DCM v Commission for Children and Young People and Child Guardian [2011] QCAT 507

CITATION: DCM v Commission for Children and Young People and Child Guardian [2011] QCAT 507 PARTIES: DCM v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML175-10 MATTER TYPE: Childrens matters HEARING DATE: 19 May 2011 & 4 July 2011 HEARD AT: Rockhampton DECISION OF: Ron Joachim, Presiding Member Philippa Beckinsale, Member DELIVERED ON: 29 September 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The decision of the Commissioner to issue DCM with a negative notice is confirmed. [2] That the publication of any material before the Tribunal that could identify the applicant or her daughter is prohibited. CATCHWORDS: Childrens 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 extensive child safety concerns exist – where applicant in long term abusive relationship – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional Child Protection Act 1999 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 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA492 Kent v Wilson [2008] VSC 98 -- 1 of 12 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: DCM represented herself RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Geoff Woodberry REASONS FOR DECISION Background [1] DCM is the applicant in these proceedings. She was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) by letter dated 11 October 2010. This meant she was unable to work with children. [2] The Commissioner issued reasons for her decision on 8 October 2010. [3] DCM seeks a review of this decision and applied to the Tribunal on 5 November 2010. [4] The application was heard on 19 May and 4 July 2011 in Rockhampton. [5] Following the hearing on 4 July, the applicant was given the opportunity to make written submissions. These were received on 12 August 2011. [6] The Commissioner made oral submissions after handing up written submissions. The relevant law [7] The CCYPCG 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. 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: 19 Exercising review jurisdiction generally 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 -- 2 of 12 -- 3 (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] Pursuant to section 312 of the CCYPCG Act, the Commissioner was notified of DCM’s police information. None of the offences for which she was convicted is considered a serious offence under the CCYPCG Act. As a result section 221 applies. The relevant provisions are outlined below: Section 221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence (1) Subject to subsection (2), the commissioner must issue a positive notice to the person if— (a) the commissioner is not aware of any police information or disciplinary information about the person; or (b) the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv)— For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). (c) the commissioner is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and 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 DCM’s is an exceptional case. [11] The CCYPCG Act does not define what is an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case. [12] In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated: -- 3 of 12 -- 4 “Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning „unusual, special, out of the ordinary course‟. This does mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.” [13] The focus of the CCYPCG Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999. [14] The Act in section 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. Section 155 further provides that: “the paramount consideration in making a decision relating to employment screening is a child‟s entitlement to be cared for in a way that protects the child from harm and promotes the child‟s wellbeing” and the Tribunal must also take this into account in determining this application. [15] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities. The undisputed relevant facts [16] DCM was found guilty of assault occasioning bodily harm in the Rockhampton Magistrates Court in mid 2010. [17] The assault was against her daughter DK in October 2009. [18] After the assault against DK, DK lived with various family members for several months and returned to DCM in February 2011. [19] The assault has been denied by DCM. DK alleged that her mother twisted her arm up her back and hit her in the head and face, and kneed her in the back. [20] In 2006, DCM was in breach of an order made under the Domestic and Family Violence Protection Act 1989, such order being issued in April -- 4 of 12 -- 5 2006. The breach occurred 2 days later and involved yelling abuse and threatening other family members. [21] DCM remained in an abusive relationship after she had 7 children, of whom DK was the youngest. She ended this relationship after 30 years. Other evidence [22] Oral evidence was given to the Tribunal from MP, DCM’s older sister, DM, a counsellor, HM, from the Darumbal Youth Centre, DCM herself and NR, a child safety officer, and another sister DH. [23] This evidence where relied upon is summarized below. [24] MP advised the Tribunal that DK was a rebellious child. MP stated she would trust DCM with her own children and grandchildren. [25] She was aware that the SCAN team had been involved with the 2 older girls but stated they hated their mother. [26] She had never seen any abusive behaviours of DCM towards DCM’s children. [27] She believes DK had made the story up about the assault. [28] She advised the Tribunal that DCM had suffered badly at the hands of her de facto at times. [29] DM, a counsellor to whom DCM went for approximately 16 one hour sessions over one and a half years gave evidence. [30] She stated that the counselling focus had been on DCM’s emotional well being in dealing with her relationship with her daughter. [31] She referred to DCM’s family as being very challenging and reported things seem to be going well with DK. [32] DM noted an improvement in DCM’s self confidence from being emotionally shattered from DK’s allegation. [33] DM stated that DCM wants to give priority to her relationship with DK. [34] DM advised she had not seen any evidence of bipolar disorder or psychosis, but had noticed a high level of stress and lack of confidence. [35] HM is the manager of a youth service to whom DCM had turned for assistance. [36] She stated that she saw DCM as similar to other women who had extracted themselves from a difficult situation who want to work with youth. -- 5 of 12 -- 6 [37] She sees DCM as a woman who has been through a hard life who wants to make changes, who has been studying and sought counselling. She advised the Tribunal that she could see no reason why DCM could not work with children and would employ her if she had a blue card. [38] HM considered the incident with DK involving the assault had not happened the way it was portrayed. [39] HM advised she had witnessed the signing of a statement from DK denying the assault had happened. She stated she was not present when DK wrote the statement. [40] DCM gave extensive oral evidence to the Tribunal about her abusive relationship with the father of her children and about the raising of her children. [41] She advised the Tribunal that most of the children left the family home in their mid teens. [42] She advised the Tribunal that she was regularly beaten by her former de facto and isolated from her siblings. She described her grief on the death of her parents. [43] In 2004/05 she moved to Rockhampton and was invited to undertake study. [44] She advised the Tribunal she has been in stable accommodation since 2004 and began a welfare degree in 2005. [45] She advised the Tribunal of problems with her 2 eldest daughters, one of whom referred her for a mental health assessment and of problems with her sister DU. [46] She denied the alleged behaviour which led to her conviction saying that she did not injure her daughter DK’s arm. She advised she had told DK that she would be losing privileges for not eating her lunch. [47] DCM described herself to Mr Woodberry as a very calm person who does not get stressed. [48] NR, DK’s Child Safety Officer advised the Tribunal that things seemed to be going well between DK and DCM since DK was returned home. [49] NR advised she was yet to visit the home. [50] NR noted DCM had been honest and respectful with her. [51] DCM’s sister DH advised the Tribunal that their family was closely knit when they were growing up. She referred to a good upbringing. [52] DH noted that whilst she had observed DCM to be strict she had never known her to hit her children. DH noted the girls told a lot of lies. -- 6 of 12 -- 7 [53] DH observed that DCM leaving her de facto was the best thing that could have happened. [54] She advised the Tribunal that DCM wants to make something of herself to help children and that she sees DCM as a changed person. [55] DH does not consider DCM did anything wrong and she is very close to her daughter. [56] DH described DCM as a role model who could work with children from any background. [57] DH stated she had not seen DCM in major conflict with others, although she noted a falling out with DM and DU, 2 of their sisters. She stated DCM gets angry with them but tries to talk it through and doesn’t swear. [58] She advised she was not aware of an abusive letter DCM sent to DU. [59] She also advised this was the first time DCM has been involved with child safety. Submissions of the applicant [60] DCM did not wish to make oral submissions at the conclusion of the hearing. She asked for, and was granted, the opportunity to provide written submissions. [61] In addition to her written submissions DCM provided a bundle of documents as attachments. These included:  Her study records;  Papers on exceptional case;  The transcript of proceeding in the Rockhampton Magistrates Court when she was sentenced;  Comments on the Commissioner’s verbal submissions of 4 July 2011;  Queensland Health’s mental health records of DCM; and  A large number of references. [62] In DCM’s written submissions she noted her disagreement with the Commissioner’s assertions that there was sufficient evidence pointing to her being unfit to hold a Blue Card. [63] She referred to her Aboriginal background and social disadvantage. [64] She argued she had overcome significant disadvantage and had sought to better herself through study. She advised she was making significant steps in reconciling with her children, especially DK. [65] DCM drew attention to DK’s withdrawing her claim of assault against her. DCM noted she and DK are undergoing counselling. -- 7 of 12 -- 8 [66] DCM acknowledged the child protection issues raised by her children but considers it “unfair that so much weight has been placed on my own children’s upbringing …”. [67] She also acknowledges the two domestically violent relationships but argues she has not been in a relationship since 2004, demonstrating resilience and empowerment as well as demonstrating her increasing protectiveness of her children and grandchildren. [68] In response to the Commissioner’s concerns about lack of mental health follow up treatment, DCM emphasised that when she went to the Rockhampton Mental Health Unit in April 2006, the outcome was “no current mental health concerns.” She blames family members for admissions in relation to an alleged bipolar disorder. [69] DCM rejects the Commissioner’s assertions that she was unconcerned about DK’s allegation of sexual abuse in 2007, although acknowledged she did not follow up when an Aboriginal Liaison Officer did not attend. She followed up in 2009 when DK raised the issue again and since then DK has received counselling. [70] DCM submits the Tribunal should take into account the following:  The first child protection complaint was not made until 1995;  The references from people in the community who know of her involvement with schools, and various communities agencies;  The sentencing remarks of the Magistrate regarding the impact a conviction might have on future employment prospects;  Her desire to apply knowledge learnt to work in the community; and  Her removing herself from an abusive relationship in 2004. Submissions of the Commissioner [71] Mr Woodberry provided both oral and written submissions to the Tribunal. [72] In these he notes that the purpose of a blue card is to protect children and that the rights of adults are subservient to the right of children. [73] Mr Woodberry argued that the applicant was convicted of assault occasioning bodily harm and the Tribunal must be bound by the conviction, notwithstanding the beliefs of DCM. [74] Mr Woodberry gave a brief overview of DCM’s mental health history pointing to DCM’s refusing to go to hospital, her being thought disordered, having impaired judgement, being diagnosed with bipolar disorder and not taking medication. [75] Mr Woodberry referred to notes of the SCAN team, noting physical and emotional abuse to DK, evidence of her not wanting to go back home and being so afraid she wet herself. -- 8 of 12 -- 9 [76] He submitted that there was a history of DCM’s children leaving home during their teens, and that there were consistent and repeated disclosures of ill treatment. [77] He argued that the Tribunal might entertain some suspicions about abuse and the lack of protective behaviour by the applicant. [78] Mr Woodberry noted that the witnesses gave evidence of a supportive relationship between DK and her aunts (DCM’s sisters). [79] He argued, however, that this doesn’t necessarily imply a protective arrangement for DK because DCM’s sisters refuse to believe DCM is capable of harming a child. [80] For this reason he submitted DH’s evidence should be given little weight. [81] As to the evidence of HM Mr Woodberry suggested it should be viewed with caution. [82] Mr Woodberry submitted that DCM showed no insight into the effect of her behaviour on DK, has shown no remorse, has attempted to shift the blame and hasn’t accepted any responsibility for her actions. [83] He noted that the alleged sexual assault against DK had not been followed up adequately. [84] Mr Woodberry pointed to DCM’s background of domestic violence against her. He also referred to her own intemperate language used against her own sister, in the face of DCM’s evidence about her calmness and not using bad language. [85] Mr Woodberry argued that whilst DCM had undergone counselling this was focussed on her own issues rather than addressing the relationship with DK. [86] Mr Woodberry submitted that the Tribunal may entertain a suspicion that DCM may have some way to go in not representing a risk to children. [87] He noted DK had only been back with DCM for a short time and the conviction was recent. [88] He submitted that there must be concerns for the Tribunal about DCM representing an unacceptable risk to the children of Queensland. [89] He argued that whist DCM may be suitable in the future, risk remains now and the Tribunal should affirm the decision of the Commissioner. [90] In the written submissions the Commissioner referred to risk factors in examining the risk DCM may pose to children and young people. These included: -- 9 of 12 -- 10  The Applicant’s criminal history evidences that the Applicant has a propensity to resort to threats and commission of violence in circumstances when she feels aggrieved.  The Applicant’s latest offence was committed recently in 2009 and involved infliction of violence upon her 12 year old daughter for not eating her lunch the previous day.  The Applicant has demonstrated a lack of insight into the physical and emotional harm potentially caused to the child through her conduct.  The Applicant, in her submissions to the Respondent, has demonstrated that she is not remorseful and that she does not possess adequate coping skills to deal with conflict and/or stress other than resorting to violence.  The Applicant, in her submissions blames her daughter and does not accept responsibility for her own conduct.  Her referees do not state that they have any knowledge of the allegations made against the Applicant and accordingly lack weight. The Tribunals view [91] The Tribunal has identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. [92] The potential protective factors for DCM are:  Her last abusive relationship ended in 2004;  She has studied leading to a degree;  She has supportive sisters; and  Her involvement with community groups. [93] The risk factors for DCM are:  Conviction for assault in 2009 against daughter;  Breach of domestic violence order;  History of involvement of child protection authorities in her children’s life;  A history of mental instability;  A long history of living in abusive relationships;  Limited insight and blaming of others for her predicaments; and  Failure to follow up on daughter’s disclosure about sexual assault. These weigh heavily on the Tribunal. [94] The Tribunal does not consider the evidence from DCM’s sister DH plausible. DH painted a relatively rosy picture of DCM. She was apparently unaware of the extensive involvement of the child safety authorities in the life of DCM’s children, unaware of the domestic violence breach, unaware of an abusive letter with foul language DCM sent to their sister DU, and unaware of how DCM swore at DU. Her evidence is discredited in most particulars. -- 10 of 12 -- 11 [95] In some particulars DCM’s evidence lacks some credibility. She describes herself as calm and a person who doesn’t get stressed. This is contrasted with her demeanour before the Tribunal and her counsellor’s evidence. [96] The Tribunal formed the view that DCM is a person who does get stressed easily, possibly as a result of her difficult adult life. [97] She continues to deny the assault and says stories of her abusing her other children were made up by them. This is against a weight of documentation reviewed by the Tribunal from the Department of Child Safety. [98] Her submissions regarding not following up DK’s disclosure of sexual abuse are not convincing. DCM didn’t follow through until DK raised it for a second time 2 years later. This was irresponsible in the Tribunal’s view. [99] The Tribunal accepts that DCM is trying to better herself through education and training. [100] The Tribunal rejects her submission that it is in her favour that the first child protection complaint was not made until 1995. [101] The Tribunal also takes into account section 226 of the CCYPCG Act in deciding whether there is an exceptional case or not. [102] The Tribunal notes that none of DCM’s offences are categorised as serious offences under the Act. There have been convictions for breaching domestic violence orders and assault occasioning bodily harm. These offences occurred in 2006 and 2009 respectively. [103] The Tribunal notes that the breach of the domestic violence order involved DCM being verbally abusive and acting threateningly toward her sister. [104] The assault was against her own daughter in which the daughter’s arm was pulled behind her back and she was hit in the head. In this regard, it is directly relevant to child related employment and weighs heavily on the Tribunal. The Tribunal places little weight on DK’s subsequent written recantation that the allegations were false. The Courts did not record a conviction and imposed relatively light sentences. The Tribunal concludes the Courts considered the offences to be relatively minor. [105] The Tribunal cannot go behind the conviction. The Tribunal must accept that the evidence supported the assault on DK. In this regard it accepts Mr Woodberry’s submissions about DCM’s lack of insight. [106] There is some history of mental health problems which have been noted in the Commissioner’s submissions. The Tribunal accepts this and rejects DCM’s minimising of this. The Tribunal accepts that there has been no involvement with mental health services for 5 years. The Tribunal accepts DCM has not required treatment since 2006 as there is no evidence of this. The Tribunal does not place great weight on DCM’s mental health -- 11 of 12 -- 12 history as a relevant factor in this case. It is pleasing that DCM has sought counselling to deal with her relationships. [107] Another matter which weighs on the Tribunal’s mind in considering section 226(e) included the lengthy child protection history involving DCM and her children. [108] It is apparent from reading this material that the child safety authorities held concerns about a significant history of physical abuse by the mother since 1995. [109] In addition, chronic domestic violence to which DCM admits, was perpetrated upon her by her partner. DCM’s inability to extract herself from this situation suggests she may have difficulty in protecting children from the impact of abusive relationships. [110] The Tribunal must also consider the references provided to it. These are all very positive for DCM. Some of the referees are aware of the most recent offence and of the difficult life she had led. The references are from a variety of people from the Rockhampton community and point to DCM’s positive qualities and attributes. They support her receiving a blue card. [111] The Tribunal finds it is noteworthy that DCM has undergone training and counselling and commends her for that. [112] The Tribunal has come to the view however that DCM still poses a risk of harm to children because of her history. [113] The exceptionality in this case arises because the risk of harm is unacceptable and the risk factors outweigh the protective factors. [114] It would not be in the best interests of children for DCM to have a blue card. [115] The Tribunal is satisfied that DCM’s is an exceptional case in which it would not be in the best interests of children to issue her with a positive notice. The decision of the Commissioner to issue DCM with a negative notice is confirmed. [116] In order to protect the child DK from being identified, the Tribunal makes a confidentiality order over these reasons so that they can only be published in a de identified format. -- 12 of 12 --