CT v Commissioner for Children and Young People and Child Guardian [2012] QCAT 354

CITATION: CT v Commissioner for Children and Young People and Child Guardian [2012] QCAT 354 PARTIES: CT v Commissioner for Children and Young People and Child Guardian APPLICATION NUMBER: CML063-11 MATTER TYPE: Childrens matters HEARING DATE: 7 October 2011 HEARD AT: Townsville DECISION OF: Mark Johnston. Member Majorie Pagani, Member DELIVERED ON: 4 June 2012 DELIVERED AT: Cairns ORDERS MADE: 1. That the decision of the Commissioner for Children and Young People and Child Guardian made on 30 March 2011 to issue a negative notice to the Applicant CT is confirmed. CATCHWORDS: Suitability for Blue Card – previous harm to children – whether an exceptional case exists – assessment of unacceptable risk of harm APPEARANCES and REPRESENTATION (if any): APPLICANT: CT self represented RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Mr Murray Briggs REASONS FOR DECISION Background to the Proceedings [1] The relevant legislation that applies is the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”) as amended and -- 1 of 23 -- 2 the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). [2] The current Act is the legislation that came into force on 1 October 2010 [Reprint 8B], and this Act is to be applied. Application history [3] On 28 January 2010 an Application was lodged by the Applicant for a positive notice and Blue Card under the Act. [4] The Queensland Police Service provided a copy of the criminal history1 recorded against the Applicant, and Police Court Briefs (QP9s) detailing the particulars of the relevant offences recorded on the Applicant‟s criminal history. [5] By letter dated 11 October 2010, the Applicant was invited to make submissions about her criminal history which had been obtained by the Commissioner. The Applicant provided submissions to the Commissioner on 2 November 2010. On 11 February 2011 the Applicant was provided with a further opportunity to make submissions about further information which had been received by the Commissioner. On 7 March 2011 the Applicant provided further submissions to the Commissioner. [6] On 30 March 2011 the Applicant was advised that the Respondent had decided to issue the Applicant with a negative notice. [7] On 4 April 2011 the Applicant filed for a review of the Commissioner‟s decision with the Queensland Civil and Administrative Tribunal (“the Tribunal”)2, within the timeframe provided for under section 353 of the Act, and section 33(3) of the QCAT Act. [8] On 31 May 2011 the Tribunal conducted a Compulsory Conference in the matter. The matter was subsequently listed for hearing on 12 August 2011. On 9 August 2011 a Directions Hearing was held and special arrangements were made for one of her witnesses to be heard. The matter was relisted to proceed to a hearing on 7 October 2011. Relevant legislation Jurisdiction [9] Jurisdiction for the Tribunal to hear and determine this matter is established under sections 6 and 9; and Chapter 2, Part 1, Division 3 of the QCAT Act, and section 354 of the Act. Under section 19(c) of the QCAT Act the Tribunal stands in the place of the original decision-maker, the Commissioner. However, under section 28(3) of the QCAT Act the 1 Defined at Schedule 7 of the Act. 2 Under section 354 of the Act. -- 2 of 23 -- 3 Tribunal is able to consider fresh material not previously available to the Commissioner, and is required under section 28(3)(e) to ensure it has, so far as is practicable, all relevant material before it. [10] Pursuant to section 312 of the Act, the Respondent was notified of the Applicant‟s police information. The Applicant has convictions for offences other than a serious offence3 as defined under section 167 of the Act. Accordingly, section 221(1)(c) and 221(2) of the Act provide that the Commissioner, and upon review the Tribunal, must issue a positive notice to the Applicant unless satisfied that the Applicant‟s case is an exceptional case in which it would not be in the best interests of children to issue a positive notice. The decision making process [11] In this matter, section 226 of the Act provides that the decision maker must have regard to the following in making a determination: (a) in relation to the commission, or alleged commission, of an offence by the person-: (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court‟s reasons for its decision; (b) any information about the person given to the commissioner under section 318 or 319; (c) any report about the person‟s mental health given to the commissioner under section 335; (d) any information about the person given to the commissioner under section 337 or 338; (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person. [12] The term exceptional case is not defined in the Act, and case law has considered its meaning, as detailed under paragraph 5 of the Respondent‟s Reasons document, to “…take it out and beyond the ordinary circumstances reasonably expected to occur”4, and must be “…of the nature of or forming an exception; out of the enduring cause, unusual, special”5. This view was supported by the Queensland Court of Appeal in 3 Defined at section 167 of the Act. 4 In the Marriage of Sandrk (1991) 104 FLR 394 at 399-400. 5 Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288. -- 3 of 23 -- 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor6 (Maher‟s case). [13] Further, the (former) Queensland Children Services Tribunal held, in its decision of OAA Re [2006] QCST 14, that in determining whether an exceptional case exists, the principles considered in the family law jurisdiction can be transferred to the child protection jurisdiction, and consideration is to be given as to whether the Applicant presents an „unacceptable risk of harm to the children of Queensland‟7. [14] Harm is defined in the Act to „have the same meaning given in the Child Protection Act 1999, section 9‟8, namely: (1) Harm, to a child, is any detrimental effect of a significant nature on the child‟s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation. [15] The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Maher‟s case, the Queensland Court of Appeal, at paragraph 30, adopted the submission that: “... the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.” [16] 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 Security9. [17] Importantly, the Tribunal is bound by section 360 of the Act to make a determination on review upon the principle that the welfare and best interests of children are paramount. This paramount principle is also encompassed and reinforced under sections 5, 6, and 15510 of the Act, that also bind the Tribunal in its decision making, and it is to this consideration that all others must yield11. 6 [2004] QCA 492. 7 The test. 8 Schedule 7 of the Act. 9 [1984] FCA 57; (1984) 1 FCR 354. 10 Section 96 of the unamended Act. 11 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at para 29; Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at para 70. -- 4 of 23 -- 5 [18] Any hardship or prejudice suffered by the Applicant is irrelevant to this paramount principle12. Further, “…any benefit which might be thought to flow to children by having access to the Applicant‟s knowledge, experience and flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued”13. Evidence Documentary evidence Criminal history [19] The particulars of the Applicant‟s criminal offending are summarized under paragraph 2.2 of the Respondent‟s Reasons document. The Applicant‟s criminal history runs for 3 pages starting from an offence of break, enter, and steal which was dealt with in the Bidura Children‟s Court (NSW) to a conviction on 25 August 2009 for common assault and assault occasioning bodily harm dealt with in the Townsville Magistrates Court. These offences can be summarized broadly as: offences against property; driving offences; and assault charges. Significantly there are also a number of convictions for breach of probation and bail. The Commission also made reference to material provided by the Department of Communities (Child Safety Services). The Tribunal comments on the most relevant offences in the following paragraphs. [20] The Applicant was convicted of the charge “Armed with intent to commit and indictable offence” and a charge of “attempted robbery whilst armed” was dismissed. The circumstances were that the Applicant at 16 years of age was in the company of an older co-offender (35) who approached a third party and demanded that this person hands over his wallet. A 32 cm knife was produced when the complainant refused. They fled the scene and were detained by rail guards until police arrived. The Applicant was convicted and ordered to perform 50 hours of community service. [21] The Applicant was charged with assault occasioning bodily harm arising out of events on 24 October 1989. It was alleged that the Applicant was 20 years of age and was in a night club when the complainant (30) accidentally bumped into her. The Applicant has turned and faced the complainant and punched the complainant in the nose knocking her into her sister causing her great pain. The Applicant had been drinking and had been involved in another fight but could not remember this matter. The Applicant was convicted and ordered to perform 150 hours of community service. The conviction was not recorded. 12 Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171 at 23. 13 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289. -- 5 of 23 -- 6 [22] The Applicant was convicted of the charges “assault occasioning bodily harm” and “common assault” (three charges) arising out of events on 11 January 2009. It was alleged that the Applicant was 30 years of age at the time of the offences. The infant child was approximately 9 months of age. The circumstances are that the Applicant had been drinking and had become increasingly more aggressive towards her ex-partner, verbally abusing him over a number of hours. The Applicant was intoxicated and near a trailer in the back yard when she threw the child onto the grass in what was described as the same motion as throwing a cast net. The child landed on all his arms and legs and began crying immediately. The Applicant‟s ex-partner has picked the child up and attempted to comfort the child. The Applicant has grabbed the child from him and again thrown the child on the grass whilst continuing to abuse her ex-partner. The Applicant‟s ex-partner has picked the child up and handed him to his 15 year old daughter to take the child upstairs to keep him safe. The Applicant has run after the 15 year old girl and assaulted her by pulling her hair and punching her to the side of the face. The Applicant has taken the child and thrown the child this time onto the concrete. The child was very upset and crying. The Police were called and the child was taken by ambulance to hospital where the child was observed to have a bruise on the top of his head and possibly some swelling under his eye. The Applicant was convicted and ordered to perform probation for 12 months. The conviction was not recorded. Applicant’s evidence [23] The Applicant told the Tribunal that she had a challenging upbringing where her own needs as a child were not met. Her mother had been diagnosed with the mental illness bipolar and her father was an alcoholic and her brother had a diagnosis of paranoid schizophrenia. Her environment exposed her to little attachment to her parents growing up which exposed her to a developmental pathway that did not support healthy relationships or behaviour pattern. Her mother gave her little positive reinforcement growing up and there was a lot of conflict between her parents and grandparents as they all lived together. Her grandfather was a very angry man and blamed her a lot throughout her childhood for the conflict between her grandparents and her parents. This affected her self-esteem and confidence heavily. She stated as a child that she could remember sleeping at friends‟ places and noticing things were a little different at her place and noticing that her friends‟ houses were happier than her own. She acknowledged that she did silly juvenile delinquent things as an adolescent. All her emotions that she had buried as a child arose to the surface. Much of that would rage in anger as she did not know how to express her feelings which heavily impacted upon her. She was then exposed to an environment that supported this behaviour and participated in a great deal of risky behaviour, and anti-social behaviour. She told the Tribunal that she was defensive, depressed, angry, anxious, scared, insecure and very confused. Throughout her adolescent life she thought there was more to life and that she was going nowhere behaving like this. -- 6 of 23 -- 7 [24] In 1999 she moved to Townsville and met a man much older than herself and gave birth to her first child. This relationship lasted seven years and throughout this stage she became more settled than during her adolescence and held down permanent employment. She separated from this man as he was an alcoholic and it was a dysfunctional relationship. She met her youngest son's father three months later. However, this relationship did not work and she realised that she needed stability for herself and her two sons. She contacted Oz Care who provided her with shelter to start her life and try and find some stability. After six months she found her present house and moved in once she gave birth to her second son. She was still in contact with the father and thought that maybe once she had the baby that he might rethink his life, yet things only got worse. He did not help at all throughout this time, up until the incident that occurred on 11 January 2009. The Applicant told the tribunal that she looks at this day as the turning point in her life. The Applicant had found out she was pregnant once again with her third son and reacted badly. She told the tribunal that she was very remorseful that she had exposed her son to physical and emotional trauma that day. She knows that there has been substantial violent behaviour in her past which relates a lot to alcohol abuse. She told the Tribunal that she immediately began working with Child Safety. She enrolled in a bridging course through the Central Queensland University in 2008, to gain entry into university. This course was commenced in February and successfully completed in November 2009. On 15 January the she undertook a Parenting Under-12 Program which she successfully completed on the 19 February. On 24 February she commenced an Exploring Anger with Women Program which she successfully completed on 7 April 2009. She was assigned by the court to see a psychologist at Alcohol Tobacco and Other Drugs Service (ATODS) but found that it was not helping her. She had heard of Grace Cottage where she met up with a therapist by the name of Karen. She undertook a cognitive behavioural therapy program which challenged her thought processes, enabling her to understand what had happened at these times in her life and why her behaviour was like it was. This enabled her to change her thought processes and behaviours from unhealthy into healthy ones. She knows that there are still triggers there and when they arise she now reflects on why these situations are triggering her and works on how to express other feelings rather than anger. This process is building resilience to her past trauma and letting her out of her pain. [25] The Applicant told the Tribunal that on 12 January 2008 she had broken up with her partner and was in a highly emotional state. She was out of control and that was why one of her children was injured. She had been drinking on the day and conceded that she was “not in the right frame of mind” and that she was “emotionally drained”. In relation to the allegations of the first incident, she admitted that she had “heavily placed her son down on the grass”. In relation to the second incident she admitted that she had again “placed her son down heavily down on the grass”. In relation to the third incident she admitted that she had “placed her son 2 inches from the cement ground”. In relation to the fourth incident she -- 7 of 23 -- 8 admitted that she had “had dropped her son a metre onto the grass”. She disputed assaulting the 15 year old girl. [26] Her present situation is that she is a functioning mature adult. She has completed almost a quarter of a degree and will be a qualified enrolled nurse by the end of this year. This will enable her to gain employment, which will help financially with her studies and her family. She is able to reflect on her childhood to understand the triggers that may arise and instead of acting upon them in a dysfunctional way, work a way through problems. She has undertaken intensive therapy over the past two years in order to bring about sustainable change. She has developed insights into her behaviour and made adjustments in her life. She described her strengths as: her commitment to progress; her motivation to be functional and succeed; her estrangement from dysfunctional people; university; the learning and social contacts that she is building; her children; becoming adult; and her therapy. Karyn Lendich – Counsellor at Grace Cottage, Salvation Army [27] The witness told the Tribunal that the Applicant had been attending the counselling services of the Salvation Army and is continuing treatment presently supporting recovery. The Applicant first attended this treatment facility after self-referring regarding alcohol misuse and maladaptive coping behaviours. At the assessment the Applicant was distressed and the general presentations suggested reactive features of resolve past traumatic events. There was evidence of Post Traumatic Stress Disorder and alcohol misuse. The Applicant had been involved in a highly dysfunctional violent domestic relationship. The Applicant had over the course of 20 months of treatment shown a genuine desire to understand her circumstances more fully and actively participated in an early intervention approach to disrupt past patterns of maladaptive cycles. The Applicant has now acquired appropriate developmental coping behaviours and can undertake tasks in a manner typical of her age. She has also developed relative problem-solving and reflective skills to assist further understanding of the past. She is actively determining behavioural changes promoting healthier outcomes for her and her young family. She told the Tribunal that the Applicant was highly motivated to change and has been attending university after a preparatory course signifying her determination to continue adapting appropriately. She described the Applicant is an intelligent woman who now lives independently with her small children. [28] In her report of 26 July 2011 she talks about a history involving cycles of binge drinking until intoxicated as frequently as twice per week since beginning a relationship and 2007 continuing for approximately 18 months concurrently with the length of the relationship. The Applicant, despite her low esteem and poor mood, displayed her capacity for self-referral by being open and making disclosures and was deemed a suitable candidate for a structured approach to treatment. Cognitive behavioural therapy was offered as the best treatment match, relieving suffering from her presentation of substance misuse and mood disorder at that time. She -- 8 of 23 -- 9 talked about a difficult childhood and poor attachment. The living of a transient lifestyle until she was aged 19. She talks about the Applicant's progress through the program and talks about the Applicant‟s outcomes at the end of the report. She says that the Applicant has made “remarkable progress”. She has built a strong understanding of her circumstances and the impact of childhood dramas including disrupted early attachment bonds. The Applicant has been open in her disclosures and allowed probation authorities access to reports of treatment progress. Michael Farr – Psychologist [29] In his written report dated 18 July 2011 Mr Farr notes that the Applicant requires a Blue Card to continue with her studies. He notes that successful completion of such a course of study would contribute greatly to the stability and development of her children. He points out that in any placement while a student, the Applicant “will have supervised practice in any worksite”. Such supervision is designed to minimise any risky situations that a student nurse might encounter. Mr Farr notes he has been impressed with Miss CT's ability to understand and manage her own mood states. He anticipates that she will “not only be a contributing member of society, but will have the capacity to utilise her own past experiences to inform her future practice”. [30] He provided a brief history in his report: Ms CT describes a childhood in which she was the victim and witness to severe unpredictable emotional and physical assault. Her parents are described as ineffectual and are now deceased. The maternal grandparents provided parenting that is described as abusive. Her response to her dysfunctional home life was to run away where upon she lived “rough” in Sydney. Aged 19 she commenced a relationship with JJ which brought her to Townsville. Aged 21 she and JJ had a child who now resides with his father but with whom she has frequent regular contact. She currently is the primary caregiver to two children who are the children of VV. Both of these children occasionally attend child-care and I am informed that that there are no reports of difficult behaviour from the carers. The relationship with JJ and VV, the estranged partners and parents of her children, are described as difficult but are becoming more manageable as time passes. [31] Mr Farr confirms that Miss CT's developmental history almost certainly contributed to her previous unsatisfactory behaviour. Miss CT admits and accepts the charges were laid at that time. He confirms that the events of 12 January 2009 “were clearly a serious incident”. [32] In his oral evidence he confirmed that the Applicant had a very difficult childhood and was a very damaged person. However people do overcome terrible childhoods. He acknowledged that he was not a forensic psychologist and that this was the first time that he'd been asked to prepare a report for a Blue Card review. His current assessment of the Applicant is that she is someone within the bounds of normality. Her past history of substance misuse has been in relation to stressful situations. -- 9 of 23 -- 10 Her current situation is that there are few stressors. He told the tribunal that the Applicant had accepted that she has to share the blame for what happened. The fact that she had also assaulted another child “made it a horrible situation”. [33] Mr Farr was asked by the Tribunal how the Tribunal could be satisfied, due to the Applicant's lengthy criminal history spread over the major part of the Applicant's life, that she was not an unacceptable risk of further offending given the relatively short period of her life that she has been free from charges. He responded by saying that it was very difficult to describe how long the Applicant would remain free of charges before she was a assumed to be a low risk of reoffending. He said that the Applicant was a thoughtful and sensible woman who thought about her behaviour and could manage it. In relation to whether the Applicant would not be able to work with any children, Mr Farr told the Tribunal that he had no issues with the Applicant looking after her own children but the could not talk about a situation whereby she was dealing with children and the general community. For example, if she wanted to become a day-care mum, he would recommend against it. He thought that the Applicant has turned her life around and is able to evaluate the consequences of her actions. She has developed insights into past behaviour. [34] Under cross-examination from the Respondent‟s legal officer he was asked if his assessment of risk factors was focused on the Applicant's children rather than children in general. He agreed that the Applicant would be able to look after her own children but he would have reservations about her having responsibility for children generally in the community. Respondent’s Submissions Risk to children and young people [35] Both the Applicant‟s reporting psychologist, Michael Farr, and Karyn Lendich, the Applicant's case worker, gave evidence that they had in no experience in being a referee for an individual applying for a Blue Card. They had virtually no knowledge of the legislative requirements under the Act and were not aware that that the Commissioner cannot issue a card that is restricted in any way. They both indicated that while they did surmise and opine the Applicant was a suitable person to be issued a Blue Card, it was on the basis/purpose for which she applied ie as a nursing student and therefore would always be under supervision. When was put to them that if the appellant of the Blue Card she would be in a position to run day-care at home without any supervision they both stated that would not be a good idea. [36] The key factors relating to the nature and relevant of the offences and alleged offences to child related employment are as follows: (a) The Applicant's criminal history raises significant concerns about her propensity to resort to violence when faced with conflict -- 10 of 23 -- 11 and/or circumstances which she feels aggrieved and/or when she has been abusing alcohol; (b) The offences committed, and allegedly committed by the Applicant, involved the infliction of violence on other persons and a disregard by the Applicant of the consequences of such violence to victims, including her infant 9 month-old child. The Applicant‟s criminal history raises significant concerns about her propensity to resort to violence when faced with conflict or circumstances which makes her feel aggrieved; (c) The Applicant's criminal history demonstrates that the Applicant fails to exercise proper judgment and restraint when faced with circumstances of conflict and/or stress; (d) The Applicant‟s offences demonstrate that she has not developed nor does she employ adequate and effective anger management and/or conflict resolution techniques and/or strategies to address her propensity to respond with violence; (e) The Applicant abused her position of trust and authority over her children by assaulting them in a way which exceeded the bounds of lawful chastisement. [37] The Applicant, through her criminal offending, has exercised poor judgement which impacts upon his current capacity to exercise cogent decision making, an important consideration for someone engaged in regulated employment. Summary of risk factors [38] Based on the information before the Respondent at the time, the following risk factors are evident: (a) the Applicant‟s criminal history evidences a regular commission of offences and disregard for the law by the Applicant over a period of 17 years, from 1992-2009;14 (b) the Applicant's latest offence of violence was committed recently in 2009 and two most recent offences evidencing disregard the law was in 2009; (c) the offences of 11 January 2009 involved an assault by the Applicant upon nine-month old infant son by picking him up and throwing him onto the grass. Such assault caused a visible distress to the child and he began crying as soon as he landed on all his arms and legs. Following the Applicant ex-partner picking 14 Grindrod v Chief Executive Officer, Department for Community Development , supra, at clause 20. -- 11 of 23 -- 12 of the child up to comfort him, the Applicant snatched the child away and again threw him onto the grass. The Applicant also snatched the infant child away a third time and again using a net casting motion, through the child onto concrete causing him to fall on his belly and head and become very upset. Such actions show a complete disregard by the Applicant for the safety and well-being of the child; (d) such assaults on the baby were witnessed by the 15 year old daughter of the Applicant‟s ex-partner who was then also assaulted by the Applicant by being punched in the face and having her hair pulled by the Applicant; (e) the Applicant‟s conduct also demonstrates a complete disregard of the harm suffered by children and witnessing incidents of violence and/or being subject to violence, and the risk of harm to children in such circumstances; and (f) the Applicant‟s offending demonstrates that she habitually resorts to violence when confronted with conflict and/or in circumstances in which she feels aggrieved. Discussion of evidence [39] The (former) Children Services Tribunal stated at paragraph 97 of its Reasons: “The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.” [40] The Tribunal agrees with the Commissioner that the Applicant‟s insight into her actions and the harm that was actually caused to her own child was only partial. The Tribunal was of the view that she had minimised her own involvement. It was the Applicant‟s evidence that the events of 11 January 2009 when the child was taken from her were life changing. Yet the Child Safe Records show that the Applicant while doing all these programs to address her behaviour, approached her ex-partner‟s house and hung around to the early hours of the morning abusing him, banging on the bedroom door and yelling abuse through the window. These actions lead the Tribunal to the view that it was only later through the cognitive behaviour therapy that the Applicant has been able to turn her life around. It is then with the benefits of the insights into her behaviour that she has reflected seriously on her actions. [41] This view is supported by the risk assessment that was undertaken by Child Safety on 15 January 2009 at which time the Department came to the -- 12 of 23 -- 13 view that despite the significant protective factors that did exist the child was still “identified as being at an unacceptable risk of harm because the protective factors do not sufficiently address the risk factors”. [42] The protective factors were identified as follows: although the Applicant has demonstrated an inability to control her actions in adverse situations, under normal situations the Applicant had demonstrated good parenting skills and households were characterised by positive interactions and shared responsibility; there had been minimal child protection history in relation to the Applicant with the last investigation and assessment taking place in 2005; the older child was of an age to protect himself and articulate his protective needs; the Applicant had adequately managed household resources in order to provide a safe and stable home environment for the children; the Applicant had stable accommodation increasing the children‟s sense of safety; and although there was a current domestic violence protection order in place, the Applicant‟s ex-partner was supportive of the Applicant and her recovery from alcohol abuse. [43] The risk factors were identified as follows: the Applicant had limited stable and ongoing effective networks or avenues of support; the Applicant had an ongoing history of alcohol abuse; the Applicant has been involved in domestic violence incidents as a respondent and has a limited ability to control her aggression; although the Applicant denied having mental health issues she had stated that her mother was bi-polar and her brother had schizophrenia. This increased the risks that the Applicant would develop mental illness which would impact on her parenting ability; the Applicant had developed her parenting skills modelled by her mother and thus her childhood experiences may have a negative impact on her parenting skills; and the child was young and vulnerable. [44] The Department told the Applicant that the Department would want to see some changes before it could return the child to her care and that could take some time. The Department of Child Safety removed the children from her care for a number of months. These events highlight the concerns that the Applicant has a short fuse and can get quite agitated. [45] The Applicant has been found guilty of causing actual harm to her own child out of the events of 11 January 2009. Michael Farr used the expression “horrible set of events” and that is an expression that the Tribunal accepts. This was highly concerning to the Tribunal. Domestic Violence [46] The Tribunal sees acts of domestic violence as a major concern. [47] The Department of Child Safety records show that they were involved in April 2005. It was noted at the time that the Applicant acknowledged that she did not manage alcohol well and therefore would not be drinking in the future. The outcome of the assessment was that a substantiated risk for emotional harm was made. This was based on the subject child witnessing -- 13 of 23 -- 14 an alcohol fuelled domestic violence incident between the Applicant and her ex-partner. [48] In the Marriage of Schwarzkoff, the Full Court of the Family Court stated: “…instances of family violence should not be seen as less than crimes and that violence must not be trivialized simply because it occurs within a domestic or ‟private‟ context.” In the Marriage of Blanch [1998] FamCA 1998 page 12, the Full Court of the Family Court examined the welfare of a child in a domestic violence situation. The Court held: His Honour‟s discussion of the violence allegations appears to have largely overlooked the wider and more serious dangers that an abusive parent presents to children then the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper-vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development. Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law. Abusive behaviour by way of putting down a child can also lead to serious long-term emotional problems such as poor self-esteem and lack of self- confidence. [49] Research supports that domestic violence is detrimental not only to children who witness the abuse, but also to children who hear it or see the after-effects. [50] The Tribunal shares these concerns about the harm that domestic violence causes to children. [51] It was clear to the Tribunal from her evidence that the Applicant still lacked insight into the extent of the domestic violence and the impact on her children. [52] The crux of the Respondent's concerns is the Applicant was unable to control her alcohol consumption and acted out of anger in acts of domestic violence. [53] The Tribunal repeats that its view is that Applicant has only demonstrated partial insight into the harm that has been caused to her children. [54] The Applicant acknowledged she had caused harm but she had no expressed remorse in her interviews with Michael Farr. -- 14 of 23 -- 15 [55] The Tribunal looks for signs of remorse which show that a person has learnt that their actions can hurt others. The Commissioner is right to say that the Applicant‟s remorse is only partial. [56] The Tribunal is of the view that there are positive protective factors in the Applicant‟s favour. These included: (1) The Applicant has developed some insight into the effect of her offending and this has resulted in changes in the way that the Applicant interacts with her children; (2) The Applicant has expressed some remorse for her actions. The Tribunal however accepts the submission of the Respondent that such remorse was only partial; (3) She has no convictions since 2009 and has not been in trouble with the police since these events; (4) She has sought help from the Department of Child Safety and would have been supervised by them after the child were returned into her care; (5) She has undertaken a lengthy cognitive therapy to change her way of thinking. She adopts steps to manage her stress; (6) She has demonstrated appropriate interactions with her own children; (7) She has the support of Karyn Lendich who provides support and guidance; (8) She has undertaken steps to obtain qualifications to help support her own family her ability to study at times of great personal trauma show that her having benefitted from the self-development that she has undertaken; (10) She is positively motivated to change her life. [57] The Tribunal is of the view that there are risk factors not in the Applicant‟s favour. These included: (1) Her lengthy criminal history which runs for three pages and spans seventeen years. While she has not been in trouble with the police since these events this is only a short period of time in the context of her criminal history taken as a whole. The Applicant has a significant criminal history that includes offences involving violence and breaches of probation; (2) The fact that she actually caused harm to her own child in the events of 11 January 2009 offences that the Tribunal was -- 15 of 23 -- 16 disturbed by and Michael Farr described as a “horrible set of incidents”. The serious nature of the charges that is having caused harm to a vulnerable young child for whom she was responsible is a significant factor; (3) The Applicant has a history of domestic violence with Child Safety substantiating risk of harm in 2005 and 2009. The Applicant made promises in 2005 to stop drinking alcohol but that was again a factor in the 2009 incidents; (4) The Applicant has demonstrated over a long period of time that she has trouble managing her anger. The evidence of Michael Farr was that she was in an environment with few stressors. He wrote that the Applicant was still experiencing issues negotiating with her ex-partner around access and other child related issues. The Tribunal needs to be satisfied that she has the ability to manage relationships in a positive manner and that she will act appropriately when under stress; (5) The Applicant has expressed limited remorse for her actions. She understands that what she did was wrong but still does not totally appreciate the consequences of her actions. The Tribunal was of the view that the Applicant had actually minimised her behaviour by hiding behind her childhood and blaming her ex-partners for contributing to the situation; and (6) The Tribunal agreed with the Commissioner‟s observations about the evidence Michael Farr and Karyn Lendich who both expressed reservations when they became aware that the Blue Card had wider application than for nursing. [58] The decision-making process of the Commission, and now the Tribunal is guided by the High Court decision of M v M (1988) 82 ALR 577. The Tribunal would extrapolate the following from that decision: i. The purpose of employment screening is not to re-try the Applicant‟s case. Neither the Commission nor the Tribunal is a court exercising criminal jurisdiction. ii. It is not the role of the Commission, or the Tribunal to arrive at a definitive conclusion on the issue of guilt or innocence. The Applicant‟s guilt or innocence is a secondary consideration to the determination of what is in the best interests of children and young people. iii. The issue here is whether this is an exceptional case in which it would not be in the best interests of children and young people to allow unfettered access to them by a person against whom allegations of misconduct have been made. -- 16 of 23 -- 17 The decision in M v M has recently been reiterated in the decision of W v W (2005) FLR 92-235. [59] The Tribunal is mindful that the decisions in M v M and W v W were based on a consideration of a father‟s contact with his child where the father was alleged to have sexually abused that child. The Tribunal‟s decision under the Act in this case on the other hand involves a consideration of a person‟s contact with any Queensland children in circumstances where it is alleged she has actually harmed children and been a party to domestic violence. Both behaviours present risks of harm to children. [60] It is instructive to refer to some passages from the judgment of the Full Court of the Family Court in W v W. At Paragraph 96 it is (inter alia) recorded: “In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, without due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J said: „The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.‟ His Honour‟s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child,” (emphasis added). [61] In the following paragraphs of the judgment the Full Court in W v W went on to consider the “wider issue” of how to assess whether there is a risk of abuse occurring if contact were granted and the magnitude of that risk. [62] The authoritative test propounded by the High Court in M v M was set out as follows at p. 77,081: “That a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.” [63] In paragraph 98 of its decision in W v W the Full Court proceeded: “The „unacceptable risk‟ test is therefore the standard used by the Family Court to „achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access‟. -- 17 of 23 -- 18 In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”. “It should be noted that the M v M „unacceptable risk‟ test is employed within the context of „resolving the wider issue‟, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be „subservient and ancillary‟.” [64] In paragraph 105 of the judgment in W v W the Full Court quoted with approval certain remarks of Fogarty J in N v S & anor (1996) FLC 92-655 at p. 82, “In asking whether the facts of the case do establish an unacceptable risk the Court will often be asked such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?” “This is not a catalogue of correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.” [65] In paragraph 106 of W v W the Full Court described that in N v S Fogarty J went on to discuss the standard of proof necessary for a finding of unacceptable risk, stating that “His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows: “There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may be useful in some circumstances. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.” (emphasis added) [66] The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence -- 18 of 23 -- 19 establishes an unacceptable risk to those children? The Tribunal‟s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner‟s Act. In both jurisdictions the overriding principle is that the welfare and best interests of children are paramount. [67] The Tribunal is motivated by what is in the best interests of children. Where someone has caused harm to children the Tribunal must be especially vigilant. [68] The way in which the Applicant has handled the stresses of her life since her conviction has been seen as entirely appropriate. This passage of time since the conviction is however a relatively short period. [69] There are risks where someone has committed offences involving violence. The role of the Tribunal is to weight up those risks with the protective factors in evidence before the Tribunal. [70] In the decision in Commissioner for Children and Young People v V BC200206295 in which Young J makes reference to a decision of Petersen J in which case Petersen J stated: “Risk is a concept the parameters of which may vary from the perspective of the assessor, but more particularly will also vary according to the known facts. On one view of it, the exposure of children to adults, even in the usually supremely safe context of child and parent, will always contain the possibility of a risk to the safety of a child. However, in the absence of some indication of actual risk, for example from a parent, the position will be that the child is to be regarded as not at risk. Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact…. What will amount to a sufficient basis for such a view must, I think, remain an issue for each case, given the wide-ranging variations in circumstances which may present.” Young CJ then quotes from the judgment of Haylen J in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, 236-237. At [100] Haylen J said: “I am not able to accept the submission for the Respondent Commission that, so long as there is any risk however minimal, an Applicant may reoffend and therefore pose a risk to the safety of children, then an order and declaration of s9(4) cannot be made. His Honour said this because he was of the view that Parliament could not have intended to set up a statutory right to make an application if the only people who could make the application were, because of their previous convictions for a serious sexual offence, denied any ability to obtain an order because they were by definition some risk, see [101]. His Honour examined the Second Reading Speech in the Lower House that the purpose of the screening related policies and procedures were to reduce unacceptable risks -- 19 of 23 -- 20 of people working with children. Furthermore, in the Legislative Council the Attorney-General had said that the object of the series of Bills, including the Bill for the present Act and the Commission for Children and Young People Act was „to achieve a balance between protecting employees and protecting children from abuse. It is important that we protect reasonable civil liberties‟. His Honour also referred to the fact that the Wood Royal Commission from which the legislation had it genesis referred to an „unacceptable risk certificate‟. [71] The New South Wales legislation is different from the Queensland legislation however the discussion of the concepts of risk is useful for the context of the decisions that the Tribunal must make. This is similar to the decision in Williamson Director of Public Prosecutions [1999] QCA 356 that there must be some basis not a mere theoretical or possible risk. [72] The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm. [73] The Tribunal must be satisfied that she is an unacceptable risk to children. The onus is on the Briginshaw standard (on the balance of probabilities) to show that the Applicant is an unacceptable risk to children. [74] What is the meaning of risk? Haylen J said: “It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word „risk‟ with the words that follow, namely, „to the safety of children‟. The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally. I think the answer to this question is Yes and No. There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sex offence and its circumstances; the second is the current danger, if any, posed by the Applicant to children. Subs(5) deals mainly with the first focus, that is, that the Tribunal must evaluate the seriousness of the offences taking into account the age of the Applicant when the offences were committed, the age of the „victim‟ at the time and the difference in ages. The second involves the assessment of the Applicant‟s character now which includes the seriousness of the prohibited person‟s total criminal record, a matter mentioned by (5) (e) and any other matter which the Tribunal considers relevant. Subs (5) then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime; and (b) the Applicant‟s current character, all these matters must come -- 20 of 23 -- 21 together when the Tribunal is making a decision as to whether to exempt the person from the effect of the Act. The decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an Applicant unless there was a good reason not to so exercise it.” [75] The Tribunal having reviewed the matter is of the view that the Commissioner was right to refuse the Applicant at first instance on the basis of the information that was before her. The Tribunal was of the view that the risk factors outweighed the protective factors and that unacceptable risk of harm had been established. [76] The Tribunal in coming to this decision has placed emphasis on the factors that were important in the body of these reasons. The Applicant‟s lengthy criminal history coupled with the significant nature of the events of 11 January 2009 involving actual harm to a vulnerable young child out weighted the positive protective factors. The Tribunal would really like to see that the changes that the Applicant has made to her life can be sustained. Her psychologist and counsellor were confident that she could look after her own children but had reservations about the Applicant working with other people‟s children. [77] The Tribunal takes the view that the Applicant‟s convictions must be taken into the context of: (i) her criminal history as a whole; and (ii) the balance between risk and protective factors. The Tribunal is satisfied undertaking this weighting exercise that it has been established on the balance of probabilities that the Applicant is an unacceptable risk to children. [78] The Tribunal acknowledges that the Applicant has made a great effort to change her life over the last 18 months and applaud the Applicant for those steps. The Tribunal is also aware of the fact that there is a need for intelligent indigenous people to undertake nursing and other professions. The Tribunal was of the view that it was highly commendable that the Applicant had undertaken this course. The Tribunal appreciates that this decision may place an obstacle in the Applicant‟s course and that is unfortunate. However it would be wrong for the Tribunal on the evidence before it to make a different decision to the Commissioner. If, however the Applicant can show over a longer period that she has changed her life and stays out of trouble then this may be a basis for the Commission to take a different view in the future. Section 226(2)(a) of the Act -- 21 of 23 -- 22 [79] In accordance with section 226(2) of the Act, the Tribunal must have regard to certain factors where it is aware that a person has been charged or convicted of an offence. The factors required to be considered in relation to the commission, or alleged commission, of an offence by the Applicant, is as follows. [80] Whether it is a “conviction” or a charge – in this case the Applicant has “convictions” for break, enter & steal (04/06/92) and (27/05/93); take conveyance without consent (30/05/93) and (04/06/93); unlicensed driver (04/06/93); negligent driver (04/05/93); willful and unlawful destruction of property, obstruct police, and serious assault on a police officer (07/11/94); armed with intent to commit indictable offence (28/04/95); illegal use of motor vehicle (25/08/95); unlawful entry (25/10/95); possession of spray paint (02/11/95); latency (03/01/96) steal from a dwelling (06/01/96); break and enter place with intent (2 charges) (02/01/97); stealing (5 charges) (02/01/97); breach of probation; commit public nuisance contravene direction, obstruct police; assault police (23/06/06); breach of probation (24/07/2006); breach of bail (13/05/2009); common assault (11/01/2009) (three charges); assault occasioning bodily harm (11/01/2009). [81] Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence. None of the offences of which the Applicant was convicted are defined as a serious offence under the Act. However any offending or behavior that can be seen as actually harming children must be taken very seriously. [82] When the offences were committed or are alleged to have been committed – The offences occurred between 24 July 1992 and 11 January 2009 ie over seventeen years. However, the passage of time is not, of itself, an exceptional circumstance.15 [83] The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children – The circumstances of each of the offences are summarised in the “Reasons” document at CCYPCG 04-06. Nature and relevance [84] In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court‟s reasons for its decision. [85] The penalties imposed by the court for each of the offences committed by the Applicant are detailed in the “Reasons” document at CCYPCG 04-06. These include supervision, probation, fines, community service and good behaviour undertakings. 15 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289. -- 22 of 23 -- 23 [86] Any information about the person given to the Commissioner under section 318 or 319. No such information was given to the Commissioner. [87] Any report about the person‟s mental health given to the Commissioner under section 335. No such report was given to the Commissioner. [88] Any information about the person given to the Commissioner under section 337 or 338. No such information was given to the Commissioner. [89] In relation to 226(2)(c) – see the discussion above on risk and protective factors. [90] The Tribunal is satisfied that this is an exceptional case in which it would be in the best interests of children for a negative notice to be issued. The Tribunal is satisfied that the Applicant is an unacceptable risk of harm to children. [91] The Tribunal acknowledges the use of the Respondent‟s submissions for setting out: the relevant Application history, relevant legislation, and the decision making process. [92] The Tribunal accordingly makes the following order: 1. That the decision of the Commissioner for Children and Young People and Child Guardian made on 30 March 2011 to issue a negative notice to the Applicant CT is confirmed. -- 23 of 23 --