DMJ v Chief Executive Officer Public Safety Business Agency [2015] QCAT 309

CITATION: DMJ v Chief Executive Officer Public Safety Business Agency [2015] QCAT 309 PARTIES: DMJ (Applicant/Appellant) v Chief Executive Officer Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML226-14 MATTER TYPE: Childrens matters HEARING DATE: 13 March 2015 and 14 May 2015 HEARD AT: Toowoomba DECISION OF: Member Wood DELIVERED ON: 30 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. That the Decision of the Chief Executive Public Safety Business Agency made on the 14th October 2014 be set aside and that a Positive Notice be issued to the Applicant. 2. That Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of any information that would identify the Applicant or her relatives in this Decision. CATCHWORDS: Childrens matters - application for Removal of Negative Notice – Applicant has no criminal history – the Applicant was charged with offences that the prosecution withdrew – Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors. Working With Children (Risk Management & Screen Act) 2009 (Qld) ss 5, 6, 221, 226 & 360. Queensland Civil and Administrative Tribunal -- 1 of 13 -- 2 Act 2009 (Qld) s 66 TAA [2006] QCST 11 Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCATA 492 RE Imperial Chemical Industries Limited Patent Extension Petitions [1983] VR1 Kent V Wilson [2000] VSC98 at paragraph 29 Commissioner for Young Children and Child Guardian V FGC [2011] QCATA 291 APPEARANCES and REPRESENTATION (if any): APPLICANT: DMJ – Self Represented RESPONDENT: Ms Natalie Taylor, Solicitor REASONS FOR DECISION [1] DMJ has no criminal record and at the time of the issue of the Negative Notice was 52 years of age having been born on the 13th February 1962. DMJ has been married twice, the second occasion to DLG. They have two children DRL born 16 March 2003 and DDR born on 7 April 2005. The marriage between DMJ and DLG has broken down and they separated in 2009. The evidence before me includes material relating to Family Court proceedings from which it is clear to me that the separation has been difficult on all involved. There are proceedings on foot in the Family Court relating to arrangements for the parties’ children. [2] These proceedings have been brought as a result of a Decision made by the Respondent to cancel a Positive Notice which had been issued to DMJ. The Positive Notice was cancelled by a Decision made on 14 October 2014 by the Respondent. [3] The Decision was made as a result of investigation information obtained by the Respondent. The information obtained was that DMJ had been charged with 5 offences alleging that she had assaulted and occasioned bodily harm to her children as follows:- a) Charge 1 – between 1 December 2013 and 27 December 2013; b) Charge 2 – between 28 February 2014 and 10 March 2014; c) Charge 3 – between 11 May 2014 and 20 May 2014; d) Charge 4 – on 26 May 2014 whilst armed with an offensive weapon. -- 2 of 13 -- 3 e) One charged of common assault between 15 May 2014 and 2 June 2014. [4] A complaint was made initially to a regional Child Protection Investigation Unit on the weekend of the 31st May 2014 and subsequently investigated by a different CPIU. In the course of that investigation interviews were conducted with each of the complainants and DMJ was charged with the 5 charges on the 12th June 2014. [5] The charges were discontinued by the Police. The evidence before me included a copy of the Queensland Police Service recommendation for withdrawal of charges dated 4 March 2015. The prosecution Report done to the Officer in Charge, Prosecutions included the following statement:- “Effectively the only evidence Police had were the 93A Statements of the two children. The alleged assaults took place in the home with no witness present” [6] I am unable to make any final determination of fact in relation to the charges. Due to the Police not proceeding with the charges DMJ has not had the opportunity to have a Court determine her guilt or innocence. DMJ denies in very vehement terms that she has committed the offences. DMJ has spent considerable time and effort examining all of the material available including the Police material. DMJ has provided material responding to each of the charges I will briefly summarise the charges and DMJ’s response when cross examined:- a) Charge 1 of 5 – That between 1 December 2013 and 27 December 2013 in the State of Queensland DMJ unlawfully assaulted the Complainant Police Allegations The Complainant child was unable to particularise the date but it was “around Christmas time 2013”. She told DMJ that she wished to reside with DLG. She stated that there was an argument with DMJ and that DMJ was getting ready for her friends to come over to dinner and was wearing high heels. DMJ was angry with her and has kicked her in the ankle with the pointy edge of the heel. She stated that she fell backwards on her bed and that DMJ has reached out and slapped her with an open palm on the ribs. The Complainant stated that DMJ left the room and she remained in her room and that the guests arrived but that at some point during the evening the heel on those shoes broke and the shoes were later thrown out. Response DMJ denies that she was told that the Complainant wished to live with DLG and there was any argument. DMJ does not wear high heels and had a gall bladder operation on the 13th December 2013 which required 6 weeks recovery where DMJ could not do anything, let alone wear high heeled shoes. Others stayed with her during this -- 3 of 13 -- 4 period in order to assist during her recovery. DMJ did not slap the Complainant nor were any shoes thrown out. DMJ says the version in the QP9 is inconsistent with other statements. b) Charge 2 of 5 – that between the 28th February 2014 and 10th March 2014 in the state of Queensland DMJ unlawfully assaulted the Complainant and thereby did her bodily harm. Police Allegations On a date the Complainant was unable to particularise except to say that the offence occurred around her birthday. Other evidence is that her birthday is the 16th March. She stated that she could not go to sleep and that around 8pm she stated that she was angry because DMJ would not let her talk to DLG on the phone. The Complainant said “I am putting my foot down, I want to talk to DLG”. The Complainant says that DMJ became angry and that she was red in the face. She alleges DMJ grabbed her by the throat pushing her backwards landing against a cupboard door where she hit her head. It is alleged that DMJ said “that’ll teach you a lesson” and she then walked off. Response DMJ says that the children usually went to bed later than 8pm and that there was never an argument about talking to the DLG. She says that the makeup of the bedroom is such that it was physically impossible for this to have occurred and that the statement that she is alleged to have made is not her personality. She denies the charges. c) Charge 3 of 5 – that between 11th May 2014 and 20th May 2014 in the state of Queensland DMJ unlawfully assaulted the Complainant and thereby did her bodily harm. Police Allegations It is alleged that on a date unable to be particularised but around the same date as the School Cross County in 2014 the Complainant was in DMJ’s bedroom when she was getting ready for School. DMJ is a Teacher’s Aide and the Complainant says that DMJ was wearing a green t-shirt and pink/purple pants. DMJ has asked the Complainant “does this look okay?” to which the Complainant replied “its yucky”. DMJ has walked over to the Complainant child and said “what’s wrong with it”. The Complainant has replied “doesn’t go together and look weird”. The Complainant child then stated DMJ has used a closed fist to punch her like an uppercut to the ribs, DMJ has then left the room and the Complainant child went to School. -- 4 of 13 -- 5 Response The evidence of DMJ is the School Cross Country was on the 4th April 2014 and that in competing on that day she came 7th in the event. Whilst it is the case that she at times has discussions with the children about her clothing she does certainly not take offence at the response. DMJ denies that this occurred and also says that she invariably drove the children to School. d) Charge 4 – that on the 26th May 2014 in the State of Queensland DMJ unlawfully assaulted the Complainant and thereby did her harm and was armed with an offensive weapon. Police Allegations The Complainant alleges that on the 26th May she was in the DMJ’s bedroom on the Computer. There was a general conversation about School and at about 6pm she had not long finished talking DLG on the phone. She stated that DMJ approached her and removed a silver belt that she was wearing and held it out as if presenting a sword. The Complainant alleges DMJ has then swung her right arm to hit the belt across the Complainant Child’s thigh, stating that the belt and the metal part of the belt hit her thigh. She says that it hurt and she was crying. She stated that the DMJ hugged her and her younger sister came in and put her belt in the handbag. The Complainant alleges that she was upset and would not stop crying and DMJ then rang her older half sister DA to take her to the Hospital. On the way to the Hospital as they were leaving the driveway she saw DMJ remove the belt from her handbag and throw it in the bin. She stated that they went to a public Hospital and felt the wait was too long and then went to a private Hospital. When the Doctor came in DMJ lied to the Doctor and told the Doctor that the Complainant child was upset and couldn’t sleep because of nightmares about DLG hurting the Goat. She stated that she was sent out of the consulting room and the DMJ spoke to the Doctor alone. The Complainant states that at no time was her leg checked and that she had a large red welt across her thigh. On the following day the Complainant Child attended her own GP where the Complainant lied to the Doctor about her not sleeping. She told the Doctor the same as DMJ had because she didn’t want to get into trouble from DMJ if she told the Doctor what happened. Response DMJ in her evidence gave evidence that she does not wear belts nor does she own them. DMJ made the point that she had rung her other daughter DA to attend and that the Complainant Child was in deed left alone with Doctors to discuss the incident. DMJ never saw a -- 5 of 13 -- 6 mark on her even through she often had bruises as there are Goats at DLG’s place. In relation to this charge there is some independent evidence. There are progress notes from BN on the 27th August 2014, those notes record the following:- “Presented to (Private Hospital) last night. Increase anxiety Not sleeping Mum states due to trauma experienced at her Father’s, when her Father mistreats animals. Spoke to (Complainant) alone Has witnessed several events of violence towards the Goats and 5 month old puppy from her Father. Punched Dog in the face, caused bleeding. Has kicked and thrown Goats around. (Complainant) states she sometimes feels unsafe with her Father but denies her Father ever hurting her. He would sometime yell at her. sometimes without her knowing why She cannot sleep well when at his place She is worried because he is saying he is applying for full time custody She states she feels safe with her Mother School Ok, good friends no bullying Is finding increasingly difficult to concentrate...” In addition BN had received a fax from PA from Private Emergency Group in relation to the attendance at the private Hospital the previous evening. That confirms the complaints made in relation to concerns about the aggressive and cruel behaviour towards animals by the complainants father and records “(Complainant) feel terrible every time she returns home to DMJ”. Other evidence in relation to this incident includes a Diary Note of the Complainant child where she records that she was told in a telephone call with DLG earlier on the evening of the 25th May that:- “... I will be coming to live with him real soon. When I hung up I felt confused and distressed. I forgot all about it until I went to bed. Then I lost it I bawled my eyes out when Mum came in she asked what’s wrong. When I told her she said come talk to DA because she works within the law and court system...” e) Charge 5 – that between 15th May 2014 and 2nd June 2014 in the State of Queensland the Defendant unlawfully assaulted the Complainant. -- 6 of 13 -- 7 Police Allegations The Complainant alleges that a couple of weeks prior to a Police interview which occurred on the 4th June 2014 DMJ had assaulted the Complainant because DMJ was angry over a mess. She stated that DMJ grabbed her hand and slapped her hard on the left forearm. She said that it stung and left a red mark. Response DMJ had Breast Cancer in 2006 and received treatment for it. As a result of that treatment she has nerve damage in her hand and if she hits children or anything then she suffers significant pain herself. DMJ denies that this occurred. [7] DMJ’s evidence about all of these allegations can be summarised by her statement in evidence “nothing has happened, none of this has happened”. DMJ does not have any criminal history. [8] The marriage to DLG was her second marriage, she married her first Husband in 1982 and separated from that Husband initially in 1993 but finally by 1994. There were two children from that marriage DA born in 1984 and DL born in 1989. DMJ was a sole parent to both of her elder daughters with DLG coming into her life in 1999. DMJ does not have any chronic, mental health or other health issues but has been on mild medication for anxiety and stress since June 2014 as a result of the charges and allegations against her. [9] DMJ was at the time of the Negative Notice employed at a State School. A number of witnesses were called by her in support of her Application for a Blue Card. HP is a Prep Teacher at a State School. In her statement she says that she has known DMJ for 6 years as at the time of the writing of the reference in July 2014. HP is aware of the allegations and is aware that DMJ’s Blue Card was cancelled as a result of allegations about children. HP was giving evidence and providing a reference for DMJ both in a work and personal capacity. [10] HP has seen DMJ interact with her own children and in her employment was self driven. HP has seen DMJ work with small groups of children in class situations and DMJ has always worked well with those children. HP would have no hesitation in allowing DMJ to work with children and in terms of her observations of the DMJ’s children they were always well presented and well looked after. [11] WK is Teacher at the DMJ’s work place. WK knows DMJ as DMJ has been a Teacher’s Aide in her class and is aware of the allegations against her. WK is aware that DMJ has told everybody of the allegations as although DMJ was distraught by having them made she is aware of her obligations to disclose the allegations. WK has not had any dealings with DMJ outside of School. DMJ has worked with high needs children in WK’s class and works well at redirecting without any anger or loss of patience with the -- 7 of 13 -- 8 children. DMJ is always very positive with them. WK in particular made the comment that she had a challenging child in her class last year who was quite physically violent and DMJ dealt with him well. She was very calm and was patient. WK felt the allegations were very out of character for DMJ. [12] A number of other witnesses were called and cross examined. These witnesses were long term friends and relatives who had had the opportunity to view DMJ interacting with children in many varied situations. They included DMJ’s adult daughter DA who spoke very highly of DMJ’s parenting skills. I do not propose to deal with each of the witness’s evidence individually however I find from their evidence collectively that DMJ is committed to caring for all of her children and to ensuring their welfare and wellbeing. DMJ has behaved appropriately with her own children and in terms of disciplining them when required has used varying techniques including:- a) Writing lines; b) Providing time out; c) Removing a valued object such as technology from their use. [13] In addition to the oral evidence I have had the opportunity to consider all of the written material filed. In particular I wish to make reference to:- a) Vocational placement – a Vocational Placement School Supervisor Feedback Form from a State School Prep class was prepared in June 2011. It was prepared by HP. It speaks glowingly of the DMJ’s performance and her attitude in undertaking her role. i) Under the heading of Works With Others summarised as follows: “(DMJ) is proactive and steps in immediately to assist with Student Class management when the need arises.” ii) Under the heading Contributes to a Positive Learning Environment:- “(DMJ) contributes hugely to the running of the Prep environment. She is efficient, cooperative, and hardworking and sees every task through to its completion. She is happy and positive and takes on all roles with enthusiasm. Jan gives more of herself on a daily basis to help with the smooth running of this Centre”. iii) Under the heading of Understands Individual Education Requirements is recorded as follows:- “(DMJ) is aware of providing support and individual programs for those children’s who has needs. DMJ is able -- 8 of 13 -- 9 to relate to and enhance a child’s learning through the programs and level support required...” iv) Under Strengths there are listed the following:- “Honesty Commitment Dedication Resourcefulness Creativity High work ethics Sunny personality Genuine for children in her care” b) Police Reference - I have been provided with a reference addressed to DMJ’s Solicitor in the criminal matters under the hand of the Investigating Officer in relation to the charges. The reference is dated the 24th December 2014 and importantly include the following:- “I understand that (DMJ) was employed as Teacher Aide at a Primary School. These charges are not a reflection of her behaviour towards her students. The matter is currently proceeding through the Court system so I am unable to comment further on the matter except concur with her Solicitor (SB) regarding the re-instatement of her Blue Card.” In the letter she expresses the view that the matters surrounding the charges should not affect DMJ’s employment. [14] DMJ called her former Mother-in-law (DLG’s Mother) to give evidence. She provided evidence in the form of a letter and was cross examined. She indicated that she was aware of the allegations against DMJ but in her view the allegations made by the girls were false. She made the comment that:- “[DLG] can be vindictive, sarcastic and if crossed then a bully.” [15] In her view her son would be “mean enough to coach the children” to make the allegations. [16] The written evidence details the fractured relationship between herself and DLG but also details many incidents of extreme animosity towards the witness from DLG. In talking about Her own property settlement with her former Husband she recorded that in her view the Terms of Settlement were advantageous to her former Husband but that despite this the DLG made the comment to Her :- “he would break (me) and see me in the gutter with nothing.” -- 9 of 13 -- 10 [17] She is of the view that her son would be prepared to “put the girls up to” these allegations. [18] DMJ when asked in her evidence about the allegations was clear that in her view the allegations were made up. DMJ believes that DLG is such that he would threaten the girls with injury to their goats, which they liked, in order to control them. In her evidence she can recall on occasion when something happened and the girls said to her:- “Don’t tell (DLG) or he will hurt our Goats.” [19] DMJ also believes that her former Husband is seeking to gain an advantage in the Family Court proceedings by having the girls making the allegations against DMJ. STATUTORY FRAMEWORK [20] The Respondent received information in relation to the Application which ultimately led to a decision to issue a Negative Notice. DMJ has not been convicted of a serious offence and therefore a Positive Notice must issue unless the Respondent was satisfied that it was an exceptional case in which it would be in the best interests of children to be issued with a Positive Notice1. [21] The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case2 however the Tribunal must exercise its discretion in each case within the parameters of the legislation. [22] There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine wether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists3. [23] In the event that DMJ was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card. [24] The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.4 1 WWCRMSA s 221(2). 2 WWCRMSA s 226. 3 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28. 4 WWCRMSA s 6. -- 10 of 13 -- 11 [25] In making my Decision I need to take into account the protective and risk factors5. APPLICANT’S SUBMISSIONS [26] DMJ’s Submissions are lengthy. They contain submissions which contain evidence which is not before the Tribunal. They however repeat the inconsistencies in the Police case against DMJ which have been dealt with in the written material by DMJ which they say impacts upon the veracity of the statements which form the complaint. DMJ submits that having regard to the concerns which they say should be held regarding the strength of the Prosecution evidence that I should find that no exceptional circumstances exist which would prevent the issue of a Blue Card to DMJ. RESPONDENT’S SUBMISSIONS [27] The Respondent submits that the risk factors which they have identified in their submissions are such that there is an exceptional case. They say that the evidence before the Tribunal supports the existence of continuing psychological and emotional abuse by DMJ against her children, that submission is based however on the allegations giving rise to the Police charges. They say that there is no independent or compelling evidence before the Tribunal that the children were coached to make the allegations up. They acknowledge that the charges did not proceed but say that that is because that is to prevent further harm to the children. RISK ASSESSMENT The protective factors in this case are as follows:- a) DMJ has no criminal history. b) DMJ had held a Blue Card previously for a number of years and has worked in public sector employment with the Education Department. c) DMJ has a good support network of family and friends. d) By reason of DMJ’s employment she has undertaken a number of modules and education relating to the care of children. e) DMJ’s work references provide observations of DMJs positive interactions with children and her ability to deal with children with special needs and challenging behaviours in an appropriate and proper way. 5 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492. -- 11 of 13 -- 12 f) DMJ has where appropriate sought professional assistance in managing stress and anxiety. The risk factors are as follows:- a) DMJ is alleged to have committed serious offences against young children. b) Allegations have previously been raised with the Department of Child Safety between 2001 and 2003 regarding DMJ’s care however DMJ was not aware of them. CONCLUSIONS OF THE TRIBUNAL [28] As outlined previously in these reasons DMJ is a person who is entitled to be issued with a Positive Notice unless it is an exceptional case. An exceptional case is not defined in the Legislation however in considering an exceptional case I must have regard to the provisions of Section 226. What constitutes an exceptional case is a question of fact and degree6 and as it a matter for discretion must be determined on the merits of each case7. It must however be beyond the ordinary circumstances and must be unusual or special. [29] I am also cognisant of the comments made by Philippides J that the application of what is exceptional must take application unhampered by any special meaning or interpretation but in the context of the Legislation which contains them8. [30] The allegations in this case were made in the context of acrimonious Family Court proceedings between DMJ and DLG. There is evidence before me that DLG might be prepared to encourage the children to give evidence which would be beneficial to him for the purposes of Family Court proceedings. It is clear on the evidence before me however that DMJ denies the allegations made against her. [31] In my view it is also significant that the department of Communities, Child Safety and Disability Services has been involved and has decided not to take further action. In deed their position is that no action is to be taken by them at this stage. A Child Concern Report prepared by them includes the following statements:- “– There is a child protection history for this family however as is often the case in FLC matters these consist of allegations and cross 6 RE Imperial Chemical Industries Limited Patent Extension Petitions [1983] VR1. 7 Kent v Wilson [2000] VSC98 at paragraph 29. 8 Commissioner for Children, Young People and Child Guardian v Maher & Another [2004] QCA492. Commissioner for Young Children and Child Guardian v FGC [2011] QCATA 291. -- 12 of 13 -- 13 allegations by both parents against each other. No concerns requiring investigation have been raised. - Whilst there have been concerns raised which resulted in the (DMJ) being charged with assault on both children those charges have been dropped and although still concerning there is insufficient information to evidence or suggest significant harm has been incurred by either child. - It is considered that neither parent could, as yet, be described as a parent not willing or able to provide adequate care and protection for the children.” [32] I am not able nor am I required to determine the truth or otherwise of the allegations. DMJ is entitled as are all citizens to a presumption that she is innocent of the charges until such time as found guilty. Further I have had the opportunity to view DMJ giving evidence and be cross examined by the Respondent in relation to the allegations. The Respondent carefully put to her the allegations outlined in the QP9 and her evidence was unwavering. I formed the view that DMJ is a witness of truth and was prepared to make concessions where appropriate. None of these concessions however were capable of amounting to an admission of the allegations against her or in deed of any wrong doing towards children. [33] In all of the circumstances I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for DMJ to be issued with a Positive Notice. [34] I order that the Decision of the Respondent to issue a Negative Notice to DMJ is overturned and direct that she be issued with a Positive Notice. NON PUBLICATION ORDER [35] Further the Respondent submits that I should make an Order prohibiting publication of information relating to DMJ and her family. DMJ and her support network reside in a small regional community such that publication of identifying material could well be prejudicial to herself and her family. In the circumstances I consider it to be appropriate and Order accordingly. -- 13 of 13 --