C-N v Commissioner for Children and Young People and Child Guardian [2012] QCAT 711

CITATION: C-N v Commissioner for Children and Young People and Child Guardian [2012] QCAT 711 PARTIES: C-N (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML074-11 MATTER TYPE: Childrens matters HEARING DATE: 29 May 2012 HEARD AT: Brisbane DECISION OF: Julie Ford, Presiding Member Graham Quinlivan, Member DELIVERED ON: 24 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision of the Commissioner to issue Mrs C-N with a negative notice is confirmed. 2. The Tribunal prohibits the publication of the name of the applicant, the names of the applicant’s children and the names of the witnesses. CATCHWORDS: Children’s Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – where applicant pleaded guilty to assault occasioning bodily harm of daughter – whether case is exceptional – child related offences Child Protection Act 1999, s 9 Commission for Children, Young People and Child Guardian Act 1999, ss 6, 155, 221, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24 -- 1 of 13 -- 2 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Kent v Wilson [2008] VSC 98 APPEARANCES and REPRESENTATION: APPLICANT: Mrs C-N represented herself RESPONDENT: Commissioner for Children and Young People and Child Guardian was represented by Ms Adele Noble REASONS FOR DECISION Background [1] Mrs C-N is the applicant in these proceedings. She was originally issued with a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) on 29 March 2005. In June 2011 a new employer made an application under s 199 of the CCYPCG Act. As part of the employment screening process, a check was undertaken with the Queensland Police Service and interstate police services. [2] The following criminal history was received from the Queensland Police Service: Court Date Offence Order Ipswich Magistrates Court 21/01/2010 Assault occasioning bodily harm (24/11/2009) No conviction recorded, recognizance $300, good behaviour period: 12 months [3] Mrs C-N’s eligibility to hold a blue card was reassessed and on 6 April 2012 the Commissioner cancelled the positive notice and issued her with a negative notice. [4] Mrs C-N seeks a review of this decision and applied to the Tribunal on 16 April 2012. She had been working at a secondary college but was in her words ‘involuntarily’ forced to leave due to the negative notice. At the time, she was told by her employers that if her negative notice was overturned then her previous role would be reinstated. [5] The application was heard on 29 May 2012. The relevant law -- 2 of 13 -- 3 [6] The Act gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) outlines the options available to the Tribunal. [7] These options are that the Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate. [8] The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the CCYPCG Act. Section 19 of the QCAT Act provides: In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [9] The offence for which Mrs C-N was convicted is not considered a serious offence under the CCYPCG Act. As a result s 221 applies. It provides among other things that generally the Commissioner must issue a positive notice to a person in circumstances when a person has a conviction, other than for a disqualifying offence or a serious offence. However, if the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person. It is this that the Tribunal must consider. [10] Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if Mrs C-N’s case is an exceptional case. These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty. [11] The CCYPCG Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to the case must be considered to determine whether the facts of a particular matter constitute an exceptional case. -- 3 of 13 -- 4 [12] The focus of the CCYPCG Act is the protection of children. It is intended to protect children from harm from persons working or volunteering in child related areas. Harm is defined in this Act to have the same meaning given in s 9 of the Child Protection Act 1999. [13] The Act in s 6 outlines principles for administering the CCYPCG Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that the Tribunal must apply. [14] The standard of proof for which the Tribunal must be satisfied is upon the balance of probabilities. [15] While a standard of proof is to be satisfied, there is no onus of proof on either the applicant or the respondent. There is a wealth of case law that supports this proposition with the leading authority being Mcdonald v Director General of Social Security [1984] FCA 57. [16] The Tribunal is guided by the decision of Philippides J in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 and applies the test set out in the judgement. That is, to balance the risk factors against the protective factors. [17] The Tribunal is also guided by the judgement of Young CJ in Eq in Commission for Young People v V (2002) NSW SC 949 in paragraph 42 of his judgement where he refers to the necessity to find a ‘real and appreciable risk’ to the safety of children. The evidence [18] Mrs C-N has worked in various roles in New Zealand and Australia. At the time of filing this application her most recent role was as a Chaplain at a secondary college. [19] There is no evidence she has harmed a child during the course of any of her employment. [20] Mrs C-N is married to the father of her five youngest children. They also have one adopted child. She also has two adult children from her first marriage. [21] At the time of her first marriage Mrs C-N was 17 years old and pregnant with her first child L, who is now 23 years old. Her second child A is the daughter who was the victim of the assault that led to her charge and conviction. A has a diagnosis of ADHD. Mrs C-N still maintains a friendship with her first husband and his wife. She has had an 18 year relationship with her present husband. They have been married for 10 years. [22] The circumstances regarding the offence of assault occasioning bodily harm are set out in the Reasons of the Commissioner. In summary, on 24 November 2009 child A’s sisters told Mrs C-N that A had been swearing. A denied that she had been swearing and told her sisters to -- 4 of 13 -- 5 ‘shut up’. Mrs C-N told A to kneel down and then she hit her 2-3 times on the mouth with a wooden spoon. The outcome of the charges was that she was convicted and released upon entering into a $300 recognizance on her own undertaking to be of good behaviour for 12 months. No conviction was recorded. [23] Mrs C-N has a history of involvement with the Department of Communities (Child Safety Services) dating from October 2006. On the first occasion it appears that she left her 4 year old child unattended in a motor vehicle in a shopping centre. Although initially identified as a child protection notification it was subsequently downgraded to a child concern report. [24] In September 2008, an intake investigation and assessment was undertaken regarding 3 of Mrs C-N’s children. The notified concerns related to the children being required to do all the housework, the ongoing use of bad language, concern about the children’s father being an alcoholic and Mrs C-N and her husband yelling at each other. After investigation, the Department formed the view that the information did not meet the threshold and it was again recorded as a child concern report. [25] In July 2009 the Police investigated concerns regarding A because she had an obvious bruise on her throat. A told police that the bruise was caused when Mrs C-N held her against a wall with the handle of a knife across her throat. She said that Mrs C-N did this because A had been fighting with her sister. A also said that she had been hit with a broom and had bruises on her leg. Mrs C-N disputed A’s version of events. The Police continued with their investigations and eventually determined to take no further action against Mrs C-N. [26] Mrs C-N had admitted having grabbed A around the neck and that her discipline had been excessive. She was warned and afforded an opportunity to modify her behaviour and disciplinary options. It was further decided that it would be detrimental to her relationship with A, if Mrs C-N was charged and A did not want her mother charged. The Department therefore made a finding of ‘substantiated – child not in need of protection’. [27] Two matters of significance were raised in the course of the investigation of this incident. Mrs C-N acknowledged that she managed A through physical discipline as she believed it to be culturally appropriate and A was diagnosed with ADHD when she was two and a half years old. Between 1999-2007 Mrs C-N had left A to live with her grandmother in New Zealand. [28] In November 2009 there was a further notification regarding A who was by this time 16 years old. This was the incident that led to the charge being laid against Mrs C-N. The investigation and assessment outcome was ‘substantiated – child not in need of protection’. A was no longer living with Mrs C-N she was in the care of extended family members. Mrs C-N pleaded guilty to the charge of assault occasioning bodily harm on 21 January 2010. -- 5 of 13 -- 6 [29] Mrs C-N gave written evidence to the Tribunal that was received on 9 February 2012 that sets out her life story and her response to the Commissioner’s reasons. She also provided a comprehensive statement (undated) attached to her application. [30] The evidence in these documents can be summarised as follows:  She is the youngest of 7 children being 6 girls and 1 boy. One sister is deceased.  She had a happy childhood with no family violence.  Her upbringing was very happy and based around her Cook Island community, her church community and the greater community. She regards her family as ‘very tight knit’.  She believes she has found her niche in life and vocation working with youth and mentorship.  Her first marriage was not the greatest. Her husband was abusive, consumed alcohol and marijuana. He had many affairs and was well known to police. While she has maintained a good relationship with him, his behaviour has continued and at the time of her statement he was in prison in New Zealand.  She has identified traits in his behaviour that are very similar to those displayed by A.  Mrs C-N does not want her physical discipline of A to be psychologically connected.  She acknowledged that her coping mechanisms when dealing with A’s ADHD were poor and that she did not seek appropriate help and support and did not take the correct steps that were needed.  She admits that she showed a lack of judgement and thought that she was coping well enough.  She describes her relationship with her current husband as mutually supportive, based on love and respect with equally shared spiritual and religious values.  She believes she has a close relationship with each of her children including A.  She now uses ‘time out’ strategies and revokes privileges as well as chatting at the dinner table for daily updates as a means of managing her children.  She claims she has learned to be more patient and to ask for help from her husband. She and her husband refrain from physical discipline because it is ‘child abuse’. She says that this approach is more effective and places less stress on everyone.  Mrs C-N wants to accept full responsibility for her actions and admits she is guilty of all her actions towards A.  She acknowledges that only a short time has passed since the last incident but she asserts that she has overcome her past disciplinary -- 6 of 13 -- 7 actions and tactics ‘with the full help, advice, guidance and support of my immediate family, church friends, close friends and colleagues’.  She seeks to distinguish her behaviour towards A to that of her other children. She says that her strategies with respect to A were at the time overshadowed by her Polynesian ways of discipline. She also claims to have been experiencing post-natal depression following the birth of her twins, which she says, played a part in making ‘overshadowed irrational decisions’.  While she did not attend a referral for counselling, she does not believe that she went out of her way to jeopardise any formal recommended help. She did in the end ‘reach out and confide in extended friends and received full support from friends and family upon hearing of our dilemma.’ [31] At the hearing, evidence was also provided by JT, DAD (by phone from New Zealand), LP and Dr EM (by phone). All of these witnesses were largely supportive of Mrs C-N and spoke about her positive interaction with her other children. In particular Ms JT talked about Mrs C-N’s passion and vision for kids of her culture. She said that Mrs C-N inspired her and how she is a loving kind mum. [32] Ms JT also noted in relation to the charge against Mrs C-N that she told her everything. She talked about A and her ADHD and how this had made things hard because A was full of life. As an ‘Aunty’ in the community Ms JT watched A grow up very quickly. Within her culture she pointed out that even if physical discipline is used the child is expected to still be respectful and loyal to their parents. Further, in their community counseling is not normally regarded as an option except from elders and parents. She believes that Mrs C-N now realizes that it is okay to say ‘I need help’. [33] Mrs C-N strongly argues that she believes that she is ‘an exceptional mentor and an exceptional youth worker.’ She points out that ‘ironically’ she now uses her past ordeal as a mental tool to ensure she maintains a consistent positive attitude. She further submits that the testimony and references of her work colleagues, family and friends show that she is a good mother and role model. In her view her ‘wrongs’ should not overshadow the rights, positives and goodness she can offer and give. [34] She acknowledges that she made a mistake but she believes she has paid for it. The Commissioner’s submissions [35] The Commissioner’s representative relied on her Reasons of 5 April 2011 outlining why Mrs C-N’s positive notice had been cancelled. -- 7 of 13 -- 8 [36] Ms Noble submitted that the Tribunal had to consider the best interests of children, as these are paramount under the CCYPCG Act. She noted that children, therefore, had to be protected from harm. [37] She pointed out that there had been previous notifications. She submitted that the evidence supported that instances of excessive discipline were not confined to the offence described in the conviction. The Child Safety material details that 4 months earlier the complainant child was observed with a bruise on her neck and bruises on her leg. The bruise on her neck allegedly occurred when the applicant held the child against a wall with the handle of a knife. On this basis Ms Noble submits that the applicant has failed to learn from past chances and has continued to exercise poor judgement when disciplining her child. [38] Further when assessing risk factors Ms Noble submits that the actual assault occasioning bodily harm demonstrated yet again that the applicant resorted to inflicting severe physical harm in a clear pattern of volatile behaviour. She argues that this shows that the applicant has difficulty restraining herself and controlling her temper when faced with opposition from a child in her care. [39] Ms Noble submits that Mrs C-N has limited insight into the impact of the events on her children, referring the Tribunal to a case in the Children Service Tribunal, Re TAA [2006] QCST 11, in which the Tribunal identifies insight as being an important factor in reducing a person’s risk of repeating previous inappropriate behaviour. [40] Ms Noble acknowledges that the applicant was remorseful and showed some insight into her offending behaviour when talking to Police and Child Safety but in her submissions but she points out that such displays in the past have not resulted in any significant changes in the ways she managed the complainant child’s behaviours. [41] When assessing the protective factors, Child Safety identified that the applicant had shown insight into her actions. However, in support of her argument about Mrs C-N’s limited insight, Ms Noble observed that she seeks to minimise her conduct blaming the complainant child and suggesting that she was not receiving sufficient support in caring for the child. [42] It is also contended by Ms Noble that in 2009, a referral was made for the applicant to attend a program to assist her in gaining behaviour strategies to use in relation to the child. The applicant apparently did not access the program. Ms Noble submits that this demonstrates a further lack of insight into the need to be more pro-active in learning how to defuse highly volatile incidents. [43] Ms Noble submitted that whilst Mrs C-N may suffer a detriment if she were not to get a blue card, the Tribunal had to consider the best interests of children. She referred the Tribunal to a case appealed from a decision of the Western Australian State Administrative Tribunal, Chief Executive -- 8 of 13 -- 9 Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 [85] where it was held that the personal effect of a negative notice on the respondent must be ignored. [44] Hence Ms Noble submitted that any prejudice to the applicant of a negative notice is not a relevant consideration. [45] Ms Noble emphasised that the paramount principle is to promote and protect the rights of children. The continuing concerns of the Commissioner are around the lack of insight demonstrated by Mrs C-N, the fact that she has not undertaken any parenting courses and has sought only limited counselling to develop better coping strategies. Further a previous incident had occurred only four months before the charge was laid. Discussion and decision [46] The task for the Tribunal in this matter is set out in s 221 of the CCYPCG Act. In summary if the Tribunal, standing in the shoes of the Commissioner, is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Tribunal must confirm the Commissioner’s decision. [47] With respect to the meaning of ‘exceptional case’ the Tribunal relied on the decision of the QCAT Appeal decision of Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 where it is stated at para [33] We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [48] After carefully reviewing all of the available evidence, the Tribunal has identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. [49] The potential protective factors for Mrs C-N are:  She is in a long-term supportive relationship;  She has acknowledged that the assault of her daughter was wrong and that it constitutes child abuse;  She has acknowledged that she fully understands that the decision of the Commissioner was ‘viable and justifiable’ given the extreme circumstances and that at the time she would have been ‘high risk’;  She has outlined some renewed and revised strategies leading to positive parenting including the use of time-out and revoking privileges as alternatives to physical actions. -- 9 of 13 -- 10 [50] Mrs C-N has also identified further motivation arising out of the consequences of her actions including loss of employment, loss of income and loss of trust and her lack of correct judgement. [51] The potential risk factors are:  She has been convicted of assaulting her teenage daughter who has an intellectual disability;  There was an incident only four months before the charge was laid in which it was alleged that she had held the same child by the throat with the handle of a knife;  There is no evidence to demonstrate how she would act if placed in a similar stressful situation in the future. The history of her engagement with the Department might suggest that she does not respond well to such situations.  She has not demonstrated overall insight into her actions. She has attempted to minimize them and in particular she sought to distinguish her behaviour towards A to that of her other children. She says that her strategies with respect to A were at the time overshadowed by her cultural ways of discipline. She has not acknowledged the possible impact of the assault on her daughter at the time it occurred.  She has not undertaken any professional counselling regarding her actions.  She has not provided the Tribunal with any independent professional evidence regarding any risk she may pose to the welfare of children in her care. [52] The Tribunal notes that the applicant identifies the time leading up to the assault on her daughter as ‘very stressful and unbearable’. This raises a significant concern for the Tribunal, which is summed up in the Reasons from the Commissioner as follows: The applicant’s offending and a further incident … occurred in the context of the applicant being unable to manage the complainant’s challenging behaviour symptomatic of ADHD from which the complainant suffers. According to the Child Safety material, the complainant child had the comprehension level of a six year old and was unable to recognise her behaviours would lead to consequences. Her developmental delays therefore placed her at a high risk of experiencing further harm. [53] This is of concern for the Tribunal because it demonstrates the considerable vulnerability of the child who is now 18 years of age, but at the time of the assault was clearly at great risk. Mrs C-N demonstrated very poor understanding of her daughter’s circumstances and condition. The Tribunal has formed the view that this is an extreme example of mis- managing her child’s behaviour. Putting a knife to a child’s throat, -- 10 of 13 -- 11 particularly a vulnerable child, is extreme and could have led to serious consequences. [54] This incident occurred four months prior to the assault for which she was charged. At the time Mrs C-N told police that the incident arose out of a litany of incidents involving the child. The Child Safety Officer recommended that the applicant have the child re-assessed medically to ascertain whether she required medication. Police decided to take no action against Mrs C-N due to the age and size of the subject child. [55] It also does Mrs C-N no credit that, in the incident for which she was charged, she struck her daughter a number of times across the mouth with a wooden spoon. It does appear to the Tribunal that the experience of being charged and the involvement of child protection authorities has led to an acknowledgement that her actions were wrong. [56] The Tribunal acknowledges Mrs C-N’s explanation that at the time her way of thinking and decision-making was out of sorts. She was isolated in Australia with a large family and only her cultural ways to rely on to discipline her daughter. However, there was capacity for help to be sought, most particularly from the child protection statutory body that had responded to notifications of concern. [57] The Tribunal accepts Mrs C-N regrets the incidents and has learnt from her actions. The Tribunal accepts the evidence presented by her witnesses that Mrs C-N has a talent for mentoring children from her own culture. However, Mrs C-N has not followed through with seeking support in managing highly volatile situations relating to children, a concern raised by the Commissioner. [58] The Tribunal is mindful also of the submissions by Ms Noble, the commissioner’s representative regarding the availability of some witnesses and accepts that Mrs C-N may not have told some of her witnesses about what occurred with regard to the assault on her daughter. [59] The Tribunal places great weight on the Commissioner’s submissions that the Tribunal must consider the best interests of children and not any detriment that Mrs C-N may suffer if she were not to get a blue card. [60] The Tribunal must also take into account s 226 of the CCYPCG Act in deciding whether there is an exceptional case or not. [61] The Tribunal notes that, although the offence is not categorised as a serious offence under the Act, the assault was against her own vulnerable daughter. In this regard it is directly relevant to child-related employment. The Court did not record a conviction and imposed a relatively minor sentence. The Tribunal concludes therefore that the Court determined to take a lenient approach. It is not for the Tribunal to retry the matter, but to determine in this case whether the risks outweigh the protective factors. -- 11 of 13 -- 12 [62] The Tribunal is mindful that that the incident leading to the conviction occurred at a time of high stress experienced by the applicant. While there is a history of involvement with Child Safety for the period from October 2006, the Department has previously chosen not to take any formal action. [63] Mrs C-N and her husband have 5 children plus an adopted child in their care. There is some evidence before the Tribunal that there were instances of parenting concerns recorded regarding these children that were investigated by the Department. This led to two child concern reports. No other evidence of concern was presented to the Tribunal however. [64] The Tribunal must also take into account the positive references provided by Mrs C-N. As might be expected they are all very positive towards her. The Tribunal was impressed by the level of support Mrs C-N received from these witnesses. [65] The Tribunal is not satisfied however about Mrs C-N’s insight into her behaviour towards A and considers that there remains a minimizing of her responsibility for the assault and the earlier incident involving the knife. Mrs C-N has provided evidence that she is now more understanding of her daughter’s disability, but there is scant evidence regarding seeking professional help with management of a young person with challenging behaviours. This is of concern in the context of Mrs C-N’s employment in any environment where children with challenging behaviours may act out. [66] Mrs C-N’s child, A, had proved to be very difficult to manage over the years and other family members have taken the responsibility of her care, including after the charge was laid against Mrs C-N. The Tribunal is mindful of the cultural responsibility shared by family members. However, the Tribunal remains concerned with the evidence of long term actions taken by Mrs C-N, of severe discipline in effect, that had occurred in the management of challenging behaviours of a vulnerable young girl with an intellectual disability. [67] The Tribunal must consider the fact that a Blue Card is transferable. It is not satisfied that Mrs C-N has demonstrated she has addressed the concerns articulated by the Commissioner regarding managing children with challenging behaviours and in stressful situations. [68] Having reviewed all of these matters the Tribunal has come to the view that this is an exceptional case where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to Mrs C-N at this point in time. [69] Mrs C-N may benefit from seeking counselling regarding behaviour management of young people with challenging behaviours and the management of stress. The Tribunal encourages Mrs C-N to reapply for a blue card in the near future with a demonstration of addressing these areas of concern as raised by the Commissioner. -- 12 of 13 -- 13 [70] Consequently the Tribunal orders that the Commissioner’s decision to issue a negative notice is confirmed. Non Publication Order [71] The Tribunal has determined that it is in Mrs C-N’s other children’s best interests and in the interests of justice that a confidentiality order be made in these proceedings so that the children are not able to be identified in any way. [72] Accordingly, pursuant to s 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicant, and her children, and the names of the witnesses. The reasons will be published in a de-identified format. -- 13 of 13 --