences, which will be described in more detail later, involved assault and drug related offences or charges. As none of her charges or convictions are for a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’) she is entitled to receive a blue card unless her case is an exceptional one such that it would not be in the best interests of children for her to have a positive notice and blue card.1 The PSBA found that FX’s case was an exceptional one. [4] The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.2 The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act, which outlines what I have to consider in deciding if an exceptional case exists. [5] The purpose of the review is to produce the correct and preferable decision.3 The Tribunal may: 1 Working with Children Act, s 221. 2 Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), s 20. 3 QCAT Act, 20. -- 2 of 12 -- 3 a) confirm or amend the Agency’s decision; b) set it aside and substitute its own decision; or c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.4 [6] 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. [7] 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. [8] 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. [9] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. [10] 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. [11] In order to issue a positive notice to FX 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. FX’s criminal history [12] FX’s history with the Queensland and interstate police services disclosed a lengthy criminal history. [13] FX was convicted: a) In relation to dangerous drug charges in 1991; b) Of stealing in 1995; c) Of common assault in 2001; d) In relation to resisting a police officer and using abusive language in June 2005; e) Of driving a motor vehicle whilst exceeding the prescribed alcohol limit in 2005; and f) Of exceeding a speed limit in 2006. 4 QCAT Act, s 24. -- 3 of 12 -- 4 [14] Other charges in relation to common assault in 2005 and 2009 were dismissed on the basis that no evidence was tendered. The Tribunal does have before it, however, details of events relating to the common assault charges. [15] Apart from driving offences, the last conviction occurred in 2005. The penalties imposed throughout these convictions were monetary penalties with occasional community service orders. [16] In relation to the drug offence, FX states that this occurred in the context of a violent relationship whereby she accepted a guilty plea for her ex-partner who was growing drugs on the property in which they lived. [17] The charges of common assault are somewhat concerning. One involves her visiting the family of a friend of her daughter’s in company with her then partner. A fracas occurred in which a number of people were injured. FX claims that she was not responsible for the incident commencing and that she herself was badly assaulted. Children were involved in the fracas. [18] In relation to the second incident of common assault, FX had been drinking at a hotel and punched a woman with a closed fist causing the complainant to fall to the ground. The complainant suffered bruising and swelling, as well as abrasions. [19] In relation to the third common assault charge, this involved her teenage daughter. FX advises that there was an incident in the home in which her teenage daughter grabbed her following an argument regarding car keys. The teenage daughter claimed she had been punched several times. FX denies this and indicated she was attempting to get the child to stop hitting her and to move her outside. There was no evidence offered in relation to this charge and the matter was dropped. Brief history of FX’s life [20] FX was born in the early 70s. She had a history of involvement with the Queensland child protection agency as a child. It appears she first came to the attention of the Department of Children’s Services in November 1976 following the signing of a voluntarily application by her mother. The involvement of Children’s Services appears to have been intermittent after that time until June 1985 when she was again placed outside the family home. [21] In the records there is references to her being assaulted including sexual assault and approaches for sexual favours. The latter appear to have occurred in 1986. She was placed in care and protection of the Department until she was 18, although it appears that the Department ceased involvement with her in 1998 as her mother applied for a release from the Department. There is, however, a letter on the file that suggests that she was released from the care and protection of the Department in March of 1986. -- 4 of 12 -- 5 [22] Following this, it appears that FX was not welcomed back into the family home and drifted from place to place. She reported having no where to live, going to friends places and moving regularly. She subsequently drifted into a relationship which proved to be highly abusive. In this relationship she had two children and obtained domestic violence orders which were ineffective. [23] The first relationship was with a man called SN. This relationship commenced following some unwanted attention from SN. The relationship was characterised by violence after the children of the relationship were born. FX advised that SN came and went from the family home and regularly turned up unexpectedly. FX advised that he left the relationship in 1992 but he kept harassing and visiting. He would return for months at a time breaching domestic violence orders. [24] In 1998/99 FX went interstate with her two children, NX and AX. She became subject of the attention of the child protection authorities when her son burnt his arm on an iron. There was no intervention from the authorities. She had taken her son for medical attention following the accident when the son was attempting to iron. During that time in South Australia, SN never turned up. [25] FX subsequently returned to Queensland and met a man called TB. He moved into the home she was occupying with the two children at Tweed Heads. She asked him to go as she did not really wish him to be there. He left and subsequently came back. She reported that the children liked him. She subsequently got married against her better judgment and TB began drinking. [26] They subsequently moved to Tasmania to start a new life. She advised that nothing really changed and TB’s drinking led to him becoming aggressive. She made unsuccessful attempts to leave. Subsequently, TB sexually assaulted AX following an earlier event where it is alleged that he pushed NX off a cliff when FX advised him that they were leaving. Following the sexual assault incident against AX, TB served time in prison. He came back to the house to get things but he never stayed at the house. [27] FX advised she subsequently took him to Court for breaches of the domestic violence order and to obtain sole parental responsibility for two children she had had with TB. TB has had no contact with his children apart from obtaining some of his gear from her house. [28] FX advised she is now very choosy about with whom she speaks. She advised this started when TB tried to come back into their life after he had served his prison term. She started making changes in her life when she realised that she was not being listened to by the authorities. She engages in self-evaluation and reflection and realised post-2007 that she needed to fight for her family by taking TB to Court. [29] FX now attempts to integrate herself within the local community and has done voluntary work at her children’s school for many years. She has been -- 5 of 12 -- 6 involved in neighbourhood watch, she socialises with her fellow students and she acts as a university mentor. FX has been studying social science but remains unsure about what she wishes to do. She has undertaken a major in sociology. [30] It is noteworthy that TB continued to be a thorn in her side, slashing her car tyres on one occasion. She subsequently took action and he had to pay restitution. She also noted that she had been to the police on other occasions as well regarding him. [31] Following a stroke in 2011, she advised that she now keeps her boundaries extremely well. She now analyses and critiques what people say. She has stopped smoking. She does not drink and is careful with whom she socialises. She puts more value on herself and is not looking for a relationship. She has become active in the university mentoring program, helping others integrate into the university. She advised how the university appoints people to her to mentor for approximately six weeks. She indicated that she has found being a mentor a good experience over the past two years, having mentored approximately six students helping them to negotiate the university system, manage their workload, obtain a home- life/study balance and advising the students of resources that are available. [32] Recently she has been accepted into the alumni association which has 50,000 members who do mentoring worldwide. She submitted that she is a completely different person and is persistent now with authorities until her voice is heard. [33] One of the charges on FX’s criminal history involved a physical altercation with her daughter. She advised the Tribunal that this was not a feature of their relationship but the daughter had wanted to leave the home as a result of bad dreams about the sexual assault incident. The daughter had also become angry on one occasion when FX went to Launceston for a course. On her return, AX started hitting her and thought that she was putting TB before her. FX attempted to restrain AX who subsequently left the house. [34] FX advised the Tribunal that she is living in Queensland public housing accommodation with her two younger children. She advised she had one further year of study remaining. She sees her older children NX and AX on a relatively regular basis, but indicated that the relationship with AX remains volatile. She advised the Tribunal that she has no extended family to assist her, given her childhood. She stated that she has been in her current accommodation for three to four years, which has been the most stable housing in her life. [35] FX recounted how she had become involved with the Royal Commission into child abuse in 2013 and developed a relationship with a counsellor by the name of Karin El-Monir. She had spent one hour a week for a long time in telephone counselling with Karin, and during this time had learned to recognise her strengths, to develop resilience, to value who she is as a person, to develop compassion for others, to trust in herself and seeing through the façades of others. -- 6 of 12 -- 7 [36] FX now enjoys regular exercise, walking and gardening and undertakes projects to fix things up. She advised she last had employment in 2011. Evidence of Ms El-Monir [37] Ms El-Monir gave evidence by telephone. She indicated that she has a Graduate Diploma in counselling, and a degree in Human Development and used to work for people who have been in care. She advised that she had dozens of sessions with FX, weekly over approximately a two year period finishing in mid-2015. She described the process as supportive phone counselling through the Royal Commission. [38] Ms El-Monir described FX as now being able to regulate her emotions well, being dedicated to the wellbeing of her children noting her involvement at the children’s school, and her acting protectively and wanting the best for her children. She indicated to the Tribunal that FX tried to break the cycle of violence and has a strong commitment to do her best for her children wanting to do things differently. [39] Ms El-Monir said she had no concerns regarding FX’s involvement with children, noting a huge development becoming more reflective and with a thirst for knowledge. She advised that FX is able to analyse behaviour and work out the best way to manage things, that she was very determined, open to growth and was warm towards others. She had no concerns that FX would ever repeat her former relationships. [40] Ms El-Monir advised that she would not have agreed to give evidence to the Tribunal if she didn’t think that FX was suitable for counselling work and if she didn’t think she, as her counsellor, was able to give objective evidence. Ms El-Monir noted that she is a counselling teacher and that she had actually reflected on her objectivity in respect of the evidence she would give. She advised that if people were not reflective then they should not be involved in counselling. [41] Ms El-Monir stated that FX had done everything to protect her children but sometimes that this may not have been enough. Her work with FX has included counselling to ensure that there will be no repeat experiences. Work has been done with FX in respect of her former feelings of powerlessness and she now has red flags for spotting people who may be problematic. [42] Ms El-Monir advised that she had seen FX in a retreat situation in a challenging situation where she stayed safe and avoided confrontation. Ms El-Monir stated that FX has a reflective nature now and was very open, managing herself well during the counselling sessions. She also advised that FX will now seek out services and support and noted a rapid growth in her self-esteem having been referred to complex trauma counselling. [43] Ms El-Monir indicated that the risk factors in FX’s case were obviously her personal history, and noted protective factors being her openness and capacity to reflect, and openness in dealing with challenges. -- 7 of 12 -- 8 The oral submissions of the Public Safety Business Agency [44] Mr Thompson submitted that the reviewable decision takes place under s 354 of the Working with Children Act, and in consideration of s 360 and s 221, noting that FX is entitled to have a blue card unless her case is an exceptional one. [45] Mr Thompson submitted that the decision of the Blue Card Services should be affirmed, the principle concern being whether FX has the ability to sufficiently safeguard children in her care. He noted that the situations of conflict in which she found herself were relatively isolated and shouldn’t weigh heavily on the Tribunal. [46] Mr Thompson noted that the Tribunal has to have regard to the various matters in s 226 of the Working with Children Act, and noted that the matters of concern of Blue Card Services were limited to 2001, 2005 and 2007-2009 incidents. He noted that of most concern was the circumstances relating to the last incident with her daughter. He noted the charge was dismissed in the context of domestic stress and mixed evidence. [47] Mr Thompson referred to the Tribunal to the Queensland Court of Appeal case of Commissioner for Children and Young People and Child Guardian v Maher & Anor,5 in which it was said that each case has to be considered on its merits in respect of whether it is exceptional or not, and where consideration could be given to various risk and protective factors. [48] Mr Thompson submitted that the risk factors were FX’s criminal history and incidents reflective of a history of conflict. Further, that FX had been subject to complex trauma including domestic violence with her partners of choice leading to an increased risk to her and her children. He considered a further risk factor was the repeated acceptance back into the home of the two men in her life, particularly given the history of violence and the harm to children including the potential exposure to harm. He noted that this had been driven by feelings of powerlessness. [49] As to the protective factors, Mr Thompson noted that there has been a break in the entering of destructive relationships and that FX is now able to take steps to persist in seeking assistance from authority and others. There has been a significant development in her self-confidence and engagement with others. She had responded positively to her own mentoring and then used this to support others. Her home life is stable and there has been a considerable passage of time since her offending behaviour. He noted she pursued orders from the Family Court for sole parenting rights and has contacted the police regarding TB’s behaviour. Ms El-Monir’s evidence was highly positive in relation to observing growth and development, and the counsellor had an extended opportunity to observe this, and that there was a strength and ability to be self-reflective. 5 [2004] QCA 492. -- 8 of 12 -- 9 [50] Mr Thompson observed that the reasons for decision documents indicated a number of issues implying FX not taking responsibility for her actions. He noted, however, that Ms El-Monir suggested that FX was now open to accept past mistakes and there was little likelihood that she would repeat her old mistakes. Mr Thompson suggested that the Tribunal should have regard to the significant positive factors. He also noted that FX had been open to the review process and had provided extensive submissions. [51] Mr Thompson referred the Tribunal to a recent decision of QCAT: RPG v Chief Executive Officer, Public Safety Business Agency,6 in which the Tribunal found that at first instance the decision being reviewed in blue card matters was a decision about whether the case is exceptional, and that the Tribunal can go no further in making orders. The submissions of FX [52] FX argued that her case is not exceptional. She noted that the child protection authorities in Tasmania found that she acted protectively towards her children. She referred to the Tribunal to her various character references and voluntary activities. She also submitted that the Tribunal have regard to her counsellors comments that she is open, able to manage conflict and that she has grown personally. [53] FX submitted that she is not a personal risk to any child and providing for her children to have a positive future. She submitted she has learned skills to manage issues in the best interests of children, noting there have been no allegations against her for a considerable time. She noted that she had suffered considerable trauma in her life at a very young age. She noted that she is now using her time to obtain qualifications to help with her families future. She noted that neither of the two perpetrators was welcome back, but accepted that she did not garner enough support at the time. The Tribunal’s view [54] In relation to the matters in s 226 of the Working with Children Act, I have considered the following: a) FX’s extensive criminal history, including convictions and charges; b) That none of the offences are regarded as serious under the Working with Children Act; c) The nature of some of the offences are directly relevant to children, particularly those relating to assaults. I note that two of these were not proceeded with; and d) The penalties enforced by the Court for her convictions were relatively light involving some monetary penalties and a good behaviour period. 6 [2016] QCAT 485. -- 9 of 12 -- 10 [55] I have found this a very compelling case. FX has had an extraordinarily difficult life. After a very compromised childhood, she entered into two volatile relationships with men whom she was not necessarily wanting to be with. She has endured extreme hardship and a lack of connection with family during her childhood and has endured two very violent relationships from which she eventually extricated herself and her children. [56] FX has subsequently engaged in extensive telephone counselling through the Royal Commission into child abuse. She is undertaking a course of study at university. During this time she has been involved in mentoring other students. [57] FX has had an involvement with the criminal justice system involving a range of offences and charges, a small number of which led to convictions with others being dismissed or not proceeded with. Of particular concern were offences involving assault which involved not only her own daughter but other adults both known and not known to her. [58] FX has also had involvement with the child protection system, not only herself as a child, but also as a mother. Her involvement as a parent essentially concerned whether her children were at risk of harm from either herself or from domestic violence involving her partners. [59] None of the convictions were for serious offences under the Working with Children Act. In these circumstances a positive notice is to be issued unless hers is an exceptional case such that it would harm the best interests of children for her to have a positive notice and blue card. [60] In its reasons for decision, Blue Card Services found hers to be an exceptional case for the following reasons: a) The applicant’s criminal history; b) The applicant’s offending behaviour spans 18 years and the child related nature of the offending was a significant risk factor; c) Her offending and alleged offending reflect adversely on her ability to promote and protect the welfare of children and young people in her care; d) The applicant’s offending and alleged offending demonstrates she lacks the ability to manage her aggression in situations of conflict, even when children are present; e) The passage of time does not diminish the overall seriousness of her offending and alleged offending; f) Her being a mature adult is an aggravating factor of her conduct; g) The Agency was not satisfied the applicant has accepted personal responsibility for the impact her decision making and actions have had on her children; -- 10 of 12 -- 11 h) She has not outlined strategies or supports to enable her to act protectively for children; and i) She has attempted to deflect blame onto her husband and daughter attempting to cast herself as a victim. [61] FX provided extensive written documentation in support of her applications. These included references from a large range of people including politicians and people involved with education. Essentially, FX’s argument was that her case was not exceptional, she was protective of her children, she received little support from authorities in attempting to extricate herself from her abusive relationships, she received little assistance whilst a child in care and moved interstate to move away from her abusive partners. [62] FX claims now to have turned her life around and is hoping to make a better life for her children through her study. She has found stable accommodation in which she and her younger children have been living for the past four years. She has learned how to persist in gaining assistance if necessary. She is more reflective and has grown in her ability to analyse situations and to assess people and their motives. She has not had any criminal offences for several years. [63] The Public Safety Business Agency in its submissions outlined to me a number of protective and risk factors. These have been set out earlier in these reasons. I agree with the protective and risk factors outlined by the Agency. I find that the protective factors far outweigh the risk factors involved in this case. I am of the view that FX has turned her life around and accept the evidence given by her counsellor of some two years. I also take into account the various explanations given by FX in relation to, not only her offending behaviour, but also the difficulties she had in extricating herself from the abusive relationships despite her best efforts. I accept that she is protective of children. [64] In all these circumstances I find that hers is not an exceptional case such that it would harm the best interests of children for her to have a positive notice and blue card. The order I will make will be that the decision of the Chief Executive that FX’s is an exceptional one is set aside and I find that FX’s case is not an exceptional case such that it would harm the best interests of children for her to have a positive notice. Confidentiality Order [65] FX also asked the Tribunal to consider making a confidentiality order under s 66(2)(b) of the QCAT Act so that any material which could identify her children would not be published. Mr Thompson did not oppose such an order. [66] I will make the order requested by FX on the basis that there is no public interest in FX’s children, minors and adults, being identified. I also make the order in consideration of the two former perpetrators of domestic violence -- 11 of 12 -- 12 being able to use any information in these reasons to track down FX and any of her four children. -- 12 of 12 --