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- Unreported Judgment
ROJ v Chief Executive, Public Safety Business Agency  QCAT 241
Chief Executive, Public Safety Business Agency
13 July 2016
21 July 2016
CHILDREN – BLUE CARD - where kinship carer convicted of an offence – where that offence was not categorised as a serious offence – where positive notice cancelled – where children removed from care – where evidence of risk factors and protective factors – whether not in the best interests of children for a positive notice to issue
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 360
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492
Chief Executive, Public Safety Business Agency
represented by Ms K. Bryson of Counsel
represented by Ms P. Hughes, an officer of the Public Safety Business Agency
REASONS FOR DECISION
- Ms ROJ was born in Mildura, Victoria but she grew up in the APY (Anangu Pitjantjatjara Yankunytjatjara) lands in Central Australia, where her father was born and raised, and in Adelaide. She is an Aboriginal woman, the oldest of four children, and comes from an extended family environment. Her childhood taught her ‘you can make a difference by opening your home to others’.
- She married her husband, Mr ROJ, when she was 22. They have five children together and many nieces and nephews have lived with them over the years. After leaving school Ms ROJ worked in remote areas promoting the arts and then stayed at home as the primary carer once the children were born. Mr ROJ is now an academic following a career as a teacher, school principal and researcher.
- Ms ROJ was first contacted in 2012 by one of the indigenous caseworkers from the Queensland Department of Communities, Child Safety and disability Services (‘the department’) and asked to care for A, a newborn and N, then aged about two, because no kinship carers could be found for them. They had been taken from the care of their mother R. Ms ROJ says in Anangu terms she is the mother of the children because R is her cousin-sister.
- At the time the ROJs were living in Alice Springs and had their hands full with their own five children so they did not take N and A. However Ms ROJ could not stop thinking about them and in late 2013, having been told the children were in the care of non-indigenous carers, Mr and Ms ROJ agreed to take care of the children. It was important to them the children would grow up knowing their own family. Ms ROJ believed she was the only possible carer who could reconnect the children to their language, family and identity. She thought their mother, R, might take an interest in them if they were in Alice Springs but says she underestimated the extent of R’s own trauma.
- This decision triggered an extensive assessment process conducted by the department to allow them to be approved as kinship carers.
- The children moved to Alice Springs on 18 July 2014. I had the opportunity to hear the evidence of three officers from the department who were involved in this complex interstate transition. It was agreed by all the officers the family was not given the usual departmental support given to kinship carers. This often includes counselling support for the children and the carers, respite care, case management and any identified specific support the family might need. The officers acknowledged and owned the system’s failure that meant the ROJs were left to cope on their own even though they repeatedly asked for assistance.
- Ms ROJ says that it was pretty rough in the early days because they had to settle the children into the routine of their family. They had to learn to go to bed at bedtime and eat meals with the family. A period of adjustment was to be expected. However N was a child who had been adversely affected by his early childhood experiences and had severe behavioural difficulties. Ms ROJ says this is what they were not prepared for. She said ‘you can talk about trauma but you don’t understand its effect until you bring it into your home’.
- Running parallel to this experience Ms ROJ was having her own problems. For some time she had been experiencing what was later diagnosed as major depression. She wasn’t sleeping. She went to her general practitioner and asked to be put on a low dose of medication. She knew that was only part of the answer and she needed counselling. She put her name on a waiting list to seek treatment at the local health centre (she was offered an appointment some months later after she had moved to Adelaide). Her psychological needs were also recognised as an area where she would need support by the departmental assessor.
- At the end of the school holidays in 2015 the household was in an upheaval. The family had decided to return to Adelaide, where more help was available, and Ms ROJ was packing boxes. The eldest son was leaving for boarding school. N and A’s sister, who had been staying with them, had returned to Queensland and another child, who N loved, was also returning to his home.
- N had been kept down at preschool so his old friends were no longer there and he took to destroying the preschool every day. It was becoming increasingly difficult for Ms ROJ to face his teachers. She said there were times she would turn up and they would be crying with frustration because they didn’t know how to deal with N’s behaviour.
- It was against this background that on Wednesday 4 February 2015 Ms ROJ collected N from pre-school, took him home and sent him to his room. She told him if he kept acting up he would have to go back to Queensland. She turned on the television for A and told herself to not go to N. However she ‘snapped.’ She walked into his room, pushed N to the floor and hit him repeatedly with his schoolbag. She then placed her hands around his neck and squeezed his neck for a short period before realising what she was doing and released him.
- She rang her husband to come home immediately. They rang the department in Queensland to self report and were told they would be spoken to the next day. Friday they took N to Child Safety in Alice Springs because they had to sight him, and spoke with the police. Ms ROJ says she assured N he had done nothing wrong, he was to talk to the police and department officers and tell them what had happened.
- Saturday Ms ROJ left her family in Alice Springs and went to Adelaide to her mother’s house to get medical help. When it became clear N needed to be with Mrs K, away from her other children, Ms ROJ was offered accommodation by a woman from her church while she was seeking treatment. She stayed away from her own family for six weeks and started treatment with a counsellor and psychiatrist.
- Ms ROJ was charged with one offence of ‘aggravated assault- child related’. At the Alice Springs Court of Summary Jurisdiction on 12 August 2015 she pleaded guilty to the offence. She was placed on a good behaviour bond for two years, fined $2000 and no conviction was recorded.
- As a result of this offence the Chief Executive Officer, Public Safety Business Agency cancelled her positive notice and blue card on 27 April 2016. N remained with Ms ROJ’s mother, Ms K, in Adelaide, A was returned to Queensland and placed with foster carers there. This situation is ongoing and it is disturbing for the whole family. It is difficult for A and N and their sister to enjoy family contact when this used to occur in the ROJ’s home.
- Ms ROJ sought a review of the Chief Executive’s decision to this Tribunal by application dated 12 May 2016.
- Responsibility for the screening of persons employed in child related employment rests with the Agency. Assessment for, and ongoing eligibility to hold, a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000. The principles for administering the Act, set out in s 6, are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. S 360 restates that principle for the purposes of reviewing a child-related employment decision.
- Where an applicant has been charged or convicted of an offence, other than a disqualifying or serious offence as defined in the Act, a positive notice must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.
- The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree. This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act.
- Because the best interests of a child are paramount, hardship or prejudice suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.
- Once a decision is made to issue a positive notice and blue card the holder is authorised to work with children in any work environment.
- S 226 of the Act sets out the factors that must be considered when making the determination however it does not confine consideration to those matters.
- In this case there is one conviction that is not a serious or disqualifying offence for the purposes of the legislation. The offence was committed in February 2015 and is directly relevant to children because it was an offence committed against a young child who was in the care of Ms ROJ at the time.
- Ms ROJ was not given a custodial sentence, she was placed on a good behaviour bond for two years, fined $2000 and no conviction was recorded. A Domestic Violence Order was also made for a period of twelve months. The Magistrate in her sentencing remarks acknowledged the lack of support and difficult situation but also stressed the gravity of the offence, referring to it as ‘extremely wrong’ and commenting that it was open to her to impose a custodial sentence. However following consideration of the mitigating factors the penalty referred to previously was imposed.
- The focus of this application, in assessing Ms ROJ’s future suitability to work with children, must be on the welfare and best interests of children in general. It cannot be restricted to the interests of the members of this family group. It is screening legislation that must be rigorously applied and warrants a conservative approach. In addition to the circumstances of the offence consideration must be given to identifying those protective or risk factors which may assist in deciding whether this is an ‘exceptional case’.
- The risk factors at first sight appear overwhelming. Ms ROJ assaulted a child in her care. He was placed in her care because he had suffered neglect and abuse from his own parents. He was experiencing the impact if this abuse, it was impacting adversely on his behaviours to the extent it was interfering with his education. On this occasion Ms ROJ was unable to prioritise the child’s needs over her own.
- The Chief Executive submits the excessive and inappropriate form of discipline raises serious concerns. It suggests she may not have the conflict management skills, anger management skills or the ability to deal appropriately with challenging behaviours.
- Ms ROJ was subsequently diagnosed with major depression and she is still medicated and receiving counselling for this condition. It is the evidence of her counsellor she should remain in counselling for a further twelve months. Ms ROJ says she will give herself another twelve months before engaging more actively with children in church groups.
- Ms ROJ was placed on a good behaviour bond for two years expiring August 2017. A Domestic Violence Order is still current. This ongoing supervision by the Court means it is difficult to predict what her behaviour will be without this legal consequence of reoffending.
- The protective factors are Ms ROJ’s previous good character, the circumstances leading up to the offence and the fact this was an isolated incident. Her actions immediately following the offence demonstrated both insight and remorse. She is having ongoing treatment. She has relocated to Adelaide and can more easily access professional support. She has a better support network to help care for the children which will improve if the care of N and A is transferred to the South Australian child safety system. That decision has been suspended by the department pending the outcome of this application.
- The evidence of the three current or former departmental officers who gave evidence must carry great weight. They were all very experienced officers involved in the care of N and A. One of the witnesses conducted both the Kinship Carer assessment report in late 2014 and the Harm Report that followed the incident. They confirmed Mr and Ms ROJ accepted responsibility for the children in difficult circumstances and were not given the support or training usually extended to kinship carers.
- It was acknowledged that after the children were placed in their care various people identified as supports of the ROJ family experienced their own difficulties and their availability was compromised at a critical time.
- The Senior Team Leader indicated that what stood out for the department was that Mr and Ms ROJ went to the police themselves and then Ms ROJ left the family home. Another officer commented on their openness. She said they were a proactive couple who would indicate ‘This is our problem, this is what we can do.’
- The report writer said she identified Ms ROJ as needing support before the placement because she had high standards and wanted to take responsibility. ‘Sometimes those people can overwork when there are challenges’. She also identified some elements of trauma that Ms ROJ had experienced and believed she would benefit from those things being resolved by counselling.
- These witnesses are professionals who are responsible for the safety of children every day. They all indicated they have no concerns about Ms ROJ’s capacity to care for children. She is not considered an ‘at risk’ person.
- Ms ROJ provided an email written to the Tribunal in an associated application where a departmental officer indicated that if Ms ROJ were granted a blue card then A would be returned to her care immediately.
- Ms Krystie Edwards, an Accredited Mental Health Social Worker, specialises in trauma therapy. She has been Ms ROJ’s counsellor since 19 February 2015 and has seen her for 25 appointments. Her initial work was to help Ms ROJ reflect on the incident that had occurred just two weeks earlier, and to explore issues from her past that were impacting on her. She said Ms ROJ was shocked and distressed by the incident and wanted to make sure it did not happen again in the future. She was concerned to ensure N was kept safe.
- During treatment she assisted Ms ROJ to develop mindfulness skills, realise the importance of self care such as rest and journaling, and identify the need to access support and maintain healing relationships.
- While early in the treatment programme Ms Edward had concerns about Ms ROJ having N in her care, she no longer has those concerns. She believes there were specific triggers from her past that Ms ROJ responded to. Her reaction to N was a response by her body rather than her mind, it did not involve a conscious decision to engage in violence. She has addressed those triggers. She does not have concerns about Ms ROJ’s capacity or willingness to provide safe care for children into the future.
- A character witness who has known Ms ROJ for 25 years said he is also a foster carer. He spoke to the ROJs when they were in Alice Springs about the structures he has in place in Adelaide to support the children in his care. They did not seem to have any support and things were difficult. He is now in weekly contact with Ms ROJ and has observed how she interacts with children. He has no concerns about Ms ROJ’s ability to work with children.
- Ms ROJ provided a report her psychiatrist, Dr Nielsen, prepared for the sentencing. Dr Nielsen has since retired. She also provided a report dated 3 June 2016 from her General Practitioner Dr Lam. He states she suffers major depression which is well controlled by medication and ongoing psychotherapy and there are no indications her insight or judgement are impaired,
- Ms ROJ provided other written references prepared for the sentencing hearing. I considered these documents in the context of the sentencing remarks.
- Ms ROJ participated in the hearing by telephone from Adelaide with her legal representative in Brisbane. It is difficult to maintain focus for a lengthy hearing by telephone when in a distressed state and Mr ROJ chose to be her support person rather than give evidence. He had provided a letter to the Tribunal. I have carefully considered his letter explaining some of the steps take by the extended ROJ family immediately following the offence. It demonstrates the level of support and commitment available to Ms ROJ and the children.
- Ms ROJ has not been charged with a serious offence. She must be given a positive notice unless I am satisfied that an exceptional case exists. It is not enough that she has been charged with an assault on a child, as disturbing as that is. If it were then this offence would have been declared either serious or disqualifying. There must be something out of the ordinary about this case such that it is not in the best interests of children for Ms ROJ to be authorised to engage in child related employment.
- Although Ms ROJ has applied for blue card for a specific purpose  if she is granted a positive notice Ms ROJ can engage in any child related employment activity.
- I am not satisfied that the interests of children are compromised by issuing a positive notice. I have considered the risk factors identified by the Chief Executive and the protective factors.
- I am satisfied that the actions of Ms ROJ immediately following the offence demonstrate insight, remorse and a determination to identify the cause of her behaviour. She knew what she did was wrong and took steps to protect the children by removing herself from her family home until such time as she was satisfied they were no longer at risk. This level of insight is a strong protective factor.
- I have given weight to the evidence of the departmental officers concerning the circumstances of the offence and their opinion Ms ROJ does not pose a risk to children.
- I have given weight to the evidence of Ms Edwards that Ms ROJ has identified and developed strategies to identify triggers and to better manage her own mental health. The fact that Ms ROJ will continue to attend counselling should not been seen as evidence that she still poses a risk. I have formed the view that it is evidence of her determination to do all she can to explore the reason she ‘snapped’ and is part of an ongoing process of healing. Because Ms Edwards is the treating health professional I have given no weight to her opinion Ms ROJ is not likely to repeat her behaviour.
- I do not see Ms ROJ’s evidence that she will take twelve months before becoming more engaged with children in the youth group as evidence that she considers herself to pose a risk at this time. It seems more likely that she is being realistic about the impact of her father’s recent death and the events of the last eighteen months. With five children of her own I accept her life is based around children.
- I have given weight to the support Ms ROJ receives from her extended family and friends. Her openness means they are aware of what has occurred and will be prepared to assist if asked. In particular the commitment Ms ROJ’s mother has shown to N demonstrates the level of responsibility accepted by the family group for his safety.
- I have given weight to Ms ROJ’s own character. She has been described as ‘proactive’ and a person with high standards who accepts responsibility. Her cultural beliefs as an Anangu woman are fundamental to her sense of who she is. This in turn has given her a connectedness to, and responsibility to her family. I am satisfied that with her raised awareness she will take whatever steps are necessary to protect her family.
- I have formed that view that in this case the impact of the ongoing good behaviour bond and possible consequences of reoffending are not a big factor in the steps Ms ROJ has taken to avoid reoffending. A level of accountability is desirable when there is concern over whether a person has learnt from their mistakes. In circumstances where Ms ROJ self reported that does not appear to be the case here.
- The offence is recent but given that Ms ROJ committed her first offence at 39 years of age in challenging circumstances I am satisfied that it does not demonstrate a positive attitude towards violence. An extended period without offending is not the only factor in determining whether there is a risk of reoffending and in this case enough has been done in a short time for me to be satisfied there are sufficient protective factors in place.
- For these reasons I am not satisfied that an ’exceptional case’ exists such that it would not be in the best interests of children for the applicant to be issued with a positive notice.
- The parties have requested a non-publication order. I accept the order is necessary to protect the identification of children affected by this decision who are not in the care of the department. These reasons will be published in a de-identified format.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(1)(b)(iii) and (c) and s 221(2).
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
 Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171 at 23 where it was stated “I’m not persuaded that the risk of harm to children is to be balanced against the civil or other rights of the applicant.... In my respectful opinion the prejudice to an applicant is not a relevant consideration.” Considered and applied in GD v Commissioner for Children and Young People and Child Guardian  QCAT 500 at para 16.
 Maher at paragraph 42.
 Email Department of Communities Child Safety and Disability Services to QCAT dated 18 May 2016.
 See Working with Children (Risk Management and Screening) Act 2000 (Qld) s 156 Schedule 1 s 14
- Published Case Name:
ROJ v Chief Executive, Public Safety Business Agency
- Shortened Case Name:
ROJ v Chief Executive, Public Safety Business Agency
 QCAT 241
21 Jul 2016