CS v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 169

CITATION: CS v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 169 PARTIES: CS (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML177-14 MATTER TYPE: Childrens matters HEARING DATE: 12 December 2014 and 17 July 2015 HEARD AT: Brisbane DECISION OF: Member Beckinsale DELIVERED ON: 3 March 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made on 11 August 2014 to issue a negative notice is set aside. 2. A positive notice is to be issued to CS. 3. The publication of this matter will occur in a de-identified manner. CATCHWORDS: CHILDREN-BLUECARD – exceptional case – where a review sought of issue of a negative notice – where person convicted of an offence categorised as serious – where a negative notice issued – whether an exceptional case – where evidence of risk factors and protective factors – whether or not it is an exceptional case in which it would not harm the best interests of children for a positive notice to issue. Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 225(1)(c), 225(2), 226(2), 237(1)-(2), 354, 360 -- 1 of 41 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2), 66 Child Protection Act 1999 (Qld) ss 189(1)(b)-(c) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Re TAA [2006] QCST 11 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Kent v Wilson [2000] VSC 98 APPEARANCES: APPLICANT: CS represented by Stuart Wills of the Aboriginal and Torres Strait Islander Legal Service RESPONDENT: Chief Executive Officer, Public Safety Business Agency represented by Peter Reid (on 12 December 2014) and Natalie Taylor (on 17 July 2015), officers of the Public Safety Business Agency REASONS FOR DECISION Background [1] CS applied for a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) on 16 February 2014. Subsequently the Queensland Police Service advised the Commission of CS’s criminal history. After inviting CS to make submissions to support her eligibility to hold a positive notice and blue card, the Chief Executive Officer of the Public Safety Business Agency (PSBA), on 11 August 2014, issued CS with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). The Legislation [2] CS has applied to the Tribunal for a review of that decision pursuant to s 236 of the Act. -- 2 of 41 -- 3 [3] Under s 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.1 [4] The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.2 [5] The Act provides that as CS has a conviction for a serious offence3 the PSBA must issue a negative notice unless satisfied that hers is an exceptional case where it would not harm the best interests of children for a positive notice to be in place.4 [6] The Act does not define “exceptional case”. The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC said that phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.5 “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.6 [7] Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment. [8] In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.7 [9] Any detriment to CS is irrelevant to the Tribunal’s consideration8 as is any benefit resulting from her having access to children because of particular 1 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2). 3 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167. 4 Ibid s 225(1)(c) and s 225(2). 5 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31]. 6 Ibid at [33]. 7 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28]. 8 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171. -- 3 of 41 -- 4 knowledge, experience or flair if there exists an unacceptable risk from contact.9 [10] The passage of time alone is not determinative of whether or not a case is an exceptional case10 nor does the passage of time detract from the seriousness of allegations or convictions relating to offences committed a number of years ago.11 The Evidence Life History [11] CS was raised in Queensland, the middle child of a family with three daughters. She attended her local state primary school. She described her family as being well respected within the community and herself and siblings being well provided for, although binge drinking by her parents and their friends was a feature of weekends. Her father’s work meant he was away a lot of the time and she was expected to care for her younger sister frequently at times her mother and older sister were not at home. [12] CS described her life deteriorating during her high school years. In grade nine, she had a boyfriend who died of brain cancer who used marijuana, she said “medically”. She also commenced using marijuana and later amphetamines which she said were readily available in the area she attended high school. She left school after falling pregnant with her daughter who was born in 1997 when CS was aged 18. [13] CS said her parents separated the year after her daughter was born and although she had not used drugs while pregnant, found herself at crisis point when her daughter was about a year old and approached her mother for help with her drug use. Her parents arranged for her to attend a private clinic where she spent five weeks completing a programme to address her drug addiction. CS says she has not used illegal drugs since. [14] After completing treatment for her drug addiction CS returned to school. She said she completed grade 11 and was in her final week of grade 12 when she left without sitting final examinations due to her anxiety about her results. CS then aged 22 went to work for her father in his business. [15] CS was aged 24 and living with her mother in 2003 when she met BT. Within 6 months they moved in together and were married 6 months after that in January 2004. [16] CS said in hindsight there were signs early in the relationship of BT’s abusive nature. She described him as starting arguments and calling her names such as “junkie” in reference to her drug use in the past. He lied 9 Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289. 10 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 at [65]. 11 Grinrod v Chief Executive Officer, Department for Community Development op cit. -- 4 of 41 -- 5 about his age and told her he had a child when he did not. He did not introduce her to his family until the week before their wedding although they lived locally. She described him at this point as not physically abusive, but demeaning and demanding of her. She gave examples that he would demand a certain food for dinner and scream at her if it was not available or when she made a cake, he ate all the icing from it. [17] CS said there was one incident of BT physically abusing her daughter prior to their marriage. In December 2003, after her daughter was caught stealing at a shop, he hit her with a belt, resulting in bruising to her legs. Her daughter had not spoken of being hit to CS but CS had noticed she was upset and sitting in her room alone one day when CS arrived home. CS said she knew the bruises were caused by a belt as she had been hit with a belt as a child by her father. She distinguished the way her father had disciplined her from what BT did saying that BT “was out of control, a cold, violent person”. She gave an example of her father belting her as a child when she swam in a flooded river. [18] CS said she showed the bruises to her mother and asked her advice. CS said her mother said if it happened again she would report it to child services herself. CS said her own father also noticed the bruises on her daughter and asked about them. [19] The next occasion that CS said she was aware of BT being violent towards her daughter was an incident on 15 February 2004 which resulted in both her and BT being charged and convicted of offences and her daughter being taken into care by the Department of Communities, Child Safety (the Department). Conviction for Child Cruelty [20] On 23 March 2005 CS pleaded guilty and was convicted in the District Court of Cruelty to Children as follows: That between the first day of October 2003 and the 15th day of February 2004 …(CS) having the lawful care of…a child under 16 years caused suffering to the child by failing to provide …with adequate care when such care was available to the said (CS) from her own resources. [21] The police brief relates that on 14 February 2004, following a report of a disturbance, police attended a property where the complainant child, aged 6, lived with her mother, CS, and stepfather BT. Police observed BT outside the house and located CS alone in the lounge room. While police were speaking to CS, her daughter walked out of her bedroom extremely upset and with a burn injury to her right hand. Police ran cold water over the burn until an ambulance arrived and the child was taken to hospital. [22] The brief specifically states At no time between when police arrived…and the complainant child came out of her room, did they observe the defendant provide any treatment or comfort to the complainant child for her injury. -- 5 of 41 -- 6 [23] The brief stated that an examination at hospital Revealed a large number of injures (sic) of varying ages. These consisted of a large number of old round bruises to the back, both buttocks, several bruises and scratching to the inner and outer right ear, large bruises on her lower right leg, shin and foot. Bruise and lump on her right forehead, round bruise on her left chest, several bruises on both sides of her face, large bruise on her right upper thigh. Both sides of her left hand where (sic) swollen and bruised including all of her fingers. This bruise…having…an elongated shape with a square or triangular end, consistent with being hit with a metal spatula…found in the complainant child’s house. [24] The brief stated that the child told police her stepfather had hit her with an egg flip, with a belt, flicked her with a towel, twisted her ear, slapped her face and that on a number of occasions his hits caused her to fall over and her stepfather would pull her up by her hair. She was missing a large patch of hair on the crown of her head. [25] The brief stated CS told police she was aware of the way her husband disciplined her daughter with physical force “but did not approve.” She said he had started doing so about a month after he moved in, that he called her daughter insolent and disobedient and used intimidation and physical force to control her. When asked by police how she had protected her daughter, CS told them she would start an argument to shift his attention. The brief states CS admitted to police her mother had questioned her about “marks and bruising” on her daughter and warned her she would contact Child Safety if it did not stop. [26] CS claimed to police she had spoken to BT about his inappropriate disciplining and also involved his mother. When asked why she had not contacted police she said that the police would have no impact on his behaviour. [27] In relation to her daughter’s burn injury, the brief stated that CS told police her husband was trying to get her daughter to wash a cloth and clean the toilet with hot water. CS told police she ran the hot water in the bathroom sink until it was too hot to touch and gave her daughter scissors to hold the cloth in the water. She went to the lounge while her husband and daughter remained in the bathroom. She told police she heard her daughter complain the water was too hot a number of times followed by screams and crying. The brief continued: (CS) stated that after hearing this happen about three times, she walked in and tried to confront her husband…a verbal argument began between her and her husband. During this time (she) tried to leave the house, only getting as far as the car when her husband stopped her going any further (she) gave no reason why she did not try to ring police or assist (her daughter). [28] The brief stated BT told police CS was fully aware of the way he disciplined her daughter and at times gave him permission to do so. He told police on an occasion he contacted CS at work to tell her her -- 6 of 41 -- 7 daughter had been caught stealing she told him to discipline her but “not to leave marks this time.” [29] CS was sentenced to 12 months imprisonment to be served by way of an intensive correction order requiring her to report to a corrections officer and attend community service. [30] According to material filed under child protection proceedings, BT was charged (the document does not say whether he was convicted of all counts) with seven counts of bodily harm and one count of torture to CS’s daughter and sentenced to five years imprisonment with parole after 18 months. He was imprisoned from 24 March 2004 until 22 September 2006. [31] In material sent to the PSBA, CS said they were painting the inside of the house when BT filled the bathroom sink with hot water, took her daughter into the bathroom and pushed her hand into the water causing her daughter to scream. She said she went immediately but BT blocked the door with his foot. She finally got in to retrieve her daughter but she and BT ended up in the lounge room each holding her daughter by an arm so she let go. BT then let go and attacked CS. She said BT put her in a headlock. Her daughter fled. CS broke free but BT ripped off her shirt as she went out the front door. She said she returned to the house to get a shirt and her daughter followed her and she was able to run water over her hand. CS said she grabbed her car keys and she and her daughter tried to leave in the car. CS said she had to get out of the car to open the gate and BT leaned into the car and yelled for her daughter to get out. She did so and ran to her room. CS and BT continued to argue but police arrived within a short time having been called by neighbours. [32] At the hearing, CS explained that as she and BT painted the hallway, her daughter used a cloth to clean up paint drops on the floor and with no apparent trigger, BT filled the sink with hot water, took her daughter into the bathroom and held her by the wrist to force her hand into the water. CS said although BT was a big man weighing around 155 kilograms, she managed to force her way into the bathroom after about 30 seconds. She said when they ended up in a tug-of-war with her daughter in the lounge room BT had grabbed her daughter as though he would snap her arm over his knee so she let go. When CS physically attacked him he put her in a “chokehold”. [33] CS said at that point her daughter was there and when CS broke free of BT he grabbed her by the shirt and pulled it off her. She and her daughter headed out the gate but realising how far it was to walk to a friend’s place CS went back into the house to get a shirt and car keys. At the hearing, CS recalled that she “got the shirt and keys”. She said she took her daughter to the back of the house and ran cold water over her hand which was blistered. She said they then got into the car and when she got out to open the gate they were intercepted by BT who demanded her daughter get out of the car. She said that BT had come in through the driver’s side and forced her daughter out of the passenger seat. By the time CS -- 7 of 41 -- 8 returned to the car from opening the gate her daughter was out of the car and CS told her to go to her room. She described BT as “levelling off” by then. [34] When asked while giving her evidence at the hearing to confirm she got a new shirt, CS said she did not remember, just that she got the keys. It was pointed out to CS that she had moments ago made the statement that she “got the shirt and keys”. CS said that she did not recall whether she got a shirt and said “while I was making the statement I was under less stress” and “I’m sure that what is in the statement is correct”. [35] At the hearing, CS said she and BT were in the front yard when police arrived. She said when police arrived she showed a female officer where her daughter was and told her daughter to come out of her room. She said she encouraged her daughter to allow police to put her hand under water. CS estimated it was 15 minutes from when BT took her daughter into the bathroom until police arrived. [36] CS said an ambulance took her daughter to hospital from where she was transferred to the Royal Brisbane Burns Unit. CS said she asked that her father, her daughter’s paternal grandfather, be assessed as a kinship carer on an emergency basis and her daughter was released into his care after a period of 10 days hospitalization. [37] CS said her daughter had not required skin grafts for the burn but required counselling for emotional trauma. In relation to the numerous other injuries described as of various ages, it was suggested to CS at the hearing that she would have seen those on a daily basis. CS responded that she had taken her daughter to see a doctor two days previous to BT burning her hand about her “missing hair” which CS said she had attributed to an infection. She said the doctor had not raised concerns so in her view, no other injuries were obvious and she had not observed any. [38] CS’s evidence was that the facts as outlined in the police brief were not as she recalled and were composed from BT’s statements and her own as well as “police interpretation”. In an affidavit, she said she had disagreed with the “wording of the charges” and recalled “at the time feeling so guilty that I simply plead to the charges as read”. Other Criminal History [39] On 22 January 1996, CS was convicted in the Children’s Court of possession of a dangerous drug, possession of a pipe used in connection with smoking a dangerous drug and fail to dispose of a hypodermic syringe used in connection with the administration of a dangerous drug. No conviction was recorded and CS was placed on probation for 12 months under the Juvenile Justice Act. [40] On 11 August 2006, CS was convicted for two charges of obtain financial advantage. She was released on entering recognizance of $2000 to be of good behaviour for 12 months and ordered to pay reparation of $6634.78. -- 8 of 41 -- 9 CS said these convictions related to her payments from Centrelink over an 8-year period. History after Conviction for Child Cruelty [41] CS’s affidavit of 2 September 2014 states: “After the incident of 14/2/2004, I kicked BT out of the house. I was 5 months pregnant…at this time.” [42] And: “The incident I was charged with was a product of failing to identify domestic violence earlier than I did. This resulted in (her daughter) being removed from my care and then (her son) when he was born. At the time I chose to leave (her daughter) with my mother as I felt it was in her best interests (placing her needs over my own) as she had already developed a strong bond with my mother and ties to the school she was at.” [43] And: “I do hold myself responsible for not separating from BT earlier.” [44] And in the next paragraph: “This was over 10 years ago, I have since had another child and the department of child safety assessed me at the time of his birth (7/10/2008) and had no concerns with this child or my other children being in my care.” Child Safety History [45] At the hearing, CS was questioned about her involvement with Child Safety, which between 2004 and 2011 included five notifications and five child concern reports. [46] CS said she had separated from BT after he scalded her daughter but became very ill during her pregnancy and resumed living with him for the months prior to his sentencing. She described herself as being very much under his control at that time. [47] In July 2004, CS gave birth to her first son by BT. The Department placed him into care within days. CS said she “fell apart” and requested psychiatric treatment, which she did not get. She said the Department’s concern was not with her ability to care for her son, but with BT. She was allowed only two hours contact with him twice a week. She tried to breastfeed but it was not feasible in those circumstances. She said her son was placed with foster carers for a few weeks before then going to -- 9 of 41 -- 10 BT’s parents. That placement was terminated after a brief time because of BT’s violent behaviour towards members of his family.12 [48] CS said that shortly after her son was removed from her care, BT stabbed her leg with a pocketknife. She required 21 stitches. She said this was an example of BT “going from zero to one hundred without warning”. She was on the lounge and BT, who had been sleeping, came out to her and said something along the lines of “If I shot (her daughter) would her head explode like a watermelon?” He picked up the knife and stabbed her. He told her if she reported him, he would have her locked in a psychiatric institution and she would never see her son again. She had the wound stitched by BT’s family GP rather than attend hospital. [49] CS said that during the course of the relationship, the physical assaults on her by BT were frequent. She said if nothing occurred for a couple of weeks she “would know that something was coming and that it was at its very worst” although at best, a period of up to five months might pass without an incident. [50] CS said initially when BT was gaoled in March 2005;13 she did not know what to do with herself as she had not made any decisions for herself for a long time. She said she began rebuilding relationships with her own family, which had been strained as a result of the injuries to her daughter. She said of her parents: “They had supported me. Supported my daughter and …now they have all this responsibility…she was terrified when she returned into the home…little things would…like Terry White Chemists, that would be enough for her to freeze up in the shopping centre…she was-you know, she had not experienced –well, I had not experienced anything like that, so I can’t imagine what it would be like for a child”…my parents…they could see the situation that I was in but…they couldn’t help me. I had to help myself.” [51] CS’s daughter initially lived with the maternal grandfather and his partner, then with the maternal grandmother and her partner. While BT was in gaol, she started having overnight visits with her son. CS’s son was by then spending three days a week with CS enabling the siblings time together as well. [52] CS said the Department had encouraged her to take their son on visits to BT in prison and she felt obligated to do so. She said she would take her son one visit and BT’s parents took him the next. [53] In prison, BT told her he was very sorry. He had been under stress and “just cracked” and he loved her and wanted to fix everything. CS said she was being manipulated but wanted to believe what he said. 12 Notification dated 8 September 2004 recorded in Child Protection History, Exhibit B to Affidavit of Margaret Cox dated 17 January 2011. 13 Child Protection material erroneously refers to BT serving eighteen months of his sentence from 24 March 2004 to 22 September 2006: clearly the commencement date was 24 March 2005 as stated in Affidavit of Aleisha Eide dated 16 April 2008 (unsigned copy provided to Tribunal). -- 10 of 41 -- 11 [54] CS said she visited BT in prison every weekend until towards the end of his release but that she felt “over it” and having gained some level of independence, BT’s seeking to remain in her life was an “imposition.” She said she stopped taking his phone calls and worked on weekends instead of visiting him. He had his family ring her to try to coerce her to speak with him. [55] When asked whether she was concerned for her safety when BT’s release was imminent, CS said she could not say and part of her thought “nothing could hurt me”. She said she had always been a strong and independent person and did not think “this sort of thing could happen to a person like me”. She said BT “tore me down …and put me in a little box that he could poke at…it’s a difficult thing to…break out of.” [56] CS said when BT came out of prison they lived at separate addresses. She said she felt he had to prove himself if he wanted to be part of the children’s lives. She said she told him he could not live with her but that she would assist him on his release. She secured a rental house for him and paid the rent herself for about a month. She provided him with a vehicle to drive to work. [57] CS said BT initially tried to maintain the appearance of being “a decent person trying to do the right thing” but then as he became more successful in his work, his attitude and demeanour changed. [58] CS said both her son and daughter were back living with her, her daughter being reunified with her on 14 December 2006 on the condition that BT did not reside in the family home.14 Then the relationship deteriorated. Her family raised concerns with the Department about the time BT was spending at the household. CS said although BT had his own property, he came to her house after work every day, ate and stayed late although he was not contributing to the household. Initially when BT got out of prison, he lived in a different suburb some distance away but then moved close by. [59] A further incident between BT and CS’s daughter occurred in February 2008. BT is alleged to have made CS’s daughter eat spicy food which she threw up and he slapped her face and forced her to eat her own vomit. [60] CS’s response to the Department upon being questioned about the incident was of concern. 15 Whilst not denying the incident happened, she expressed the view that BT would not have done that as he did not want to risk returning to prison. She described her daughter as manipulating the situation because of not wanting to do homework rather than any fear of BT. She said that night her daughter had spat food on the floor after being asked to hurry up and she was then asked to clean that off the floor. She told the Department she did not think BT deserved a second chance after 14 Affidavit of Aleisha Eide dated 16 April 2008 at [77]. 15 Ibid at [82]. -- 11 of 41 -- 12 what he did to her daughter but she continued the relationship for the sake of their son. [61] At the hearing, when questioned about her response to the Department at the time, CS said with hindsight it was entirely possible that BT had behaved this way towards her daughter but at the time she would just believe what he said. She said having the children in the same house was putting them in danger as she could not control BT. She described her daughter as responding appropriately at that time to the situation of being “put back in the same environment as the person who attacked her.” [62] CS described how when BT and her daughter first met back up with the Department’s approval her daughter ran into his arms and gave him a hug. She said: “Now I understand that I had limited insight into what she was feeling at the time…the fear that she would have been living with being in the house, you know, trying to pretend, you know, she would have been, you know, trying to make me happy.” [63] CS said she had planned to seek her daughter’s return to her care: “I thought that …I fixed all of this and (she)…could come back to me…and then I realised that it’s just not as simple as that, that (she) had these bonds, felt safe where she was and that I hadn’t proven to her that-that everything would be ok. So where I started the application to have her returned to me, I ended up rescinding it, because it wasn’t in her best interests for me to-to pursue it.” [64] Around the time of the incident involving the spicy food, a further notification was made to the Department that the children were present when knives were thrown and that CS’s daughter had been forced by BT to wash up in boiling water and that he threatened her with a broomstick. CS said the incident with knives had not happened but that her daughter was asked to wash up and should not have been asked. She said she had rubber gloves but was not comfortable and CS intervened so that she did not have to wash up. [65] There were also allegations of CS’s daughter being shoved against a wall by CS. CS did not recollect that notification but said she would never have intentionally pushed her daughter into a wall although she could not say the allegation was false. [66] A child protection order was made on 5 August 2008 granting long-term guardianship of CS’s daughter to the Chief Executive to continue in force until the age of eighteen. [67] The Department subsequently placed CS’s daughter back with the maternal grandmother16 and also her son. At the hearing, CS described how her son’s behaviour caused problems in her mother’s household and 16 Initially she was place with the maternal grandfather because the maternal grandmother was away. Ibid at [77]. -- 12 of 41 -- 13 also the impact on her son who has been diagnosed with Asperger Syndrome. She said she was aware that there is: “some evidence to suggest that children with disrupted attachment in their early years are more prone to developing Asperger’s…going into day care while my mum was going to work was absolute torture for him…he’d refuse to enter the day care centre. He’d be out in the car park throwing rocks…he…as with many Asperger’s children, has toileting, bowel issues. So it’s constantly like soiled clothes and…refusal to go to the toilet which, you know, at the age of ten has just been resolved…he wasn’t diagnosed at the time, so it was a very high stress environment that my mum was put under.” [68] She said at one time both children were removed from her mother’s care after her son was belted by her mother’s partner. Charges against him did not proceed but according to CS, her mother had to take action through court to have CS’s daughter return to live with her. Her son did not return to live with his paternal grandmother but spent time again with the paternal grandparents. [69] CS was questioned about the Department material which disclosed a dispute she had with her mother in May 2008 including CS’s assertions at the time that her children were molested in her mother’s home due to her mother’s failure to protect. She said that was due to something her daughter said but had not raised again. She said she now knew if she had concerns like that she would go to police. [70] CS elaborated on her relationship with her mother: “The life that I have had has been very tough on my mother. My mother loves me. She saw me go through addiction, being a young mother…then being in a violent relationship and then disappearing until I was ready to be clear of this relationship…and the relationship (with her mother) was rebuilt from there. Is my relationship as close to my mother as if none of this had happened? Well, I don’t think it is…If I’d stayed on the path that I was supposed to go on right from the start then…she would be more proud of me and I wouldn’t have had to, you know, re-build the bridges that I burnt through the bad decisions that I made. You know, I believe she loves me and that she cares for me and, you know, any animosity that was between us was because of that.” [71] CS was also asked about her positive comments to Department staff after the incidents in 2008 and defending BT’s version of events in contradiction of her daughter’s. She said when she praised BT’s behaviour it would be what he was telling her to say although there were “pretty fleeting” time he could appear to be a good person. She said her reality had been distorted. She had tried to hold on to “getting back what she had.” She explained that in the midst of the abuse, parts of life seemed normal and she had tried to present a good side to the Department in hope of keeping her son. [72] The Department material stated CS had allowed BT to reside in the family home and was provided with the opportunity to be alone with (her daughter). CS agreed she had been allowing BT to spend too much time in the family home but said she did not leave her daughter alone with him. -- 13 of 41 -- 14 She said she might go into another room (which was where she was when the incident with spicy food occurred) but would not, for example, let her accompany BT to the shop (whereas their son was permitted that). She said her daughter had been reintroduced to BT with the Department’s consent and in accordance with their recommendations. [73] CS was asked what led to her daughter’s counselling. She said that her daughter had physically recovered and needed “mental healing to balance it.” She said the counselling was organised after the injuries in 200417 through the Department and her mother and she was asked to join in. She said the counselling had occurred at the Talera Centre. She said engaging with counselling with her daughter was: “probably the one thing that I did do…I don’t dispute that the situation that I was in was wrong for the children and wrong for me…I shouldn’t have been living there, let alone the kids.” [74] In regards to finally leaving the relationship CS said (previously): “I’d leave for three or four days, I’d have nowhere to go and I’d go back and on the final occasion, where I finally had an understanding that he was a risk - not just to me but to my son - I walked out and I didn’t go back to him. I don’t know why it took me so long to get the understanding.” [75] CS had become pregnant with her second child to BT and another son was born in October 2008. CS concealed this pregnancy from the Department and went interstate with BT to have the baby to avoid his being removed from her care. CS acknowledged her concealing the pregnancy meant she did not have contact with the other children and that she “definitely could’ve made better choices” but that: “my little boy…is the least affected by - in his behaviour, in his mannerisms, in his ability to fit into school and appropriate behaviour…there has been minimal effects, so did, in some respects, I do the right thing or - I don’t know.” [76] The Department became aware of their second son’s birth only a year later. [77] CS said by this time BT was not spending a lot of time at her house although he was living there. He was seeing someone else (the person he was with before CS18). She was living in a rental house owned by BT’s parents whom she said were also controlling of her. In October or November 2009 after BT broke into her house, requested she go to bed and slapped her face when she refused, she moved to a women’s refuge and obtained a domestic violence order. Department records describe that incident as resulting in CS having a black eye, bruising on both arms and scratches as a result of BT pushing her and punching her in the eye with a belt wrapped around his hand. 17 Although that contradicted what she said minutes beforehand that it commenced before the 2004 incident. 18 I note the Department records indicate BT had a history of violent interactions with his partners and family members including his mother and his disabled brother. -- 14 of 41 -- 15 [78] CS said her son became sick at the shelter and she returned to the house. She lied to the Department about having the locks changed. She went to the length of trying to get a locksmith to falsify an invoice. At the hearing, she admitted this and said she did not have the means to get the locks changed. [79] The Department took her younger son into care for a period of ten days and on 8 December 2009 a child protection order was made with conditions including that he have no contact with BT without supervision approved by the Department. Police reported at the time that BT had made threats to the safety of Department staff. CS said BT did that regularly during interactions with the Department, going out of his way to find out staff members last names and where they lived. [80] Eventually CS said she told her father she needed to leave and he arranged a truck for her. She moved to her mother’s for a few weeks before leaving for accommodation out of Brisbane. During that time, BT harassed her parents and her daughter trying to find her whereabouts. [81] CS was asked whether she finally left BT because of the assault on her or whether it was for the children’s protection. She thought it was finally understanding how bad it was and that he was not going to change: “any notion of staying together for the kids was ridiculous because he just didn’t care about them. It takes a lot to punch someone in the face, and if he cared so little about me he was capable of anything.” [82] CS said the comment of a police officer at the time finally made her think she had a choice. The officer in frustration had asked her “What are you still doing here?” [83] CS said upon moving, she informed local police of her situation and keeps in friendly communication with the local officers. She changed vehicles, bank accounts and her phone. She advised no one but her immediate family know of her whereabouts. [84] She obtained orders through the Federal Magistrates Court, which involved the children being represented by an Independent Children’s Lawyer. The orders, made 10 February 2011, provide that the children live with CS and that she have sole parental responsibility for their major long- term issues. The orders provide that upon BT “receiving appropriate psychiatric treatment the children have only supervised time in accordance with any recommendation of the psychiatrist.” Medicare was advised of the orders so that no details would be given to BT. [85] CS met the Department’s requirements after her move. A final child protection order was made in January 2011 in relation to the boys, extending a child protection order for a year. The material from the Department indicates that this order was made on the basis of CS having not yet obtained Federal Court Orders: -- 15 of 41 -- 16 “(CS) and the (boys) relocated in May 2010 to an area unknown to BT to enable them to establish a home life that is free of domestic violence and exposure to the threatening and criminal behaviours demonstrated in the past by BT. Since residing with their mother there have been no concerns raised in relation to the care (CS) has provided to (her sons).”19 [86] CS described herself as “shell shocked” when she first moved. She felt disconnected and frightened. She knew no one in the area. Her eldest son had a lot of trouble at school and was frequently suspended. She began to rebuild her relationships with her parents and daughter. [87] After completing an entry programme, CS commenced studying nursing. She found attending classes very stressful. She was very well prepared but when she arrived to sit an exam, she just sat in the car park crying. She saw a doctor who diagnosed her with anxiety and referred her to the women’s health centre for counselling, which she started in March 2013. Current Circumstances [88] CS cares for her sons, now aged eleven and seven. Her older son continues to have challenging behaviours but CS said his school is very supportive and she has learned how to manage the behaviour as well. He requires medication but at a low dose. [89] CS said the first year of nursing was difficult but she has gone on to achieve good grades. She is very motivated to work in this profession, which she sees as helping people but as also helping to provide a future for her children. She requires a blue card in order to continue her studies. [90] CS said that nursing involves considering a patient’s social determinants: looking at their background and what brings them to the point where they are. She referred to there sometimes being obvious signs of power imbalances in a patient’s relationships and thought her lived experience will make her more switched on to those signs. She was aware of mandatory reporting of abuse and said she would not “be afraid to have that happen to somebody else because it is a necessary thing.” [91] CS described her nursing studies as laying down the groundwork for working with children in terms of responsibilities and what constitutes consent and assault. [92] CS said she had not had another relationship after BT. She said she knows her “capacity to be manipulated”. One time she thought there was a person she met on the internet whom appealed to her and she ran it past her father who said it sounded like a bad idea so she did not pursue it. She said she will not live with another partner until the children have left home. She said she has friendships but does not develop these further. 19 Affidavit of Margaret Cox dated 17 January 2011 at [23] - [24]. -- 16 of 41 -- 17 [93] She said she has good neighbours whom she describes as good friends who help out with bits and pieces and whom she counts as being part of her immediate support network. [94] CS described her father as her biggest supporter. She can ring him at any time if she has a problem and said he is particularly good with advice about dealing with her sons. He has helped her financially. [95] She said she calls her mother frequently too, which helps her deal with the “little stresses of everyday life”. [96] CS said her university was aware of the problems with her ex-husband, as is the boys’ school for their safety. She said she has spent a lot of time working with the school due to her son’s special needs. [97] CS said she has never been tempted to use illegal drugs to relieve stress. She said there are so many other things she can do such as gardening or fishing. She said she does not drink alcohol to excess and feels the need to always be able to make good decisions. [98] CS was asked about her strategies in a work situation if a problem came up. She said there would be hierarchies in the work place. She would be supersensitive to anything she thought was abuse and would take it to a superior and press the issue with them. She said she would follow the procedures and protocols for dealing with issues. [99] CS said she had the same GP since her move whom she sees regularly and is aware of any problems she is going through. She said the psychiatrist she sees cares for the long-term effects of anxiety. [100] CS said the counsellor20 she works with and speaks to regularly helps her with parenting issues and herself having a child with Asperger Syndrome, is very helpful. [101] When asked how she had changed since leaving the relationship with BT, CS said she had been a shattered individual whose judgement was clouded. She is now more aware of her responsibilities towards children and society and “my own expectations in taking responsibilities for those decisions and putting the children first.” Witnesses Dr Mohamed Milat, Psychiatrist [102] A copy of a report dated 28 October 2014 by Dr Mohamed Milat to CS’s GP was provided to the Tribunal and Dr Milat gave further evidence by telephone. [103] Dr Milat is a consultant psychiatrist in private practice. He has qualifications in both the UK and Australia. He said he had done many 20 CS referred to Ms V as a psychologist but that is not her qualification. -- 17 of 41 -- 18 medico-legal reports in Australia. He referred to having done a lot of work involving the assessment of mothers with a mental illness to manage the care of their children. [104] He was unable to recall how many sessions he had with CS but put the time spent with her as “several hours”. He did not recall being provided with significant material in relation to CS such as her previous medical history, details of her criminal offences or Child Safety Interventions. In his report, Dr Milat said CS had been “referred for assessment of her mental state and psychiatric condition, in view of her appeal to QCAT.” He noted refusal to grant a blue card was due to her conviction for “failing to provide support to a minor and protecting a minor” relating to her 6 year old daughter being scalded by her ex-husband. [105] Dr Milat noted CS’s history of intravenous drug abuse between the ages of 16 to 18 and that currently she has no active substance use disorder. She admitted in the past experiencing a Depressive Disorder of moderate severity for which she was treated with an antidepressant. He reported she ascribed her previous depression, anxiety and panic to the stress experienced in her marital relationship between 2004 and 2008. He noted she resumed taking the antidepressant in January 2014 when she experienced “similar symptoms aggravated by the treatment for her Hepatitis C infection.” [106] Dr Milat reported that CS had related that her then husband: “served 18 months out of a four year sentence for child abuse and neglect…her ex-husband burned her daughter’s hand and also physically punished her, as evident from bruises and scratches on her body. She did have the chance to walk away but felt brainwashed by him and also probably was under his influence, even though he had been imprisoned…she now looks back on that and regrets her behaviour. She accepts the responsibility for not acting appropriately at the time.” [107] Dr Milat reported that CS’s history: “does not indicate she lacks parenting skills or is responsible for any emotional or physical neglect of her children. She lost custody of her daughter, who was six at the time, to her mother. Most likely…because she did not leave her ex-husband immediately.” [108] Dr Milat said a mental state examination did not reveal any abnormality in CS’s appearance, behaviour, mood or speech, thought form or content. He thought it most likely she was in partial remission from her Depressive Disorder and is maintained on her antidepressant. He reported “She is well aware of her past predicament and her tendency to relapse into depression under certain circumstances. She is also aware that her relationship with her ex-husband must be severed indefinitely…I do not consider at the moment that she is a risk to children as long as she does not associate with her husband…she now has sole custody of her children…she is aware she can take out another DVA against her husband…She is coping with the pressures of raising her son who suffers from Asperger’s. She is also coping with returning to -- 18 of 41 -- 19 University and studying which in itself is stressful, but is managing very well. This means she is resilient and can turn her life around…she feels responsible for what happened, is happy to undergo further supervision and to liaise with authorities to achieve her goal of finishing her nursing degree and working in hospitals.” [109] When asked if he had engaged in any psychometric testing he replied he did not think CS needed that other than “the standard psychiatric health assessments that we normally do.” [110] Dr Milat’s evidence at the hearing was that he did not think “Battered Wife Syndrome” was in the DSM-IV21 but that “anybody who’s subject to physical abuse, emotional abuse and violence will eventually become post-traumatic stress disorder, which is, in my opinion, a quite severe mental illness.” [111] Dr Milat gave evidence to the effect that a person in CS’s position, living with a dangerous man, can be making decisions which are not logical but based on survival “and I would assume that even if she knew it was not right, she may not have been able to do anything about it at the time.” [112] Dr Milat said in relation to CS’s insight into the impact of her behaviour on children that she understands what she did was wrong and that she did not provide a suitable environment for children with BT and should not have continued in the relationship. [113] As to risk factors or triggers which could contribute to a risk of similar behaviour being repeated Dr Milat said that what had happened was in the context of her relationship and that there would only be a risk if in the future CS was again in such a relationship. He mentioned the fact of CS’s extended family not being near her as stressful to her but noted she is able to visit her mother in Brisbane. He was not sure that the environment she is in is safe enough from her ex-husband and thought she needed ongoing support in that regard. [114] As to protective factors to reduce the risk of a repetition of such behaviours, Dr Milat noted she does not misuse substances, takes her medication, seeks help from him, that he thinks she has a healthy relationship with her father, that she gets some support from her training and that if she continues with that and obtains employment that will be a protective factor. [115] As to preventative strategies used by CS to reduce the risk of a repetition of such behaviours, Dr Milat said as long as she continued her training and did not enter a similar relationship in the future “she should be alright.” [116] Dr Milat reiterated that he was only able to base his conclusions about her suitability to hold a blue card on his present observations and what she had told him. He had not undertaken personality testing which could be 21 Diagnostic and Statistical Manual of Mental Disorders. -- 19 of 41 -- 20 conducted by a psychologist nor have all the information from her past such as early development and school reports. Dr John Warlow, Psychiatrist [117] The Tribunal was also provided with a report dated 23 February 2015 from Dr John Warlow to CS’s GP although Dr Warlow was not available to give evidence at the hearing. [118] Dr Warlow reported CS had been referred to him concerning depression and antidepressant therapy and had requested “a formal psychiatric opinion in clearance as part of working with children.” [119] Dr Warlow previously saw CS to provide a report to Child Services regarding her parenting capacity, in relation to her second child. He said his previous notes indicated at that time CS did have “an alliance to her now ex-husband which was greater than her capacity to parent.” [120] Dr Warlow briefly outlined CS’s history, including drug use as a teenager which resulted in her contraction of Hepatitis C and her being charged in relation to failing to protect her daughter when she was injured by BT. He opined she does not have any psychiatric diagnosis and that she had appropriate anxiety at times which did not amount to any disorder and is well managed. He said she did not have depression. [121] Dr Warlow noted that CS’s past five years have been very stable and positive, particularly since leaving Brisbane. He noted she had adequate social networks, had not re-engaged in any relationships with men since separating from BT and had ongoing contact with a women’s health centre. He noted the relationship with her daughter was improved with monthly contact. He commented CS had “done very well…and has used the challenges of the past to strengthen her current capacities in terms of being able to be with her children” and concluded that it was appropriate to recommend she have the capacity to work with children. Ms J, Counsellor [122] Ms J provided an affidavit and gave evidence by telephone. She has a Bachelor in science majoring in psychology and Diplomas in counselling children and adolescents and in youth work. She had been counselling in women’s health, including mental health, for 4 years at a women’s health centre. She had not had experience in preparing reports regarding appropriateness to engage with children nor in risk assessment in child protection matters. [123] Ms J saw CS for 8 one-hour long counselling sessions over the last two years, after having had eleven sessions with Ms R and five with another counsellor at the centre. Ms J said she had consulted with both those counsellors and had access to their file notes. In preparing her report she said she had not read the reasons document nor the material from Child Safety but mainly used her notes and what she had discussed with CS. -- 20 of 41 -- 21 [124] Ms J was aware of CS’s conviction for child cruelty but not that it related not only to failing to protect, but for failing to provide appropriate medical treatment and care. She said CS pleaded guilty to avoid her daughter having to appear in court. She reported: “Through our discussions, it is evident that, in the past, CS had an inability to protect children in her care, in particular (her daughter). This was primarily because of her being a victim of domestic violence and not being able to leave the relationship. It is my expert opinion that CS fell into the category of Battered Wife Syndrome which is in simple terms a well-known cycle of abuse”. She expressed the view in her report that it was “inappropriate” that CS had been charged with a criminal offence. [125] Ms J stated in her report that intervention had occurred with BT being jailed and child safety removing the children. She described this as an exit plan forced upon CS, but said if CS had known of the services available at the time it was likely she would have entered the exit plan herself. She stated that after BT’s release, there being no intervention, CS “fell again into the cycle of violence perpetrated by BT.” [126] Ms J reported having discussed the impact of domestic violence on her children with CS and that CS: “is well aware of the impact that the domestic violence has on both herself and those around her, in particular (her daughter).” She added that CS has been further educated in domestic violence in nursing. [127] Ms J reported that CS: “over the course of the years realised that it would be in (her daughter’s) best interest to remain in the care of (her) grandmother and not force the issue.” [128] Ms J reported that having spent many sessions with CS and consulted with her other counsellors “we cannot identify any risk factors or triggers which would contribute to CS re- entering a violent or abusive relationship. CS is very cognitive of past exposure to abuse and her role in that abuse resulting in her conviction for failing to protect (her daughter).” [129] Ms J reported that CS has built a strong support network and sought help, including counselling through her own initiative and Ms Bill did not think there was any risk of CS again entering a relationship which involved domestic violence. [130] Ms J recommended that CS be eligible to obtain a blue card “as it would be of great benefit not only to CS, her family but also to the wider community.” Ms V, Counsellor -- 21 of 41 -- 22 [131] A number of letters were received from Ms V who was not available to attend the hearing. The letter dated 10 October 2014 was the only one containing any detail. Ms V, who as Ms J said had been CS’s counsellor at the women’s health centre prior to Ms J, indicated she had a masters in education majoring in special needs and a bachelor of science majoring in psychology and is a qualified member of the Australian counselling association. [132] Ms V noted that CS’s sons had attended a number of sessions with her, which allowed a number of counsellors to observe her parenting skills and how well she interacted with the children. She described CS as very attentive to her boys, giving appropriate praise and using distraction to handle unwanted behaviour. [133] Ms V reported “Ten years ago CS was in an abusive marriage. The physical abusive (sic) she received led to Child Safety removing her children from the family home . As well at one time BT (husband) was jailed for a vicious attack on CS. Although no counselor (sic) from Womens Health Centre was working with her at that time, there are many indications to assume that CS was a victim of Battered Wife Syndrome…a serious condition that affects the thinking process of the abused.” [134] And “It needs to be understood that CS would have been granted custody of (her daughter) at the same time (her son) was returned to her. CS (sic) choice to respect (her daughter’s) wishes to stay with her grandmother must be looked at as a positive.” [135] Ms V concluded “It has been a pleasure for this counselor to see the growth CS has made over the past 18 months, not only in the area of anxiety but how she has explored the issues relating to some childhood difficulties and an abusive marriage.” [136] She commented “it is very disturbing to this counsellor and to Womens Health Centre the unfair treatment of CS in relationship to obtaining a Blue Card. CS has not done anything wrong.” MS [137] MS, who is CS’s mother, provided an affidavit dated 11 July 2015 and attended the hearing to give evidence. [138] MS recalled her daughter’s difficult youth from the age of around twelve years old when she became very oppositional. She said the terminal illness and death of CS’s boyfriend to cancer when she was aged 15 or 16 was a lot for a young person to deal with. MS thought that it was shortly after that her daughter started using harder drugs. She recalled when she was aged 17, CS told her that her boyfriend at the time had slammed her -- 22 of 41 -- 23 head into the dashboard of a car but CS excused that behaviour on the basis he was stressed about his brother. [139] MS said when CS became pregnant with her daughter she moved back to live with her and her father. To her knowledge, CS did not use drugs once she was aware of her pregnancy but she recommenced use when her daughter was about three months old. [140] MS said she and CS’s father separated in 1998 the year after CS’s daughter was born. CS and her daughter continued to live with MS. Around the time CS’s daughter was 18 months old they arranged for CS to attend a drug rehabilitation clinic for several weeks. Although CS had what MS described as two or three relapses over the next two years, she was ultimately successful and MS believes her daughter has not used drugs since. [141] MS recalled that CS introduced her to BT about 3 or 4 months prior to them moving in together at a house MS owned at a nearby suburb in September 2003. She said they married in January 2004. [142] MS recollected asking CS about bruising on her granddaughter’s legs in November or December before the marriage. MS said CS said she was glad she had raised this and claimed she had caused the bruising. MS said she had not believed this as she had never known CS to hit her daughter. MS said that after giving the matter some thought, a couple of days later, she told CS should it happen again, she would contact Child Safety. The next occasion on which she became aware BT had hurt her granddaughter was when he scalded her hand and both he and CS were charged. [143] MS said until that time she had no idea there were problems with her daughter’s relationship. MS described BT as very polite when she was around and said he never made a negative comment. In hindsight, she said the bruises she saw on CS after she was in a relationship with BT could have been as a result of his violence. When she noticed stitches on CS’s upper leg CS told her she had fallen and cut herself. [144] MS said after CS told her what happened when BT scalded her daughter she queried why he had not been charged also with assaulting CS. She drove CS to the police station believing BT ought to have been charged with that further assault but feeling unwell at the time, did not go into the police station with her daughter. CS returned telling her the police would not take a further statement. MS did not in her evidence recount in detail what CS had told her about the incident but stated her understanding was that CS had acted as quickly as she could to help her daughter including getting into a fight with BT whilst trying to flee with her. She said CS’s daughter, whilst still in hospital after the incident, had described BT as strangling her mother when she fought him to free her. -- 23 of 41 -- 24 [145] MS said that after being charged and having been released from police custody, CS came back to stay with her but after being on her phone for several hours, she assumes to BT, she left saying she had to go home. [146] In the days following her granddaughter’s hospitalisation, MS said she attended meetings at her school where staff were shocked to hear about her and never suspected anything being wrong. [147] MS said at the time she had not understood the fear that her daughter and granddaughter had of BT “or the control he had because of that fear”. She only came to understand once she was caring for her granddaughter. [148] MS said she had not read the reasons document although she had read her daughter’s criminal history. When asked about her understanding of the reason her daughter had been refused a blue card, MS replied, “because she pleaded guilty to charges of failing to protect.” [149] MS clarified that she knew the charge against her daughter included a failure to provide medical attention, which she agreed was the case. She said she had stated that CS should not have pleaded guilty because from what she understood of the incident as told to her by her daughter and granddaughter, CS had done all she could at the time. [150] MS said BT was “threatening to plead not guilty and have (CS’s daughter) get on the stand” and CS, wanting to protect her daughter from that ordeal, pleaded guilty believing BT would then have to too. In MS’s view, despite her daughter being legally represented, the charge against her was not given the correct attention. [151] MS said that her daughter tried to separate from BT on a couple of occasions. BT was then imprisoned for the offences and released in 2006 just after CS’s daughter returned to her CS’s care. MS said when CS re- entered the relationship with BT after he was out of prison, the relationship was limited with “boundaries” and there were no plans to live together, just for their son to have contact. However, BT had moved back in by mid- 2007 and by March 2008, her granddaughter was again placed in MS’s care, followed by her brother in July 2008. [152] MS said CS still denied domestic violence at this time although MS was convinced it was occurring, which her granddaughter confirmed. MS described herself as being fully occupied with the care of her two grandchildren at this time and she was not in contact with CS when she and BT went interstate to have their second baby. [153] MS recalled that both children went into foster care for a short time in June 2009 after which her granddaughter moved back with her where she has lived since and her grandson was returned to his mother. MS emphasised that Child Safety did not see CS as any risk to her children, other than her relationship with BT. -- 24 of 41 -- 25 [154] MS said in June 2009 CS had separated from BT for the last time and had taken out a domestic violence order against him. CS also obtained sole custody of her boys through the Family Court. MS described the affidavit material, which detailed the extensive domestic violence against her daughter filed in those proceedings, as very hard for her to read. [155] MS said that while her daughter had separated finally from BT in 2009, he continued to harass her. MS said during 2010 she was at her daughter’s house and after “one day’s experience of what he put her through, I put the suggestion to her that if she wanted to leave (Brisbane), I would help her out.” [156] MS said her daughter accepted that offer of help to leave Brisbane, “threw her phone out the window” and “from that date had no further contact with him whatever.” [157] MS said that after her daughter left, BT left a message for her granddaughter on CS’s Facebook page “better tell your mummy to start doing the right thing, because if she doesnt and can’t be found the blame will be passed on to you and this time it will be more than a little hot water”. [158] MS said this was reported to police but CS was not told as “we were sure she would return to protect (her daughter)”. [159] MS described her daughter as having turned her life around since leaving Brisbane. She said after finally leaving she was in a state of “disassociation” or “disconnection”. The location chosen was based on accommodation being available immediately at the time but CS has remained in that location and rebuilt her life. [160] MS described her daughter as in the first twelve months struggling with budgeting, working in with her son’s school and trying to manage his challenging behaviours. She said she is very proud of her daughter’s achievements now: she manages her finances; is involved with the school and in the community; is a volunteer at an animal shelter; copes well with raising her two boys on her own, the older son having Asperger Syndrome; and on top of that, her university study. MS said her daughter now has “excellent strategies in place with a great support network to help her deal with things in her life.” She described her changed demeanour as more confident, planning for the future and being more flexible with everyday problem solving. [161] MS reflected that because of her own upbringing, she had not provided emotional support to her daughter but now they have each learned the value of a support network. [162] MS said her daughter’s strengths are her determination, her caring for others but with an ability not to get “caught up in situations” and having definite goals for the future. She thought a weakness was stubbornness. In the past, her daughter did not always see another viewpoint but she -- 25 of 41 -- 26 said that trait had lessened. While MS said her daughter wants to do things herself, she will seek support when that is needed. [163] MS described her daughter as being “like a big kid” when interacting with children and happy to involve herself in their games but at the same time still being a parent figure who is able to pull things up before it gets out of hand. CS’s Daughter [164] CS’s daughter provided an affidavit dated 20 January 2015 to the Tribunal and was available to give evidence at the hearing however, Ms Taylor submitted that given her age (eighteen years) and her involvement as a child in traumatic events, it was not desirable that she appear and was not required to further her written evidence. That was accepted by Mr Wills. [165] CS’s daughter’s version of what occurred depicts BT as the perpetrator of the incidents, which were related in previous evidence, and her mother as her defender. She recalled the domestic violence being so bad for her mother that she was aware her mother self-harmed during her time with him. She recollected a time when BT convinced her mother not to let her see her grandmother which she said was distressing. She also recalled the Department on several occasions recording what she told them and then asking her mother and BT whether it was true. She said she despised the Department for that. [166] CS’s daughter said the counselling she received was positive. She said she still receives counselling and also takes medication for anxiety she experiences as a result of post-traumatic stress disorder. [167] CS’s daughter described the positive changes she had seen in her mother since leaving Brisbane. She said she is more confident, more patient, less stressed and very good with caring for her brother with Autism. She said she enjoys spending time with her mother and that there is no tension in the relationship. Submissions for CS [168] Mr Wills gave written and oral submissions, which I will summarize. [169] CS was living a destructive lifestyle including domestic violence to a degree described as “battered wife syndrome” which meant CS was “virtually powerless to exit the situation without external help.” [170] Her evidence was detailed and candid. She was remorseful for the incident leading to the child cruelty charge, which occurred while she was living with high levels of domestic violence which included being stabbed in the leg requiring stitches. [171] She “showed remorse to such an extent she plead guilty for a charge which simply should not have been made.” -- 26 of 41 -- 27 [172] When help was available, CS fled Brisbane and did something “extra ordinary”, not just working towards entering university but learning how to actively care for people through nursing. [173] That CS’s matter is exceptional in two ways: (1) Going from battered wife syndrome to completing (sic) a nursing degree, which is structured to teach you to care for others. That there is an excellent support network with CS engaging with many services to assist her and her children and actively bettering herself to serve society. “Given the backdrop of CS’s adversity, that is astounding.” (2) The degree of her remorse and protection of her child. “CS made a plea of guilty to protect the very person she is charged for not protecting. She was very candid about this, and Mr Reid readily identified CS actually plead to something she didn’t do. Pleading was to protect (her daughter)- she never should have been charged, the evidence was never tested and the victim gave evidence demonstrating the domestic violence (CS) lived under and how she protected (her daughter) on the very day of the incident.” [174] CS was charged with one offence only. If the charge related to more than one event, specific dates would have been given. That the facts of the QP9’s give a false representation of what occurred. CS’s daughter gave evidence that she recalls BT strangling her mother, which supports the version of events related by CS. [175] There are similarities with the matter of COJ v Commission for Children and Young People and Child Guardian22 where, Mr Wills submitted, “it was found the mother reached the threshold of ‘exceptional’23 by demonstrating real remorse, removing alcohol, and taking steps to repair her relationship with her daughter…By comparison, (CS) has already repaired the relationship with her daughter, introduced protective factors thought (sic) the DVO…fleeing the relationship, and accepting her role in the events by wanting to protect (her daughter). [176] Dr Milat although not “able to give a definitive diagnosis of battered wife syndrome” described CS as having post-traumatic stress disorder, essentially a subset of that” and “found no reason not to issue the Blue Card.” [177] The evidence of Ms J was that it was battered wife syndrome was not challenged. [178] The Department of Child Safety Services did not have a concern with the way CS cared for the children but that she resided with BT and he was perpetrating acts of domestic violence. 22 [2014] QCAT 320. 23 The Tribunal in this matter found that having regard to the positive factors an exceptional case did NOT exist where the applicant had no conviction for a serious offence so that a positive notice should be given. -- 27 of 41 -- 28 [179] Ms V said “if CS is not successful in obtaining a blue card, she will not be able to complete her studies and many, many patients will be denied expert care by a dedicated kind women(sic).” [180] That protective steps taken by CS include her taking out a domestic violence order against BT and relocating to a location unknown to him, obtaining sole parental responsibility for her sons, engaging in study and repairing her relationships with both her mother and her daughter. [181] In conclusion, that the protective factors in CS’s life significantly outweigh the risk factors and to quote Ms V “it would be a detriment to the community if a blue card was not issued.” Submissions of the PSBA [182] Ms Taylor made written and oral submissions, which I will also summarise. [183] CS had identified a number of protective factors and strategies to ensure the future safety of her children and children in general, including: a more open relationship with her family, an inclination to focus on the needs of her children, to undertake deep contemplation before entering a future relationship. She identified specific subjects undertaken during her nursing degree designed to assist in the professional care of children including legal regulations regarding professional codes of conduct. She outlined a number of strategies she would employ in the workplace should she have any concerns regarding the safety of children. [184] The material suggests the presence of the following protective factors. (a) CS has the support of her mother and reportedly a positive relationship with her daughter. (b) She no longer suffers domestic violence and has progressed well in her nursing studies. (c) She undertook a number of counselling programmes and appears to have developed a good rapport with those involved in her treatment. (d) With the exception of the two fraud charges for which she was sentenced a short time after the child cruelty offence, CS had no subsequent criminal history. (e) She expressed a strong desire to complete her nursing degree which she chose to help others. She says she has completely changed her way of life from how it was in 2004. (f) Reports from Ms J and Ms V are positive about CS’s engagement with the service, her interactions with children, her recovery from an abusive marriage and management of her mental health concerns. (g) A report from Dr Warlow concludes CS has “the capacity to work with children” and a report from Dr Milat does not raise concerns about her -- 28 of 41 -- 29 eligibility to hold a blue card for the purpose of completing a nursing degree. [185] That the material also suggests the presence of a number of risk factors. (a) CS has a conviction for an offence categorised as a serious offence and directly related to children. (b) The police material indicates BT forced her daughter’s hand into hot water three times and CS did not offer treatment or comfort to her. (c) CS’s daughter had a large number of injuries of varying age including bruising, swelling, scratches and missing hair. The extent of the injuries sustained by the child and her length of stay in hospital reflects the extent and seriousness of the abuse inflicted upon her. The child’s statement dated 20 January 2015 indicates she suffered ongoing physical and emotional harm long after the incident in February 2004 and she continues to receive counselling and medication for anxiety due to post-traumatic stress. (d) CS was convicted and sentenced to 12 months imprisonment served by way of Intensive Correction Order, a substantial penalty in light of the relatively limited period of offending and reflecting the seriousness with which the court viewed the offending. (e) The criminal charge referred to a period of offending that occurred between 1 September 2003 and 14 February 2004. CS was not sentenced only in relation to the incident on 14 February 2004 and the period of child cruelty extended over months. (f) The material from the Department is extensive and outlines long term intervention by the Department from 2004 to 2011 including five notifications and five child concern reports. All three of CS’s children have been removed from her care for varying periods of time. Her daughter was subjected to child abuse and all three children exposed to domestic violence. CS failed to protect her children from harm or to adequately acknowledge the concerns for the children’s safety. (g) CS recommenced living with her husband upon his release from prison resulting in significant further physical and emotional harm to her daughter. (h) CS deceived the Department on numerous occasions, including concealing the birth of her third child in 2008 for 12 months to avoid him being removed from her care due to her continued association with her husband. Such deceit reflects extremely poor decision making, poor insight into the risk of harm she was exposing the child to and demonstrated a preparedness to put her own needs above the welfare of her children. -- 29 of 41 -- 30 [186] CS was in a position of trust, authority and responsibility in relation to her daughter who relied on her for care and protection. Her failure to protect the child from harm and seek appropriate medical care was a gross breach of the position she held. [187] Although a significant period of time has passed since CS’s offending against her daughter, the passage of time does not reduce the gravity or seriousness of her behaviour. [188] The PSBA has concerns as to whether CS can be entrusted to engage in regulated employment given the severity of the abuse. Significant concerns arise from the material including the extent of CS’s intravenous drug use, her mental health issues which are long standing and appeared to have involved self-harm, her failure to protect her children and her continuation of her relationship with her husband until 2010. These issues show significant vulnerabilities of character raising concern about CS’s ability to protect children from harm in all circumstances. [189] The PSBA has concerns about CS’s lack of insight into her behaviour and the harm her actions caused her children. She failed to recognise it was not only her inaction on one occasion but over a period of time that led to the conviction. She admitted being aware of only one previous incident of abuse by her husband to her daughter but did not expand on this. Good insight into the harm which has been caused is a protective factor as a person aware of the consequences of their actions on others is less likely to re-offend that one who lacks that insight.24 [190] In her oral and written evidence, CS attempted to mitigate her culpability on 14 February 2004 by questioning the version of events in police materials, namely her location at the residence and the level of care she provided to her daughter. She appeared to deny the entire basis on which she was held criminally liable. With the exception of “feeling so guilty” in relation to the charge, CS has not sufficiently acknowledged her breach of responsibility to provide a safe and nurturing environment for her daughter. [191] CS’s submission that her “youth, immaturity and vulnerability” were not taken into account is not sustainable given she was 25 years old when charged and her divorce finalised seven years later. She was pregnant to her husband at the time of the offence and had another child to him in 2008. She has not identified measures she could have adopted to ensure the safety of her daughter: only referred to her domestic situation at the time. [192] CS’s brief reference during evidence to her daughter’s counselling shows insufficient understanding of her daughter’s needs and a lack of compassion. 24 Re TAA [2006] QCST 11. -- 30 of 41 -- 31 [193] CS chose not to report the abuse of her daughter, including being hit with a belt, to authorities over a prolonged period. She has not identified skills or strategies she would engage should a similar situation arise in the future or how she will manage future interactions with the father of her two sons. She failed to recognise the risk to all her children by allowing her husband to return to live with her and continuing the relationship. [194] CS suffers generalised anxiety disorder and post-traumatic stress disorder. Additionally, her daughter’s affidavit refers to her self-harming while in the relationship with BT. It is unclear whether CS has a formal diagnosis of these conditions and whether the appropriate level of care has been made available to her both in terms of psychological testing and psychiatric treatment. [195] There are a number of problems with Dr Milat’s evidence: he had little to no experience preparing similar reports assessing suitability to engage with children; he had not read the reasons document or been provided with a background or medical history of CS which included self-harm and he expressed only very limited knowledge of her interactions with the Department of Child Safety; it was not apparent what methodology he used to reach his conclusions and no psychological or psychometric testing was used. [196] In light of CS’s background, objective expert evidence of an independent psychologist or psychiatrist is critical. The Tribunal should place very limited weight on Dr Milat’s evidence given its deficiencies. [197] Similarly, CS’s counsellors were not fully apprised of her history, not having details of her criminal history, the material from the Department of Child Safety nor the reasons document. Her counsellors lacked objectivity. They did not readily identify the risks present and focused on presenting CS in a positive light. It is unknown if they could continue to offer such strong and unequivocal support for CS working with children if the nature and extent of her behaviour in the past were known. [198] Ms V’s written statements that “It is important to understand that at no time was CS charged with any form of inappropriate behaviour towards her children” and “CS has done nothing wrong” raise speculation as to whether CS has received appropriate counselling. [199] No comment is made about whether CS was or was not suffering battered wife syndrome because the witnesses making those statements were not fully apprised of her history. Without full knowledge of her background it is open to speculation whether she has received proper care tailored to her needs. [200] CS has not demonstrated an ability to promote and protect the best interests of children who may be in her care and she continued to minimise her actions. She has not demonstrated that she is able to protect children from harm in situations where she is under pressure or influence. For a significant period of time she was unwilling or unable to prioritise the -- 31 of 41 -- 32 wellbeing of her children. This reflects significant vulnerabilities in her character and raises concerns about her ability to make decisions in the best interests of children and young people in her care. A positive notice and a blue card is fully transferable and unconditional and the broader issues considering these factors must be considered. [201] The Appeal Tribunal has confirmed25 that the Act places a barrier to persons with a serious offence from working with children and the proper inference to draw must be that it would harm the best interests of children for persons with convictions for a serious offence to work with children unless it is an exceptional case.26 [202] The Appeal Tribunal also confirmed that changes to a person’s circumstances which simply amount to them living in a law abiding manner as society expects and functioning at a level expected of a person at their stage of life, are generally considered to be the “ordinary course” and not “exceptional”.27 [203] CS’s circumstances, that she is now free of domestic violence, progressing well in her studies, has a positive relationship with her children and has not used drugs for a significant period of time ought to be considered to be in the “ordinary course’ and not “exceptional”, particularly in the absence of a significant level of insight into her behaviour. [204] The risk factors identified raise significant concerns regarding CS’s ability to protect children from harm and her case is not an exceptional case in which it would not harm the best interests of children and young people for her to be issued with a positive notice and a blue card. Discussion [205] CS was not served well by her written material. Her affidavit states she “kicked” BT out after the incident when he scalded her daughter and went on to imply that was the end of her involvement with him or any further issues with her children. To state that she since had another child and that the Department assessed her at the time of his birth and had “no concerns with this child or my other children being in my care” is grossly inaccurate. CS had actually concealed the birth and the Department was not aware of that child’s existence until a year later. Her other son had been placed in care within days of his birth and after failed reunifications, was not living with CS at the time of his brother’s birth because of the Department’s concerns. [206] Reunifications with her daughter had been attempted, but long-term guardianship was granted to the chief executive in August 2008. CS’s affidavit implies she made a selfless decision after the 2004 assault that 25 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 (Ram’s Case). 26 Ibid at [46]. 27 Ram’s Case at [47]. -- 32 of 41 -- 33 her daughter’s interests were best served by her remaining with her grandmother. [207] The reports and evidence of CS’s counsellors and the two psychiatrists she consulted does not convey this simplified and inaccurate version of what occurred. [208] Dr Milat was clearly aware of CS resuming her relationship with BT after his term of imprisonment. Dr Warlow had seen CS initially in the context of providing the Department with a report regarding her parenting capacity as regards her older son and would have been well apprised of her child safety history in that context. [209] Ms J was also aware that CS had reunited with BT after his release, noting she had not been equipped with her own exit plan at that stage and fell again into the cycle of violence. Further, Ms J reported “it was over the course of years” that CS realised it was in her daughter’s best interests to stay with her grandmother. That is not conveyed in CS’s affidavit. [210] Ms V’s report, while containing a number of inaccuracies, does convey an understanding that CS returned to BT and took some time to leave him finally. Also the report reflects that CS’s decision to not seek the return of her daughter was made some time down the track. [211] I do not know why CS’s written material is so lacking. If she did not conceal her child safety history from health professionals I do not understand why she would conceal it from her legal advisors. While the Department records were not subpoenaed until shortly prior to the hearing I would still expect that CS‘s child safety history be addressed in written materials. I take the view that as the Tribunal is conducting a fresh review on the merits I am able to have regard to CS’s oral evidence which was given over a period of nearly five hours with few breaks. That oral evidence was vastly more detailed than that contained in her affidavit. [212] CS contradicted herself on a number of occasions while giving her evidence but I am satisfied such contradictions were minor details upon which nothing turns and were the result of a combination of stress and sometimes simply not understanding to what a question referred. Overall I found CS to be willing to answer questions in detail in a considered and forthright manner given the tragic events she was required to recall. I found that she gave her evidence in a manner which was matter-of-fact but nevertheless, moving at times. I have recounted somewhat extensive portions of her evidence which I considered significant to my findings. [213] In my view there was too great a focus in the presentation of CS’s case on explaining the incident involving her daughter’s scalding. The lack of attention to her daughter’s injuries in the months leading up to that day required as much explanation as did CS’s conduct in the years following. [214] Submissions that she ought not to have been charged were not sustainable in my view as were submissions that the one charge related -- 33 of 41 -- 34 only to one date. QPS material is clear that the relevant dates for the offence of Cruelty to Children under 16-failure to provide are 1 September 2009 (being the approximate date BT and CS moved in together) to 15 February 2004. I accept the evidence that the injuries recorded in hospital records as reported by QPS and the Department were inflicted on CS’s daughter over a period of time. [215] CS said she took her daughter to a GP about missing hair in the days prior to the scalding although no record of that visit was produced. MS in giving evidence on her daughter’s behalf mentioned the school being surprised about the offences. The inference which might be drawn is that injuries which were not noticed by a doctor examining a child or by staff at her school, might not be noticed by CS either. I find it difficult to understand that a mother with a six year old girl in her care would not have observed at least some of these injuries given their nature. CS admitted to being aware of the bruising inflicted on her daughter by BT belting her late in 2009. [216] If a transcript of submissions made at the time of CS’s plea of guilty and sentencing remarks had been produced I might have taken those into account. In the absence of that material I cannot go behind the conviction.28 While I accept that there may have been more to the incident than what is contained in the charge sheets, I accept that the elements of the charge were made out. [217] A submission was made on CS’s behalf that Mr Reid “readily identified CS actually plead to something she didn’t do.” The only point in evidence I can find that Mr Wills might be referring to is a question put by Mr Reid to CS “Just in the version that you provided in relation to the February 2004 incident, on those facts alone, you’d appreciate that it would be surprising if someone who acted as you did on that day would be charged; would you agree?” [218] With respect, that question in my view is putting to CS that her version of events is not correct: not that she pleaded guilty to something she did not do. [219] There is a risk for an applicant insisting that they were not guilty of an offence for which they have been convicted and sentenced that they may be regarded as lacking remorse and insight into their behaviour. I will return to that point as it is important. Witnesses [220] Dr Milat was very difficult to hear but I found his evidence helpful. Given his qualifications, his experience involving the assessment of mothers with mental illness to manage the care of their children and that he had not merely seen CS on a one off basis, I find him appropriate to make a professional judgment about her risk to children. It would have been 28 Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209. -- 34 of 41 -- 35 preferable that he was provided with documentation detailing CS’s criminal and child safety history as well as a copy of the Reasons Document but I realise there are considerations of cost for applicants in CS’s position. [221] He did not undertake psychometric testing but in my experience assessment by interview is commonly practised by psychiatrists. [222] Dr Milat emphasised the risk to CS of repeating previous behaviours was if she were to re-enter a similar relationship to that with BT. [223] Dr Warlow was not available to give oral evidence and his written report did not take matters any further than Dr Milat. [224] Ms J’s evidence corroborated that CS has been seeking support through counselling. She also had not read the Reasons or other documents containing details of CS’s offences or child safety history but she concluded that in the past CS “had an inability to protect children in her care, in particular (her daughter) because of her being a victim of domestic violence and not being able to leave the relationship.” I accept that view of CS’s conduct. [225] I do not make any finding that CS can be categorised as suffering “Battered Wife Syndrome” which Ms J states is her “expert opinion.” Dr Milat’s evidence was that that term has yet to be included in the diagnostic manual. In his view someone subjected to physical and emotional abuse can eventually develop post-traumatic stress disorder which he described as a “quite severe mental illness.” Regarding CS’s position, he said someone living with a dangerous man can be making decisions which are not logical but based on survival. He said “I assume that even if she knew it was not right, she may not have been able to do anything about it at the time.” I accept that evidence. [226] Ms V was not available to give evidence at the hearing and I do not place much weight on her report. She was inaccurate in a number of respects, including that CS had been in a bad marriage ten years ago and that BT was gaoled after assaulting CS. Her assertions that CS “would have been granted custody of (her daughter)” is unsupported and that CS “has done nothing wrong” just not sustainable when taking into account her conviction and her child safety history. [227] I understand that a counsellor’s role involves the support of CS and regard for her welfare but that is not the Tribunal’s concern in this matter where the interests of children are paramount. [228] I accept Ms V’s report corroborates that CS has attended counselling and note she reports CS’s positive interactions with her sons but do not otherwise rely on her statement. [229] MS was a witness who impressed me as being honest and insightful about her daughter. She corroborated the life history given by CS. Her -- 35 of 41 -- 36 recollections of what she was told by both CS and her granddaughter soon after her scalding support that all of CS’s actions that day are not reflected in the details of the charge sheets. Her recollection supported CS’s assertion that a factor in not defending the charge was her wish that her daughter not have to give evidence. [230] MS had also not read the Reasons. MS’s response to the question of why her daughter did not get a blue card that it was “because she pleaded guilty to charges of failing to protect”, is simplistic but she agreed her daughter had failed to provide medical attention to her granddaughter. Her further evidence shows she was aware of the ongoing interactions her daughter had with child safety as a result of her continued relationship with BT. Her evidence corroborates some of the domestic violence history related by CS. MS had not seen the child safety history but unlike the health professionals involved with CS, MS lived through these years with her daughter and grandchildren and was well acquainted with what occurred. [231] I am of the view that MS gave priority to her grandchildren’s needs over the wishes of their mother when that was required. I have no doubt of the heartache this caused MS but she presented as a person who would treat a child’s interests as paramount. The fact that MS stood against her daughter when CS was doing the wrong thing by her children gives me confidence that when MS now says she has confidence her daughter has turned her life around, that that is true. [232] I accept MS’s evidence of CS’s current circumstances, including the strategies in place to avoid a recurrence of unprotective behaviour, her support networks and the gains she has made. [233] CS’s daughter’s evidence is of less value. I note she remains on medication for anxiety as a result of her experiences but also the positive changes she sees in her mother and that she enjoys spending time with her. Protective Factors [234] I accept the protective factors as listed by the PSBA. [235] I also include as protective factors those submitted by Mr Wills that CS took out a domestic violence order, relocated to a location unknown to her ex-husband (she has divorced him) and obtained sole parental responsibility. The orders of the Federal Court were made with the involvement of an Independent Children’s Lawyer. The very restrictive conditions placed on any future contact by BT and the granting of sole parental responsibility to CS (which is not common) reflect the serious concerns the Court must have had regarding BT’s involvement with his children. -- 36 of 41 -- 37 [236] I further include as protective factors, CS’s determination and definite goals for the future, apparent in the evidence she gave and corroborated by MS. [237] I accept CS’s evidence that she acknowledges her “capacity to be manipulated” and that she has adopted an approach of extreme caution about entering into an intimate relationship at this time and resolved that she will not live with a partner while her children remain in her home. That and her willingness to put her children’s interests first are protective in my view. Risk factors [238] I accept the risk factors as listed in the submissions of the PSBA. [239] I note that the PSBA submits that “although a significant period of time has passed since CS’s offending against her daughter, the passage of time does not reduce the gravity or seriousness of her behaviour. That is so29 but I would consider that the passage of time in this matter did not start to run until CS began extracting herself from her marriage so 2009 rather than 2004. [240] The PSBA express concerns whether CS can be entrusted to engage in regulated employment given the severity of the abuse, extensive intravenous drug use, long standing mental health issues which may have included self-harm, her failure to protect her children and remaining in a relationship with her husband until 2010.These are legitimate concerns to raise. [241] There was no evidence before me of CS using any illegal drugs since late 2000 or early 2001 when she was aged 21 or 22 years old. As regards her mental health, two psychiatrists have given evidence which amounts to their having no concerns for CS’s current mental health nor with her working with children. [242] CS’s failure to protect her children over an extensive period and her failure to leave the relationship with BT are serious concerns. While there was an allegation that CS pushed her daughter against the wall her failure to protect was the greatest concern. That failure arose only within the context of remaining in a relationship with BT where the children were constantly exposed to domestic violence by BT against CS and where CS’s daughter was physically and emotionally harmed by BT on a number of occasions, the most serious of which resulted in his serving a term of imprisonment. [243] No-one giving evidence on behalf of CS believed she would be a risk to children as long as she did not resume a relationship with BT or any similar relationship. 29 Volkers v Commission for Children and Young People and Child Guardian [2010] -- 37 of 41 -- 38 [244] I have noted already as protective factors, the strategies adopted by CS to remain apart from BT and to avoid a similar relationship in the future. [245] The PSBA submits CS showed a lack of insight into her behaviour and the harm her actions caused her children. It is correct to say that good insight into harm caused is a protective factor as a person aware of the consequences of their actions on others is less likely to re-offend than one who lacks that insight.30 I agree that CS’s written material did not demonstrate significant insight but in my view her responses during oral evidence did so. I have recounted at some length some responses given by CS during oral evidence which I rely on as demonstrating her insight into the harm she caused as well as her remorse. [246] CS spoke of the reaction of her daughter at a shopping centre and reflected on the fear she said she now understands her daughter was feeling. She was able to articulate the benefits for her daughter remaining with her grandmother although CS wished she would live with her. [247] I did not find CS’s evidence about her daughter’s counselling as showing a lack of understanding or compassion. Earlier in her evidence CS referred to her daughter’s treatment in hospital for “the emotional trauma of having been through such a violent event and…having the only life she’d ever known sort of being shattered required a lot of attention.” CS named the centre where she was involved with her daughter’s counselling and explained it was play-based therapy. Sometime later Mr Reid asked CS the format of the counselling her daughter had and she suggested her mother might have more details. She was speaking at that point about concealing her youngest son’s birth and the impact of that when Mr Reid asked her where her daughter’s counselling took place and she again named the centre and said her daughter was back in contact with one of her counsellors who she named. [248] CS showed a good understanding of what her parents were put through as a result of her poor choices. She accepted their position to prioritise her children’s needs over hers as being correct and clearly bears them no grudges. With the exception of some difficulties she perceived in her school years she praises the actions of her parents in supporting her and her children. [249] CS spoke of the impact of separation for her eldest son in particular and how his behaviours impacted her mother. [250] CS also showed insight into her own behaviours in being dominated by BT and being unwilling to leave when that was a choice she always had. She expressed her own lack of understanding as to why she did not end the relationship much sooner. In the context of explaining a course concerning domestic violence she attended soon after the 2004 charge, CS noted that she did not identify then as being subject to domestic violence like the other women in the course but now she understands differently. 30 Re TAA [2006] QCST 11. -- 38 of 41 -- 39 [251] The PSBA contend that CS’s assertion that her “youth, immaturity and vulnerability” were not taken into account is unsustainable and point out she was pregnant at the time of her offence and went on to have another child by BT. The PSBA contended CS had not identified measures she could have taken to protect her daughter. [252] CS said her desire to keep her family unit together was a factor clouding her judgement. In the course of giving evidence CS did reflect on actions she could have taken to protect her daughter including leaving BT before the incident and driving her car through the gate without opening it to escape before he intercepted them. [253] The PSBA submit CS attempted to mitigate her culpability on 14 February 2004 by questioning the police version of events and denying the basis of her criminal liability. I have determined that I cannot go behind CS’s conviction. At the hearing CS accepted she had failed to provide adequate care of her daughter not only on the day of the scalding but in the months prior and in the years afterwards when she continued to see BT. [254] As submitted by the PSBA, the Appeal Tribunal has confirmed 31 that the Act places a barrier to persons with a serious offence from working with children and the proper inference to draw must be that it would harm the best interests of children for persons with convictions for a serious offence to work with children unless it is an exceptional case. [255] The Appeal Tribunal in that matter32 described Mr Ram as having “made changes in his life but changes that amount to him living in a law abiding manner as society expects. He has not shown he has insight into how his past violence and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable people. Mr Ram’s evidence is put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life. These changes do not take Mr Ram’s circumstances outside of what is otherwise the “ordinary course”. His case is not exceptional.” [256] In this case the Appeal Tribunal did not consider it appropriate to exercise the discretion under s 225 of the Act given that the changes Mr Ram made to his life amounted to living in “a law abiding manner” and his lack of insight. [257] The Court of Appeal33 has endorsed also the approach “that it would be most unwise to lay down any general rule with regard to what is an exceptional case…all these matters are matters of discretion”. 31 Ram’s Case. 32 Ram’s Case at [47]. 33 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34]. -- 39 of 41 -- 40 [258] I think taking the same approach it would also be unwise to lay down general rules as to what is not an exceptional case and I am required to consider CS’s circumstances on the merits. [259] I would in any case distinguish CS’s circumstances from those of Mr Ram. I accept the submission on CS’s behalf that her change in circumstances is out of the ordinary in terms of where she was at to where she has positioned herself today. She has done more than simply commence leading a law abiding life. She has extracted herself from a situation dangerous to herself and her children where she was isolated and dependent on a violent and controlling partner and because of her ongoing failures to act protectively of her children, lost the care of all three at one time or another between 2004 and 2010. She has put in place substantial barriers to that partner re-entering her life or those of her children. The Department of Child Safety no longer has concerns and is no longer involved. She is successfully managing life as a single parent to her boys, one of whom has special needs, and as a university student. She is on good terms with her now adult daughter which is an achievement given the history between them. She now embraces the support of her parents and professionals as well as a wider network of friends, neighbours and involvement in the community. [260] The Appeal Tribunal found Mr Ram lacked insight whereas I find CS had insight as already discussed. [261] I have outlined in some detail the risk and protective factors I find apply to CS’s circumstances. I find that her behaviour which resulted in a conviction for failing to provide and placed her children at risk for a period of years, occurred in the context of a violent domestic relationship which she terminated over five years ago. I find the strategies she has put in place to safeguard herself and her children from future encounters with her violent ex-partner go outside the “ordinary course”.34 [262] I also find that the circumstances of CS behaving in a manner which was not protective of her children was for her exceptional in that she would not be a person who would normally put children at risk but that occurred only in the context of her relationship with BT. Sadly domestic violence is not a rare occurrence but the level of abuse experienced by CS and her children, I would consider to be out of the ordinary. [263] I am satisfied that based on a consideration of CS’s circumstances as set out in these reasons, involving both the risks and the protective factors, that there were exceptional circumstances for the purposes of exercising discretion under s 225 of the Act. Non-publication of Identifying Information 34 Kent v Wilson [2000] VSC 98 which was cited in Commissioner for Children and Young People and the Child Guardian v Ram [2014] QCATA 27 -- 40 of 41 -- 41 [264] The Tribunal has the power to prohibit publication of information that may identify persons appearing before the Tribunal or whom may be affected by the proceeding,35 including particulars which may reasonably lead to the identification of children. Ms Taylor submitted it was appropriate I make that order on the basis that the material may identify a child who has been subject to an investigation of an allegation of the risk of harm36 and on the basis that the material may identify a person whom was a child when the offence was alleged to have been committed37 and I agree. Orders [265] 1. The decision made on 11 August 2014 to issue a negative notice is set aside. 2. A positive notice is to be issued to CS. 3. The publication of this matter will occur in a de-identified manner. 35 QCAT Act s 66. 36 Child Protection Act 1999 (Qld) s 189(1)(a). 37 Ibid s 194(1)(a). -- 41 of 41 --