DMN v Chief Executive, Public Safety Business Agency [2014] QCAT 384

CITATION: DMN v Chief Executive, Public Safety Business Agency [2014] QCAT 384 PARTIES: DMN (Applicant) v Chief Executive, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML188-13 MATTER TYPE: Childrens matters HEARING DATE: 20 June 2014 HEARD AT: Maroochydore DECISION OF: Member Browne DELIVERED ON: 5 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) made on 2 September 2013 to cancel the positive notice issued to DMN and to issue a negative notice is set aside and the Chief Executive is to issue a positive notice to DMN. 2. The Tribunal prohibits the publication of the names of the applicant, the applicant’s daughter and step children and the names of the applicant’s lay witness referred to in these proceedings. CATCHWORDS: CHILDRENS MATTERS – BLUE CARD REVIEW – where the applicant seeks a review of the Chief Executive’s decision to cancel the positive notice and to issue a negative notice – where evidence of criminal history – whether an exceptional case exists Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 24 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 237, -- 1 of 11 -- 2 s 547 Chief Executive for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms DMN, self-represented RESPONDENT: Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) represented by Ms Louisa Keown, legal officer (in-house) REASONS FOR DECISION [1] Ms DMN requires a blue card to enable her to work as a teacher’s aide working with underprivileged children in a flexible learning program. [2] Ms DMN held a blue card from 17 December 2007 to 2 September 2013, being the date that she received notice of the Chief Executive’s (formerly the Commissioner for Children and Young People and Child Guardian)1 decision to cancel her positive notice and to issue a negative notice. [3] Prior to issuing a negative notice, the Chief Executive decision maker was notified of changes to Ms DMN’s criminal history on 2 May 2013. There were two offences identified relating to offending behaviour on 17 April 2013 and 23 April 2013 concerning Ms DMN’s daughter. [4] The offending behaviour involved allegations of physical discipline within the home environment to Ms DMN’s daughter aged 16 years who has an intellectual impairment. At the time of the offending behaviour Ms DMN was living with her fiancé and his two children aged about 9 and 11 years (Ms DMN’s step children). [5] The Chief Executive conducted a review or reassessment of Ms DMN’s eligibility to hold a blue card upon receiving information from the Queensland Police Service (QPS). The Chief Executive determined that the positive notice be cancelled and a negative notice issued. [6] Ms DMN filed an application in the Queensland Civil and Administrative Tribunal on 26 September 2013 to review the Chief Executive’s decision to cancel her positive notice and issue a negative notice. [7] The Chief Executive decision maker filed with the Tribunal a copy of the reasons for the decision and all documents relevant to the review of the 1 The Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) was replaced by the Working with Children (Risk Management and Screening) Act 2000 (Qld) on 1 July 2014. -- 2 of 11 -- 3 decision, pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [8] The matter proceeded to a hearing before the Tribunal. Ms DMN relied on statements prepared by her and other people that she says attest to her good character and personal circumstances since the offending behaviour, including her work with underprivileged children. Ms DMN also relies on the evidence of her treating psychologist, Karina Allen who gave evidence by telephone. [9] Ms DMN and NDE (her future mother-in-law) gave oral evidence at the hearing. Ms DMN in giving her oral evidence was given an opportunity to respond to questions about her offending behaviour and personal circumstances. What is an ‘exceptional case’? [10] The Tribunal, standing in the shoes of the Chief Executive decision maker, must decide whether it is appropriate to cancel Ms DMN’s positive notice and in relation to issuing a negative notice, determine whether or not there is an “exceptional case” for Ms DMN in reassessing her eligibility to hold a blue card under s 237 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act). [11] The offending behaviour giving rise to the reassessment of Ms DMN’s eligibility to hold a blue card concerns charges that for the purposes of Division 9 of the Working with Children Act are not serious or disqualifying offences.2 The Tribunal on review must therefore be satisfied that this is ‘an exceptional case in which it would not be in the best interests of children’ for Ms DMN to hold a blue card, then the positive notice must be cancelled and a negative notice be issued to her.3 [12] The Working with Children Act does not define an “exceptional case” but does refer to certain factors that the Tribunal, standing in the shoes of the Chief Executive decision maker, must consider in determining Ms DMN’s eligibility to hold a blue card. For example, when the offence was committed or is alleged to have been committed; the nature of the offence and its relevance to employment or carrying on a business that involves or may involve children; and anything else relating to the commission of the offence that the Chief Executive or Tribunal on review reasonably considers to be relevant to the assessment of the person.4 [13] The Tribunal on review must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.5 2 Working with Children Act s 221. Section 237(2) prescribes that division 9 applies in making a decision about whether to cancel a positive notice and issue a negative notice. 3 Ibid s 221. 4 Ibid s 226. 5 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [29]. -- 3 of 11 -- 4 [14] The Tribunal must consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.6 In determining whether this is an exceptional case, the Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.7 Relevant factors in considering whether this is an exceptional case [15] The Tribunal has identified the following factors as being relevant to the exercise of discretion under the Working with Children Act to determine whether this is an exceptional case. a) Nature of the offending behaviour [16] The offence of common assault took place on 17 April 2013. Ms DMN was 38 years of age and her daughter (the complainant child) who has an intellectual impairment was aged 16 years. The QPS information reports that the complainant child attended school on 24 April 2013 and showed her carer “welts” on her legs and bruising on her legs and arms.8 [17] The QPS were notified by the complainant child’s school about her injuries and an interview took place. The QPS information reports that the complainant child told police that she had been hit by her mother with a spoon on her leg and had been hit (“repeatedly”) by her mother’s fiancé with a stick on her leg. Ms DMN is reported to have attended the police station in relation to her daughter’s (the complainant child) injuries. Ms DMN participated in an interview with police. The police information reports: [Ms DMN] stated that she recalled that two or three days prior the family was at home and [her step child] was upset and said that the [complainant child] had hit her. [Ms DMN] stated that [her fiancé] had approached her and asked for her permission, if she would mind; if he punched [the complainant] child back so she would knew what it feels like. [Ms DMN] gave her permission…[Ms DMN’s fiancé] walked over to the [complainant child] and punched her with a closed fist into the left arm and said “Do you like it”. [Ms DMN] made admissions to enabling the act of assault by giving her permission for the assault to occur.9 [18] In relation to the offence of assaults occasioning bodily harm whilst armed/in company on 23 April 2013 the police information reports: [Ms DMN] stated that she observed [the complainant child] standing at the bins with [her step child] …[and] observed the [complainant child] arms crossed and she thought she was being defiant and refusing to help [her step child] with his chores. [Ms DMN] stated that she went and got a wooden spoon from the kitchen drawer and went outside and asked [the complainant child] to help [her step child] and after she refused [Ms DMN] 6 Ibid s 5. 7 Ibid s 155. 8 Material filed by the respondent decision maker in accordance with s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), p CCYPCG-021. 9 Ibid p CCYPCG-022. -- 4 of 11 -- 5 struck [the complainant child] on the leg with the wooden spoon. [Ms DMN] stated that [the complainant child] tried to hit back so [Ms DMN] hit her a second time in an unknown location. After this [Ms DMN] stated she went inside the house…. [Ms DMN] then heard a commotion outside… [Ms DMN’s fiancé] came inside and told her that he had hit [the complainant child] with a bamboo stake after she [the complainant child] threw a bottle at him and [Ms DMN] stated that she thought that this was reasonable behaviour and she agreed with [her fiancé] striking [the complainant child] with a bamboo stick. [Ms DMN’s fiancé] put [the complainant child] in time out for one hour and [Ms DMN] agreed to this.10 [19] In relation to the injuries sustained to Ms DMN’s daughter as a result of the offending behaviours on 17 and 23 April 2013 the police information reports: On the 24th April 2013 at approximately [1.30 pm] police…observed three red coloured welts on [the complainant child’s] left leg with bruising underneath, a circular red mark on her left thigh, a purple bruise on her left upper arm and a bruise on her left elbow.11 [20] Ms DMN pleaded guilty to the offending behaviour on 16 October 2013 and was sentenced to a period of probation for 6 months with no conviction recorded. Ms DMN’s fiancé also pleaded guilty to the charges on 16 October 2013 and evidence was given by Ms DMN at the hearing that her fiancé was sentenced to a period of 12 months probation as a result of the offending behaviour. b) Personal and family circumstances relevant to the offending behaviour [21] Ms DMN gave evidence at the hearing about her daughter who has an intellectual impairment. Ms DMN stated that her daughter is much taller and heavier than her and has for the past few years been at times aggressive in her behaviour towards her. Ms DMN’s daughter attends a school referred to by Ms DMN as a “special school” that supports her daughter and other children who attend the school. Ms DMN’s daughter also attends respite on occasion. [22] Ms DMN gave evidence at the hearing about previous attempts by her to discipline her daughter referring to her taking away privileges. Ms DMN gave evidence about the difficulties she has experienced over the years in raising her daughter in relation to her challenging behaviour. Ms DMN stated that her daughter has hit her “a few times”; and that she has in the past provided daily support in all activities to her daughter at home. [23] Ms DMN raised her daughter as a single mother having separated from her daughter’s father when she (her daughter) was aged approximately 2 years. Ms DMN’s former partner had a daughter from a previous relationship who continued to live with Ms DMN and her daughter for some years. Ms DMN stated at the hearing that her daughter’s half sister 10 Ibid 022. 11 Ibid 021. -- 5 of 11 -- 6 who is now a young adult continues to have a positive relationship with her and her daughter. [24] Ms DMN met her current partner (her fiancé) approximately 3 years ago. Ms DMN and her daughter now live with Ms DMN’s fiancé and his two children (aged 12 and 10 years). Ms DMN stated at the hearing that approximately one year after she met her fiancé in about May 2012 she and her fiancé were involved in a car accident (Ms DMN was driving) resulting in her fiancé having a shattered humorous. Ms DMN’s fiancé moved into Ms DMN’s home approximately 2 weeks later so that she could provide care and support for him. Ms DMN’s fiancé’s two children also came to live with Ms DMN and her daughter in about July 2012. [25] Ms DMN gave evidence at the hearing about her daughter’s challenging behaviour stating that her daughter has previously screamed in her fiancé’s son’s ear and punched her fiancé’s daughter. Ms DMN also stated that her daughter’s behaviour was ‘escalating’ and getting ‘progressively worse’ prior to the offending behaviour. [26] Ms DMN gave evidence about the transition from living alone with her daughter to living as a family with her fiancé and his two children. Ms DMN states in her written life story prepared 9 December 2013: After [my fiancé] and his two children moved in, life became very stressful and hectic for me. I was caring for my [fiancé] full time, showering dressing shaving etc. [My fiancé’s two children] were being traumatised by their mother and would disclose details of neglect after visits that left me feeling helpless, [my daughter’s] behaviour progressively got worse and nothing we did seemed to work. I know this doesn’t excuse what I did.12 [27] Ms DMN also gave evidence at the hearing about the circumstances of the offending behaviour stating that she and her fiancé were sleep deprived and her fiancé was taking pain medication for his accident related injuries. Ms DMN stated: ‘I was so frustrated; I grabbed the spoon, hit and yelled at her’. Ms DMN stated that immediately after the incident her daughter screamed ‘even louder’ and tried to hit her. c) Remorse and insight into the offending behaviour [28] The Tribunal accepts that Ms DMN is remorseful for her actions in relation to the offending behaviour. Ms DMN gave evidence at the hearing that she knew after the incident, giving rise to the offending behaviour, that what had happened was wrong and she made the decision to speak to her fiancé and her treating psychologist, Ms Allen about what had happened. When reflecting back on the offending behaviour Ms DMN stated in giving her evidence at the hearing that it was the ‘worst day of her life’. [29] In relation to Ms DMN’s fiancé “punching” her daughter, Ms DMN stated that she did give her consent to her fiancé to punch her daughter. Ms DMN stated at the hearing: ‘I know it’s wrong. [My daughter was] 12 Exhibit marked “1”. -- 6 of 11 -- 7 lashing out at [my fiancé’s] kids so often I didn’t know what to do’. Ms DMN was questioned at the hearing about whether the intention was for her daughter to feel pain in relation to giving her fiancé permission to punch her daughter. Ms DMN replied: ‘[to] get her [my daughter] to feel what it was like to be on the receiving end of something like that’. [30] The Tribunal accepts that Ms DMN has demonstrated insight into her offending behaviour. Ms DMN gave evidence at the hearing about the injuries sustained by her daughter referring to her daughter receiving physical harm in the form of bruising to her legs; and emotional harm particularly in relation to Ms DMN’s daughter not returning home after the incident was reported to police and child safety. Ms DMN stated at the hearing that after the offending behaviour was reported to police she consented to her daughter spending some weeks in a foster carer placement and that this was also during the time that her fiancé was having surgery. Ms DMN stated that she regrets making the decision to send her daughter away because her daughter did not enjoy being away from home. Ms DMN stated that while her daughter was away from home she spoke to her every night and saw her on weekends. [31] There is evidence before the Tribunal that Ms DMN has completed parenting courses since the offending behaviour and has accessed treatment from Ms Allen, treating psychologist alone and together with her fiancé. Ms DMN reports in her life story that she is supported by Ms Allen and continues to be “monitored” by her treating general practitioner who has prescribed medication for treatment of her depression. Ms DMN reports in her life story: I have also started seeing [Ms Allen] by myself to cope with depression since being charged, sentenced and losing my job. I am on antidepressant [medication]. I have never before had to take such medication, and am rather upset that I have to. However both my doctor [treating general practitioner] and Karina Allen have pointed out that my symptoms: not sleeping, not eating, poor memory, and low motivation are all indicators of depression. I am being monitored by [treating general practitioner] every two weeks.13 [32] In relation to the parenting courses completed by Ms DMN and her fiancé, Ms DMN relies on a letter prepared by Uniting Care Community dated 10 September 2013 that reports Ms DMN and her fiancé are attending the “Bringing Up Great Kids” parenting course and are reported to have “actively participated in the course”.14 Ms DMN and her fiancé are also reported to have registered in another parenting course delivered in October 2013.15 [33] In her written life story Ms DMN states that she has put into practice some of the skills she has learnt in the parenting course completed by her since the offending behaviours. Ms DMN also refers to a subject she was 13 Exhibit marked “1”. 14 Exhibit marked “6”. 15 Ibid. -- 7 of 11 -- 8 studying as part of her psychology degree as being helpful in managing her daughter’s challenging behaviours. Ms DMN states: The most helpful thing I have learnt [has] come from the subject I have been studying at University this semester. Whilst [my daughter] struggles to verbalise her anger and frustration and therefore acts out aggressively, I have since learnt what is actually happening to her at a biological level physically and mentally, and have used several incidents recently, breathing techniques to help engage her parasympathetic nervous system to help calm her down.16 [34] Ms DMN gave evidence at the hearing and spoke at some length about changes in the family dynamics since the offending behaviour referring to her and her fiancé getting regular sleep and putting in place positive parenting strategies referred to her at the hearing as ‘tips and tricks’ she and her fiancé at sessions with Ms Allen. Ms DMN referred to her and her fiancé using a ’good behaviour doll’ as a visual queue for her daughter. d) Employment and other factors [35] Ms DMN is studying psychology at University and has plans to work as an art therapist. Ms DMN commenced her study in 2010 as an undergraduate student and is completing one subject per semester. Ms DMN began working with underprivileged children as a teacher’s aide in about 2010 and spoke in a positive way about her work with children and young people aged between 13 years to 17 years. [36] Ms DMN relies on a written statement prepared by BB, teacher and guidance officer and coordinator.17 Ms BB was not available for cross- examination at the hearing. Ms BB in her statement prepared for the hearing reports that she has known Ms DMN for two years as her manager and Ms DMN worked as a teacher aide with experience as an art therapist working with and supporting disadvantaged young people. Ms BB reports that Ms DMN disclosed to her details of the offending behaviour. The Tribunal accepts the evidence of Ms BB supported by the evidence of Ms DMN and Ms NDE that Ms DMN has experience as an art therapist and teacher aide working with disadvantaged children. Evidence of NDE [37] NDE is Ms DMN’s future mother-in-law. She is also a registered nurse trained in midwifery and has experience as a counsellor. Ms NDE gave evidence about Ms DMN’s family dynamics including her relationship with her daughter and her challenging behaviours. Ms NDE stated that Ms DMN’s daughter has a close bond with her mother and that her behaviours can be challenging stating that her grandchildren ‘get a bit scared of [Ms DMN’s daughter]’. 16 Exhibit marked “1”. 17 Exhibit marked “5”. -- 8 of 11 -- 9 [38] Ms NDE supports Ms DMN’s evidence about the stressors in her and her fiancé’s life after the motor vehicle accident prior to the offending behaviour. Ms NDE stated that her son (Ms DMN’s fiancé) had multiple fractures as a result of the accident and was not able to work and the family was under financial pressure. [39] Ms NDE also spoke in a positive way about Ms DMN’s interactions with her daughter and her fiancé’s two children. She stated that she has no concerns about Ms DMN’s interactions with her grandchildren. In relation to putting in place strategies since the offending behaviour she stated that Ms DMN involved the whole family in seeing Ms Allen. She stated that Ms DMN was very proactive in seeking support from Ms Allen. Evidence of Karina Allen, treating clinical psychologist [40] Ms DMN started seeing her treating psychologist, Ms Allen on about 26 March 2013 through sessions attended by her fiancé in relation to how to progress with treatment for her fiancé’s two children. [41] Ms Allen supports the evidence given by Ms DMN in relation to her accessing support and treatment from her (Ms Allen) soon after the offending behaviour. Ms Allen also corroborates Ms DMN’s evidence that she is remorseful for her actions in relation to the offending behaviour. Ms Allen stated at the hearing that Ms DMN was honest about the incidents giving rise to the offending behaviour and was seeking treatment from her. Ms Allen stated that Ms DMN is extremely proactive and that she and her family want to parent in a positive way. Ms Allen referred to Ms DMN accessing respite care for her daughter, seeking treatment for her fiancé and attending therapy with her daughter and her fiancé’s children. Ms Allen also stated that Ms DMN was also proactive in putting in place her own health treatment plan to address historical factors in relation to Ms DMN’s upbringing that Ms Allen stated made her vulnerable to using other strategies (in her parenting) that were not helpful. [42] Ms Allen also supports evidence given by Ms DMN in relation to seeking treatment, in particular medication prescribed by her treating health professional for mood (low) management. Ms Allen stated that Ms DMN commenced taking the prescribed medication in about late 2013 and the ‘low mood’ for which the medication was prescribed came about because of the legal proceedings and not being able to access work. Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists? [43] Ms DMN has a history of criminal offending relating to an incident involving physical discipline that took place in the home environment to her daughter aged 16 years who has an intellectual impairment. [44] The Tribunal has considered the nature of the offending behaviour in the context of the complainant child, Ms DMN’s daughter being in a position of vulnerability in that she is a young person who also has a diagnosed -- 9 of 11 -- 10 intellectual impairment. The Tribunal has also considered the circumstances of the offending behaviour in that Ms DMN in respect of one of the offences has disciplined her daughter by hitting her with a wooden spoon and this has resulted in both emotional and physical harm; and in respect of the offence of common assault Ms DMN has consented to her fiancé punching her daughter in circumstances where the intention was to show her daughter ‘what it was like’ (to be punched). This has also resulted in physical and emotional harm to Ms DMN’s daughter. [45] The Tribunal accepts the evidence of Ms DMN that the offending behaviour took place during a period of time when there were several stressors in the family environment. This included Ms DMN’s daughter’s challenging behaviour that had, prior to the offending behaviour, escalated due to a change in the family dynamics. Prior to the offending behaviour Ms DMN’s fiancé and his two children moved into the family home to live with Ms DMN and her daughter. In addition to caring for her intellectually impaired daughter, Ms DMN became the carer of her fiancé and his two children due to the fact that Ms DMN’s fiancé was recovering from injuries sustained in an earlier motor vehicle accident. [46] The Tribunal is not satisfied however that this is an exceptional case in that it would not be in the best interests of children for the Chief Executive to issue a positive notice. The Tribunal has considered the risk factors including the recency of the offending behaviour and that the offending behaviour took place within the family environment and involved physical and emotional harm to a vulnerable young person. [47] The Tribunal accepts the evidence of Ms DMN that she is remorseful for her actions giving rise to the offending behaviour. Ms DMN and her fiancé pleaded guilty to the offending behaviour and Ms DMN has given evidence that she has completed her period of probation as a result of the behaviour. In relation to the recency of the offending behaviour the Tribunal is satisfied that Ms DMN has put in place strategies since the offending behaviour including accessing treatment from Ms Allen, treating psychologist, completing parenting courses and taking medication prescribed by her treating general practitioner. The Tribunal accepts the evidence of Ms DMN supported by her treating psychologist Ms Allen that Ms DMN continues to be supported by Ms Allen and her treating general practitioner. [48] The Tribunal has also considered the evidence given by Ms DMN supported by her future mother-in-law Ms NDE that since the offending behaviour Ms DMN has proactively sought treatment from Ms Allen and has engaged the family in positive forms of discipline. The Tribunal is also satisfied that in relation to Ms DMN’s fiancé’s injuries, arising from an earlier motor vehicle accident, he has since the offending behaviour, received treatment and Ms DMN and her fiancé are managing their sleep deprivation that was also identified as a stressor at the time of the offending behaviour. -- 10 of 11 -- 11 [49] The Tribunal has carefully considered all of the evidence in this matter and the submissions made by Ms DMN and Ms Keown at the hearing. I am not satisfied having considered all of the evidence and relevant factors including the concerns and risks identified by the Chief Executive, that this is an exceptional case in that it would not be in the best interests of children for the Chief Executive to issue a positive notice. The appropriate order is that the decision made by the Chief Executive to cancel Ms DMN’s positive notice and to issue a negative notice is set aside and a positive notice be issued to Ms DMN. Non-publication order [50] The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to prohibit the publication of information that might enable a person or people such as Ms DMN and her daughter and step children to be identified in circumstances where it would not be in the interests of justice to identify their names. The Tribunal therefore prohibits the publication of the names of Ms DMN her daughter and step children and the names of Ms DMN’s lay witness Ms NDE. -- 11 of 11 --