Baird v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 625

CITATION: Baird v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 625 PARTIES: Ellen Jane Baird (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML050-14 MATTER TYPE: Childrens matters HEARING DATE: 30 September 2014 HEARD AT: Mackay DECISION OF: Member Beckinsale DELIVERED ON: 2 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made on 20 December 2013 to continue the negative notice is confirmed. CATCHWORDS: CHILDREN-BLUECARD-exceptional case- negative notice for a blue card where no serious offence-where a review sought of a negative notice-where evidence of risk factors and protective factors-whether or not in the best interests of children for a negative notice to remain in place. Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 237(1) and (2), 354 and 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a) and 20(2) Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 -- 1 of 9 -- 2 APPEARANCES: APPLICANT: Ellen Jane Baird represented by Zoe Craven, Aboriginal & Torres Strait Islander Legal Service RESPONDENT: Chief Executive Officer, Public Safety Business Agency represented by Louisa Keown, an officer of the Public Safety Business Agency REASONS FOR DECISION Background [1] Ms Baird was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) on 30 June 2006. On 11 September 2006, the Queensland Police Service notified the Commission that Ms Baird’s criminal history had changed. After reassessing Ms Baird’s eligibility, the Commissioner cancelled her positive notice and issued a negative notice on 5 April 2007. [2] Ms Baird subsequently applied to the Commissioner to have the negative notice cancelled. Ms Baird says she sought the cancellation of the negative notice because she was living with a former partner’s parents who sought to become foster carers. All members of the household of foster carers are required to hold a blue card. [3] The Commissioner (now the Chief Executive Officer of the Public Safety Business Agency) refused Ms Baird’s application on 20 December 2013. The Legislation [4] Ms Baird has applied to QCAT for a review of that refusal pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). [5] Under section 354 of the Act, QCAT 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 [6] QCAT must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.2 [7] The Act provides that as Ms Baird no conviction for a serious offence3 the Chief Executive Officer must issue a positive notice and a blue card unless 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). -- 2 of 9 -- 3 satisfied hers is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.4 [8] The Act does not define “exceptional case”. The QCAT Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FCG 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 [9] Although the Act does not define “exceptional case” it provides guidance as to what QCAT 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. [10] 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 The Evidence [11] Ms Baird has convictions for a number of offences, all categorised as non- serious. The offence of concern was common assault committed on 20 January 2006 to which Ms Baird pleaded guilty. On 25 September 2006 she was convicted with no conviction recorded and sentenced to probation for 18 months. [12] The police brief in the matter reports, in summary, that the complainant, a 16 year old girl was walking to a party about 11pm on the night of 20 January 2006 when she saw four people waiting on the street. She recognised one of the people as Ms Baird who approached her and punched her in the head about nine times. One of the other people punched the complainant once and then Ms Baird left. When questioned by police Ms Baird admitted punching the complainant in the head a number of times. She told police she did so because the complainant had made a false sexual assault complaint against her husband. 3 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167. 4 Ibid s 221. 5 Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291at [31]. 6 Ibid at [33]. 7 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28]. -- 3 of 9 -- 4 [13] From oral evidence given by Ms Baird at the hearing, it emerged that the complainant had told her that Ms Baird’s de facto partner, Eric, “had sexually abused” the complainant some seven months prior to the assault. [14] Ms Baird’s evidence was that the complainant and the complainant’s mother both lived with Ms Baird, her partner Eric and two of Ms Baird’s daughters, then aged about 15 and 16. Ms Baird said the complainant and her mother had lived with her three years. She described the complainant as her “niece” because Ms Baird’s sister had been married to a brother of the complainant’s mother. [15] Ms Baird said she had just come home from work around 2pm or 2.30pm when the complainant told her about Eric. She said she did not believe the complainant. She was tired having worked throughout the night. She said she got angry and told the complainant to leave the house, to get out because she, Ms Baird could not deal with it, but the complainant was not able to leave until an uncle collected her after he finished work about 5pm. [16] Ms Baird was asked whether she continued to see the complainant during the months prior to the assault and she replied yes, every three days to talk about the complainant’s problems. She then said that the complainant would phone her although she never saw her in person until the assault. She said the complainant did not mention again her accusation against Eric and she never raised it with the complainant because she “didn’t think it was relevant”. She said she never raised the allegation with the complainant’s mother who remained living at her house nor did she talk to the police or anyone else in authority because “she didn’t think it was relevant”. She did confront Eric who denied it. [17] Later Ms Baird was asked to explain what she meant by it not being ‘relevant’ to go to the police. She replied she did not think it necessary. She wanted “to see whether it was true or not, try and see who was lying and who wasn’t .” [18] As regards her assault of the complainant, Ms Baird gave evidence that she was at her daughter’s house when she saw the complainant walk past. “I got angry thinking what she said and just walked up and whacked her one.” She said her daughter had tried to stop her but she punched the complainant in the face. [19] Ms Keown asked Ms Baird, “Given it was seven months later, why do you think you were still so angry with her about it?” Ms Baird replied, “I don’t know. It was just going through my head all the time.” [20] Ms Keown then asked Ms Baird how with the complainant having conversations with her so frequently and asking for advice the situation had not previously escalated. Ms Baird then went on to say that Eric asked her, Ms Baird, why she was talking to the complainant who had accused him of sexual assault “and it just went from that to actually walking up and hitting her over it”. -- 4 of 9 -- 5 [21] Later in her evidence Ms Baird said on the day of the assault she had been at her daughter’s house that day and Eric brought up the accusation and had “gone on about it all day”. He had asked her whether she believed him or the complainant and Ms Baird said she had told him “I believe you not her and that’s what made me even more angry and he said well she just walked past, what are you going to do about it and it just made me angry and I just walked out and hit her.” [22] In oral evidence Ms Baird said she had hit the complainant “a few times”. She denied she had hit the complainant as many as nine times as stated in the police brief or that she was in the company of anyone other than her daughter when she assaulted the complainant. [23] In her affidavit made 24 July 2014, Ms Baird states “In relation to the common assault…I had found out that the mother of the victim was sleeping with Eric. When (the complainant) told me he had interfered with her I just lost it.” [24] In Ms Baird’s handwritten submissions to the Commission she writes “I just got home from work and (the complainant) come out to me and cry and said Eric had just asked her for sex. So I went inside and ask Eric if he said it and he said no. So the next day (the complainant) and the girl went to school. My girl come home from school and was asked were (the complainant) was and …said the school has got her. She had told the school wat Eric had said to her . I rang her and ask wat was going on and she said that she had told the police wat Eric had said to her and that they were putting her in a safe place until they get to the bottom of it. When the police show up at my place and ask Eric wat was said I go angry at her and went looking for (the complainant) to get to the bottom of it and I go angry with her and hit her…I repeatedly hit her in the face and side of the head I think it was about nine time that I hit her. I was at a friend place when this happen.” [25] The variations in her accounts were not put to Ms Baird at the hearing but she was questioned, at length, very specifically, about what occurred. Even taking into account that Ms Baird is an unsophisticated person, I find it very difficult to reconcile these variations. [26] In oral evidence Ms Baird related that around six months after she assaulted the complainant, police and officers from the Department of Child Safety attended at her home wanting to speak to her youngest daughter, her and Eric. Eric was questioned about allegations of sexual assault made by that daughter. Eric had denied the allegations but DOCS advised Ms Baird that she was required to move from living with Eric or her daughter would be taken into care. [27] Ms Baird’s lawyer submitted in this instance Ms Baird had acted protectively to remove her daughter. However, Ms Baird herself said DOCS gave her an ultimatum so she had no choice if her daughter was to remain living with her. Given Ms Baird’s treatment of the complainant, it is -- 5 of 9 -- 6 unsurprising that her daughter did not confide in her mother, but instead approached authorities outside her home. [28] Ms Baird gave conflicting versions of when she accepted the allegations by the complainant were true. At one stage she said this was when she had caught Eric “in the act” with the complainant’s mother. Later she appears to be saying it was after her own daughter made allegations. [29] Ms Baird gave evidence that she attended probation for the 18 months ordered. Her oral evidence was that “anger management” was not a separate component of probation but something discussed each appointment with her probation officer over the 18 months. [30] Ms Baird’s lawyer provided an email from Ms Baird’s probation officer Melanie Hudson dated 30 July 2014 which provides “Agency records indicated that Ms Baird attended and completed the Anger Management Program run by this agency in December 2006. Ms Baird requested further counselling to address her anger issues and an appointment was made for Ms Baird to attend anger management counselling with Centacare for the 2/5/07, however failed to attend.” [31] Ms Baird said she was not advised of this appointment. In any event she arranged to attend counselling through “Pathways” where she saw a domestic violence counsellor, Toni Murphy. Again Ms Baird’s evidence regarding this was somewhat confusing. She said she had started seeing Toni Murphy with her youngest daughter, but then saw her on her own. “Every Tuesday (my Daughter) would do hers and go out and I’d have to do mine (counselling) straight after.” But she also said the reason that she had to recently cease her appointments with Ms Murphy was that Ms Murphy was now counselling that daughter so she had a referral to see a new counsellor at the Aboriginal and Torres Strait Islander Service. [32] Ms Baird said she had attended counselling with Toni Murphy for about four years, most weeks for 2 or 3 hours at a time, sometimes less. She said in fact there was no fixed time for her to see Ms Murphy and she could ring up and get a time as Ms Murphy was hardly ever busy. [33] Ms Baird deposes in her affidavit that “counselling has helped me to see how being in abusive relationships all those years stopped me dealing with my own hurt or anger and my own experience of sexual abuse as a child.” At the hearing Ms Baird was unable to articulate for herself that she had achieved this from counselling. Her main response when asked what she had learned from anger management and counselling was that if she felt angry she should remove herself from the situation until she calmed down and she would no longer use violence to solve problems. When asked if she had identified triggers to her anger she replied she did not get angry any more. When pressed about how her childhood may have impacted on her she said she had bottled up her anger over the years. -- 6 of 9 -- 7 [34] In the context of explaining how counselling helps her deal with depression, Ms Baird said a friend had come to see her and told Ms Baird her (the friend’s) partner was hitting her, expecting Ms Baird to confront the partner. Initially she said she just said no, to leave her alone, go away, she did not want to deal with it and had enough problems of her own. When pressed about whether she might offer help in such situation she said she had rung the police for the friend to speak to. She was asked again about her response to this friend and she said “I didn’t believe she had been abused because she didn’t come over with bruising or anything like that and she seemed perfectly fine that’s why I didn’t believe her. That’s why I rung the police for her to speak to the police but she refused to speak to them. That’s how I know she was lying…Like if someone was actually being abused surely they’d come over with some of their hair ripped and marks on their face from being abused because my daughters use to.” [35] Ms Baird was then asked whether in her experience of violent relationships the damage might not always show. She said Eric had bitten her where the marks could not be seen and continued “but this sheila that said her partner had beated her, her clothes were perfectly fine. There was no rips. No nothing.” [36] Ms Baird was asked why her friend had sought help from her and she replied that everyone comes and talks to her about everything and (now) “I just tell them to go to the right authority and deal with it yourself because I can’t be involved in violence because I’m trying to get my blue card back.” [37] Ms Baird expressed her remorse for assaulting the complainant and for not believing her, particularly finding out her then partner had sexually assaulted her own child. [38] Ms Baird said she would react differently now. She said she would sit the complainant down with the accused and ask her what happened in front of him to see what his reaction was. Only when pressed as to whether she should have sought professional help did she agree that ought to have happened. [39] Ms Baird said she had apologised to the complainant for not believing her and for assaulting her. She said she and the complainant are on good terms. When asked whether she thought there may have been long term impact on the complainant she said she didn’t know. When asked why she thought she hadn’t sought help for the complainant she said she didn’t know. Only when it was suggested to her that maybe because it involved her own partner did she agree. When asked if dealing with problems with violence in of front children would make it likely they too would behave in that manner she replied “no”. Only when pressed whether violent behaviour could have that effect on children did she concede that was possible. -- 7 of 9 -- 8 [40] In addition to her assertions that counselling has addressed her issues with anger and depression, Ms Baird gave evidence of other protective factors in her life. She said her daughter Jessie, is the main person she can talk to for support and advice although her current partner is also supportive and not violent. She identified alcohol as a part of her previous problem and said she hadn’t drunk for five years. While not currently employed Ms Baird said she has completed a course in traffic control and was undertaking a retail course and hoped to obtain work in the future. Discussion [41] Ms Baird produced almost no evidence and called no witnesses to corroborate what she claims. [42] The email from her probation officer attests she completed an anger management course but does not address any progress made by Ms Baird as a result of the course or probation generally. [43] A copy of a reference given to the Commissioner by Gloria Foxley- Connolly with whom Ms Baird lived was provided but is very brief and of little assistance, particularly with no opportunity to question Ms Foxley- Connolly. [44] No report was provided from Ms Baird’s counsellor to corroborate what Ms Baird asserted occurred as a result of her many counselling sessions. Ms Baird contradicted herself and frequently altered her account of what had occurred and I found her to be an unconvincing witness. Therefore the lack of corroborative evidence is damaging to Ms Baird’s case. Significantly, insight is a protective factor which I did not find demonstrated by Ms Baird. Her lack of understanding about the impact of her actions on the complainant and the impact of violence generally on children was concerning as was her evidence as to how she would now deal with an allegation of sexual abuse against a child. Although the friend of Ms Baird was not a child, she was still a person possibly in a vulnerable situation and Ms Baird did not demonstrate an understanding of the impact of violence nor act protectively. [45] While it is positive that Ms Baird said she will continue with counselling, at the hearing she did not present to me as someone who is managing particularly well emotionally. She said she had not wanted to get involved with assisting her friend because of having enough problems to deal with. She talked of being very stressed by her recent diagnosis of diabetes and by the effect of two of her grandchildren being in the care of the State. I find the risk factors in these circumstances are considerable and not countered by the protective factors. -- 8 of 9 -- 9 [46] I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, a negative notice must issue. -- 9 of 9 --