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  • Unreported Judgment

RA v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 22

CITATION:

RA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 22

PARTIES:

RA

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML201-14

MATTER TYPE:

Children's matters

HEARING DATE:

12 February 2015

HEARD AT:

Gladstone 

DECISION OF:

Member Beckinsale

DELIVERED ON:

27 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision made on 19 September 2014 to issue a negative notice to RA is confirmed.
  2. The publication of this matter will occur in a de-identified manner.

CATCHWORDS:

CHILDREN - BLUECARD - exceptional case-where a review sought of issue of negative notice – where person convicted of offences - where offences not categorised as serious – where Child Protection Notifications - where standards of care relevant to a foster care role had not been met - where evidence of risk factors and protective factors - whether or not in the best interests of children for a positive notice to issue.

Commissioner for Children and Young People and Child Guardian Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 237(1) and (2), 354 and 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2) and 66

Child Protection Act 1999 (Qld) ss 189(1)(b) and 189(1)(c)

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

Re TAA [2006] QCST 11

Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171

Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

Re TAA [2006] QCST 11 

APPEARANCES:

APPLICANT:

Self represented 

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency represented by Natalie Taylor, an officer of the Public Safety Business Agency

REASONS FOR DECISION

        Background

  1. [1]
    RA applied to the Public Safety Business Agency to be issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) on 19 March 2014. On 3 April 2014 the Queensland Police Service advised the Commission of RA’ss criminal history. After inviting RA to make submissions to support his eligibility, the Chief Executive Officer of the Public Safety Business Agency, on 19 September 2014, issued RA a negative notice.

The Legislation

  1. [2]
    RA has applied to the Tribunal for a review of that decision pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (the Act).
  2. [3]
    Under section 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
  3. [4]
    The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
  4. [5]
    The Act provides that as RA has no conviction for a serious offence[3] the Chief Executive Officer must issue a positive notice and a blue card unless satisfied his is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.[4]
  5. [6]
    The Act does not define “exceptional case”. The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FCG said that phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
  6. [7]
    Although the Act does not define “exceptional case” it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
  7. [8]
    In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
  8. [9]
    Any detriment to RA is irrelevant to the Tribunal’s consideration as to whether an exceptional case exists[8] as is any benefit resulting from his having access to children because of particular knowledge, experience or flair[9].

The Evidence

Criminal History  

  1. [10]
    RA’s criminal history dates from 2000 to 2010.
  2. [11]
    On 2 March 2000, he was convicted of possessing a dangerous drug and fined $350 with no conviction recorded. In submissions to Blue Card Services RA said this charge related to his growing ‘a marijuana seedling’.
  3. [12]
    On 12 April 2000 RA was convicted and fined $400 for wilful damage and ordered to pay restitution of $375. He described that offence as relating to his doing ‘a burnout on an abandoned oval’.
  4. [13]
    On 2 October 2000 RA was discharged absolutely with no conviction being recorded after being charged with obstructing police. He said this had occurred at a large party of his sister’s where he was ‘surrounded by police’ having ‘not done a wrong thing’ but his putting up a struggle resulted in his being charged.
  5. [14]
    On 28 March 2002 RA was convicted and fined $100 for behaving in a disorderly manner. RA described this offence as resulting from an occasion he was defending himself outside a nightclub.
  6. [15]
    On 1 August 2002 RA was convicted and fined $150 as a single penalty for two offences of obstructing police and one of behaving in a threatening manner. RA described these offences as occurring after his partner at the time locked him out of the house. He was upset that police came to arrest him.
  7. [16]
    On 21 August 2003 RA was convicted of breaching an order under the Domestic and Family Violence Protection Act 1989 (Qld) and sentenced to three months imprisonment. His police history shows his appeal against that sentence was dismissed in the District Court on 20 April 2004 and he was ordered to serve the unexpired portion of his term of imprisonment. The police court brief in the matter was provided to the Tribunal. The circumstances outlined are that when police attended his residence at 6am RA admitted having a verbal argument with his then partner which escalated resulting in his pulling her head back by her hair and spitting in her face. RA said his partner who was affected by drugs woke him at 4.30am to tell him to put his work clothes in the dryer, as she would not. He did so and tried to go back to sleep, firstly in the bedroom, then when she physically attacked him, in the lounge.  He said he had only spat back in his partner’s face after she spat in his and denied that what occurred was as set out in the police brief.
  8. [17]
    RA said his ex-partner had subsequently made statements retracting what she had told police and she was then charged with perjury. He could not explain why his appeal against the conviction was not successful.
  9. [18]
    RA said his then partner had made further false allegations resulting in his being charged again with breaching the Domestic Violence Order but this time, as shown in his criminal history, on 29 January 2004, no evidence was offered so the charge was dismissed.
  10. [19]
    On 19 April 2007 RA was convicted and fined $1,000 for two charges of obstructing police. It appeared from the police brief that RA was charged with four counts of the offence. The circumstances of the offences as outlined in the brief were that police attended a Gladstone address around 1am following reports of a small motorcycle being ridden in the street. They located a garage with a number of people and a small quad bike. As police approached, the garage door was closed and RA came out of a side door. When asked who had been riding the bike RA returned to the garage. Police asked again who had been riding the bike. RA said no-one and began riding a child’s pushbike. Police noticed the quad bike covered with a tarp and asked again who had been riding it. RA said he had only been on the push bike and then picked up the push bike and pushed it into a police officer’s chest and torso. He was told not to push the bike into the officer’s chest. RA replied he had not pushed it into his chest but his stomach and then pushed with both hands into the officer’s stomach. He was arrested and escorted to the police vehicle. When asked to get in RA collapsed to the ground pulling the officers who had hold of his arms with him. He refused to stand up and continued to roll on the ground. He had to be physically placed in the van where he kicked at the walls with both feet. At the watch house he was aggressive and did not comply with directions or answer questions. He attempted to kick an officer. Whilst being taken to a cell he jammed his feet on the floor and struggled violently with his arms and dropped to his feet causing all his weight to fall on the officers. He had to be physically pulled and pushed to the cell.
  11. [20]
    RA said he there had been a party at his house and he was trying to protect a friend who was riding the quad bike.  He thought he was being funny with the child’s push bike but the officer ‘didn’t see the funny side’. He described himself as ‘being smart in front of his friends’ and did not think he would have meant to physically push the bike into the police officer. He said he had been drinking and did not recall much. He did recall  being ‘thrown around a bit and in the police car.’ He recalled at the watch house handcuffs being tightened so they hurt. He said he had asked they be loosened and he would ‘tell them anything they wanted to know’. He said instead the handcuffs were tightened further and he struggled to get out of them. He said he had been held by police officers whilst another kneed him. He said he had made a complaint and the ‘video footage went missing’. He said high ranking officers had phoned and asked if he would accept an apology ‘and yet again I was young and arrogant and, I guess, never followed anything through back then.’
  12. [21]
    RA said he had to plead guilty to these charges in order to have them transferred to the Gold Coast where he moved to get away from associates of his ex-partner because he ‘had knives held to’ him. He explained this as occurring because ‘she was hanging around with bikies and I guess they didn’t like some of the things I said to her.
  13. [22]
    RA was convicted on 17 March 2008 in Broome of common assault of his then partner. The police brief states RA was at home when his partner arrived home about 7am. Both were intoxicated. They argued about where she had been. She went into the main bedroom where their children aged ten and eight were asleep in bed and locked RA out of the room. He forced the door open and grabbed her by her hair and throat causing her to choke. When RA realised the children were in the room he dragged his partner by her leg to another bedroom where he again placed his hand around her throat and bent back her fingers causing her to scream. She broke free and called police. The brief states RA was cooperative when police arrived. His partner suffered red marks and general body soreness from the attack.
  14. [23]
    RA said he had travelled to Broome taking the children with him. His then partner, their mother, had followed some months later saying she wanted to get away from her drug habit. They had gone out for the night together but she had not come home. RA said he had been drinking all night and was unhappy his partner was back on drugs. He did not recall the details but said he had “snapped” and “it wasn’t nice”.
  15. [24]
    On 22 July 2010, RA was convicted and fined $1,100 for one offence of committing a public nuisance and two offences of assaulting or obstructing a police officer. The police brief states police were called at 4.17am to a disturbance on a street between two men. Police saw RA, shirtless, engaged in an argument with a group of people. They were separated and were asked to head in opposite directions to avoid further altercation. RA expressed a concern for his safety and police offered to escort him to a taxi rank or to the police station to call a taxi. He then referred to police as “cunts” and when told he was under arrest said ‘you will have to catch me first’. He was restrained to the ground and would not comply with directions to lie on his stomach with his hands behind. Police had to physically position him to place him in handcuffs and he resisted being placed into the police vehicle.
  16. [25]
    RA said he had been walking home alone from a nightclub when he tried to break up a fight. He said when he asked police for a lift he was told the only ride they would give him was to the watch house. He became upset and called them a name and was arrested. He agreed he had struggled with police. He said he had drunk too much to drive home but was not intoxicated.

Life History

  1. [26]
    RA was 37 years old at the date of the hearing. He said he had a stern upbringing with a father who was “thorough” but described his childhood as very family orientated with holidays together. He said he had a good relationship with his parents growing up and did his apprenticeship under them. He said his relationship with his parents remained good although they lived some distance away. He said he got on well with his sister but was not speaking to his brother because of a dispute over RA’s partner’s motorbike which his brother had crashed but failed to pay for repairs.
  2. [27]
    RA described school as not too bad but said he had experienced bullying and felt the pressure to fit in from grade 9. After completing grade 10 he went to TAFE and did an apprenticeship.e HeH
  3. [28]
    RA has sons aged 17, 15 and 5 by a previous relationship and a daughter aged 2 with his partner MS. He is also step father to MS’s daughters by a previous relationship aged 13 and 11.
  4. [29]
    RA said in relation to his offending behaviour it always occurred after he had been drinking although he described himself as ‘never really a big drinker’. He said when he did drink, probably monthly, he did so to get drunk. He could not identify “triggers” for his drinking but said it brought out emotions he had “bottled up.”
  5. [30]
    When asked whether his family and children were affected by his drinking, RA said he thought his children were occasionally impacted but that his ex-partner thought it was a game. In relation to the children he thought they may have seen or heard “stuff” that could give them feelings of “unsurety”.
  6. [31]
    RA said he had not sought treatment in relation to his alcohol use but had done so for stress, that he had ‘got really bad depression-wise.’ In 2009 or 2010 he went on stress leave from work and attended counselling. He said he had separated from his partner after 14 years together. The counselling helped him see that he had been in an abusive relationship. He mentioned being stabbed by his partner on three occasions which he covered up. He described how after separating, his partner when dropping off their children to him, would start “smashing the house”.  RA said that instead of trying to solve everything himself he ‘started getting the authorities involved’ which ‘didn’t stop the way she was’ but kept ‘the violence away from the kids’. He said his stress levels changed and he was a better person who did more things with the kids.
  7. [32]
    RA said he had over thirty counselling sessions but was unable to get in touch with the counsellor to provide a report to the Tribunal. He said the counselling had been through a former employer making contact difficult.
  8. [33]
    RA said the counselling helped him to be independent, to take control of his life and deal with emotions rather than bottling them up. He described learning a strategy to breathe if he felt annoyed. He said he had been prescribed antidepressants from time to time but they made him stop eating and feel “weird”. He last had a counselling session in 2012 and felt that should he start feeling depressed again he knows there are ‘people out there that can help.
  9. [34]
    RA did not think he had ever had a drinking problem but that alcohol ‘didn’t mix with the feelings I had back then.
  10. [35]
    When asked to describe his history with drug use RA said he ‘smoked pot for a while…over 12 years ago’. He said he had not liked the way it made him feel so it had not been an “ongoing thing”.
  11. [36]
    RA said he was first exposed to drugs as a 19 year old when a bong was passed around at a party. He said he had tried speed and ecstasy ‘over seven years ago.’  He said he had those drugs ‘only a couple of times’ and described the next day as having a ‘mega big hangover.
  12. [37]
    When asked why he covered up the abuse by his partner RA said he thought he ‘couldn’t live without her’ and ‘didn’t want her to get into trouble’. He said it is ‘very depressing now when I think back what the kids had to go through.
  13. [38]
    RA said he had “full custody” of his three sons with their mother ordered to have supervised contact. He thought those orders had been made in 2013 when the children were aged about 15, 13 and 3 years. Only the youngest is now still residing with him.
  14. [39]
    RA said his 15 year old son had moved from his mother’s home to live at a friend’s home where the mother allowed her children to smoke and drink. He and his ex-partner sought the assistance of police to have the 15 year old return home but were told by police they could do nothing more than a welfare check and could not force the boy to come home. He stays in touch mainly by email.
  15. [40]
    RA thought his eldest son was living with his maternal grandparents where his mother also resides but he is not in frequent contact with that son or his mother, his ex-partner, whom he described as a drug addict “off and on”.

Material from Department of Child Safety

  1. [41]
    RA said he had not received the material discovered from Child Safety and had not read the copy provided to him at the hearing. He thought he would know “the general content.”
  2. [42]
    A child protection notification recorded in January 2001 indicates the concern recorded was in relation to drug use, namely speed and ecstasy by RA and the mother of the children. The outcome was recorded as “unsubstantiated”. RA had no recollection of the notification. He said his partner may have been using speed but marijuana was the only drug he might have used around that time.
  3. [43]
    A further notification was made in December 2001 that the children were exposed to extreme domestic violence. The incident reported the mother was screaming that she would stab RA. She was ill and vomiting in the toilet and RA had dragged her out of the house and locked the door. RA recollected this occasion. He said when his partner told him to get outside or she would stab him, he carried her outside and locked her out. She turned off the power and began smashing windows and he called police. He said he could not believe that they arrested him. He said he had been sick and throwing up.
  4. [44]
    The notification records that one of the children appeared to be losing weight and there was often no food in the house. RA could not explain that concern. He said although his partner spent the money he earned on drugs causing arguments between them, the children were never without food and they always had family support from his parents as well as his partner’s.
  5. [45]
    The next notifications are two in September 2003 regarding exposure to domestic violence and which resulted in the recording of a substantiated risk of physical and emotional harm and neglect. RA was noted to be incarcerated and he suggested that when he was in jail the mother had ‘druggies move in.’ The investigation and assessment are however, against both parents.
  6. [46]
    The next notification occurred in December 2009 in relation to the children’s exposure to domestic violence with a recorded outcome of substantiated risk of emotional harm. RA did not recall the incident specifically although he related that around this time when the mother had one of her “fits of rage” he would have a friend take the children to ‘a back room or out in the back yard’ while he tried to stop her smashing things. He said he or a friend called police on these occasions which he thought happened four or five times.
  7. [47]
    RA agreed the children at the least, would have heard some of what was happening. He said he explained to them ‘mum’s not in the right state of mind and she really doesn’t mean what she’s doing.
  8. [48]
    RA said he had needed to get the children away from their mother’s house. He said people got stabbed at her house. Children were exposed to drug use. Needles were left lying around.
  9. [49]
    The Department recorded five concern reports between June 2011 and January 2012 relating to RA seeking custody due to the mother’s drug use and domestic violence between them:

The domestic violence stemmed from an argument regarding the time that you spend with the children, the mother’s drug use. Neither parent wanting fulltime care of the children and an incident of domestic violence involving the mother spitting at you in the presence of the children.

  1. [50]
    RA said he recalled this period and denied he had not wanted the children fulltime. He described a difficult period where he juggled shift work with care of the children with the assistance of grandparents. He said he had never wanted to keep the children from their mother but described her as incapable of caring for them at the time. 
  2. [51]
    The next notified concern regarding RA’ss children was from the school attended by his eldest son. The report said he was exhibiting behavioural concerns including uncooperativeness, refusal to engage, difficulty concentrating and unexplained absences. The report stated it was not clear whether the behaviours were due to an intellectual impairment or emotional instability but noted that exposure to domestic violence might have been having an impact.
  3. [52]
    RA explained he had not been able to follow through obtaining any diagnosis for his son. He had put in place opportunities, such as an apprenticeship, but his son had chosen not to take these.
  4. [53]
    In September 2012 the Department investigated allegations that RA punched his eldest son on more than one occasion and he reported being in fear of his father and refusing to return home. The outcome was recorded as unsubstantiated on the basis the child had demonstrated the capacity to remove himself from a situation.
  5. [54]
    RA had admitted to the Department using physical discipline on one occasion only. He explained this was only a light slap on the top of his son’s head during a discussion about the son punching a hole in the wall.
  6. [55]
    The Department record noted a lack of regard by RA for his son’s whereabouts which RA disputed. He related an occasion when police refused to bring his son home on the basis he was safer where he was but he came home with cigarette burns. RA said he had received an ‘official apology from police’.
  7. [56]
    Ms Taylor asked RA how he felt about the material from the Department. He replied that it was “all new” and “surprising” and said a lot of it was “deceiving”. He said he did not think investigations were done properly: ‘I think they should explain more of what the outcome was because it’s the different outcome to what they explained to me.
  8. [57]
    Ms Taylor asked whether RA accepted responsibility for the harm caused to his children. He said he did. Ms Taylor pointed out that RA version of events frequently did not align with that of child safety or police. She suggested his version of events painted a picture where he was not at fault. RA said he understood that. He said there were times when it was his fault and times when it was not. He said counselling never taught him it was not his fault but “at the same time it taught me that I’d been through a lot of emotions that had built up over the years which caused me to act out.”

Foster Carer Assessment

  1. [58]
    RA provided a document generated by the Department of Child Safety as part of the assessment of RA and his partner as foster carers. The document is 24 pages long and sets out the conclusions reached following over nine hours of interviews with RA and his partner. For the most part, RA and his partner were found to have met the Standards of Care applied to the legislated competencies required of foster carers. However the assessment concluded RA could not meet all the standards of care required. The assessment recommended RA and his partner undertake additional training and support to not only meet the standards of care as they apply to being a foster carer but also to meet the needs of the children already in his care:

MS and RA’ss children manifest behaviours as a result of early childhood trauma they have experienced by being exposed to domestic violence, substance abuse and neglect. MS and RA are beginning to recognise and acknowledge the impact that trauma has had on their children. They will require additional training, and…support…to assist them to then apply newly acquired knowledge and skills, to the care of their children and [foster child], if he is to be placed under their care.

  1. [59]
    There was a further statement in the assessment that:

The importance and benefit of attending the…training was stressed to both MS and RA, not only as general foster carers, but to better understand and assist their own children, who are displaying signs of having experienced trauma from a young age. For example [Child] has been known to punch holes in the walls and frequently run away from home. [Child] frequently lies and steals. [Child] when reprimanded destroys and tears up her homework or items made for her. [Child] hordes food, amongst other things.

  1. [60]
    When asked about addressing such concerns RA said he was not sure ‘how you address a situation from the past when it’s not happening now. Do we bring that back up and put it in the kids’ heads?’ He mentioned his own children had some counselling through school and that MS’s children are booked for counselling due to what they went through with a recovery order to have them returned from their father interstate. He said they had not had time to follow up with recommended training.

Current Circumstances

  1. [61]
    When Ms Taylor suggested his household sounded chaotic RA said they do have a lot of complications but that they get by with having routines. Currently there are only four children living with them, RA’s older two sons living elsewhere and the child they had proposed to foster not visiting since RA’s negative notice.
  2. [62]
    RA described a positive relationship with MS. He continues to work full time and MS is available to care for the children and household fulltime.  RA said their support network includes MS’s sister, JB, and his father who visits once or twice every couple of months, his own sister, and three friends of whom he said ‘we help each other out…even if it’s just for time out.’

Evidence of Other Witnesses

  1. [63]
    Ms Taylor did not object to RA’s partner, MS, giving oral  evidence in support of RA although no written statement had been received from her. 
  2. [64]
    MS said she had some difficulty reading and found the Reasons document difficult to understand. She was aware of RA’s criminal history but seemed to think that was not out of the ordinary for a young person, particularly a young man. She referred also to his ‘horrible past with his ex-partner’.
  3. [65]
    MS was aware of the involvement of Child Safety in relation to RA’s sons and appeared to consider that was due to the boys being teenagers.
  4. [66]
    MS was aware RA had used drugs in the past. She pointed out that he is drug tested in his current work and as far as she was aware had not used drugs for seven years. She appeared to be aware of RA’s history of binge drinking when he was “upset” but thought that behaviour was understandable in the context of his difficult partner.
  5. [67]
    MS described RA as being a really good father who plays with the children and changes nappies. She said he worked very hard to provide for his family and even without there being money to spare he made sure the family has outings away from the house. She said RA’s weakness was keeping things “bottled up” but thought she had helped with that. She did not think RA currently needed counselling as he is able to talk to her.
  6. [68]
    MS acknowledged they had been asked to undertake further training following the foster care assessment but also blamed their recent need for recovery orders to have her daughters returned from interstate when they were not returned by their father.
  7. [69]
    MS urged the Tribunal to ‘listen to the whole story’. She said she understood ‘there is a few bits and pieces in there, like with the police and stuff…sometimes things…get out of hand…and it’s not his fault all the time.’ She said RA had tried very hard in a difficult situation to keep his family together and ‘he sees what he’s done wrong and he’s trying to change it’. She spoke passionately about the couples’ wish to foster a child in need of a home and the impact on that child and their own children of RA not gaining a blue card. She said it was “not fair” and that RA is ‘a good man.
  8. [70]
    Very brief written references were provided from WA, RA’ss former partner’s mother, from JB and AB, who are MS’s sister and brother-in-law and from a WC. I note that MS had told the foster carer assessor in March 2014 that she and AB were not on speaking terms. These brief references were of no assistance with the writers not being called as witnesses.

Submissions of RA

  1. [71]
    RA represented himself and was sometimes not comfortable with the process. He said MS had looked after the “paperwork” in the matter on his behalf due to his work commitments however MS described herself as having some difficulty with reading and writing. As is required of the Tribunal and of the Respondent, the process was explained to assist RA in the presentation of his material but he was not well prepared.
  2. [72]
    To assist RA, Ms Taylor was asked to put her submissions in writing and RA was given time after that to make his own submissions in writing. He indicated to the Tribunal he might seek assistance to do that from a legal practitioner. He said he had not received a copy of the material discovered from Child Safety prior to the hearing. The direction for submissions to be in writing would have enabled RA to make submissions about that material and the evidence he gave at the hearing about that material.
  3. [73]
    Submissions of Blue Card Services were received as directed but none subsequently from RA.

Submissions of Blue Card Services

  1. [74]
    Ms Taylor identified a number of protective factors relevant to RA.

(a) He appeared to have reflected on his lifestyle to an extent and that he submitted he had changed his lifestyle, separating from his former partner and being in a new relationship where there is no evidence of domestic violence.                                                                                                                                       

(b) He demonstrated remorse for his conduct.

(c) He articulated a desire to engage in positive parenting and appropriate role modelling and stated his desire is to direct his children in ‘the right direction’ so they can ‘make all the right choices in their lives.’

(d) His oral evidence suggested he engages in pro-social activities with his family including camping, beach trips and fishing which may provide opportunities to bond as a family.

(e) He appeared to have developed some insight into managing stress and depression and expressed a willingness to consult with others, including his partner and counselling services when he feels it is necessary. 

(f) The Form 3A contains a number of positive comments regarding RA’s motivation for having a child in his care, his intentions moving forward and other favourable comments regarding parenting within his household.

  1. [75]
    Ms Taylor also noted the following risk factors:

(a) RA has a criminal history spanning ten years. His offences of violence against his former spouse and police raised concerns about his ability to manage anger and resolve conflict in a non-violent manner and his attitude towards authority suggests a disregard for the law. She submitted such offending behaviour reflects adversely on RA’s ability to act as an appropriate role model for children and young people.

(b)  RA received significant penalties including a term of actual imprisonment and large fines reflecting the gravity with which the court regarded the offending behaviour. Despite the penalties, RA continued his offending behaviour until 2010.                                                                           

(c) RA has not been charged with or convicted of any offences since 2010 but Ms Taylor submitted that must be viewed in the context of a criminal history over a significantly longer period. There had been a previous break of several years between convictions (between 2003 and 2007). She submitted his history demonstrated he has engaged in significant offending after periods of non-offending raising concerns that he has a propensity for recidivism.

(d)  RA provided versions of events in relation to both his criminal offending and child safety notifications which did not align with the versions recorded by authorities. Ms Taylor submitted that RA’s oral evidence appeared largely self-serving. She said he accepted minimal responsibility for his actions, particularly in relation to incidents of domestic violence within the home where he blamed his ex-partner for initiating violence or being the sole aggressor. She submitted RA blamed police for their manner in handling him while carrying out their duties. She noted that the majority of offences appearing on RA’s criminal history resulted in a conviction.

(e)  Ms Taylor submitted that RA’s tendency to blame others and his failure to accept responsibility for his actions reflected poorly on his level of insight. She submitted that when questioned about the impact his children’s upbringing had on them, RA did not demonstrate an understanding of harm the children suffered as a result of being exposed to ongoing domestic violence, drug use and neglect, particularly the long term effects which the evidence indicates they still experience as a result of their upbringing.

(f)  Ms Taylor submitted there is nothing in evidence to indicate RA has reflected on or attempted to resolve the underlying triggers which lead to his violent and anti-social offending behaviour, including his consumption of alcohol.

(g)  Ms Taylor submitted the police material and the material from the department indicated RA’s children were exposed to significant and ongoing domestic violence over a number of years raising the concern their physical and emotional wellbeing has continually been placed at risk by RA’s behaviour.

(h)  Ms Taylor submitted the material from the department is extensive and is evidence of the department’s ongoing involvement with RA and his family over a significant period of time. Records suggest department involvement commenced in 2001 and continued until as recently as 2013. She said the material indicates RA was the person responsible for numerous notifications concerning the welfare of his children and the material details investigations relating to the children’s exposure to domestic violence, inadequate parental supervision, neglect and RA’ss use of physical discipline on one or more of the children. She submitted that of particular concern were the substantiated investigations recorded against RA in September 2003 and 2010 in relation to the children’s exposure to domestic violence.

(i)  Ms Taylor submitted that the fact that two of RA’s children, aged 15 and 17 years, do not live with him by choice is indicative of unresolved issues within the household and is reflective of the troubled relationship between RA and his children. Material from the department notes RA demonstrated a lack of concern for the whereabouts of his child when he left home on a previous occasion and RA’s oral evidence supported the department’s earlier observation.

(j)  Ms Taylor submitted that overall the material from the Department and the multiple issues outlined raised concerns about RA’s eligibility to hold a blue card. Despite intervention by the Department on multiple occasions over some years, RA has not addressed the concerns raised regarding care of his children. Ms Taylor submitted that accordingly, insufficient time has passed to be satisfied he has resolved these issues.

(k)  Ms Taylor submitted that the conclusions in the Form 3A do not reflect favourably on RA’ss case. In March 2014 the report concluded that while RA was able to meet some of the Standards of Care relevant to a foster care role, at that point he did not meet all the standards required to meet the requirements of the role. The Form 3A recommends additional training and support be undertaken by RA and his partner in order to meet not only the Standards of Care as they apply to undertaking the role of a foster carer, but also to meet the needs of the children already in his care.

(l)  Despite recommendations made to RA there is no independent evidence such as doctor’s reports, counsellor’s reports or certificates of courses attended to show he has addressed the concerns raised by the report. He has not undertaken further training or taken steps to address the outstanding concerns raised by the Form 3A. Ms Taylor submitted that in the absence of evidence that RA understands the concerns and has taken steps to address them, the concerns raised by the Form 3A reflect adversely on his eligibility to engage in regulated child related employment at this time. She submitted that there is evidence that each of RA’s children present with behavioural disturbances indicative of psychological distress and that he has not demonstrated he is able to parent responsively to the needs of children in his care.

(m)  Ms Taylor submitted that RA’s level of reflection and insight in oral and written evidence is minimal. She submitted his written submissions to Blue Card Services in July 2014 were largely concerned with deferring blame for his actions to others and demonstrated a failure to recognise the seriousness of his behaviour. She said his written submissions in these proceedings demonstrated only minimal further reflection, despite having the opportunity to consider the concerns outlined by Blue Card Services in the Reasons document.

(n) Ms Taylor submitted that of most concern was a total absence shown by RA of insight into the harm his actions caused others, particularly his children.  She submitted the importance of having appropriately developed insight into harmful behaviour cannot be overstated in an assessment where such a history of negative behaviour exists.[10]

  1. [76]
    Miss Taylor submitted that the risk factors identified in the evidence before the Tribunal raise significant concerns about RA’s violent and antisocial behaviour, his ability to act protectively towards children in his care and the risks of recidivism, particularly where the underlying causal factors for negative behaviour had not been addressed.
  2. [77]
    She submitted that RA’ss case falls in the category of being exceptional such that it would not be in the best interests of children for him to hold a blue card and the Tribunal should confirm the decision to issue a negative notice.

Discussion 

  1. [78]
    I agree with the positive factors outlined by Ms Taylor which reflect favourably on RA. RA has a great deal to be proud of in terms of changing his lifestyle which involved illegal drugs, excessive alcohol, violence, criminal offending and ongoing involvement with the Department of Child Safety. RA expressed a strong desire to make his family his priority and adopt a lifestyle in which illegal drugs, alcohol abuse and criminal behaviour will have no place. As well as the positive factors nominated by Ms Taylor, I note there is evidence that RA has a strong work ethic. Clearly, he has placed importance on being a good provider for his family even in times of crisis.
  2. [79]
    I find that MS’s strong support of RA is a protective factor. As a couple they appear to share values around family life and an understanding of the challenge of a difficult relationship which neither wants to repeat.
  3. [80]
    RA and MS to an extent minimised the seriousness of the impact of a lifestyle involving illegal drugs, alcohol abuse and involvement with police and even expressed views that was somehow a normal part of growing up. Both were clear, however, that they did not want those issues to be part of life for their own children.  
  4. [81]
    RA did express remorse for his behaviours in the past but his belief that he was treated unfairly, by police and by the Department, and that he was often not to blame, diluted the impact of such expressed remorse.
  5. [82]
    A Department assessor identified behaviours of concern in the children in RA care. RA expressed the desire to engage in positive parenting, yet failed to follow up with the training recommended.
  6. [83]
    RA agreed that his children would have been adversely impacted by the violence to which they were exposed when asked that question directly. He described actions he took to lessen their exposure such as removing them from the immediate vicinity. He said that ultimately he achieved custody of his three sons but maybe it is a case of too little too late with his two older boys currently in undesirable living arrangements.
  7. [84]
    RA appeared to misunderstand the role of professional counselling in supporting the children in his care. He asked why ‘bring that back up and put it in the children’s heads?
  8. [85]
    RA identified some ways counselling had assisted him and said he would seek counselling if he needed it in the future. Ms Taylor submitted there was no evidence to indicate RA has reflected on or attempted to resolve the underlying triggers which led to his violent and anti-social offending behaviour. RA referred to “bottling up” his emotions which found an outlet when he drank. I think he has reflected to some extent on why his past behaviours occurred but agree there is a lack of evidence presented by RA in that regard. It is possible some of the issues with which the Tribunal is concerned were addressed in what RA says was over thirty sessions of counselling but without the benefit of a report from the counsellor that evidence is not before the Tribunal. The matters the Tribunal recommends a report writer addresses as to insight, risk factors, protective factors and strategies were specifically set out in directions.
  9. [86]
    Similarly RA did not make available witnesses whom may have been able to provide evidence to satisfy the Tribunal. Even the written references which he did submit were too brief too be of any benefit.
  10. [87]
    There is no one deciding matter amongst RA’s criminal history, his history of involvement with Child Safety or his failure to carry out all the recommended requirements as a foster carer. It is the cumulative effect of all these matters and a lack of evidence presented by RA that he has addressed concerns that the risk factors outweigh protective factors.
  11. [88]
    RA and his partner share an admirable goal to be foster carers and provide a home for a child. I hope RA continues to successfully maintain his chosen family lifestyle and encourage him to reapply for a blue card in the future. In any future application he should consider providing evidence from a number of appropriate witnesses but especially from a health professional.   
  12. [89]
    I find that there are risk factors which outweigh the positive factors and I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the decision to issue a negative notice to RA is confirmed.

Non-publication of Identifying Information

  1. [90]
    Ms Taylor sought an order prohibiting the publication of the names of all children referred to in the material from the Department and the names and addresses of the schools attended by those children.  The Tribunal has the power to prohibit publication of information that may identify persons appearing before the Tribunal or whom may be affected by the proceeding,[11] including particulars which may reasonably lead to the identification of children. I am satisfied that it is not in the public interest to release identifying information regarding the applicant or his witnesses and the principles of openness and accountability can be achieved by permitting the public access to the details of blue card matters, the decisions of the Tribunal and the reasons for the decisions. In any event I must have regard to the prohibition on publication provided for in the Child Protection Act 1999.[12]

Orders

  1. [91]
    1. The decision made on 19 September 2014 to issue a negative notice to RA is confirmed.

2. The publication of this matter will occur in a de-identified manner.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).

[3]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.

[4]Ibid s 221.

[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31].

[6]Ibid at [33].

[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].

[8]Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.

[9]Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.

[10]Re TAA [2006] QCST 11.

[11]Queensland Civil and Administrative Tribunal Act 2009 s66.

[12]s189(1)(b) and (c).

Close

Editorial Notes

  • Published Case Name:

    RA v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    RA v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 22

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    27 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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