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FL v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 147

FL v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 147

CITATION:

FL v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 147

PARTIES:

FL

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML175-15

MATTER TYPE:

Childrens matters

HEARING DATES:

7 October 2015 and 1 December 2015

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

8 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency to issue a negative notice is confirmed.
  2. The Tribunal prohibits the publication of any information that may identify the applicant, her former partner, the applicant’s children and her community.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW - BLUE CARD – EXCEPTIONAL CASE - where no serious or disqualifying criminal offences – where other criminal convictions - where alcohol a factor in many past convictions - where anger management issues - where reduction in number of charges following decreased alcohol intake - where recent substantiated Child Safety notification about ability to protect child from harm - where history of domestic violence- where future relationship status uncertain - where applicant has undergone counselling - where support from Child Safety - where family and community support - where adult has recently commenced consuming alcohol again - whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), ch 8, s 5, s 6, s 7, s 221, s 226, s 354, s 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 & Anor [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:

Ms Kerrin Lawn, Solicitor, Qld Indigenous Family Violence Service, appeared for FL on 7 October 2015 and Mr Bruce Shaw, Solicitor, Qld Indigenous Family Violence Service, appeared for FL on 1 December 2015.

RESPONDENT:

Ms Natalie Taylor, in-house lawyer, appeared for Chief Executive Officer, Public Safety Business Agency.

REASONS FOR DECISION

  1. [1]
    FL previously held a positive notice and a blue card, which was issued to her in February 2007. However in October 2008, she was issued with a negative notice. The negative notice was later cancelled in July 2013. Then in September 2014, FL made application for a positive notice in order to obtain a blue card.
  2. [2]
    On 1 June 2015, the Chief Executive, Public Safety Business Agency (‘PSBA’) issued a negative notice to her. This means that she cannot hold a blue card. FL then filed an application for review of PSBA’s decision in the Tribunal.
  3. [3]
    The review hearing was listed for 7 October 2015. During the course of FL’s evidence, she stated that she had recently had contact with Child Safety. On the oral application of the PSBA, I adjourned the hearing to allow the Child Safety records to be obtained. The hearing continued on 1 December 2015.

The Review Process

  1. [4]
    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 Commissioner’s decision.[1] 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’).[2] For the review, the Tribunal has all the functions of the decision maker for the reviewable decision.[3] The purpose of the review is produce the correct and preferable decision following a fresh hearing on the merits.[4] In effect, the Tribunal stands in the shoes of the decision maker and makes the decision afresh.
  2. [5]
    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.[5] In a review proceeding, the welfare and best interests of children are paramount.[6]
  3. [6]
    Chapter 8 of the Working with Children Act sets out the procedure for deciding whether to issue a positive or negative notice. Section 221(1) sets out that in certain circumstances (which are relevant here), the Chief Executive must issue a positive notice.[7] In particular, a positive notice must be issued in circumstances that:
    • The Chief Executive is either not aware of any police information about the person; or
    •  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 a disqualifying offence[8] that has been dealt with other than by a conviction; or
    •   The Chief Executive is aware of a conviction of the person for an offence other than a serious offence.
  4. [7]
    However, if 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: s 221(2). That is, the presumption set out in s 221(1) is rebutted by an exceptional case. 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.[9]
  5. [8]
    What constitutes an exceptional case is a matter of fact and degree.[10] Hardship or prejudice suffered by an applicant is irrelevant.[11] What amounts to an exceptional case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur’.[12] It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.[13]
  6. [9]
    The passage of time is not determinative of whether or not a case is an exceptional case.[14] Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness.[15] The decision-maker also considers relevant risk and protective factors and balances those factors.[16]
  7. [10]
    In determining whether a case is an exceptional case, where a person has been convicted or charged with an offence, the Tribunal, standing in the Commissioner’s shoes, must have regard to the factors set out in s 226 of the Working with Children Act. Conviction in the Act, is defined to include any findings of guilt by a court.[17] The factors are relevantly as follows:
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (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;

…….

  1. (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.
  1. [11]
    Further, although not relevant here, information from the Director of Public Prosecutions, Corrective Services and the Mental Health Court must be considered.[18]

FL’s Circumstances

General Life History

  1. [12]
    FL was born in 1967 in a small remote Aboriginal community in Queensland. She lived there until she was aged three years old. She moved with her family to Bamaga, and then to Cairns, after her mother married her stepfather. She returned to the Aboriginal community she was born in as an adult. She has lived between Cairns and that Aboriginal community since 1988. She has three children, whom she has mostly raised in the Aboriginal community. She and her children currently reside in the Aboriginal community. She says that she likes to stay out of trouble, but that it is difficult in the small community, because trouble is always present.
  2. [13]
    Her children are aged 26, 21 and 4 years. FL separated from her partner of some 18 years, in about 2013. She lives with her son, aged 4. She has three grandchildren aged 9, 7 and approximately 1. She cared full-time for her two eldest grandchildren from the time they were 3 and 2 respectively until sometime in 2014 when they returned to their mother’s care. She continues to assist with their care.
  3. [14]
    FL completed high school senior, graduating in 1985. She commenced study in 1986 at TAFE. Later in 1986, she subsequently commenced study in early childhood education at James Cook University. She studied for two and a half years but then as a result of home- sickness moved back to her family. She holds a number of certificates in sport and recreation, housing, business governance and theology.
  4. [15]
    She has worked over the years in many and varied roles including as a healthcare worker; a council cashier; a community police officer; a truck and machine operator; a teachers aide; an after-school co-ordinator; a sport and recreation officer, a community ranger, a bank and postal manager. She was also Deputy Mayor of the Aboriginal community, and has been a justice member, an army reservist, a safe house worker and a member of the health action team. She explains that in a small Aboriginal community, the jobs often ‘come and go’ depending on the funding of the groups involved as employers. She has often worked with children and youth.
  5. [16]
    FL is a member of her local church. She attends each Sunday with her family and is supportive of community members.[19]

Criminal History

  1. [17]
    FL has a criminal history. None of the offences, of which she was found guilty, are defined as serious (or disqualifying) offences as defined in the Working with Children Act. Her history is as follows:

Court

Date

Offence

Result

Other Relevant Information[20]

MAGISTRATES COURT

13/02/1992

CARRY FIREARM WHILST UNDER THE INFLUENCE OF LIQUOR OR DRUG (31/12/91)

CONVICTED

PROBATION 6 MTHS

This offence occurred after an argument with a male person and involved FL intending to shoot herself.

MAGISTRATES COURT

26/03/1992

ASSAULT OCCASIONING BODILY HARM WHILST ARMED WITH A DANGEROUS WEAPON (18/3/92)

CONVICTED

PROBATION 12 MTHS

The dangerous weapon concerned was a knife. The person injured was FL’s brother. She jabbed him behind the ear from behind, cutting him, because she did not like what he had said to her. She did not intend to injure him, but to scare him. FL was under the influence of alcohol, but aware of what she had done.

MAGISTRATES COURT

06/01/1994

UNLAW ASSAULT (ON 02/10/93)

RESIST POLICE (ON 02/10/93)

THREATENING LANGUAGE (ON 02/10/93)

RECOGNIZANCE $250 & TO BE OF GOOD BEHAVIOUR FOR 12 MONTHS PURSUANT TO SECTION 32 OF THE PENALTIES AND SENTENCES ACT

RECOGNIZANCE $100 & TO BE OF GOOD BEHAVIOUR FOR 12 MONTHS PURSUANT TO SECTION 32 OF THE PENALTIES AND SENTENCES ACT

FL was making threats to kill and waving two pieces of wood at a police officer, as she was walking along the road. The police officer tackled her as she approached, knocking the wood from her hands. She struggled violently while 2 officers then walked her to the station, and in the process a knife fell out of her shirt onto the ground. She continued to threaten to kill the police officer.

MAGISTRATES COURT

07/07/1995

POSSN WEAPON WHILST NOT BEING THE HOLDER OF A LICENSE AS SPECIFIED IN SCHEDULE 2 OF THE WEAPONS ACT (4/4/95)

CARRY LOADED WEAPON IN A PUBLIC PLACE (4/4/95)

DISCHARGE WEAPON IN A PUBLIC PLACE (4/4/95)

POSSN WEAPON WHILST UNDER THE INFLUENCE OF LIQUOR OR DRUG (4/4/95)

DISMISSED ON ALL CHARGES: PURSUANT TO SECTION 91(A) OF THE PENALTIES & SENTENCES ACT NO CONVICTION RECORDED PROBATION 12 MTHS

Whilst intoxicated, FL carried a .22 calibre shotgun, along a dirt road. She began swearing and yelling that she was going to take her own life, then subsequently placed the firearm on a fence and discharged it in the direction of her chest, shooting herself.

MAGISTRATES COURT

30/01/1998

335 CC COMMON ASSAULT (ON 19/12/97)

469 10 CC WILFUL DAMAGE (ON 19/12/97)

469 10 CC WILFUL DAMAGE (ON 19/12/97)

CONVICTED AND FINED $100 IN DEFAULT IMPRISONMENT 3 DAYS TIME TO PAY 3 MONTHS

CONVICTED AND FINED $100 IN DEFAULT IMPRISONMMENT 3 DYS TIME TO PAY 2 MONTHS

COMPENSATION $200 IN DEFAULT IMPRISONMENT 6 DYS TIME TO PAY 1 MONTH

NO EVIDENCE TO OFFER DISMISSED

FL, who said she was very drunk at the time, attended shortly after 9am at the Community Council office. While there, she acted in an aggressive and hostile manner. She smashed a window. She used offensive language towards council employees, attempted to hit and kick one employee and spat at him twice.

She broke his optical glasses (which were in his shirt pocket) while he attempted to restrain her.

MAGISTRATES COURT

23/02/2007

CC COMMON ASSAULT (ON 16.11.06)

NO CONVICTION RECORDED FINED $200 I/D IMP 4 DAYS TIME TO PAY 3 MTHS

The complainant is a person employed by the Royal Flying Doctor Service (RFDS). FL attended at council premises, and engaged in a verbal argument with the complainant and then FL allegedly punched her in the head.

MAGISTRATES COURT

18/12/2009

[WA] 60(2) SECURE STORAGE OF WEAPONS – REGISTERED OWNER (ON 18/11/2009) BCS0903812770

CONVICTION RECORDED

FINED $200

TIME TO PAY: 28D

Police attended at FL’s home at 3am in relation to other matters. They located FL’s rifle in an unlocked storage room under the house. FL said she always diligently stored it securely and said she was unaware how this had occurred.

MAGISTRATES COURT

18/08/2014

[WA] 51(1) POSSESSION OF A KNIFE IN A PUBLIC PLACE OR SCHOOL (ON 24/07/2014) BCS1402537333

CONVICTION RECORDED

FINED $150.00

TIME TO PAY: 28D

At 7.40am, FL walked from her home to the home of her former partner and called out to the occupants. Police received multiple telephone calls from concerned residents who said they observed her holding a knife while yelling out. Police intercepted her as she walked home, observing her to place the knife in her pocket as they approached. It was confiscated and FL offered no lawful or emergent reason for having the knife in a public place.

FL’s evidence about her most recent offence on 24 July 2014

  1. [18]
    In respect of the most recent conviction for possessing a knife in a public place, FL was fined $150.00. She says that the gravity of the offence is reflected in the penalty that she received.
  2. [19]
    The police information, as discussed above, suggests that the local police received a number of calls from other residents of the town who were concerned about FL’s behaviour, and that she was holding the knife in her hand as she walked through the town. The police material says that FL was calling out to her former partner at the time. Further, the police material says that when FL saw the police vehicle, she put the knife in her pocket. FL denies this, saying that a police officer asked her if she had a knife and she said ‘yes’. She said she did not know how the police knew she had a knife. She says that in fact, she did not have the knife out in public, it was in her pocket.
  3. [20]
    FL further says that she was not near a school. She says that she did these things, at about 6:00am on the day concerned, in order to tell her former partner not to allow his partner to ‘post stuff on Facebook’. She spoke about ‘degrading’ comments about herself and her daughter being placed on Facebook. She says she took the knife because she thought that her former partner would ‘probably bash me’.
  4. [21]
    She gave some confusing evidence about the comments on Facebook. Apparently, the comments are posted anonymously, but she suspects that they are posted by a member of her former partner’s family, her former partner himself and / or her former partner’s ex-partner because, she says, that the person or persons concerned would not otherwise know about some of the things that are posted. She was also upset on that morning because at about 5:30am, her former partner’s mother had a conversation with her former partner’s brother, and there was a suggestion made by her that FL was involved in a relationship with her former partner’s brother. This is something which FL says she would not do.
  5. [22]
    She says that she had reported the Facebook posts to the police some two to three months earlier. The police suggested that she delete her Facebook page, which she did. However, her daughter and others who use Facebook told her about ongoing posts. She says that she asked the police whether they could have Facebook delete the page. She also says that she asked family and friends to report the posting of the offensive material to Facebook online. However, the posts on Facebook continued.
  6. [23]
    She explains that she acted as she did because, she simply wanted to tell her former partner to tell his partner to stop making posts. She was feeling hurt at the time and says she had enough of ‘stuff being posted’. In hindsight, she admits that it was ‘a silly thing to do’. She says it was not like her to walk the street with a knife in her hand. In response to the suggestion that she had earlier said she did not have it in her hand, she gave a confusing answer to the effect that she was ‘just saying that’ and that she did not do that ‘kind of thing’.
  7. [24]
    Initially, she did not accept that her actions had caused fear to other persons. She said that she thought other persons must have thought she was going to do something ‘really bad’, but asserted that she would not have. Later on, she said she supposed that she had caused fear.

The other convictions

  1. [25]
    In submissions to PSBA, FL expressed regret and remorse about her offending.[21] In the submissions, she said that in 1998, she made a decision to reduce her alcohol intake, which she acknowledges contributed to her earlier offending behaviour.[22] She also acknowledges that her anger issues have been a contributing factor and that her offending behaviour has been unacceptable, saying that she has taken steps to address her issues, and learnt skills to deal with her anger.[23] She handed in her weapons licence after the 2009 charge.
  2. [26]
    When cross-examined at the hearing more broadly about her criminal history and the offences involving assaults, FL said that in all of the offences, she had been defending herself against her brother, Harris. Further, she said she was young at the time.
  3. [27]
    When it was suggested to FL that she had a history of offending and there was a risk that she would do so again, she responded that she was ‘doing some counselling’. She also said that she was speaking to a family support worker; mostly keeping to herself; caring for her son and grandson; and keeping away from trouble (by going away ‘out bush, camping, fishing’).

History of domestic and family violence

  1. [28]
    In a written statement, FL says that for most of the period of their relationship, her former partner was a loving and caring man, but towards the end of the relationship he became increasingly violent. He became violent when he drank alcohol during the relationship. Her witness statement explains that at times when he was drunk, he physically, sexually and verbally assaulted her. In oral evidence on 7 October 2015, she said the history of violence spanned some 10 years.
  2. [29]
    The Child Safety material refers to a history of violence committed by both FL and her former partner.[24] It refers to both FL and her former partner having domestic violence orders against the other.[25] Consistently with FL’s evidence, the Child Safety material records her former partner as the main aggressor.[26] As a result of a violent incident in July 2015, her former partner is in jail. As a result of the incident, FL sustained two large wounds on her face above her eyes, which required stitches.[27]
  3. [30]
    The Child Safety material refers, for example, to FL hitting her former partner in the head with a shifting spanner in August 2013.[28] While FL acknowledges striking her former partner with it, she denies, contrary to the information in the Child Safety records (which record that FL, her former partner and her son were all in bed together),[29] that her son was present when this occurred. She says that they were living separately, but that her former partner sometimes ‘comes over and won’t leave’. She asserted that he ‘would have been drunk’ (although she could not recall whether he was, or was not, intoxicated). When asked why she hit him, she said it was because he was arguing with her and because he was seeing someone else. She also said it was only a ‘little’ shifting spanner, and suggested that if she had ‘just laid there, he’d have bashed’ her, ‘especially in the head’.
  4. [31]
    The Child Safety material also refers to verbal arguments between FL and her adult daughter.[30] FL said that her daughter has come to her house to argue with her, especially at night. She has asked her to come only when she is sober.
  5. [32]
    As discussed earlier, FL suggested that there was a history of violence between herself and her brother, which resulted in criminal charges when she defended herself against him.

Child Safety material generally[31]

  1. [33]
    There have been a number of Child Safety contacts. There is one notification of substantiated emotional harm to her son arising out of the July 2015 incident.[32] There are no concerns in the Child Safety material about the way FL parents her son, but there are concerns about her ability to adequately protect him from harm.[33] The Child Safety material indicates that FL has support and involvement with her family. However, Child Safety’s investigations suggest that FL does not engage with her family during the honeymoon phase of the domestic violence cycle after reconciling with her former partner: she contacts them only when the violence starts again.[34] FL, in responding to questions about this concern, said words to the effect of ‘He’s in jail. How can I be in the honeymoon phase’. When asked to comment on the cycle of violence, she replied ‘that’s why I never put children in front of people who are fighting’.
  2. [34]
    The material records that in the July incident her former partner assaulted FL while she was holding her son.[35] FL has told Child Safety that her son is afraid of her former partner and does not want to go with him.[36] She was encouraged by a Child Safety representative in July 2015 to see Legal Aid to seek ‘full custody’ of her son.[37] Child Safety representatives have also told her that they would be very worried for her son if she was to reconcile with her former partner, because this would mean her son was having contact with her former partner, which would likely result in her son being further exposed to significant violence or her son being harmed.[38] Information provided to Child Safety suggests that her former partner may use her son to get to FL.[39]
  3. [35]
    FL has been working with Child Safety to develop a Safety Plan for her former partner’s eventual release from custody and return.[40] That said, in oral evidence, FL said that she did not know why they still came to see her, because when he was released, they were going to do another plan. She also stated that she had not taken advice about seeking full custody: she said that she would do it when she was ‘ready, and that will be soon enough’. She then said she would ‘probably’ go when the court comes to town (suggesting that it visits monthly).

Relationship with her former partner

  1. [36]
    When asked if she intended to resume a relationship with her former partner, FL responded by asking why she would ‘want to live with a person who half kills you’. When asked how she could reassure the Tribunal of her intention not to do so, she spoke about not wanting to ‘sit on Centrelink’. When asked again, she said, words to the effect that she had just said she wasn’t and that she ‘can’t see into the future’. She said she had decided that she would not do so, when he kicked her face in, but said it was hard for him to keep away from her, although she had stayed away from him in the past.
  2. [37]
    When it was suggested to her that the Child Safety records indicated that in August 2015, she had said she was unsure if she would recommence a relationship with him upon his release, [41] she said that she had told them at the start that she was ‘not going back’, but they kept asking her and she got tired of it. When asked to comment upon concerns expressed by family members (in the Child Safety material) that she would reconcile with her former partner, she responded with words to the effect that ‘He’s in jail. I can’t sleep with him’.

Alcohol Consumption

  1. [38]
    As discussed above, FL’s submission to PSBA was that she decided to limit her alcohol consumption in 1998. FL’s written statement and oral evidence on 7 October 2015 were to the effect that in the past she drank alcohol, but that she stopped drinking alcohol altogether since falling pregnant with her son, her son. She said that she had tried drugs as young person but did not ‘like it’ and has not tried it again.
  2. [39]
    At the hearing on 1 December 2015, she said that she had resumed consuming alcohol ‘maybe a month back’, although only about once a week or once a fortnight. She said when she drinks alcohol, she consumes no more than a six-pack of mid-strength beer at a time. When asked why she had started again, she responded by asking whether there was a law against her drinking and stated ‘I just stop then start’.
  3. [40]
    She explained that she works at the ‘pub,’ and has done so since about June 2015, saying that working there stops her from drinking, because she cannot go drinking if she has to work. She also said that she stopped drinking when she was working at the safe house, and had to be there by 7am in the morning. FL worked at the safe house for the period 22 August 2014 to 9 June 2015.[42]
  4. [41]
    The Child Safety material includes a record that Child Safety were told by family member in July 2015 that FL and her former partner drink in their relationship, but that FL does not drink as much as she used to and not as much as her former partner.[43]

Mental health issues

  1. [42]
    The Child Safety material refers FL requiring intensive and ongoing counselling to understand the dynamics of her relationship with her former partner, as a result of which her ‘emotional stability should improve’. [44]
  2. [43]
    FL denies suffering from depression or anxiety or seeing a doctor for it. She said her suicide attempts occurred when she was young and she had not realised it would haunt her. She now tells people not to do it. She said she was able to deal with things in her own way. For example, by going fishing or camping or talking with her family.

Counselling

  1. [44]
    In 2012, FL commenced counselling at the Royal Flying Doctor Service (‘RFDS’). That counselling was for anger management and other relationship problems. She continued this for about two to two and a half years, but RFDS stopped attending at the Aboriginal community.
  2. [45]
    In 2015, she was referred by Child Safety to NS for family and domestic violence counselling. NS holds certificates III and IV in various areas including counselling. He has been counselling since 2011 but has no experience in reporting about appropriateness to work with children. According to NS, they have had about 8 sessions. The most recent session was about mid-October. He reports working with FL to strengthen her coping abilities for anger management and to develop safety plans to deal with circumstances when she experiences trigger situations.[45] His reports describe her as working well. He has told her about the detrimental impact that violence is known to have on young children and the need for her to modify her behaviour so that there is no negative impact on children in her care. In his most recent report, he stated that currently there are no significant risk factors and triggers which may affect her behaviour.[46]
  3. [46]
    NS also gave oral evidence on 1 December 2015. He explained that he had read FL’s criminal history and PSBA’s reasons for issuing a negative notice. He said that her main risk factor is ‘the perpetrator but he’s not in the community at the moment’. He said that they had ‘not yet’ discussed whether FL would resume a relationship with her former partner when he is released from jail. He described FL as using alcohol at the ‘base level’ and not binge-drinking, just having ‘a couple of beers or wines’. He spoke about techniques he had suggested to FL for anger management purposes, in particular, suggesting a powerful strategy was recognising the physical changes which occur in the body when a person gets angry, and then thinking about whether the event/issue is worth getting angry about and using breathing to calm down. He considered she was receptive, but had not yet needed to use the strategies.
  4. [47]
    Also in 2015, FL has been seeing a Family Support Worker every two to three weeks when she is in the Aboriginal community.
  5. [48]
    FL said that she had learned from counselling that ‘being with an aggressive person is not good, especially for a child’. She said that she knows it hurts the children and that it is not right for them to know what is going on. When asked about strategies she had learned, she referred to going fishing with her children. She wants to move forward and does not want to be classed as a bad parent. As discussed earlier, she says that she does not put children in front of people who are fighting.

Referee reports

  1. [49]
    FL presented a number of other referee reports in support of her application.
  2. [50]
    Only JE was made available for cross-examination. She has known FL for many years and was her manager when she worked at the safe house. She considers FL very good with children, a great worker and a good person. She was not aware of the detail of FL’s criminal history. She is not aware of any Child Safety interactions with her, nor the reasons for refusal of the blue card.

Is FL’s an exceptional case?

Parties Submissions

  1. [51]
    FL’s representatives submit that FL’s case is not exceptional. It argues that she has addressed her anti-social behaviour. She handed in her weapons licence. She has gained some insight through counselling. She has taken pro-active measures to address her alcohol consumption. She has ‘undertaken’ not to resurrect her relationship with her former partner. Further, they argue she has undertaken to formalise arrangements with her son.
  2. [52]
    Further, they argue on her behalf that she has held responsible positions in the past and worked with children previously and her offending has not interfered with her work and had only 3 convictions in the last 13 years. She has involved herself in church and community. While acknowledging that her last offence was only in 2014, they argue that she has had to deal with the blue card rejection and has not reoffended and has done all she can to reduce her triggers.
  3. [53]
    PSBA submits that its decision to issue a negative notice is the correct and preferable decision and that the decision should be confirmed. It acknowledges some protective factors. In particular, FL presents as willing to work with Child Safety; she has a supportive family network; and she has had steady gainful employment.
  4. [54]
    However, noting that FL was intoxicated when she offended on numerous occasions, it submits that as she is drinking alcohol again, that this constitutes a significant risk factor. It submits her criminal history reflects adversely on her ability to manage her anger and alcohol. Further, it argues that FL minimises her behaviour and claims that she was always defending herself against someone. It submits that this reflects poorly on her insight into her own behaviour. PSBA also submits that the recent substantiated instance of emotional harm made by Child Safety raising concerns about FL’s ability to protect her son from harm also represents a risk factor. PSBA suggests that she requires more counselling to assist her to gain insight and protective strategies. Further, so far she has not taken advice about custody of her son and there is uncertainty about her ongoing relationship with her former partner.
  5. [55]
    In summary, PSBA submits that FL has not yet been able to demonstrate that she can prioritise her son’s needs for a safe environment and has unresolved issues about her alcohol use, anger issues and interactions with her former partner which outweigh her protective factors.

Discussion and my conclusions

  1. [56]
    FL does not have any convictions for serious or disqualifying offences as defined in the Working with Children Act. However, for the reasons explained in the following paragraphs, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for FL to be issued with a positive notice.
  2. [57]
    I have given JE’s evidence little weight given that she had no knowledge of FL’s criminal and child safety history, nor PSBA’s reasons for issuing a negative notice. I have given the statements of persons who were not made available for cross-examination little weight as their evidence has not been tested.
  3. [58]
    NS is aware of FL’s history, criminal record and the reasons PSBA made its decision. However, he has no experience in reporting about child-related employment screening decisions. He reports that FL is working well. However, there are some limitations to the weight that can be given to his evidence about how well she is working. He has counselled FL on only relatively few occasions. The strategies for anger management that he suggested to FL were not identified by her, although she did say that she had learned that being with an aggressive person was not good for a child. Further, he has not seen her ability to apply anything she has learned, saying that she has not yet needed to use the strategies they had discussed. He suggested that her former partner is her main risk factor, despite FL’s own acknowledgment that more generally anger and alcohol issues have played a part in her criminal convictions over the years. The circumstances of those charges confirm that to be so.
  4. [59]
    I find that FL has some protective factors. I accept that she involves herself with her family, church and community which ensures she has support around her, although allegations are made, which she does not contradict, that she does not contact her family when she and her former partner are in the ‘honeymoon’ phase of the domestic violence cycle. She has been working with Child Safety. Her willingness to do so, is a positive and protective factor. She has also been willing to undergo some counselling. However, as discussed later, it is not clear that she has benefited to the desired extent from counselling at this point.
  5. [60]
    FL has also worked in the past in a variety of roles, some of which appear to have been responsible positions. She has not reoffended following the issuing of a negative notice, which was no doubt a significant blow to her aspirations to continue working at the childrens’ safe house. Further, the frequency of her criminal charges have decreased over the years: accordingly, it does appear that FL’s offending behaviour has diminished over time. Broadly speaking, the reduced number of charges coincide with the time from which FL decided to change her drinking habits, that is, in 1998.
  6. [61]
    However, I find that FL has numerous risk factors. For the reasons discussed in the following paragraphs, I find that these risk factors outweigh the protective factors.
  7. [62]
    I accept that FL has taken some preliminary steps towards gaining insight into her issues and making changes in her life to address them. She acknowledges, to some extent, anger and alcohol issues. She has attended counselling over several years. However, on the available evidence, I am not reasonably satisfied that she has developed real insight into triggers, risks and issues at this stage and that, in relation to matters about which she does have some insight, that she is equipped with the skills and strategies required to respond appropriately when she experiences risk and trigger situations. She did not identify the strategy NS referred to as being especially powerful when she is angry. He suggested that she had not needed to use the strategies they had discussed. FL’s evidence did not suggest that she had. I am not satisfied that her ability to implement any newly acquired knowledge and skills that she may have gained have not been tested.
  8. [63]
    FL has a significant history of criminal offending. Her criminal history spans 1992 and 2014, although in the last 10 years she has only three convictions. I accept that the penalties imposed have generally been small, suggesting that courts may have considered the offences relatively minor. I also acknowledge her expressed regret about the offending behaviour generally. However, I find that there is a significant risk that she will re-offend. The 2014 conviction is recent. Also, I am not satisfied that FL has fully accepted responsibility for her actions. Even now, she minimises her behaviour that led to the convictions. She blamed others, such as her brother, for her behaviour which led to convictions.
  9. [64]
    In respect of the 2014 conviction, she initially claimed that her actions would not have caused fear in other persons. This reflects poorly on her insight. She initially claimed that she did not carry the knife openly through the streets. Her version is inconsistent with reports to the police of a number of persons; the observations of the police officer/s who record seeing her place the knife in her pocket as they approached; and her own later comments at the hearing acknowledging the behaviour but suggesting that it was uncharacteristic behaviour for her and ‘a silly thing to do’.
  10. [65]
    I accept that she took the knife because her former partner would ‘probably bash’ her. This concern about how her former partner may likely react when she approached him seems well-founded, based on their history of domestic violence. Despite that, I am satisfied that she made a decision to confront him about Facebook posts which she considered degrading, (although it is not clear from her description of them just what they were or why they could be considered degrading). I am satisfied that she walked through the streets carrying a knife in her hand when doing so. Based on FL’s explanation, it is reasonable to infer, and I draw the inference, that her decision to confront him was made impulsively out of anger.
  11. [66]
    Of course, she has had more counselling since then. NS has explained strategies which may assist her with anger management. However, as discussed earlier, FL did not articulate strategies referred to by NS when cross-examined, casting doubt on the extent to which she has, at this stage, benefited from counselling.
  12. [67]
    Further, the relatively recent 2013 incident with the shifting spanner, which it appears, did not result in charges, is also a cause for concern. Again, FL minimised the conduct by saying that it ‘was only a little’ shifting spanner.
  13. [68]
    The Child Safety contact following her former partner’s violence towards FL, resulted in the substantiated Child Safety notification of emotional harm to her son in 2015, and concerns relating to FL’s assessed inability to protect her son from harm. Although her former partner is incarcerated, it is likely he will return to the community at some future point.
  14. [69]
    It is reasonable to infer from the events in 2013, 2014 and 2015, that FL has unresolved issues (including those associated with the cycle of domestic violence) in and arising from her relationship with her former partner. NS considers him a major risk factor.
  15. [70]
    FL’s has failed to take any steps at this stage to resolve issues around custody. Some months have passed since she was encouraged to do so. Although her former partner is not currently in the community and there may not be a sense of urgency, it would seem unwise to delay attention to this issue so that arrangements are in place for his return. Further, it is concerning that FL was defensive in giving her evidence about intentions to address it and when she would attend to it. Statements that she would do it when she was ‘ready’ do not engender confidence in her resolve to do so. On the evidence, I am not reasonably satisfied that she intends to do so, or to do so in a timely manner.
  16. [71]
    Similarly, her responses about her intentions towards her future relationship with her former partner were equivocal. I find that there is a significant risk that she will resume a relationship with him. Even if she does not do so, I am satisfied, based on events since the 2013 separation, that there is a significant risk that there will be ongoing conflict between them as a consequence of issues arising from the separation. This presents a risk that FL will engage in violent, potentially offending, behaviour, or again be a victim of such behaviour resulting in the likelihood of harm to children in her care.
  17. [72]
    FL, according to her statement, had not consumed alcohol since she fell pregnant with her son. Then on 1 December 2015, she initially stated that she had recently, that is, within a month, started consuming alcohol again. I do not accept this chronology. It is inconsistent with her later evidence (on 1 December 2015) and the Child Safety material which suggests that she has been consuming alcohol since her pregnancy with her son at various times. FL and NS report that she is consuming a limited amount and not on a frequent basis. The Child Safety material, which contains information from family members, although acknowledging she has reduced her alcohol intake, suggests she was drinking prior to a month ago, as does her own acknowledgment that she stopped drinking when she was working at the safe house in 2014.
  18. [73]
    I am satisfied that drinking alcohol is a risk factor for FL. A significant portion of her earlier offending behaviour occurred while she was intoxicated. It is also suggested in the Child Safety material that domestic violence may occur within the context of both her former partner and FL drinking alcohol, although I give this allegation little weight that FL was not asked about that issue.
  19. [74]
    I am cognisant that despite the history of mutual domestic violence and mutual domestic violence orders, her former partner is considered by Child Safety and NS to be the main aggressor, rather than FL. I accept that she is herself a victim in the cycle of violence. I am further cognisant of the undesirability of re-victimisation. Additionally, I accept as FL says that there is violence everywhere in her community. However, the paramount consideration in this review is the welfare and best interests of children. It is clear from the authorities referred to earlier that any hardship or prejudice to FL is irrelevant in deciding the proceeding.
  20. [75]
    I make the observation that FL has commenced a journey towards understanding and addressing her issues. I commend her for her efforts to date and encourage her to continue to do so. However, at this time, I find that FL has numerous significant risk factors which, at this stage, outweigh the protective factors in place around her.
  21. [76]
    On this basis, 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.

Orders

  1. [77]
    In light of my findings, the correct and preferable decision is to confirm PSBA’s decision to issue a negative notice. I make orders accordingly.

Non-publication order

  1. [78]
    The Tribunal has the power under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 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. [79]
    Some of the material considered by the Tribunal in these review proceedings contain information about FL’s 4 year old child, child safety notifications with the Department and incidents involving domestic violence. I am satisfied that there is no public interest served by disclosing any information which would identify the child. This information includes FL’s name, her former partner’s name, FL’s children and her community, in circumstances where disclosure of her name, her partner’s name and her community would identify her child. The Tribunal therefore prohibits the publication of all information which may lead to the identification of FL, her former partner, her children, and her community. The Tribunal’s reasons for decision can only be published to the public in de-identified format.

Footnotes

[1]Working with Children Act, s 354.

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

[3]Ibid, s 19(c).

[4]Ibid, s 20.

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

[6]Ibid, s 360.

[7]Ibid, s 221(1).

[8]Section 168 defines disqualifying offence.

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

[10] 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.

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

[12] In the marriage of Sandrk (1991) 104 FLR 394, at [399-400].

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

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

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

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

[17]Working with Children Act, sch 7 – ‘Conviction’.

[18]Working with Children Act, s 226(2)(b)(c) and (d).

[19]Exhibit 1, at page 45.

[20]Details extracted and summarised from Exhibit 1, Police Information pages 7-30.

[21]Exhibit 1, esp pages 46-48.

[22]Ibid, page 47.

[23]Ibid, pages 46-48.

[24]Exhibit 5. For example, see pages 21, 55, 63, 67.

[25]Exhibit 5, pages 21 and 67.

[26]Exhibit 5, page 21.

[27]Exhibit 5, page 119.

[28]See also Exhibit 5 at pages 55-67.

[29]Exhibit 5, page 55.

[30]Exhibit 5, at pages 40-41

[31]Exhibit 5.

[32]Exhibit 5, page 128.

[33]Exhibit 5, page 140.

[34]Exhibit 5, page 130.

[35]Exhibit 5, page 89.

[36]Exhibit 5, page 109.

[37]Exhibit 5, page 119.

[38]Exhibit 5, page 119.

[39]Exhibit 5, page 129.

[40]Exhibit 5, page 130.

[41]Exhibit 5, pages 147-148.

[42]Exhibit 6.

[43]Exhibit 5, page 122.

[44]Exhibit 5, page 143.

[45]Exhibits 8 and 9.

[46]Exhibit 9.

Close

Editorial Notes

  • Published Case Name:

    FL v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    FL v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 147

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    08 Jan 2016

Appeal Status

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

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