BNN v Chief Executive, Public Safety Business Agency [2014] QCAT 392

CITATION: BNN v Chief Executive, Public Safety Business Agency [2014] QCAT 392 PARTIES: BNN (Applicant) v Chief Executive, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML170-13 MATTER TYPE: Childrens matters HEARING DATE: 9 May 2014 HEARD AT: Southport DECISION OF: Member Browne DELIVERED ON: 28 July 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 30 July 2013 to issue a negative notice to BNN is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant and the applicant’s children referred to in these proceedings. CATCHWORDS: CHILDRENS MATTERS – BLUE CARD REVIEW – where the applicant seeks a review of the Chief Executive’s decision 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, s 547 Chief Executive for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited -- 1 of 15 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms BNN represented by Ms Danielle Dick, Solicitor appearing on a pro-bono basis together with Ms Anne Halliday of the Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd RESPONDENT: Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) represented by Ms Adele Noble, senior legal officer (in-house) REASONS FOR DECISION [1] Ms BNN requires a blue card to enable her to work as a child protection officer and recognised entity for ‘employer L’. As part of her work with ‘employer L’ Ms BNN would be required to have direct access to young children and people who are or may be under the care of the Department of Communities, Child Safety and Disability Services. [2] An application for a blue card was submitted to the Chief Executive decision maker (formerly the Commissioner for Children and Young People and Child Guardian)1 on 11 April 2013. The Chief Executive later received information about Ms BNN from the Queensland Police Service (QPS) and the Australian Federal Police as part of a screening process. [3] The police information disclosed Ms BNN’s criminal history including the offence of assault occasioning actual bodily harm on 24 November 1998 and two further charges of common assault for the same incident on 1998; and another incident on 18 July 2005, that were dismissed on the basis of “no evidence to offer”. [4] The Chief Executive after considering submissions made by Ms BNN in support of her application for a blue card determined that the application be refused and a negative notice was issued to Ms BNN on 30 July 2013. [5] Ms BNN filed an application in the Queensland Civil and Administrative Tribunal to review the Chief Executive’s decision to issue a negative notice. [6] 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 decision, pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 1 The Commissioner for Children and Young People and Child Guardian Act 2000 was replaced by the Working with Children (Risk Management and Screening) Act 2000 (Qld) on 1 July 2014. -- 2 of 15 -- 3 [7] On 12 November 2013 the Tribunal issued a notice to produce to the Director-General of Care and Protective Services, Office of Children, Youth and Family Support in the Australian Capital Territory (“Child Protection ACT”) and material was received and a copy provided to Ms BNN and the Chief Executive. [8] The Chief Executive decision maker was invited by the Tribunal to reconsider its decision on 19 February 2014. The Chief Executive confirmed its decision to issue a negative on 13 March 2014. [9] The material received from Child Protection ACT disclosed information relating to Ms BNN and her six children who were subject to a child protection order in late 2005. Ms BNN’s three younger children were returned to her care in about December 2005 but following a number of custody extensions Ms BNN consented to a 3 year child protection order in relation to her three eldest children on 27 February 2007. Ms BNN was later reunified with one of her older children but long term custody orders were put in place on 24 March 2010, Ms BNN having consented to her two eldest children living with family members. [10] The intervention by Child Protection ACT arose due to a history of domestic violence between Ms BNN and her ex-partner in that her children were exposed to acts of physical and verbal aggression in the home. Ms BNN separated from her ex-partner in late 2005 and a domestic violence order was made against him. Ms BNN commenced a relationship with her current partner and husband in 2010. Ms BNN was married in July 2011 prior to leaving Canberra with her family to live in Queensland on 3 April 2013. [11] There are other matters of concern identified in the Child Protection ACT material including allegations of harm by Ms BNN towards her ex-partner’s two children (her step children) who were also living with Ms BNN and her ex-partner, in 2004 and 2005. There is also a substantiated allegation in relation to Ms BNN and one of her older children in 2005 involving Ms BNN slapping her daughter across the face; and references to Ms BNN’s inability to control her anger; and her diagnosed depression in 2005. [12] Another matter of concern referenced in the Child Protection ACT material is Ms BNN’s decision to tell one of her daughters that she had cancer in 1998 following laser surgery to her foot. Ms BNN received the results of her daughter’s biopsy that confirmed she (her daughter) did not have cancer. Ms BNN did not tell her daughter and her family including her other children that her daughter did not have cancer. Ms BNN accessed camp quality services for her daughter and three of her children during the time that she knew her daughter did not have cancer. [13] The matter proceeded to a hearing before the Tribunal and directions were made at the conclusion of the hearing for the filing and exchange of -- 3 of 15 -- 4 final written submissions.2 Ms BNN relies 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 young people. Ms BNN also relies on the evidence of her treating psychiatrist Dr Ann Harrison and reports prepared by Helen Fowler, psychologist, contained in the child protection material. [14] Ms BNN’s witnesses who attest to her good character and personal circumstances, KB and BN, gave oral evidence by telephone at the hearing. Ms BNN’s supervisors and co-workers, MF and XC; and treating psychiatrist Dr Ann Harrison also gave oral evidence by telephone. Ms BNN in giving her oral evidence was given an opportunity to respond to questions about her offending behaviour and personal circumstances and the material received from Child Protection ACT. What is an ‘exceptional case’? [15] Ms BNN’s offending behaviour concerns charges that for the purposes of Division 9 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“Working with Children Act”) are not serious or disqualifying offences.3 The Tribunal, standing in the shoes of the Chief Executive decision maker, must for the purposes of s 221 of the Working with Children Act issue a positive notice to Ms BNN unless satisfied that this is an “exceptional case” in that it would not be in the best interests of children for Ms BNN to hold a blue card. [16] 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 BNN’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.4 [17] 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 The offending behaviour alone may not be determinative of whether exceptional circumstances exist. The Tribunal on review must consider all of the evidence before it and this may include relevant material received from Child Protection ACT. [18] The Tribunal must consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in 2 Final written submissions were received by the Tribunal on 6 June 2014. 3 Working with Children Act s 221. 4 Ibid s 226. 5 Chief Executive for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 [29]. -- 4 of 15 -- 5 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 [19] In the event that the Tribunal on review confirms the decision made by the Chief Executive to issue a negative notice, Ms BNN is not prevented from applying to the Commission, at some future time, for a blue card to enable her to work with young people. Relevant factors in considering whether this is an exceptional case [20] 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 [21] The offence of assault occasioning actual bodily harm took place in late 1998 in Canberra. The police information refers to the circumstances of the incident involving Ms BNN and her mother-in-law (the complainant), the grandmother of two of her children. The police information states that an argument took place between Ms BNN and the complainant who had visited the family home for her grandchild’s (Ms BNN’s daughter’s) birthday. Ms BNN asked the complainant to leave and when she refused Ms BNN allegedly pushed her out the door. The “case note entry” states: … [Ms BNN] asked [the complainant] to leave several times but apparently she refused. [Ms BNN] pushed her out the door and [a] verbal argument continued on [the] front lawn. [Ms BNN] then punched [the complainant] to the face causing the cut above the eye and the bleeding [sic]. [The complainant was taken] to Canberra hospital [receiving] several stitches above [the] left eye…Full admissions were made to the assault with a long list of extenuating circumstances…[The complainant] received three stitches to the brow and above her [left] eye and has a possible depressed fracture to the left cheek, bruising and eye blood shot.8 [22] Ms BNN accepted the charge having pleaded guilty and was released ‘on entering recognizance self $500’ to be of good behaviour for a period of 12 months. Ms BNN gave oral evidence at the hearing stating that she now has a “great relationship” with her mother-in-law, the complainant. In her written affidavit filed in the Tribunal Ms BNN states that the offence occurred 15 years ago when she was aged 23 years.9 Ms BNN states that the offence took place in circumstances she describes as ‘necessary’ as her mother-in-law had taken the children and put them in a car screaming: ‘I am taking the kids and you won’t see them’.10 Ms BNN states in her 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-007. 9 Exhibit marked “1”, affidavit sworn 31 October 2013, [10]. 10 Ibid. -- 5 of 15 -- 6 affidavit: ‘I panicked at the thought of her taking my children away and punched her in the face and took the children out of the car’.11 [23] Ms BNN also states in her affidavit that she has engaged in parenting programs, child related education programs and psychotherapy since the offending behaviour. Ms BNN states that she accepted responsibility for her actions and that she is ‘deeply ashamed’ of punching the children’s grandmother, stating: ‘I apologised and we have a great relationship now’.12 [24] In relation to the offence of common assault the police information refers to an alleged incident on 23 May 2005 between Ms BNN and her ex- partner’s child aged 6 years at the time. Ms BNN is alleged to have physically assaulted the complainant child and told him to tell his father (her ex-partner) that he had a fight with his sister to explain how he got the injuries. The next morning Ms BNN is alleged to have told the complainant child when she was dropping him off at school to tell people if they asked that he had fallen off the trampoline and if he told the truth about what had happened she would ‘hurt him’. Ms BNN is alleged to have told the complainant child that she would know if he told anyone because she would ‘put up video cameras that would capture him disclosing’.13 Injuries including bruising to the left side of the complainant child’s head and eye, a small graze to his right nostril and red skin abrasions to the right side of his lower to middle back were reported to have been seen by police. The police information states: During the evening of Monday 23 May 2005 [the complainant child aged 6 years] was at his home…[he] had an argument with [Ms BNN] and [the complainant child] became scared…With her right clenched fist [Ms BNN] struck [the complainant child] in the left eye region, causing pain. [Ms BNN] then pushed [the complainant child] backwards with both of her hands causing [the complainant child] to fall backwards, tripping over a green vacuum cleaner that was lying on the ground. [The complainant child] ended up on his stomach and [Ms BNN] proceeded to stomp several times on [the complainant child’s] back. [Ms BNN] was wearing brown Colorado shoes with small heals. [The complainant child] stood up from the ground and [Ms BNN] punched [the complainant child] in the nose with her right clenched fist. This caused [the complainant child’s] nose to bleed…a teacher [sic] known to the [complainant child] asked him what was wrong. [The complainant child] said that he had fallen off the trampoline at home. [The complainant child] then started to cry and said that his step mum, [Ms BNN] punched him and stomped on his back….14 [25] Ms BNN gave evidence about the allegation in her affidavit filed in the Tribunal. Ms BNN states that the allegation is not true and the injuries arose following an argument between the complainant child and his sister who had (as stated by Ms BNN) hit him with a spatula when Ms BNN was not in the room. Ms BNN states in her affidavit: 11 Ibid. 12 Ibid. 13 Section 21 material, p CCYPCG -010. 14 Ibid. -- 6 of 15 -- 7 I cannot state what exactly happened other than it was not me who injured him…the children were in my care, however as most parents can understand, it is hard to keep an eye on one child let alone six like I was and you cannot predict what they are going to do to each other.15 [26] Ms BNN also gave evidence about her relationship with the complainant child stating that he had previously disclosed his dislike for her and that he resented her for taking on the role of his mother for him and his sister. Ms BNN refers the Tribunal to the report of Helen Fowler, psychologist dated 20 March 2006 prepared in relation to the child protection orders for her two eldest children and disclosed in the Child Protection ACT material. Ms BNN refers to Ms Fowler’s report that states her (Ms BNN’s) eldest daughter stated that the complainant child “lied a lot”. Ms Fowler reports: [Ms BNN’s eldest daughter] thought [the complainant child] and [the complainant child’s sister] lied a lot and [the complainant child] lied about [Ms BNN] hurting him. [Ms BNN’s eldest daughter] said she lies but not often. An example of a lie she has told is when she has told Aunty [sic] that she has put her cream on for her eczema and she hadn’t…16 [27] Ms BNN gave oral evidence about the medical evidence prepared following assessment of the complainant child and his injuries. The report of Catherine Sansum dated 5 June 2005 contained in the Child Protection ACT material refers to the complainant child having told child protection services that Ms BNN had ‘punched him in the face and then pushed him over and kicked him’ to explain his injuries and reported on arrival that he had ‘sustained the injuries after being hit twice on the head by a spoon wielded by his sister’. The complainant child is reported to have said that he sustained injuries to his back after falling over the vacuum cleaner and than he reportedly ‘changed his story to say that the injuries to his back had occurred when he fell off the trampoline the previous day’.17 [28] The report of Catherine Sansum also refers to the complainant child’s injuries from the incident on 23 May 2005 and another unrelated injury to the complainant child’s penis that was noted 3 weeks ago and the complainant child is reported to have not been able to recall how the injury occurred. The report refers to the complainant child as having ‘extensive bruising’ to his face and back. The report states: The injuries to [the complainant] child are extremely concerning. These injuries do not correspond with the history given to me by [the complainant child]. They most likely represent an inflicted injury… The bruises to the left hand side of [the complainant child’s face] have been caused by something with a pattern. It is impossible to be sure what exactly has caused this, although it is extremely unlikely to have been inflicted by the application of force from a spoon. Abrasions are caused by a combination of blunt force with friction applied (e.g. scratches and grazes)…. Although it is impossible to state, with any degree of certainty, what has inflicted these injuries. It is highly unlikely that these injuries have 15 Exhibit marked “1”, affidavit sworn 31 October 2013, [11]. 16 Exhibit marked “ 6”, [2965]. 17 Exhibit marked “4”. -- 7 of 15 -- 8 been accidental and it is quite apparent that [the complainant child’s] safety cannot be guaranteed under his current living arrangements.18 [29] Ms BNN’s legal representative in written submissions contends that the Tribunal should accept the finding of the criminal court on the basis that this is not a rehearing of criminal proceedings. The information provided by police indicates that the criminal proceedings in relation to the allegation of common assault on 18 July 2005 was dismissed stating that there was ‘no evidence to offer’, the presumption being that there was insufficient evidence to proceed with the charges. This is however a rebuttable presumption and in considering whether there exists an exceptional case before it, the Tribunal on review must consider all of the relevant material before it including the police information and other material relating to the charge of common assault that was later dismissed. [30] The medical evidence contained in the Child Protection ACT material reports concerns about the suitability of the living arrangements for the complainant child, Ms BNN’s stepson at the time of the incident in 2005.19 The Tribunal accepts the medical evidence (report of Catherine Sansum20) consistent with the injuries noted in the police information that the complainant child aged 6 years at the time sustained injuries as a result of an incident in June 2005 including extensive bruising and abrasions to his body when he (the complainant child) was under the care and supervision of Ms BNN. b) Other matters of concern – the Child Protection ACT material Injury to Ms BNN’s step child – September 2004 [31] There is also a reference in the Child Protection ACT material to an injury sustained to one of Ms BNN’s step children in about September 2004 who was in her care at the time. The child aged 4 years presented at the Canberra Hospital Accident and Emergency with an oblique fracture of the shoulder and wrist area. The child is alleged to have disclosed that her arm was injured as a result of Ms BNN forcing her arm behind her back. Ms BNN denies that she injured her step child and states that the injury was the result of a fall from a trampoline. [32] The Tribunal cannot be satisfied based on the medical evidence in particular the report prepared by the child at risk assessment unit, Canberra Hospital dated 21 December 2005 that Ms BNN inflicted the injuries to her step child. The reports states that the injuries are consistent with the ‘result of force caused by the arm being bent and forced backwards’ but also states that the injuries may also have occurred by ‘falling from a height, rotating on landing onto the right arm’.21 18 Exhibit marked “4”, p 5. 19 Ibid. 20 Ibid. 21 Exhibit marked “7”. -- 8 of 15 -- 9 [33] The Tribunal accepts the medical evidence contained in the Child Protection ACT material that Ms BNN’s step child sustained injuries to her shoulder and wrist in September 2004 and finds that the injuries were sustained to Ms BNN’s step child (aged 4 at the time) while she was under the care and supervision of Ms BNN. Ms BNN does not deny that her step child was in her care at the time of the incident. Ms BNN states in her affidavit that she was inside the house at the time of the incident and that the older children were playing outside.22 Ms BNN’s diagnosed depression or anxiety [34] The Child Protection ACT material refers to Ms BNN having depression in about 2005. There is evidence before the Tribunal that Ms BNN received treatment for her depression in about October 2005. Ms BNN also gave evidence at the hearing that she received treatment for her depression or anxiety from Dr Harrison, psychiatrist, from about 2004 to 2013. Ms BNN stated that her last appointment with Dr Harrison was in early 2013 and she no longer accesses services to manage her earlier diagnosed condition since moving to Queensland on 3 April 2013. [35] Ms BNN gave evidence at the hearing about the “triggers” for her condition (depression or anxiety) and how she manages those triggers. Ms BNN stated that any form of altercation in a public place would be a trigger and she has strategies in place to manage her condition such as knowing how to breathe and remove herself from the situation. Ms BNN also stated that she does not involve herself in any domestic violence stating that she lives in a “safe and happy home”. [36] The report of Helen Fowler refers to Ms BNN’s diagnosed depression as being evident following the birth of her fifth child (in 2003). The report refers to Ms BNN managing her condition by taking her prescribed medication, discussing parenting issues with her support worker and attending appointments with Dr Harrison.23 [37] Dr Harrison gave evidence by telephone at the hearing that she saw Ms BNN as her treating psychiatrist for an extended period of intensive psychotherapy between November 2004 and 2011 and “episodically” between 2004 and September 2013. Dr Harrison saw Ms BNN in relation to what is referred to in her report as ‘a period of depression and anxiety secondary to medical (liver dysfunction, clotting problems) and interpersonal struggles’ she was having with her ex-partner.24 Dr Harrison also gave evidence by telephone at the hearing in relation to Ms BNN’s therapy stating that Ms BNN made “significant gains” in her therapy. [38] The Tribunal accepts Ms BNN’s evidence also supported by her witness Ms BN that the issues concerning her involvement with Child Protection ACT resulting in child protection orders being put in place arose in the 22 Exhibit marked “1”, affidavit sworn 11 March 2013, [11]. 23 Exhibit marked “9”, [50] – [520]. 24 Exhibit marked “17”, report dated 19 September 2013. -- 9 of 15 -- 10 context of her children being exposed to domestic violence in the home. The Tribunal accepts Ms BNN’s evidence also supported by her witness Ms BN that she is no longer in a domestic violence situation having ceased her relationship with her former partner in late 2005. [39] The Tribunal also accepts the evidence of Ms BNN supported by her witnesses Ms BN and Ms KB that she has completed some parenting courses and counselling since her separation from her former partner. Ms KB stated at the hearing that after Ms BNN completed her parenting courses and attended counselling Ms BNN had what was described by Ms KB as a ‘light bulb moment’ in that Ms BNN realised that what had a happened in the past in relation to the domestic violence was not acceptable. [40] The Tribunal accepts Ms BNN’s evidence that she has as stated in her affidavit ‘disassociated herself from bad influences’ such as her ex- partner.25 There is no evidence before the Tribunal to support Ms BNN’s evidence however that she has surrounded herself with the support of her family and friends including the Indigenous Community in Queensland.26 Ms BNN’s witnesses who gave evidence on her behalf at the hearing in particular Ms BN and Ms KB, live outside Queensland. The evidence of people who support Ms BNN in Queensland including the support of the Indigenous Community in Queensland is a protective factor and is relevant to the issue of strategies that Ms BNN has put in place following her and her family’s move to Queensland particularly in circumstances where Ms BNN has given evidence that since moving to Queensland she no longer accesses services to manage her depression or anxiety, the last appointment with Dr Harrison being in early 2013. The cancer diagnosis in about 1998 [41] Ms BNN’s third-born child was receiving laser treatment in 1998 for a growth/mark on her foot. Ms BNN states in her affidavit filed that she informed her family about the possibility of her daughter having cancer and that they were waiting for the results of a biopsy. Ms BNN did not however inform her family after receiving the results that her daughter did not have cancer. Ms BNN also accessed camp quality services for her daughter and three of her other children for a period of approximately 18 months. Ms BNN’s sister also utilised Camp Quality services for her child. [42] The Tribunal accepts Ms BNN’s evidence that she is remorseful about her decision to tell her daughter and family about the cancer diagnosis. I am not satisfied however that Ms BNN has demonstrated insight into her decision to tell her daughter and family about the cancer diagnosis particularly in relation to utilising Camp Quality services for her daughter and three of her children. Ms BNN gave evidence at the hearing that Camp Quality services can be accessed by children with special needs 25 Exhibit marked “1”, affidavit sworn 31 October 2013, [22]. 26 Ibid [20]. -- 10 of 15 -- 11 and disabilities and this included her daughter who had a diagnosed immune deficiency problem.27 [43] The Tribunal accepts Ms BNN’s evidence that her daughter has and did have at the time she used camp quality services a diagnosed immune deficiency problem. There is no independent evidence before me however to support Ms BNN’s evidence about Camp Quality and the services available to children. The Camp Quality website refers to the service as being available for children with cancer and its purpose as displayed on the website is: to create a better life for every child living in cancer in Australia. For the last 30 years we have been supporting children with cancer, their siblings and parents, throughout their journey. Our programs use education, performance, recreation, respite and play to build optimism, resilience and supportive networks for families. All our programs [are] 100% free of charge.28 [44] The Tribunal observed some inconsistencies in Ms BNN’s evidence given at the hearing about the period of time her daughter and family were led to believe that there was a cancer diagnosis. Ms BNN stated that it was a period of approximately 2 to 3 years from 1998 and that she (Ms BNN) told her daughter and family the truth about the cancer diagnosis after she had spoken to Helen Fowler but could not recall when she told her daughter and family the truth. Ms BNN also stated that she had told Dr Harrison and then Helen Fowler about the cancer diagnosis. Ms BNN’s treating psychiatrist, Dr Harrison, gave evidence by telephone that she had no records of Ms BNN telling her about the cancer; only that her daughter had a tumour. [45] The Tribunal accepts that with the passage of time it may be difficult for Ms BNN to recall specific dates or events. Ms BNN however was able to recall telling Dr Harrison and Helen Fowler about the incident. There is evidence before the Tribunal that Ms BNN spoke to Dr Harrison and Helen Fowler about the cancer diagnosis in about 2005 that would be a period of approximately 7 years that Ms BNN’s daughter and family were led to believe that there was a cancer diagnosis and not 2 to 3 years as stated by Ms BNN at the hearing. Discipline and the injury to Ms BNN’s daughter - June 2005 [46] Ms BNN is alleged to have been involved in an incident with her eldest daughter in about June 2005 whereby Ms BNN slapped her daughter across the face after an argument.29 Ms BNN in giving her evidence accepts that she slapped her daughter and apologised to her shortly after the incident. Ms BNN also states that she has previously smacked her children but after participating in extensive therapy and courses she has learned to implement different forms of discipline. Ms BNN refers the 27 Applicant’s written submission filed 6 June 2014. 28 http://www.campquality.org.au/public/our-programs.aspx. 29 Exhibit marked “12”. -- 11 of 15 -- 12 Tribunal to the report of Sharon Hayes dated 20 March 2007 contained in the Child Protection ACT material that refers to Ms BNN no longer using smacking as a form of discipline for her children following her completion of “parenting courses” (since early 2006).30 [47] The report of Helen Fowler also refers to Ms BNN’s capacity to manage at home particularly in the context of managing her anger. The report states in about 2005: …At the initial interviews [Ms BNN] acknowledged that she needed to engage in an anger management program. She said when she is acting violently; she experiences a great sense of anxiety, shakes and has a feeling of intense rage.31 [48] The Tribunal accepts the evidence of Ms BNN that she no longer uses physical forms of discipline such as smacking and has undertaken parenting courses. c) Employment and other factors [49] Ms BNN states in giving her evidence that she would like to give back to the community and that not having a blue card has taken a big strain on the family financially. Ms BNN states that she also has a physical injury that prevents her from working in other forms of employment that would involve lifting and that she has no clerical experience so she is not able to work in employment that involves clerical skills. Ms BNN also states that she is prevented from volunteering at her children’s’ school without a blue card. [50] Ms BNN refers the Tribunal to her previous experience working in Canberra in various roles including a family support officer, indigenous liaison officer and support worker. Ms BNN also relies on the evidence of Mr XC who was Ms BNN’s supervisor during her employment and training at ‘employer N’ from about 2007 to 2009. Mr XC prepared a written statement filed in the proceedings stating that during Ms BNN’s employment at ‘employer N’ there were no ‘issues with her conduct and she had the full support and confidence of the organisation’.32 [51] Ms BNN and Mr XC were questioned at the hearing about the circumstances surrounding an investigation following a complaint being made at ‘employer N’ in late 2009. Ms BNN was referred to a letter in the Child Protection ACT material from ‘employer N’ to Ms BNN dated 22 December 2009.33 [52] Ms BNN stated at the hearing that she was suspended from her employment on 22 December 2009 and an investigation was conducted externally in January 2010. Ms BNN stated that the outcome of the investigation was unsubstantiated and she was reinstated on 28 January 30 Exhibit marked “10”, [275]. 31 Exhibit marked “9”, [575]. 32 Exhibit marked “19”. 33 Exhibit marked “3”. -- 12 of 15 -- 13 2010. Ms BNN did not however continue in her role at ‘employer N’ and she stated at the hearing that upon returning to her work she was in another part of the building and felt that she was being disciplined for something that was unsubstantiated. Ms BNN took a period of sick leave from 28 January 2010 until she resigned from the position in about September 2010. [53] Mr XC was also questioned at the hearing about the circumstances of the suspension. Mr XC confirmed that he was also suspended and resigned from his position prior to the investigation being completed. Mr XC also stated at the hearing that the allegations were unsubstantiated. [54] Ms BNN also relies on the evidence of Ms MF who was her team leader at ‘employer L’. Ms MF was Ms BNN’s team leader at ‘employer L’ for approximately 3 months. Ms MF spoke positively about Ms BNN’s interactions with children and young people and stated Ms BNN was honest with her about her previous criminal charges and involvement with care and protection in Canberra. Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists? [55] Ms BNN has a history of criminal offending relating to an incident with her mother-in-law in 1989 and a further incident involving one of her step children who was in her care in about 2005. Ms BNN pleaded guilty in relation to the offending behaviour in 1989 and the charge concerning her step child in 2005 was dismissed. [56] The Tribunal has identified issues of concern referenced in the Child Protection ACT material including injuries sustained to two of Ms BNN’s step children in 2004 and 2005 while they where in her care and protection. The Tribunal has also identified other issues; in particular risk factors relating to Ms BNN’s depression or anxiety. Ms BNN was receiving treatment for her depression and saw her treating psychiatrist, Dr Harrison, during the period from 2004 to 2013. Ms BNN gave evidence that she no longer accesses treatment since moving to Queensland. [57] There is no independent evidence before the Tribunal to corroborate Ms BNN’s evidence that she has a support group including friends and the Indigenous community since moving to Queensland. The evidence given by Ms BNN’s friends at the hearing all live outside Queensland. This is a risk factor to be considered by the Tribunal particularly in circumstances where the Tribunal has previously identified another risk factor relating to Ms BNN’s evidence that she is presently not accessing services for her earlier diagnosed depression or anxiety. [58] The Tribunal has identified inconsistencies in Ms BNN’s evidence about the circumstances of telling her daughter and family about (her daughter) having diagnosed cancer and accessing Camp Quality services. The Tribunal accepts that Ms BNN is remorseful for her actions in lying about the cancer diagnosis having conceded in giving her evidence at the -- 13 of 15 -- 14 hearing that it would have caused her daughter emotional harm. The evidence before the Tribunal indicates that Ms BNN disclosed to her daughter and family the truth about the cancer in about 2005 being a period of approximately 7 years and not 2 to 3 years as stated by Ms BNN. [59] In relation to Ms BNN’s history with Child Protection ACT, the Tribunal accepts the evidence given by Ms BNN that she and her family are no longer in a situation of domestic violence. There is evidence before me of a substantiated incident involving Ms BNN and her older daughter in 2005. The Tribunal accepts Ms BNN’s evidence that in relation to the incident involving her daughter and in parenting her own children, Ms BNN has in about 2006 completed parenting courses and no longer uses forms of discipline such as smacking. There are however two incidents involving Ms BNN and her two step children who sustained injuries in about 2004 and 2005 while they were under the care and protection of Ms BNN. Ms BNN has presented evidence about the injuries sustained to her step children in that she states she did not harm the children and the children have not been truthful about how they were injured. There is no evidence before me however that Ms BNN has demonstrated insight into the circumstances of the incidents that resulted in two of her step children being injured while they were in her care and protection. [60] There is no evidence before me that Ms BNN’s work with children is special or exceptional. The evidence of Ms MF in relation to Ms BNN’s work with children and young people is based on work performed at ‘employer L’ for a short period of time being approximately 3 months. The Tribunal has also considered the evidence given by Mr XC former manager of ‘employer N’ that during Ms BNN’s employment at ‘employer N’ there were no issues with her conduct and she had the full support of the organisation. The evidence of Mr XC is unreliable on the basis that he did not disclose information in his written statement filed in the proceedings about a work related complaint and an investigation by police. There is no other independent evidence before me such as evidence from another colleague or supervisor who worked with Ms BNN to corroborate her evidence about her work with young people at ‘employer N’. [61] Ms BNN’s submission that she will experience hardship if she is not granted a blue card is not a relevant consideration that the Tribunal on review must consider.34 [62] The Tribunal is satisfied having considered all of the evidence that this is an exceptional case in which it would not be in the best interests of children for the Tribunal on review to issue a positive notice. The Tribunal has identified risk factors in relation to Ms BNN’s support network and treatment for her earlier diagnosed depression or anxiety; and inconsistencies and risk factors in Ms BNN’s evidence about issues of concerns referenced in the Child Protection ACT material. 34 Working with Children Act s 266. -- 14 of 15 -- 15 [63] The Tribunal must hold the interests of children as its paramount consideration in determining whether this is an exceptional case in which it would not be in the best interests of children to issue a positive notice. The decision of the Chief Executive to issue a negative notice to Ms BNN is confirmed. Non-publication order [64] 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 BNN and her 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 BNN and her children. -- 15 of 15 --