ASX [2012] QCAT 192

CITATION: ASX [2012] QCAT 192 PARTIES: ASX v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML132-11 MATTER TYPE: Childrens matters HEARING DATE: 30 March 2012 HEARD AT: Brisbane DECISION OF: Ron Joachim, Presiding Member Michelle Howard, Member DELIVERED ON: 2 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision of the Commissioner to issue ASX with a negative notice is set aside. 2. That the Commissioner is to issue a positive notice and blue card to ASX. 3. 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: 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 applicant pleaded guilty to assault of twin daughters – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional 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 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 -- 1 of 11 -- 2 Kent v Wilson [2008] VSC 98 APPEARANCES and REPRESENTATION: APPLICANT: ASX represented herself RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms Adele Noble REASONS FOR DECISION Background [1] ASX is the applicant in these proceedings. She was 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 15 September 2009. On 26 July 2010 the Commissioner was notified by the Queensland Police Service that the applicant’s police information had changed. Her eligibility to hold a blue card was reassessed under section 237(1)(b) of the CCYPCG Act. [2] The Commissioner subsequently cancelled the positive notice and issued ASX with a negative notice on 30 June 2011. [3] ASX seeks a review of this decision and applied to the Tribunal on 27 July 2011. She had been working as a carer for children and wishes to resume this work. [4] The application was heard on 30 March 2012. The relevant law [5] 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. [6] 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— -- 2 of 11 -- 3 (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. [7] None of the offences for which ASX was convicted is considered a serious offence under the CCYPCG Act. As a result section 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. [8] Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if ASX’s 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. [9] 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.1 [10] 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 section 9 of the Child Protection Act 1999. [11] 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. [12] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities. The evidence 1 Kent v Wilson [2000] VSC 98. -- 3 of 11 -- 4 [13] ASX has worked in various capacities in the child care industry for 16 years, and wishes to continue in the industry in a child care setting, in home care, out of school hours care, or foster care. [14] There is no evidence she has harmed a child during the course of her employment in that industry. [15] ASX is married to the father of her youngest child and together they care for this child and ASX’s older twin daughters. [16] ASX’s twins were removed from her care for 2 weeks following the twins’ school reporting injuries to the Department of Child Safety and the Queensland Police Service. The twins were subsequently returned. The Department visited 3 to 4 times over the next 3 months. [17] ASX pleaded guilty to assault occasioning bodily harm after hitting her then 8 year old twins with a cord on the buttocks and legs. The assaults occurred on 21 July 2010. [18] Both girls had some bruising. [19] ASX’s eldest child, Z does not live with the family and he has had extensive involvement with the Mental Health Services and the Department of Child Safety. He lives with his grandmother. [20] ASX had undertaken a parenting course voluntarily in 2009 and undertook a refreshment course in 2010 following the assault on the twins. This latter course involved 5 one hour counselling sessions. [21] ASX locked one of the twins out of the house one night in 2005 when she refused to eat her dinner. As a result of the child’s crying, police were called by neighbours and came to the house. [22] ASX gave evidence to the Tribunal advising as follows:  She has never smacked the children again;  She rarely gets highly stressed;  Her method of discipline now is time out or removal of privileges;  Her children are generally well behaved;  In relation to the assaults she realizes what she did was wrong;  She accepts that the daughter she locked out of the house would have been distressed but stated it was only for a short time. [23] When questioned about this latter incident, ASX did not agree with the reports from the police and Department regarding the time of the incident being around 11pm. [24] She advised the Tribunal that his incident happened straight after dinner. She further advised that her daughter knew she was on the other side of the door. -- 4 of 11 -- 5 [25] She also refuted that her daughter would have been outside for more than a few minutes, possibly five minutes. This refutation was despite the police attending as a result of a neighbour’s call to the police, and the police finding the child outside. [26] In relation to the striking of the twins with the electrical cord, ASX advised that the children had been asked to do the dishes and when this wasn’t done she gave them what she described as ―a couple of whacks on the bum.‖ [27] She rejected the account of the authorities that there were welts and scratches as a result. She accepts there was some bruising. [28] The incident occurred in the days following her undergoing surgery and her son also undergoing surgery. In a submission to the Commissioner, she stated she was under stress at that time. [29] She stated that the grandmother FM, into whose care the children were to be placed, was advised by authorities to obtain betadene to treat the injuries. [30] She further stated that FM had no need to use the betadene because there was no reasons for it as the authorities had got the description of the injuries wrong. [31] She stated that one of the twins had an unrelated scratch on her back. [32] She acknowledged the twins were crying after being hit but denied one of the twins, Y, would have been too scared to come home as she had indicated. She advised Y got into the car, when collected from school, stopped crying and went to her room when she came home. [33] ASX described her own childhood as average. She completed year 12 after her first pregnancy and completed a child care course at TAFE. [34] She advised she went directly into child care and has been in regular employment in that industry ever since. She stated she likes seeing children learn and grow. [35] She has been married for 4 years and is not involved in any sporting or club activity. [36] She reported she was secretary of her twins’ cheer leading club until she lost her blue card. [37] ASX described herself as a happy friendly person who has never been involved with the criminal justice system apart from the incident involving the twins. [38] Evidence was given by phone by FM, the twins’ Grandmother, MK, friend, Ms BM, friend, and NJ, friend. -- 5 of 11 -- 6 [39] All of these witnesses attested to the applicant’s positive interaction with her children, and how well the children relate to their mother and vice versa. NJ noted that ASX is very patient with the children whilst BM stated that ASX respects not only her own but others’ children. [40] FM indicated that the girls were very happy to return home with their mother after spending 2 weeks with her following the incident. She stated that ASX came to see the children daily and the children did not like being away from home. [41] She could not recall the injuries apart from saying ―one had a bit of a mark‖. [42] She advised the Tribunal that ASX usually sits the children down and talks to them about non-compliance. She stated she sees the children regularly with their mother whom she has never seen excessively stressed. [43] MK advised she would have no problems with ASX being involved with children. She further advised that ASX had told her of the incident in which she had smacked the girls with an item. She was aware this had caused some red marks on the girls’ skin. [44] She described ASX as easy going, pleasant and friendly whom she sees approximately monthly. [45] MK advised she has seen ASX sit the children to one side and talk to them if they do something wrong. [46] MK also opined that ASX would not have meant to cause harm to the children. [47] BM advised the Tribunal that she has known ASX for approximately 18 months through cheerleading, and sees her twice weekly. [48] She was unable to recall the details of the incident with the twins but thought it was smacking with a hand. [49] She further stated that ASX is a calm, happy person with whom she has left her own child. [50] NJ advised the Tribunal that she and ASX went to school together and see each other a number of times a year. [51] From her observations NK considered ASX to be very patient with her children. Her recollection of the event with the twins was that they were smacked on the hand but not hard. [52] NJ further stated she has never seen ASX lose control of her temper. The Commissioner’s submissions -- 6 of 11 -- 7 [53] The Commissioner relied on her reasons of 22 June 2011 outlining why ASX’s positive notice had been cancelled. [54] 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 the children, therefore, had to be protected from harm. [55] She submitted that the evidence supported that the children sustained bruises, welt marks and broken skin. [56] Ms Noble considered ASX has limited insight into the impact of the events on her children, referring the Tribunal to a case in the Children Services Tribunal, Re TAA [2006] QCST 11, in which the Tribunal refers to insight being an important factor in reducing a person’s risk of repeating previous inappropriate behaviour. [57] In support of her argument about ASX’s limited insight she observed that ASX seeks to minimise her conduct by saying the children were misbehaving, she only smacked them lightly a couple of times, she has not acknowledged the children’s fear and she has an inability to appreciate the consequences of her actions. In this regard, Ms Noble also pointed to the occasion in 2005 when ASX locked one of the twins outside at night. [58] Ms Noble submitted that, whilst ASX undertaking a parenting course and a follow up course could be regarded as protective factor, ASX stated she learnt nothing from the courses. [59] Ms Noble acknowledged the applicant had stated she wouldn’t smack the children again because of the severity of the incident and she realized she had done wrong. [60] Ms Noble submitted that whilst ASX 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 Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 1971. In this matter the Court of Appeal notes with approval the Tribunal’s comments that ―the personal effect of a negative notice on the respondent must be ignored if his continual coaching involved risk to children.‖ [61] Hence Ms Noble submitted that any prejudice to the applicant of a negative notice is not a relevant consideration. [62] Ms Noble submitted that MK did not see a problem with hitting a child with an electrical cord and the applicant’s 2 other witnesses thought the children had been smacked. [63] Finally, Ms Noble submitted that ASX was an increased risk of reoffending because she minimised her offending behaviours and was unable to express adequate insight into the harm caused to her children. The applicant’s submissions -- 7 of 11 -- 8 [64] ASX submitted that she acknowledged the children’s injuries and that she had given an accurate account of them, arguing that if they were as bad as documented, FM would have remembered them. She acknowledged there were a few bruises but no welts or broken skin. [65] She further argued that the Judge would have given her a harsher sentence if the injuries had been more severe. [66] ASX stated she has never denied it was a cord, although initially thought it was a belt she used. [67] Since the incident she submitted she has never used physical discipline in disciplining the twins. [68] She further submitted she was regretful and had pleaded guilty. [69] In response to the Commissioner’s submission about her not learning anything from the parenting courses she attended, ASX noted she had learnt the same material in the child care course she had undertaken earlier. [70] ASX submitted the incident made her reconsider and question her actions in that she never intended to cause harm, has never done what she did again and has chosen never to do it again. [71] ASX noted that it has been two years since the incident and argued that was the reason her witnesses could not recall the details despite her telling them everything. [72] ASX argued that any documents from the Department of Child Safety prior to the incident should not be taken into account as they are irrelevant, including the 2005 incident. [73] ASX submitted that her daughter Y is a ―drama queen‖ and that is her personality. ASX did not consider Y was afraid of her as she stopped crying within minutes of getting into the car after school. Thus ASX argued she was unable to acknowledge Y as being fearful. [74] She further submitted the twins exhibited hysterical and fearful behaviour when they were taken out of their home by the Department. [75] ASX advised the Tribunal that her whole life revolves around her children and she puts them before herself. [76] Finally she submitted she had worked in child care for 16 years, that the childrens’ parents trusted her and that they would ask her to look after their children privately after they had left the area. Discussion and decision -- 8 of 11 -- 9 [77] 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. [78] The potential protective factors for ASX are:  She is in a long term relationship;  She has been in regular employment since her TAFE course;  Her acknowledgement that the hitting of the children was wrong;  Her undertaking a course with follow up counselling;  Her passion to work in the child care industry. [79] The potential risk factors are:  A conviction for assault against her twins;  The incident whereby one of the twins was left outside of the house for some time in a distressed state;  Lack of complete insight and some minimizing of the assault at the time it occurred. [80] The Tribunal notes that the applicant disputes the authorities’ description of the childrens’ injuries as including welts and scratches. Whilst this does raise a concern, the Tribunal notes that the grandmother who took over the care of the twins was not able to remember any level of seriousness. This leaves the Tribunal in somewhat of a quandary regarding whether to accept the Commissioner’s submissions that ASX was minimising the harm caused to the children and also that she lacked requisite insight. [81] Whatever the proper description, it does ASX no credit that she struck the children several times with a cord such that bruising at a minimum occurred. To her credit, although she did not seek to minimise the incident as a result of the stress she was under at the time, the Tribunal does find it occurred at a time of abnormally high stress in her life, during her recovery from surgery and concerns about her son’s health. [82] The Tribunal is also concerned about the 2005 incident where Y was locked out of the house. ASX described the incident as lasting no more than 5 minutes. At the time of the incident, Departmental records indicate she advised it was 15 minutes, before the police arrived. [83] It would be miraculous indeed if the neighbours reported the incident to police immediately after the child was put outside and started crying and the police subsequently arrived in less than 15 minutes. [84] The Tribunal considers it more likely than not that the neighbours reported the incident after several minutes and the police subsequently arrived well after the 15 minutes Y was said to be outside. This also does no credit to ASX. [85] The Tribunal accepts the Commissioner’s submissions that ASX has minimized the consequences of her actions. -- 9 of 11 -- 10 [86] The Tribunal accepts ASX’s explanation that she learnt nothing from the parenting course because she had learnt the material from the child care course, she had earlier undertaken. [87] The Tribunal is satisfied that ASX is highly unlikely to again smack her children. [88] The Tribunal accepts she is regretful of the incident and has learnt from her mistake. The Tribunal accepts the evidence that ASX is good with children. [89] The Tribunal accepts that ASX told her witnesses what occurred with the assault and that they have forgotten the details. [90] The Tribunal accepts the Commissioner’s submissions that the Tribunal must consider the best interests of children and not any detriment that ASX may suffer if she were not to get a blue card. [91] The Tribunal must also take into account section 226 of the CCYPCG Act in deciding whether there is an exceptional case or not. [92] The Tribunal notes that neither of the 2 offences are categorised as serious offences under the Act. The assaults were against the applicant’s own children. In this regard they are 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 considered the offences to be relatively minor. [93] Further, the incident leading to the convictions occurred at a time of unusually high stress. It appears to represent, perhaps apart from the incident of leaving her daughter outside, somewhat of an aberration in an otherwise lengthy satisfactory history of child caring and parenting. [94] There is no history of mental health issues noted. Whilst there is extensive child protection history, it involves the applicant’s now 17 year old son. The Tribunal, whilst noting this, places little weight on it as the applicant sought assistance for her son and it is evident authorities and services struggled to assist him. [95] The Tribunal must also take into account the positive references provided to it. They are all very positive for ASX. [96] The Tribunal is not totally satisfied about ASX’s insight and accepts some level of minimizing of the 2 events in issue. Nevertheless the Tribunal is satisfied that ASX is sufficiently aware of the harm caused to her children as a result of the incidents and has sufficient insight so that incidents of this kind would not occur again. [97] The Tribunal has come to the view that on the balance of probabilities, ASX does not represent an unacceptable risk of harm to children. -- 10 of 11 -- 11 [98] As a result of this and considering the various factors in section 226, the Tribunal is not satisfied ASX’s case is an exceptional one in which it would not be in the best interests of children for her to have a blue card. [99] Consequently the Tribunal will order that the Commissioner’s decision be set aside and a positive notice and blue card be issued to ASX. [100] The Tribunal is satisfied that it is in ASX’s childrens’ best interest 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. [101] Accordingly, pursuant to section 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. -- 11 of 11 --