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RDM v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 187

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RDM v Director-General, Department of Justice and Attorney-General [2020] QCAT 187

PARTIES:

RDM

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML084-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 May 2020

HEARING DATE:

20 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is exceptional, within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where negative notice for blue card had been issued to a person who had failed to protect foster children from abuse – where application to cancel negative notice refused – whether exceptional case

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 228

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

N Rajapakse, in-house lawyer

REASONS FOR DECISION

Introduction

  1. [1]
    RDM wishes to obtain a blue card, so that she can do voluntary work with children at her church and work with children as a counsellor.
  2. [2]
    The respondent – whom I will refer to for the sake of simplicity as Blue Card Services – issued RDM with a negative notice in 2015. A negative notice prevents a person from holding a blue card. In 2017 RDM applied to Blue Card Services to have the negative notice cancelled, but on 4 February 2019 Blue Card Services refused that application. In reaching that decision, Blue Card Services decided that RDM’s case was exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
  3. [3]
    On 25 February 2019, RDM applied to the Tribunal for the present review of that decision.
  4. [4]
    Blue Card Services’ reasons for refusing to cancel the negative notice centre around concerns that RDM failed to protect a foster child in her care from sexual abuse, and that she exposed that child and a sibling to domestic violence.

Evidence

  1. [5]
    The written evidence before the Tribunal consists of documents marked Exhibits 1 to 15. Oral evidence was given at the hearing by RDM, her general practitioner / counsellor Dr Carolyn Russell, and two referees. I do not propose to identify the referees because that could lead to identification of RDM. Identification of RDM would be contrary to the Direction of the President of the Tribunal prohibiting publication of information that may identify a victim of domestic and family violence.[1]

Legal framework

  1. [6]
    I am required to consider the matter afresh, and to make the correct and preferable decision about whether an exceptional case exists.[2]
  2. [7]
    Whether a person should have a negative notice is determined under the Working with Children Act. The principles under which the Act is to be administered 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.[3] Consistent with that, a review of a ‘child-related employment decision’ is to be conducted under the principle that the welfare and best interests of a child are paramount.[4] 
  3. [8]
    A negative notice remains current until it is cancelled.[5] When a person applies to have a negative notice cancelled, the same criteria apply as in an application for a positive notice.[6] Particular considerations become relevant when there is ‘disciplinary information’ about the person seeking a blue card.[7] ‘Disciplinary information’ includes, relevantly, information provided under section 140A of the Child Protection Act 1999 (Qld) about the cancellation of the person’s carer authority.[8]
  4. [9]
    When there is disciplinary information, but no conviction for a ‘serious offence’ as defined, the chief executive must, generally, issue a positive notice.[9] However, if the chief executive is satisfied 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, the chief executive must issue a negative notice to the person.[10] Those same criteria apply to the Tribunal in conducting a review.[11]
  5. [10]
    In considering whether there is an exceptional case, the chief executive, and in turn the Tribunal, must have regard to several factors.[12] These are, in summary:
    1. (a)
      the decision relating to the disciplinary information and the reasons for that decision;
    2. (b)
      any decision on review or appeal of that decision;
    3. (c)
      the relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children; and
    4. (d)
      anything else relating to the disciplinary information that may reasonably be considered relevant to the assessment of the person.

RDM and her family

  1. [11]
    RDM was born in 1964. As a young adult she qualified as a teacher, and she then had various teaching jobs. RDM has had three marriages. I will refer to the husbands as H1, H2 and H3 respectively.
  2. [12]
    RDM and H1 had a daughter and a son. They also became foster parents, and were appointed long-term guardians for a girl (‘FD’) who was born in 1998 and her younger brother (‘FS’) who was born in 2003. The mother of FD and FS was unable to care for them because of a substance use problem. FS and FD were in the care of RDM and H1 from when they were babies.
  3. [13]
    RDM’s and H1’s biological son died of leukemia in 2003 at the age of 14. The marriage broke up after this. After separation, the care of FS and FD was shared between RDM and H1.
  4. [14]
    RDM and H2 formed a relationship. The relationship began in about December 2005, and they married in March 2010. H2 was approved as a foster carer by the Child Safety Department.[13] Meanwhile, H1 continued to care for FS and FD part of the time.
  5. [15]
    RDM and H2 separated in late March 2014, and divorced in 2015. The separation occurred when police attended the house on 29 March 2014 in response to a neighbour’s report of a domestic violence incident. During that visit, RDM told police that H2 had sexually abused FD. Police successfully applied for a domestic violence protection order to protect RDM. H2 was not allowed back into the house except to collect his belongings. Police charged him with offences relating to the sexual abuse. He was later tried, found guilty, and jailed for a period.
  6. [16]
    Meanwhile, the Child Safety Department investigated, and removed FS and FD from the care of RDM. They were placed in the care of H1.
  7. [17]
    RDM says, and I accept, that FD returned to live with her in May 2016, when aged 17. She says this was not a placement by the Child Safety Department, but pursuant to a practice of that Department to respect the residency wishes of older children in care. FD, now in her early twenties, continues to live with her. RDM also says, and I accept, that FS also spends, on average, two nights per week in her house, with the approval of the Child Safety Department.
  8. [18]
    RDM has formed a relationship with H3, and they married in 2019.

Information from Child Safety Department and other agencies

  1. [19]
    The Child Safety Department provided information to Blue Card Services about RDM in 2014, 2015 and 2018. In 2019, the Child Safety Department provided more detailed information to the Tribunal in response to a notice to produce documents. RDM advised at the hearing that she does not contest any of that information.
  2. [20]
    The Child Safety Department information that has been provided consists of summaries, rather than witness statements or interviews. There are some inconsistencies as to dates and events between different summaries and within some summaries. Nonetheless, the key events and dates can be discerned. Information was also supplied to the Tribunal in 2019 by the Queensland Police Service and the Magistrates Court, and I will incorporate the key parts of that information into the summary below.
  3. [21]
    The information from the agencies indicates:
    1. (a)
      there were five instances in 2010 when H2 sexually abused FD;
    2. (b)
      soon after the first incident, RDM became aware of it, apparently because FD told her (though some records can be interpreted as H2 having told RDM);
    3. (c)
      RDM spoke to H2 about it and he was remorseful and said it would not happen again;
    4. (d)
      RDM believed him;
    5. (e)
      however, it did happen again, with the further four instances occurring during a family overseas holiday in late 2010; and
    6. (f)
      nobody informed RDM about these further instances at the time.
  4. [22]
    Although there are some references in the summaries to sexual abuse having occurred after 2010, the Child Safety Department summaries provided in 2019 predominantly indicate that all instances happened in 2010. Accordingly, I will proceed on the basis that there were no further instances after 2010.
  5. [23]
    Further, the information from the agencies indicates:
    1. (a)
      in March or April 2013, FD told RDM about the further instances of abuse that had occurred in 2010;
    2. (b)
      RDM spoke to H2 about this;
    3. (c)
      this time he was not remorseful;
    4. (d)
      RDM told H2 he would have to move out and that he should go to the police and confess, but he would not;
    5. (e)
      RDM did not inform the Child Safety Department about the situation; and
    6. (f)
      RDM informed the police about the sexual abuse on 29 March 2014 when they attended the house because of a domestic violence incident.
  6. [24]
    The Child Safety Department summaries indicate that in 2013, FD also told RDM that H2 had sent her pornographic images in early 2010, and that RDM commented to FD that this had been grooming behaviour. It is not clear, however, whether this disclosure was made at the time of the other disclosure in March or April 2013, or at some other time in 2013.
  7. [25]
    Further:
    1. (a)
      once the sexual abuse was reported to police, the Child Safety Department removed FD and FS from RDM’s care;
    2. (b)
      the Child Safety Department conducted an investigation which involved interviewing RDM, H1, FD and FS, departmental staff, and others, and obtaining police records;
    3. (c)
      this investigation revealed that H2 had a domineering parenting style, with overly strict rules for the children;
    4. (d)
      during departmental home visits over the years, there had been a very formal atmosphere, and H2 had done much of the talking for RDM and the children;
    5. (e)
      RDM told investigators that she had felt controlled by, and fearful of, H2;
    6. (f)
      she reported having experienced overwhelming stress and anxiety in the last 12 months of the relationship, such that she was not coping;
    7. (g)
      she discussed H2’s drinking and use of prescription medication, and said that she thought FD would be safe because of H2’s lack of libido and his use of medication;
    8. (h)
      FD told investigators that she had not told RDM about the sexual abuse that occurred in late 2010 at the time, because she had not wanted to upset RDM;
    9. (i)
      RDM demonstrated little understanding of the serious nature of emotional harm that results from sexual abuse;
    10. (j)
      in explaining why she had not reported the sexual abuse to the authorities earlier, RDM said she had not thought that she or FD were strong enough to deal with an investigation; and
    11. (k)
      while RDM told investigators that she believes that sexual abuse occurred, she also commented on FD lying, being dramatic, and loving being the victim.
  8. [26]
    So far as earlier domestic violence is concerned, the Child Safety Department noted that:
    1. (a)
      H1 had perpetrated domestic violence on RDM during their marriage; and
    2. (b)
      a domestic violence referral had been made by H2’s family in 2008 due to him allegedly harassing his sick, elderly mother.
  9. [27]
    Further, in relation to records of domestic violence in the household of RDM and H2:
    1. (a)
      on 15 June 2013 RDM expressed concerns about returning home after an argument with H2 earlier that evening;
    2. (b)
      on 17 June 2013 the police received a call during which they heard RDM screaming and the sounds of an assault, and they instructed RDM to wait outside with the children and keep a distance from the perpetrator;
    3. (c)
      on 1 July 2013, H2, in the presence of FD and FS, placed his hand over RDM’s mouth;
    4. (d)
      this was to keep her quiet as she was becoming distressed over the anniversary of her son’s death;
    5. (e)
      on 4 September 2013 FD rang police in a hysterical state and reported that her parents were fighting;
    6. (f)
      RDM came to the phone and disconnected the call;
    7. (g)
      police called back and ascertained that the fight was verbal, with RDM informing police that the fight was over H2 not allowing her to grieve her late son;
    8. (h)
      on 20 December 2013, RDM rang the ambulance service saying that H2 was having a psychotic episode and may be violent;
    9. (i)
      she said he had gone off his medication for bipolar disorder;
    10. (j)
      she said she had taken her children to seek shelter at her church, and asked to be advised when it was safe to return home;
    11. (k)
      on 19 March 2014, both H2 and RDM were violent to each other;
    12. (l)
      on that occasion, RDM sustained a large bruise to her upper thigh; and
    13. (m)
      H1 told investigators he had provided emotional support to RDM after incidents of domestic violence perpetrated by H2.
  10. [28]
    As I have mentioned, police attended the house again on 29 March 2014, after a neighbour called them.
  11. [29]
    Further, in relation to the use of alcohol and prescription drugs:
    1. (a)
      on 15 June 2013, it was noted that RDM described having had three glasses of wine since 3.30pm (though the time of the record is not stated); and
    2. (b)
      on 17 June 2013, RDM told police she had consumed two bottles of wine, and she said it was the eve of the anniversary of her son’s death.
  12. [30]
    There were also police records of RDM contacting police on several occasions between 2010 and 2017 to advise that FD had not returned home from school or a walk. For example, on 23 January 2014, RDM told police that FD had gone out for a walk when she became angry about her parents’ arguing.
  13. [31]
    H1 told investigators that RDM would have been terrified of losing FD and FS. RDM had earlier brought a proceeding in the Tribunal challenging a proposed reunification of FD and her biological mother.
  14. [32]
    The Child Safety Department acknowledged that there was a strong attachment between RDM and her foster children FD and FS, and that she had not wanted the children to be harmed. Approximately a month after the children were removed, the Child Safety Department noted that RDM was having regular supervised contact with them. FS wanted to return to live with RDM and was telling the Child Safety Department that she felt safe there. The Child Safety Department considered that RDM should continue to play a pivotal role in the children’s lives. It considered that if RDM participated in training, and could demonstrate improved understanding of relevant issues, then in time extensive unsupervised contact may become appropriate.  
  15. [33]
    In relation to whether RDM should at that time retain her carer authority, however:
    1. (a)
      the Child Safety Department noted that there had been regular conflict between RDM and H2, and that H2 had held all the power;
    2. (b)
      the Child Safety Department concluded that RDM had failed to protect FD from sexual abuse;
    3. (c)
      further, she had failed to protect FD and FS from exposure to domestic violence;
    4. (d)
      she had prioritised her relationship with H2 over the protection of the children; and
    5. (e)
      another reason that RDM did not notify the Child Safety Department of the sexual abuse was fears about how the Department would respond.
  16. [34]
    The Child Safety Department considered that FD had been additionally vulnerable because of a disability and a low maturity level. 
  17. [35]
    RDM told investigators that separation from H2 would have had significant negative consequences for herself, and that she had had a strong desire to maintain the marriage for personal and religious reasons.
  18. [36]
    The Child Safety Department considered that financial reliance by RDM on a partner may have been a contributing factor to her prioritising the marital relationship. However, I note that in a 2016 Court application, RDM said she had been the main earner, through income from fostering, during her relationship with H2.
  19. [37]
    On 7 July 2014, the Child Safety Department decided to cancel RDM’s carer authority. There is no indication in the material that RDM went on to challenge that decision.
  20. [38]
    The information supplied by the Child Safety Department in 2019 also contains information from another girl who spent respite time with the family in 2010 as a 14 year old. She described overly strict rules imposed by H2. She also described grooming behaviours by H2 toward her. However, there is no indication that RDM was aware of the grooming behaviour. As there is nothing to indicate that this behaviour occurred after RDM had become aware of the initial incident of sexual abuse by H2 upon FD, there is no reason to suppose that RDM had cause to be especially alert for improper behaviour by H2. Blue Card Services has not submitted that H2’s behaviour toward the 14 year old girl is relevant in assessing RDM’s suitability for a blue card, and I do not regard it as relevant in that assessment.
  21. [39]
    The records produced by the Magistrates Court do not include the 2014 domestic violence protection application or order referred to in other material, but it includes later applications and orders made in 2016 and 2018. In these applications, RDM referred to a deterioration in her relationship with H2 involving financial abuse and other control, and ultimately physical violence. She referred to frequent occasions of H2 assaulting her by covering her mouth and nose.

RDM’s evidence

  1. [40]
    In her oral evidence, RDM said that in 2010 H2 told her he had accidentally touched FD in the genital area. He appeared remorseful. She ‘minimised it’, seeing it as an aberration. She said she cannot recall if she had a discussion with FD about it at that time. RDM said that after FD told her in 2013 about the incidents that had occurred during the holiday in late 2010, she told H2 he would have to move out. RDM says that it was a discussion on 29 March 2014 about him moving out that became heated and resulted in neighbours calling the police. RDM says she told the police of the sexual abuse because she realised that H2 was not going to agree to move out.
  2. [41]
    So far as the question of her suitability to hold a blue card is concerned, her position is encapsulated in what she wrote in her application to review a decision:

I have realised my heinous error of judgement & sincerely regret the harm I did to [FD and FS] by my failure to notify – thus causing further trauma, emotional and physical harm to them, especially [FD].

I have sought psychology testing in combination with my counsellor to show any personal lack.

I am very cautious and careful with people around me and am a stronger confident person who would respond to events of emotional and physical harm to the children … very differently.

  1. [42]
    RDM has provided evidence of having obtained support from a domestic violence support service in May and June 2014. She has also provided a certificate indicating that she completed a diploma of counselling (Christian) in 2016. She has provided records showing her many appointments over the years with her counsellor Dr Russell. RDM says that through her study and counselling, she has gained ever-deepening awareness of issues of child protection.
  2. [43]
    There is considerable self-reproach in RDM’s evidence. For example:

I acknowledge that my behaviour and my lack of immediate action was a serious breach of my responsibilities as an adult and carer of the children. I have sought and gained insight into myself and the devastating effect of my inaction on the children and have sought to make change …[14]

I have insight into the incredible harm I did to the children especially [FD] and the devastating trauma I caused by not disclosing the sexual abuse of [FD] immediately and the harm caused by the witnessing of domestic abuse. … Given the same circumstances now I would act immediately and do things differently and make choices for safety.[15]

  1. [44]
    In cross-examination, RDM spoke of having caused ‘incredible damage’ and ‘incredible trauma’ to FD, having ‘completely neglected’ FD, and of making ‘incredibly bad decisions’. She agreed with a proposition that she had committed a gross breach of trust of FD. In submissions she said that the difficulties faced by a woman wanting to leave a violent relationship did not excuse her lack of action. In cross-examination, however, what seemed to me to be a more realistic picture emerged. RDM said that while she did not want to ‘come across as the victim’, at the time she had been living in fear and felt controlled by H2. She spoke of operating in survival mode. Later, in submissions, RDM noted how difficult it can be for women to leave violent relationships.

Evidence of Dr Russell

  1. [45]
    Dr Russell has provided several reports, and she also gave oral evidence. The following is summary of the key points.
  2. [46]
    RDM has seen Dr Russell many times over the years. RDM and H1 jointly saw Dr Russell when their marriage was under heavy stress after losing their son with ‘very challenging leukemia’.[16] RDM originally saw H2 as someone who would take care of her as she recovered from the loss of her son. Dr Russell considers that H2, who had also lost a child, ‘groomed’ RDM with ‘grief in parallel’.[17] There was ‘honeymoon behaviour’[18] initially. Over time, however, there was a decline into verbal abuse and other difficult behaviour by H2. RDM became vulnerable. She was profoundly depressed. She had ‘fragility in choices’; and she was ‘in terror of losing stability’ and of being alone again.[19]  RDM felt very weakened and intimidated. She turned a blind eye when FD spoke of abuse, thinking that FD must be dramatising things.
  3. [47]
    Dr Russell has repeatedly expressed support for RDM’s endeavour to regain a blue card.
  4. [48]
    Dr Russell impressed me as an experienced and thoughtful practitioner. I have no hesitation in accepting as accurate her observations about RDM’s psychological state.

Report of Dr O’Dowd

  1. [49]
    Dr Brona O’Dowd, neuropsychologist, prepared a report dated 27 February 2017.[20]  Dr O’Dowd noted that RDM had been referred for ‘a personality and neuropsychological assessment of her intellectual abilities to assist with the possible reinstatement of her Blue Card’.[21] Dr O’Dowd concluded that the personality profile did not reveal any psychopathology, and that the neuropsychological profile indicated a person performing in the average to above average intellectual range.
  2. [50]
    Ms Rajapakse, for Blue Card Services, drew attention to a comment in Dr O’Dowd’s report that RDM stated she has one glass of wine three to four days per week and ‘she has never been a heavier drinker’.[22] This, Ms Rajapakse suggested, conflicts with other evidence indicating heavier drinking. Further, Ms Rajapakse submitted that no weight should be placed on Dr O’Dowd’s report because of this discrepancy, the fact that there had been only one interview, and Dr O’Dowd was not made available for cross-examination.
  3. [51]
    I am not inclined to accept this submission. There may have been some downplaying by RDM of her drinking during her interview with Dr O’Dowd. However, this is not necessarily the case, as the heavier drinking in 2013 may have been aberrant behaviour at a time of great stress. It is also relevant to note that Dr O’Dowd took into account indications on validity scales in the course of the personality testing which suggested a reluctance by RDM to admit minor faults.
  4. [52]
    Further, there is no indication in Dr O’Dowd’s report that she had inadequate time to assess RDM. The fact that Dr O’Dowd was not made available for cross-examination is of somewhat limited significance. Dr O’Dowd clearly set out the factual bases for her opinions and the reasons for holding them, and it is not apparent how the validity of her opinions might have been substantially shaken in cross-examination.
  5. [53]
    Having said that, I regard Dr O’Dowd’s report as having limited value in determining RDM’s suitability to hold a blue card. In effect, the report excludes intellectual impairment and major psychopathology. However, there does not appear to have been any particular reason to imagine that such problems might be present. While Dr Russell spoke of profound depression, this presumably was caused by the profoundly depressing circumstances in which RDM found herself in the latter stages of her marriage to H2.

Mr Emslie’s report

  1. [54]
    Mr Don Emslie, psychologist, provided a report dated 23 June 2019 about RDM’s ‘suitability to interact with children’ in the context of seeking a blue card.[23] Mr Emslie administered the Personality Assessment Inventory test, as had Dr O’Dowd. He too found a tendency on RDM’s part to ‘present herself in a slightly favourable light’,[24] but commented that the profile was valid nonetheless. He also found no indications of significant psychopathology. Mr Emslie concluded that there are ‘no mental health issues or psychological problems that would prevent her from interacting with children’.[25]
  2. [55]
    Ms Rajapakse submitted that no weight should be placed on Mr Emslie’s report, for similar reasons to those submitted in relation to Dr O’Dowd’s. However, I regard Mr Emslie’s opinions as valid but, likewise, of limited significance for present purposes.

Referees

  1. [56]
    A number of RDM’s friends, and pastors from her church, have provided references. Several have spoken of observing RDM interacting well with her foster children, friends’ children, and children in church programs.
  2. [57]
    One of the friends and one of the pastors gave oral evidence.
  3. [58]
    The friend said that she had met RDM in 2012 or 2013, and over time they became friends. She supported RDM at H2’s criminal trial. She said that in the early years and at the time of the trial, she thought there was a lack of insight by RDM into the long-term impact of H2’s behaviour on the children. The friend thinks that through counselling, RDM has become very aware of the impact, particularly on FD.
  4. [59]
    The pastor said he has known RDM since 2016. In cross-examination, it became apparent that he has quite limited knowledge about RDM’s past relationships and why she was denied a blue card. Ms Rajapakse submitted that his evidence should be given limited weight because of his limited knowledge. I accept this. Accordingly, for example, I do not consider him in a position to say with authority that RDM has ‘overcome many of the behaviours and mindsets’ that characterised her dysfunctional background.[26] On the other hand, I have no reason to doubt that he can say, based on his observations, that RDM’s interactions with her children have been ‘normal + acceptable’. However, these observations would have been made in church contexts rather than in a wider range of settings.
  5. [60]
    Overall, I accept that referees have observed RDM’s interactions with children in social settings to have been appropriate.

Findings

  1. [61]
    As I have mentioned, RDM does not dispute the information provided by the Child Safety Department. I have also mentioned that while there are some internal inconsistencies within that information, key events and dates can be discerned. There is also no challenge to the information from the other agencies. I also regard as reliable the evidence assembled by RDM from health professionals and referees, subject to the limitations I have mentioned.
  2. [62]
    So far as RDM’s own evidence is concerned, RDM came across as genuine and plausible. She did appear to be somewhat vague or reluctant in her oral account of what FD had told her in 2010, but perhaps this is attributable to shame or unclear recollection. While RDM’s oral account could be consistent with a mere accidental touching of FD by H2, the weight of the summaries of evidence – including the expression of remorse by H2 and the reasons expressed by RDM for thinking that there would not be further sexual abuse – indicates that RDM was aware at the time that there had indeed been an instance of sexual abuse by H2 and not merely some accidental touching. I find accordingly.
  3. [63]
    I find that RDM became aware of the first instance of sexual abuse in 2010 but did not report it at the time to authorities or take steps other than speaking to H2 to try to ensure that further such abuse could not occur.
  4. [64]
    I find that there were four further instances of sexual abuse in late 2010, of which RDM became aware in March or April 2013. I find that she then asked H2 to leave but did not take other steps at that time, such as reporting the abuse to authorities. She first reported the abuse to an authority, namely the police, in late March 2014.
  5. [65]
    I accept that RDM had not condoned the sexual abuse, and that she believed until 2013 that there had been only the one instance.
  6. [66]
    I also accept the opinion expressed by the Child Safety Department assessor that RDM had limited insight into the emotional impact of the abuse.
  7. [67]
    I do not, however, place weight upon the references to RDM referring to FD as tending to lie or dramatise, or play the victim, without knowing the exact context of those remarks. They may have been genuine explanations, based on experience, given by RDM to investigators.
  8. [68]
    I also find that by mid-2013, at least, RDM was a victim of ongoing domestic violence by H2. There is ample compelling evidence about the severity of the situation in the latter half of 2013 and into the first three months of 2014. H2 was, clearly, a controlling and unpredictable abuser who created a climate of fear in the household.
  9. [69]
    I infer from the available evidence that the situation was different in 2010, when RDM learned of the first incident. It appears that this was during the ‘honeymoon’ phase. At that time, RDM was a needy person. She was still deeply affected by the loss of her son. She was very invested in making a success of the second marriage.
  10. [70]
    I consider that while RDM may well have been powerless to act rationally and protectively in 2013 and 2014, because of the pervasive domestic violence, she had been in a position to make choices in 2010. Unfortunately, she prioritised her relationship with H2 over the need to take decisive action to protect an eleven year old girl from the predations of H2. It must have been apparent that there was a real risk of further sexual abuse however steadfastly RDM hoped and believed it would not recur.
  11. [71]
    Having said that, there may well be an element of excessive self-blame in RDM’s evidence, particularly in her assessment of how she acted in 2013 and early 2014. H2, not her, was the abuser. While in hindsight RDM can say that she should have taken immediate decisive action to remove herself and the children, the reality was that her choices were constrained by quite horrible circumstances: she was a victim of domestic violence; she was profoundly depressed; and her world was falling apart. It is not all that surprising that she was slow to act.
  12. [72]
    I accept that RDM has since gained a much better awareness of the emotional impact of sexual abuse on children. I also accept that RDM is no longer suffering from depression, and is self-confident.
  13. [73]
    Ms Rajapakse for Blue Card Services questioned RDM’s insight into the emotional impact of domestic violence on children, based on how she answered some questions about where the children were during domestic violence incidents. RDM spoke of the children being in their rooms, or at other times staying with H1. Ms Rajapakse submitted that this showed a minimisation by RDM of the harm, when there was other evidence indicating that FD was well aware of the domestic violence and traumatised by it.
  14. [74]
    I am, however, not persuaded by those submissions. RDM had not been asked to give a full narrative description of these incidents, which must have been very traumatic for her too. I consider it probable that there were instances when the children were staying with H1, and that when they were at home, they would have been very conscious of the domestic violence even while staying in their rooms.
  15. [75]
    Ms Rajapakse submitted that the return of FD to RDM’s home when she was 17 does not show that RDM is suitable to care for children. I accept that. However, FD’s return is, at least, consistent with RDM’s evidence that a loving and caring relationship exists. I accept that evidence, which is consistent with the observations of the Child Safety Department assessor.

Protective factors and risk factors

  1. [76]
    Protective and risk factors are identified by Blue Card Services in its written submissions dated 19 March 2020.
  2. [77]
    Blue Card Services submits, and I agree, that RDM’s engagement in counselling, her study of counselling, and her social network are protective factors.
  3. [78]
    Blue Card Services says there are a number of risk factors, though I consider that several of these would be better characterised as background factors.
  4. [79]
    Blue Card Services submits that RDM’s behaviour caused distress for FD, causing her to contact police in relation to domestic violence and to run away from home on multiple occasions. I do not accept that this is properly characterised as a risk factor in relation to RDM, as she was the primary victim of the domestic violence rather than the perpetrator. It has no obvious relevance to how RDM would perform in a work context.
  5. [80]
    Blue Card Services submits that RDM placed her own interests before the interests of vulnerable children. Further, she was a woman of mature years when she did this. I accept that RDM did prioritise her relationship with H2 over the need to protect FD in 2010, and that this is a matter of considerable significance.
  6. [81]
    I do not, however, consider that the same can be said of RDM’s conduct in 2013 and 2014 because by that time RDM was subject to ongoing domestic violence. The disempowering effects of such abuse are now well understood in the community. We are also frequently reminded by media reports about the murders of women and children of the danger that can be involved in fleeing a violent relationship.
  7. [82]
    Blue Card Services submits that a further risk factor is a lack of empathy shown by RDM toward FD by referring to lies etc. However, as I have mentioned, I do not consider that weight can be placed on this matter without seeing the full comments in context.
  8. [83]
    Blue Card Services also points to the limited understanding displayed by RDM in 2014 of the emotional impact of sexual abuse. This lack of insight was even remarked on by the friend who gave oral evidence for RDM, though the friend considered that it had since been remedied. I have no reason to doubt that RDM now has a good appreciation of the impact as a result of her counselling and studies, and her discussions with FD.
  9. [84]
    Further risk factors identified by Blue Card Services are the grief, instability and reliance on alcohol noted by the Child Safety Department investigators. While these were undoubtedly issues of concern to the Child Safety Department at the time, it must be borne in mind that RDM would have been at a very low point in the pressure cooker atmosphere in the household in 2013 and early 2014. There is no evidence of a long-term significant alcohol problem. I am satisfied that RDM is now functioning well in her day to day life. I do not consider that there are presently, or likely to be in the foreseeable future, significant emotional or substance use problems, or that RDM’s emotional state is likely to intrude into work situations.
  10. [85]
    Blue Card Services also points out that a blue card enables a holder to work in any child-related employment or business, whether supervised or not, and with children of any age or vulnerability. This is a factor I will discuss under the next heading.

Section 228 factors

  1. [86]
    I have earlier outlined the factors that must be considered under section 228 of the Working with Children Act.
  2. [87]
    I have considered the decision of the Child Safety Department in relation to the ‘disciplinary information’, which is the decision to cancel RDM’s carer authority. I have also considered the reasons for that decision. There is no suggestion that the decision was reviewed or appealed.
  3. [88]
    I consider that the disciplinary information has relevance to employment or carrying on of a business that involves or may involve children. The disciplinary information relates to RDM’s care of foster children, including her level of awareness of the needs of children, and her level of preparedness and ability to protect children. One child in her care was sexually abused, and both were exposed to domestic violence. These are, of course, very serious matters, with long-term traumatic impacts on the children.
  4. [89]
    Blue Card Services submits that the Working with Children Act is premised on past behaviour being an indicator of future behaviour, and that a precautionary approach is warranted. I accept these submissions. Of course, it is also important to take into account any extenuating circumstances in which past behaviour occurred, the passage of time since the behaviour, and any subsequent self-development by the individual.
  5. [90]
    I accept that RDM is a caring person who has grown in self-confidence and in awareness of the needs of children. I accept that she normally interacts with children responsibly and appropriately.
  6. [91]
    Further, it must be borne in mind that assessing suitability for a carer authority is a different exercise from assessing whether an exceptional case exists for a blue card. Carer authority assessments must take into account how people function in their homes, in the intensity of family dynamics. A blue card is used in an employment setting: whether paid or voluntary. It is not uncommon for people to perform adequately at work despite problems at home or failings in their domestic behaviour.
  7. [92]
    Of course some work settings can be quite stressful, and I must take into account that a blue card would enable RDM to work in a range of settings where there may or may not be good supervision. For example, a blue card can be used for working with troubled teenagers.
  8. [93]
    Had RDM’s failure to adequately protect FD been confined to the time when RDM was a victim of chronic domestic violence, the outcome of this case might well have been different. There may have been grounds for concluding that the circumstances were so extreme that they say little about how RDM would function in child-related employment.
  9. [94]
    However, the failure was not so confined. RDM failed to act protectively in 2010, before the relationship with H2 degenerated. It is true that RDM was needy after having suffered the terrible loss of her son and after the disintegration of her first marriage. In light of this background, her inaction cannot be condemned as callous. However, she failed an important test of character in leaving FD at risk of further predation by H2 in order to maintain her own relationship with H2. This is a character failing, rather than some trauma that can be treated in counselling, or some lack of awareness that can be readily eliminated through study. RDM’s failure means that the community cannot have confidence in her to always prioritise the needs of children, however difficult or uncomfortable that may be.
  10. [95]
    Accordingly, I conclude that this is an exceptional case in which it would not be in the best interests of children for RDM to have a positive notice.

Conclusion

  1. [96]
    The decision made by Blue Card Services must therefore be confirmed.

Footnotes

[1] Direction dated 30 April 2020 pursuant to s 172(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[2] QCAT Act, s 20.

[3] Working with Children Act, s 6.

[4] Ibid, s 360.

[5] Ibid, s 231(1).

[6] Ibid, s 236(6).

[7] Ibid, s 228.

[8] Ibid, Schedule 7 (definition of ‘disciplinary information’).

[9] Ibid, s 221(1).

[10] Ibid, s 221(2).

[11] QCAT Act, s 19(a).

[12] Working with Children Act, s 228.

[13] I will use ‘Child Safety Department’ to refer to the Queensland Government departments – Department of Communities, Child Safety and Disability Services and later the Department of Child Safety, Youth and Women – responsible from time to time for child safety.

[14] Exhibit 3, [6].

[15] Ibid, [20].

[16] Dr Russell’s oral evidence.

[17] Exhibit 5, 1.

[18] Dr Russell’s oral evidence.

[19] Exhibit 5, 1.

[20] Exhibit 7.

[21] Ibid, 7.

[22] Ibid, 2.

[23] Exhibit 8, 1.

[24] Ibid, 2.

[25] Ibid, 3.

[26] Exhibit 13.

Close

Editorial Notes

  • Published Case Name:

    RDM v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    RDM v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 187

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    20 May 2020

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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