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  • Unreported Judgment

GX v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 168

CITATION:

GX v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 168

PARTIES:

GX

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML135-15

MATTER TYPE:

Childrens matters

HEARING DATE:

15 October 2015

(and Submissions dated 22 October 2015 and 29 October 2015)

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

9 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive, Public Safety Business Agency to refuse to cancel the negative notice is confirmed; and
  2. Publication of any information which may identify GX’s children (including their names, her name and the name of her husband) is prohibited.

CATCHWORDS:

BLUE CARD- EXCEPTIONAL CASE - Where previous convictions for offences of violence and offences of dishonesty - where no serious or disqualifying offences - where history of child safety notifications - where recent completion of period of parole - whether exceptional case

Criminal Code 1899 (Qld) s 280

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

Working with Children (Risk Screening and Management) Act 2000 (Qld) ch 8, ss 5, 6, 168, 221, 226, 236, 354, 360, sch 7

Ax v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

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

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

In the marriage of Sandrk (1991) 104 FLR 394

Kent v Wilson [2000] VSC 98

Re: Imperial Chemical Industries Ltd’s patent extension petitions [1983] VR 1

Schwerin v Equal Opportunity Board (1994) VR 279

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES:

 

APPLICANT:

GX represented herself.

RESPONDENT:

Ms N. Taylor, in-house lawyer, Public Safety Business Agency appeared on behalf of the Chief Executive, Public Safety Business Agency.

REASONS FOR DECISION

  1. [1]
    A negative notice was issued to GX in 2007 by the Commissioner for Children and Young People and Child Guardian (the Commissioner). She applied to the Chief Executive, Public Safety Business Agency[1] (the Chief Executive or PSBA) seeking cancellation of the negative notice. PSBA refused to cancel the negative notice.
  2. [2]
    GX has now applied to the Tribunal for review of PSBA’s decision not to cancel the negative notice.

The Review Process

  1. [3]
    The Working with Children (Risk Screening and Management) Act 2000 (Qld) (‘Working with Children Act’) gives the Queensland Civil and Administrative Tribunal (‘QCAT’) jurisdiction to conduct a review of the Chief Executive’s decision.[2] The Tribunal must decide the review in accordance with the Working with Children Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[3] For the review, the Tribunal has all the functions of the decision-maker for the reviewable decision.[4] The purpose of the review is to produce the correct and preferable decision following a fresh hearing on the merits. [5] In effect, the Tribunal stands in the shoes of the decision maker and makes the decision afresh.
  2. [4]
    The Working with Children Act sets out provisions about screening for employment and business. The paramount consideration for making child-related employment screening decisions under the Working with Children Act is the protection of children from harm and the promotion of their wellbeing.[6] In a review proceeding, the welfare and best interests of children are paramount.[7]
  3. [5]
    Chapter 8 of the Working with Children Act sets out the procedure for deciding whether to issue a positive or negative notice. Section 236 provides that a person for whom there is a current negative notice (and who is not a disqualified person) may apply to the Chief Executive to cancel the negative notice. The application must be decided essentially as though it was a new application. If the application is unsuccessful, it must be refused.[8] 
  4. [6]
    Section 221(1) sets out circumstances (which are relevant here), in which in considering an application, the Chief Executive must issue a positive notice.[9] In particular, a positive notice must be issued where:
    1. (a)
      The Chief Executive is either not aware of any police information about the person; or
    2. (b)
      The Chief Executive is not aware of a conviction of the person for any offence but there is investigative or disciplinary information about them, or the person has been charged with an offence other than a disqualifying offence; or has been charged with a disqualifying offence[10] which has been dealt with other than by a conviction; or
    3. (c)
      The Chief Executive is aware of a conviction of the person for an offence other than a serious offence.
  5. [7]
    However, if (b) or (c) applies and the Chief Executive is satisfied that it is an ‘exceptional case’ in which it would not be in the best interests of children for the Chief Executive to issue a positive notice, then the Chief Executive must issue a negative notice to the person.[11] That is, the presumption set out in s 221(1) is rebutted by an exceptional case.
  6. [8]
    The Working with Children Act does not define the term ‘exceptional case’. However, it is settled law that determining whether a case is an exceptional case is a matter of discretion, having regard to the merits of the individual case and the factors to be taken into account.[12]
  7. [9]
    What constitutes an exceptional case is a matter of fact and degree.[13] Hardship or prejudice suffered by an applicant is irrelevant.[14] What amounts to an exceptional case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur.[15] It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.[16]
  8. [10]
    The passage of time alone is not determinative of whether or not a case is an exceptional case.[17] Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness.[18] In making the determination about whether an exceptional case exists, the decision-maker may consider relevant risk and protective factors and balance those factors.[19]
  9. [11]
    In determining whether a case is an exceptional case, where a person has been convicted of, or charged with, an offence, the Tribunal, standing in the Chief Executive’s shoes, must have regard to factors set out in s 226 of the Working with Children Act.[20] Conviction is defined to include any finding of guilt or acceptance of a plea of guilty by a court (whether or not a conviction is recorded).[21] The factors are relevantly here as follows:[22]

(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;

…….

(e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

GX’s life history and current circumstances

  1. [12]
    GX was born in [redacted] and raised according to [redacted] tradition. She is one of 13 siblings. She describes encountering a ‘cycle of abuse’ in her childhood.[23] She is now in her late 40s.
  2. [13]
    She has a criminal history and a history of contact with child safety agencies.
  3. [14]
    She completed her schooling in New Zealand and worked there for a number of years. She met her husband when she was 21 and married shortly afterwards. In 1998, they moved to Australia. There were four children of the marriage, although the youngest very sadly passed away aged six about 15 years ago from a medical condition. The other three are now aged between 26 and 22. They are educated and have been gainfully employed in their chosen fields, although the eldest is now a stay at home mother.
  4. [15]
    Although their married life has been turbulent, GX and her husband remain together. In her written material, GX describes a past history of domestic violence and marital infidelities by her husband. However, she describes the relationship as much better and healthier for the last nine years, saying that she and her husband have learned to understand and accept one another through their faith in God. They are happy together now. She reports that there is no longer any violence.[24]
  5. [16]
    In cross-examination, she denied that there was ever any physical violence between them, suggesting it was ‘verbal arguments and swearing at one another’. She asserted that she had described it as domestic violence because when ‘someone’ swears at her or calls her names, her feelings are hurt. She claims that they were both able to change the way they treat one another in about 2006-2007 through seeking God.
  6. [17]
    GX has acknowledged, at times,[25] that she (and her husband) raised their children according to [redacted] tradition involving physical discipline. Her eldest daughter confirms this in her statement.[26] She says she had not ‘attempted to cause physical abuse on’ her children but was anxious and ‘unstable’ during the period that her youngest child was diagnosed with a terminal brain tumour and subsequently passed away. She describes this as a time of enormous pressure, when they had limited support having been in Australia for only a short time; limited money and marital difficulties. These together with her son’s terminal illness led her to suicidal thoughts. As discussed later, she now says that from 2003 onwards there was no more physical punishment of the children.
  7. [18]
    She also acknowledges a history of anger management issues. However, she says that she now has the support of family, siblings, her children, her church community and new friends at university. She says that she now thinks of others more than herself.  She and her husband have family members living close-by and she describes ongoing supportive relationships with them. She also maintains regular contact with extended family not living in Brisbane. She is deeply religious and actively participates in her local church. Through her faith, she says she has gained strength and courage. She says she is now able to ‘communicate with love and assurance.’ [27]
  8. [19]
    In recent years, GX has commenced the study of law at Griffith University. She says she has had a passion to study law since her teenage years.[28] She describes doing this to ‘better myself’[29] and out of a desire to help others. She believes her life experiences have made her a better person and that she can help and relate to other persons with similar experiences and deter them from making the mistakes she has made in her life. She acknowledges that she may never practice as a lawyer, but hopes to show others the ‘right and lawful ways.’[30]
  9. [20]
    She has not worked in paid employment since 2008. She advanced various reasons for not working since, including, not wanting to be tempted again; because she wants a career change; because she did not think anyone would employ her; and because ‘people still see me as a fraudster’ who abuses children.[31] She is concerned about the financial burden that her study places on her family and wants a blue card so that she can facilitate study hours with other students, especially [redacted] students. She considers she is an ‘ideal candidate’ because she speaks [redacted] and she is a [redacted] parent.[32]
  10. [21]
    Overall, she describes her life experience as a journey towards becoming a better and changed person, who wants to show she ‘can do something constructive’.

Child Protection History

  1. [22]
    Material from the forerunner to the Department of Communities, Child Safety and Disability Services (hereafter referred to as Child Safety) indicates that on occasions GX hit her children with excessive force.[33] As later discussed, on two occasions, she was charged with criminal offences arising from doing so.
  2. [23]
    The Child Safety involvement/records are very briefly summarised as follows:
    1. On 21 May 1999 Child Safety made investigations concerning one of her children, and found substantiated physical harm had been caused by GX;
    2. On 23 November 1999 investigations in relation to another child led to substantiated allegations of physical harm;
    3. On 19 May 2000 in respect of two of GX’s children Child Safety found a substantiated risk of emotional harm and substantiated physical and emotional harm;
    4. On 29 June 2000 a protective advice concerning physical harm was made about child T but found unsubstantiated;
    5. On 11 September 2000 an unsubstantiated allegation of physical harm was made about child T;
    6. On 10 January 2002 regarding child M there was a substantiated risk of physical harm; in respect of child J a substantiated risk of physical harm and child T substantiated physical harm and neglect;
    7. On 28 February 2002 in respect of child M there was a substantiated risk of neglect and physical harm; in respect of child J a substantiated risk of physical harm and child T substantiated physical harm and neglect.
  3. [24]
    The Child Safety information discloses that some or all of the three children were removed and placed in care out of the home on at least one occasion (and perhaps two, there is some lack of clarity in the material) for a period of time, but subsequently returned to the care of GX and her husband.[34]
  4. [25]
    GX completed an anger management course and a parenting program.
  5. [26]
    GX says that some of the information in the Child Safety records is incorrect. For example, she says it records her on one occasion as the perpetrator of violence when it was her husband. That said, she acknowledged in oral evidence hitting her daughter, JX, on the legs with ‘a stick like a broom handle’, although she said it was not done with ‘any force.’ Despite the alleged lack of force, she acknowledged that it caused bruising, although she suggested that some of JX’s bruises were from playing sport.
  6. [27]
    In cross-examination, GX did not accept that her actions resulting in physical harm had caused emotional harm. She said that she did not accept it, because she had spoken with her children about it. She asserted that they were not fearful of her, but were fearful because of the foster care. She considers that the way it happened was ‘very unfair.’ She asserted that she felt badly about what happened, but that her daughter would say she has benefitted (and that her daughter JX has said that if she had not been brought up this way, she would ‘have taken a different path’). GX says that she ‘truly believe(s) she (JX) has’ benefitted. Her comments were to the effect that she felt badly because she exposed them to the ‘greater harm’ of being taken away; because she lost control of her children; and because she has a criminal record.
  7. [28]
    As I understand her, she considers that Child Safety had no right to speak with her children about what their parents did and ‘put words into’ their mouths. She suggested that although she ‘may have disciplined my daughter inappropriately’ it was not enough for the children to be taken away. She said that she did not intend to harm her daughter, although on reflection, she could have disciplined her daughter/children by different means (for example, time out; removal of privileges). At the time, it was the only means she knew.
  8. [29]
    In cross-examination, she claimed she physically disciplined the children only between 2000 and 2003, and, only on a couple of instances, not continuously.
  9. [30]
    She says that the Tribunal can be assured that she will not do it again because it occurred over 10 years ago and she was responsible for her children. She says that it is not her responsibility to discipline other people’s children, only to keep them safe and tell their parents of any behavioural issues. When asked if she supported physical discipline/smacking of children now if her own children sought advice, she said ‘no’ initially.
  10. [31]
    Confusingly, she then asserted that ‘if she said yes’, then a smack should be for ‘a good reason’, ‘on the hand’.  In discussing this, she again said that she agreed with physical violence, and did not believe that she had crossed the line (with her own children) but the law said she did. She also admitted that if she told her grandson ‘no’ on three or four occasions and he did not obey, then ‘I smack him on the hand.’

Criminal History

  1. [32]
    In 2000 and 2002, GX was charged with assault occasioning bodily harm while armed and common assault respectively. The assaults were on her child, JX. The actions which led to the charges have been sufficiently outlined above. GX explains that at the time of the first offence, GX’s younger son was undergoing treatment for aggressive brain cancer and the emotional impact on the family was substantial. At the time of the second offence, very sadly, her younger son had passed away, and GX explains that she was deeply affected by her grief.
  2. [33]
    She was found guilty. However, no conviction was recorded in respect of either offence. In respect of the former charge, she was placed on probation on her plea of guilty for 18 months and required to submit to counselling. The court transcript reveals that a court report referred to the overwhelming stress GX was under at the time of the offence. The Judge noted her acceptance that her conduct was wrong and informed her that although the court had great respect for the [redacted] culture and people, as she was now living in Australia, she must moderate some beliefs in recognition of the laws of Australia.[35] In respect of the common assault charge, she was placed on probation for 12 months.
  3. [34]
    In a recent submission, GX describes herself as having been unlawfully discriminated in respect of these convictions against her. She says this is because she was unaware that a defence was available to her in the Criminal Code 1899 (Qld) (referring to s 280 about using reasonable force in the circumstances for domestic discipline of a child by a parent) for the offences relating to disciplining her daughter. Further, she says she is being discriminated against because of the length of time that has passed since the assault offences.[36] In responding to questions at the hearing, she said that she did not think the use of force was excessive, because her daughter was not admitted to hospital. [37]
  4. [35]
    In 2004, GX was charged with and convicted of defrauding the Commonwealth and dishonestly intending to cause a loss. She was convicted of both. In respect of defrauding the Commonwealth, she was sentenced to 30 months imprisonment to be released after serving five months and to be of good behaviour for three years and pay reparations of $76,203.03. In respect of the charge of dishonestly intending to cause a loss, she was convicted and sentenced to 18 months imprisonment with a non-parole period of five months to be served concurrently.
  5. [36]
    In relation to this offence, GX explained that she prepared tax returns for members of the [redacted] community, who she says requested her to do so. She says she was approached because she was an office worker. She obtained larger refunds for them than they were entitled to receive. She was not a registered tax agent and did not charge for her services, other than any amount people gave to her. She personally received some $37,000. She claims even now that she ‘just’ filled in the forms for the taxpayers concerned. She spent 5 months in jail. In a submission in 2006, she then told the Commissioner that this ‘third incident is the last straw of my involvement with the law and I promised myself, my children and my family it will be the last’ and that she did not ‘encourage imprisonment for any mother with young children but ….I came out refreshed and had a different perspective of how to become a better person.[38]
  6. [37]
    Subsequently, in 2011, GX was convicted of fraud for dishonestly obtaining property from another by an employee (on unknown dates in 2008). She says she did not plead guilty, because there were allegations made with which she did not agree blaming her for other much larger discrepancies for which she was not responsible. She was initially sentenced to imprisonment for three years and six months and ordered to pay compensation of $27,080. GX explained that she was a supervisor at Black and White Cabs, when she manipulated reconciliations of Cabcharge vouchers to disguise taking the cash float. She appealed the sentence: the Court of Appeal varied it by setting aside the order to pay compensation. In reflection, she says this is/was very embarrassing to her and that it weighs heavily on her heart.
  7. [38]
    She said in cross-examination that she learned little from imprisonment the first time. However, on the second occasion, she says she was able to look at things ‘more constructively.’ She learned that she needs to be responsible for her own actions; live within her means and appreciate what she has; and consider others who may be impacted by her behaviour (her children were called insulting names as a result of her actions). She also said that she would not offend again as she endured emotional hardship in jail, ‘because it’s a very degrading thing for a mother’ to be away from her children. Despite the recognition of the impact on her, she denies (and expresses in terms which suggest she is insulted by the suggestion) that her children suffered when she was in jail (as a consequence of her actions) because they were in the care of their father during this period.[39]

References

  1. [39]
    GX provided a number of references, although some of them were prepared for purposes other than supporting her application for the cancellation of the negative notice. The references speak of her compassion and intelligence. They confirm her rekindling of her faith. Most referees do not indicate awareness of her offending behaviour.  Not all of them were made available for cross-examination. JX gave a statement and was to be available for cross-examination but failed to attend and was not able to be contacted by telephone. The evidence of those who were cross-examined is discussed below.
  2. [40]
    KS is a chaplain at a correctional facility, where she met GX in 2014. She has not seen the reasons for refusal of the blue card or GX’s criminal history, asserting that she treats people as she meets them and does not want the past to influence how she deals with people. She describes being impressed by GX’s compassion, courtesy and concern for others, and being a steadying influence on the other women.[40] She understands that GX is studying so that she can support other women who find themselves in similar circumstances and who do not have family support.
  3. [41]
    In cross-examination, she described GX as a mature, reliable, generous and ‘highly principled’ person, who had reflected on her past. She said she did not believe she would put children in danger and would be surprised if she had offences involving violence towards children.
  4. [42]
    NP, a full-time student and friend, has known GX for five years. She is aware of GX’s reaffirmation of her faith in the last 4 years or so. She has not seen the reasons for decision or GX’s criminal history but clearly knew many of the details and of some involvement with Child Safety.  She says GX used to be quick to anger, but now listens, reflects and thinks more before she acts.[41]
  5. [43]
    GX’s eldest daughter has two children aged 18 months and 6 weeks. She says she is now very close to her mother, but acknowledges that they were not always close. She provided a written statement.[42] She speaks about the traditional [redacted] way of physical discipline, through scripture, acknowledging that she and her siblings were raised this way. She says she benefited from it. In summary, she respects it, although she does not parent in the traditional manner.
  6. [44]
    In oral evidence, she explained that her mother has changed emotionally and spiritually. If she had not, her relationship with her would remain distant. She was unable to pinpoint when it happened: she did not notice it until her eldest child was born. She describes her mother as ‘trying to find out how she can serve’. She trusts her mother with her children without hesitation.

Is GX’s an exceptional case?

  1. [45]
    Each of GX convictions are for offences which are not defined as serious (or disqualifying) offences in the Working with Children Act. Accordingly, a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue. If it is an exceptional case, the application to cancel the negative notice must be refused.
  2. [46]
    I have reached the conclusion, for the reasons explained in the following paragraphs, that GX’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue. Therefore, the application to cancel the negative notice must be refused.
  3. [47]
    I have placed little weight on the evidence of KS. She was unaware of the details of GX’s criminal and child protection histories. I respect her desire not to allow a person’s past actions influence her impressions of them and accept that this is an appropriate manner to operate in her interactions with prisoners. However, based on her knowledge and observations, she did not consider that GX would put children in danger and said she would be surprised if she had any offences involving violence towards children, but GX does have a history of such offences. Further, she considered GX to be highly principled. However, based on her (GX’s) own admissions, I am satisfied that GX still does not accept full responsibility for her actions, which reflects poorly on her ability to act in a consistently principled way. Therefore, I am not satisfied that KS’s opinion is based on a consideration of the relevant circumstances and is not fully or accurately informed.
  4. [48]
    Broadly speaking, I place greater weight on the evidence of NP and GX’s eldest daughter. I am satisfied based on their evidence and GX’s own evidence that GX has some protective factors.
  5. [49]
    I accept that she has made some positive changes in her life. It is admirable that she wants to give back to her community and to help and support others. She has strong connections and supportive relationships with many family members, her church community, and other friends. She has a sense of purpose in pursuing tertiary study, while acknowledging that she may never practice law. Through her reaffirmation of her spiritual beliefs, she has worked through the difficulties her marriage experienced to reach a position of peace and acceptance. She has had some counselling about family issues and completed an anger management course. Her explanation about her learnings from her most recent period of imprisonment may demonstrate that she has made some progress in taking responsibility for her actions. I accept that she is now slower to anger than she was, and more reflective.
  6. [50]
    That said, GX has numerous significant risk factors.
  7. [51]
    Firstly, her criminal history is concerning. Although none of the offences are defined as serious or disqualifying offences under the Working with Children Act, consideration must be given to the matters set out in s 226. All of the offences were committed between 2000 and 2004, and then in 2008. GX was placed on probation in respect of both of the two assault offences, relating to physical punishment of her daughter, JX. She was also required to undergo counselling. The assault offences involved the use of excessive discipline in relation to her child, at the relevant times aged seven and nine years. I accept that she was stressed by firstly the diagnosis and treatment of her younger son for brain cancer, and at the time of the later conviction, grieving after his passing.
  8. [52]
    I am satisfied that even now she does not accept full responsibility for her actions. Although she admits, for example, disciplining JX with a stick like a broom handle hard enough to cause bruising, it is concerning that even now GX does not accept that the use of force was excessive. This reflects poorly on her insight. Further, she continues to believe that JX benefitted from it. She has no other offences of violence and says that she only physically disciplined them until 2003, and as I understand her, only on some small number of occasions. However, this is inconsistent with her own evidence (and GX’s eldest daughter’s), broadly to the effect that she brought her children up and disciplined them according to [redacted] tradition. There is no suggestion in GX’s eldest daughter’s evidence or GX’s that her parenting approach changed from that tradition, although admittedly there were no further child protection notifications after 2002. GX’s eldest daughter described only recent emotional and spiritual changes in her mother, that do not appear to relate to a change in disciplining methods during her childhood. Indeed, her statement suggests a consistent approach to traditional discipline throughout her childhood.  
  9. [53]
    These offences are directly relevant to her suitability to work with children. She says that she has no responsibility to discipline other people’s children, and so the Tribunal can be assured that children are not at risk of harm from her. That said, her responses in cross-examination about this issue were equivocal, and ultimately she acknowledged some, although admittedly at a very low level, physical disciplining of her 18-month-old grandchild.
  10. [54]
    She has also been convicted of offences of significant dishonesty, which resulted in two jail terms, of 5 months and 18 months respectively. Her most recent term of parole ended only in September 2014. The imposition in terms of imprisonment on these occasions demonstrates the seriousness with which the court viewed her offences.
  11. [55]
    GX’s family had substantial contact with Child Safety between 1999 and 2002 in relation to allegations of unsatisfactory parenting and inappropriate disciplining of children. There were notifications relating to physical harm, emotional harm and neglect. As set out earlier, a number of these were substantiated. Her children were removed from her care for some period of time. I acknowledge GX’s concern that some of the information may not be recorded accurately in the available Child Safety notes. However, GX acknowledges some of the behaviour and admits she has had anger management problems. It is to her credit that she was willing to seek help for this. She completed an anger management course and a parenting program. Her family also attended family counselling.
  12. [56]
    GX spoke about learning in jail to be responsible for her own actions. I am not satisfied to the requisite standard that she does take responsibility for her own past actions. Her explanations about her regrets are self-focused. She regrets ending up in jail because it was hurtful and degrading for her to be without her children. She expressed no insight into how her absence was experienced by the children as a result of her actions, denying suggestions of emotional harm (because they were effectively abandoned by her as a result), it seems because they were with their father. Her only expressed concern about their welfare as a result of her most recent jail time relates to other people’s actions in calling them names.
  13. [57]
    She also denies that the physical discipline she imposed could have resulted in emotional harm to them. She still believes it was good for them, apparently because of the children’s own comments to this effect, notwithstanding that they remain relatively young and inexperienced in life although they are now over 18 years. I note that, despite GX’s assertions that JX has acknowledged its benefits, JX does not say so in her own statement and nor did she ultimately make herself available for cross-examination.
  14. [58]
    In relation to the 2004 offences, I am not satisfied that even now she does accept full responsibility. When she had served her five months imprisonment, she said that would be her last brush with the law, and that her perspective was different. At the recent hearing, she minimised her conduct saying that she only filled out the forms.
  15. [59]
    These offences, and her ongoing failure to accept full personal responsibility for most of them, reflect poorly on her suitability as a role model for impressionable young minds.
  16. [60]
    In addition to minimising her behaviour, GX deflects blame for harm to others. She blames Child Safety for inflicting emotional harm on her children by interviewing them without a right to do so, putting ‘words in their mouths’ (even though she admits the substance of at least some of the allegations outlined in the Child Safety material) and especially, removing from them from the home. It is apparent from her material that the benefit of hindsight has not resulted in development of insight about her behaviour. Instead, she remains angry and resentful of the Child Safety action, failing to see Child Safety’s actions as a consequence of her own behaviour which was serious enough to result in several criminal charges.
  17. [61]
    Her limited insight is also apparent in that her material and responses suggest that she does not see the offences of dishonesty as impacting on this application. Her release from jail and completion of a period of parole are recent events. If a positive notice is issued, she would be in a position of role model for children. As aforesaid, I am not satisfied that GX accepts responsibility for most of her actions which culminated in her criminal history, even at this stage.
  18. [62]
    Consequently, I am not satisfied that she has developed insight into her actions. I am not satisfied that she has demonstrated that she will not commit further offences or engage in other behaviours (or recognise behaviours she may take) as potentially inappropriate. Indeed, I am unable to be satisfied that she can recognise behaviour as potentially harmful to children and not in their best interests.
  19. [63]
    In the circumstances, I find that GX has risk factors which significantly outweigh the protective factors she has in place. The passage of time, her counselling and anger management course, greater maturity, spiritual development, and periods spent in jail during which GX has had ample opportunity to reflect and gain insight, have not resulted in insight. Accordingly, in my discretion, I am satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue.
  20. [64]
    I am satisfied that the correct and preferable decision is to confirm the decision made by Chief Executive. 

Orders

  1. [65]
    I make orders accordingly.

Non-publication orders

  1. [66]
    The Tribunal has the power under s 66 of the QCAT Act to prohibit the publication of information that might enable a person to be identified, in circumstances where it would not be in the interests of justice to identify their names.
  2. [67]
    Some of the material considered by the Tribunal in these review proceedings contain information about Child Safety notifications. I am satisfied that there is no public interest served by disclosing information which would identify GX’s children, although they are now adults. This information includes GX’s name, her husband’s name, and her children. I make orders prohibiting the publication of all information which may lead to the identification of GX’s children, including her name, her husband’s name, and her children’s names. The Tribunal’s reasons for decision can only be published to the public in de-identified format.

Footnotes

[1] Responsibility for decision-making about the application was transferred by Parliament from the Commissioner to PSBA in the intervening period.

[2] Working with Children Act s 354.

[3] QCAT Act s 19(a).

[4] Ibid s 19(c).

[5] Ibid s 20.

[6] Working with Children Act ss 5, 6.

[7] Ibid s 360.

[8] Ibid s 236(6)(c).

[9] Ibid s 221(1).

[10] Ibid s 168 defines disqualifying offence.

[11] Working with Children Act s 221(2).

[12] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34] applied in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.

[13] Re: Imperial Chemical Industries Ltd’s patent extension petitions [1983] VR 1; Kent v Wilson [2000] VSC 98; and Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[14] Ax v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248.

[15] In the marriage of Sandrk (1991) 104 FLR 394 at [399] – [400].

[16] Schwerin v Equal Opportunity Board (1994) VR 279 at [287] – [288].

[17] Grindrod v Chief Executive Officer, Department of Community Development [2008] WASAT 289.

[18] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.

[19] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[20] Working with Children Act s226(1)

[21] Ibid sch 7 – ‘Conviction’.

[22] Ibid s 226(2)(a). Further, if relevant, information from the DPP, corrective services and the Mental Health Court must be considered: Working with Children Act ss 226(2)(b), (c), (d).

[23] Exhibit 2 - letter dated 4 December 2006 from GX to Commissioner for Children and Young People and Child Guardian.

[24] Exhibit 4.

[25] For example, Exhibit 1 at PSBA 10; Exhibit 2; and in her oral evidence at hearing.

[26] Exhibit 9.

[27] Exhibit 4.

[28] Exhibit 3.

[29] Exhibit 3.

[30] Exhibit 4.

[31] Oral evidence at hearing.

[32] Exhibit 3

[33] Exhibit 1.

[34] Exhibit 1 pages PSBA 30 and PSBA 54-55.

[35] Exhibit 1 pages PSBA 9-12.

[36] Exhibit 6

[37] The Child safety material in Exhibit 1 records that JX was in hospital for several days, but GX says she was there for 3 hours and was not admitted.

[38] Exhibit 2 - submission dated 4 December 2006 page 2.

[39] Exhibit 3. GX also made similar statements in oral evidence.

[40] Exhibit 7.

[41] Exhibit 8 and oral evidence.

[42] Exhibit 9.

Close

Editorial Notes

  • Published Case Name:

    GX v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    GX v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 168

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    09 Mar 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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