Exit Distraction Free Reading Mode
- Unreported Judgment
- Hattersley v Chief Executive Officer, Department of Justice & Attorney-General[2016] QCAT 373
- Add to List
Hattersley v Chief Executive Officer, Department of Justice & Attorney-General[2016] QCAT 373
Hattersley v Chief Executive Officer, Department of Justice & Attorney-General[2016] QCAT 373
CITATION: | Hattersley v Chief Executive Officer, Department of Justice & Attorney-General [2016] QCAT 373 |
PARTIES: | Stacey Lea Hattersley (Applicant) |
v | |
Chief Executive Officer, Department of Justice & Attorney-General (Respondent) |
APPLICATION NUMBER: | CML205-16 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 17 October 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 19 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPLICATION FOR REVIEW – BLUE CARD – NEGATIVE NOTICE – whether not in best interests of children to issue positive notice RISK FACTORS - where applicant charged with stalking from neighbour dispute – where no evidence offered and applicant discharged – where Tribunal not reasonably satisfied that alleged circumstances are risk factor – where more recent charges relating to anti-social behaviour from workplace incident – where offending behaviour did not involve children nor were children present – where behaviour was response to workplace bullying and not without context – where behaviour still of concern to community – where children depend on adults to have insight into their actions and likely effect PROTECTIVE FACTORS – where expert evidence that applicant has deep love for children and capacity to help most vulnerable – where extensive support network and regular counselling – where applicant accepted her share of responsibility for incidents – where applicant implemented preventative strategies –– where positive references of inspirational work with children - where applicant expressed remorse – where applicant has provided stable, supportive and safe environment for children – where incidents were aberrations arising from real or perceived threats to applicant and her children - where applicant has led mainly responsible life as contributing member to community – where applicant tried to send written apology NOT EXCEPTIONAL CASE - where applicant’s insight, proven commitment to her family and children as parent and foster carer and ongoing efforts to address her past indiscretions outweigh risk factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 221, s 226, s 360, Schedule 1 Briginshaw v. Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492 CON v. Chief Executive Officer, Public Safety Business Agency [2014] QCAT 395 CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 DD v. Chief Executive, Public Safety Business Agency [2015] QCAT 349 GW v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 252 Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293 Harley v. Department of Justice and Attorney-General [2012] QCAT 620 |
Kehl v. Board of Professional Engineers of Queensland [2010] QCATA 58
Moore v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 123
MWL v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 370
Peri v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
Pritchard v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
Re TAA [2006] QCST 11
Sargent v. Chief Executive Officer, Public Safety Business Agency [2016] QCAT 333
Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr Luke Seitz of James McConville & Associates Pty Ltd, solicitors appeared for Stacey Hattersley
RESPONDENT: Mr John Thompson, Principal Legal Officer appeared for the Chief Executive Officer, Department of Justice & Attorney-General
REASONS FOR DECISION
What is this Application about?
- [1]Those who know Stacey Hattersley describe her as “inspiring”. She is the proud mother of two young children and has been a proud foster parent for four other children, including a two year old who was been in her care since just 23 hours old. She has devoted herself to her family and children. She has also worked diligently as a behavioural support aide and volunteer for children at her local school. Her husband is a former police officer who retired early due to injury.
- [2]Mrs Hattersley’s heart broke when on 9 August 2016, the Chief Executive Officer of the then Public Safety Business Agency – based on information at the time - issued her with a ‘negative notice’, meaning that she cannot work with children.[1] Her foster children were removed from her care.
- [3]Mrs Hattersley wants the Tribunal to review the Chief Executive’s decision. Because Mrs Hattersley is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice unless her case is ‘exceptional’.[2]
What does the Tribunal do?
- [4]In a review application, the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3] This means that Mrs Hattersley does not need to prove any error by the Chief Executive in its decision – the Chief Executive’s decision is not presumed to be correct.[4]
- [5]
Is it not in the best interests of children to issue a positive notice to Mrs Hattersley?
- [6]Because a positive notice authorises a person to work with children in any environment, the welfare and best interests of a child are paramount.[7]
- [7]Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[8]
What are the risk factors in issuing a positive notice to Mrs Hattersley?
- [8]Although Mrs Hattersley was charged with stalking in 2012 due to an incident with neighbours, the Chief Executive originally issued Mrs Hattersley with a positive notice to allow her to work with children.
- [9]The catalyst for the Chief Executive’s decision to later issue Mrs Hattersley with a negative notice was a separate and unrelated work dispute in 2015, culminating in Mrs Hattersley being convicted and fined $500.00 and placed on a good behaviour bond for unlawful stalking and using a carriage service to harass or cause offence.
- [10]In deciding that Mrs Hattersley’s case was ‘exceptional’, the Chief Executive considered the alleged 2012 incident in conjunction with the recent 2015 behaviour and decided that all entries on Mrs Hattersley’s criminal history were relevant. The Chief Executive also reasoned that the issuing of a restraining order relating to the alleged 2012 incident suggested that the Court considered legal restrictions were required to control Mrs Hattersley’s future conduct.
- [11]The Tribunal notes that the Court may issue a restraining order regardless of any conviction. Relevantly, Mrs Hattersley was not convicted of anything arising from the alleged 2012 incident.[9] Mrs Hattersley disputed most of the allegations and in particular any inappropriate behaviour towards children.
- [12]The 2012 charge arose out of a neighbour dispute. Mrs Hattersley is alleged to have made derogatory remarks to her neighbour, including to and in the presence of the neighbour’s children. Mrs Hattersley did admit to possibly calling the neighbour a “pervert” and telling him to “B------ off and leave our children alone” and the neighbour’s child to “P--- off and leave our dog alone”.
- [13]Mrs Hattersley explained that her behaviour towards the neighbour was triggered by her neighbour threatening to rape and kill her and improperly filming her children, while she had retorted the child for tormenting her dog, to the extent that it required veterinary treatment. She said that the neighbour had directed cameras to her house and she had reported this to police. Ms Rebecca Raper, a senior police constable and friend of Mrs Hattersley gave evidence that the neighbour had also made rude hand gestures directed to her when she visited Mrs Hattersley with her own children - separate from the neighbour’s alleged behaviour towards Mrs Hattersley.
- [14]No evidence was offered to support the charge giving rise to the restraining order and Mrs Hattersley was ultimately discharged. The complainant neighbour did not provide a statement of evidence to the Chief Executive or the Tribunal.
- [15]The allegations are serious within a legislative framework designed to protect children: that Mrs Hattersley was verbally abusive towards, or at least in the presence of, children. The Chief Executive submitted that the interests of children generally, rather than particular children, are to be regarded in determining whether to issue a negative notice.
- [16]However, this does not prevent me considering the impact or seriousness of the neighbour’s allegations in determining whether they meet the requisite standard of proof to be considered a risk factor:
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[10]
- [17]The gravity of the consequences flowing from a finding of verbal abuse is far-reaching and beyond any impact on Mrs Hattersley: the potential issuing of a negative notice and severing of strongly nurtured maternal bonds she has developed with children in her long-term care. These considerations are apposite to whether the alleged circumstances of the 2012 charge that are claimed to present as a risk factor, have been proven to the requisite standard of proof.
- [18]The police brief would appear to reflect the neighbour’s version of events and refers to unnamed witnesses. Unfortunately, neither the neighbour nor any witness gave evidence to support the original complaint or attended the current hearing to give evidence. In the absence of this evidence to support the allegations, combined with the evidence of Mrs Hattersley and Ms Raper of the neighbour engaging in his own ostensibly provocative behaviour, the Tribunal cannot be reasonably satisfied that the alleged circumstances of the 2012 charge present as a real risk factor.
- [19]The only evidence before the Tribunal suggests that the neighbour’s own behaviour may have at least been a contributing factor to the dispute that led to the restraining order. Mrs Hattersley’s admitted responses may not have been ideal, but were certainly understandable in the context of real or perceived threats to the safety and welfare of her family. These ostensibly provocative circumstances are unlikely to repeat and I consider them to present as a minimal, if any, risk factor.
- [20]Both 2015 charges relate to anti-social behaviour arising from a workplace dispute. The Tribunal cannot go beyond the convictions and must accept them as is.[11] However, the Tribunal must regard the nature of the offences and their relevance to working with children,[12] the penalties imposed[13] and anything else relevant to the offence.[14]
- [21]In particular, the Tribunal notes that the offending behaviour did not involve children nor were children present. Rather, Mrs Hattersley drove her car in front of a work colleague to confront her about her involvement with workplace bullying directed towards Mrs Hattersley and then posted some inappropriate Facebook posts about the colleague.
- [22]It would appear that Mrs Hattersley’s behaviour was a response to having been subjected to at least some degree of workplace bullying over an extended period, including being accused of having an extra-marital affair and being told that she walked “too straight” and she should “slump her shoulders more”. While this does not justify her behaviour, it does show that it was not without context.
- [23]The Court recorded no conviction for the offences and imposed a penalty of a relatively modest fine, suggesting the offences were in the lower range of seriousness. However, in imposing a 12 months good behaviour bond, it would seem that the Court did consider that some degree of supervision of Mrs Hattersley’s behaviour – at least in the short to medium term - was warranted.
- [24]Although the Tribunal infers from the penalty that Mrs Hattersley’s behaviour is at the lower end of the scale, it is still of concern to the community. I accept the Chief Executive’s submission that the behaviour showed an absence of self-control and a poor response to stress and conflict. It shows a considerable lack of judgement by Mrs Hattersley.
- [25]I am satisfied that the Mrs Hattersley’s anti-social behaviour in 2015 was inappropriate and does present as a risk factor relevant to assessing whether she should work with or care for children: children depend on adults to have insight into their actions and their likely effect.[15]
What protective factors favour issuing a positive notice to Mrs Hattersley?
- [26]At the time of filing its Statement of Reasons, the Chief Executive expressed concern that Mrs Hattersley’s behaviour showed a disregard for others’ wellbeing and she had not addressed its triggers. The Chief Executive was concerned about Mrs Hattersley’s ability to reflect on the impact of her behaviour on others. The Chief Executive noted that a person aware of the consequences of their actions on others is less likely to re-offend and Mrs Hattersley’s insight into harm caused by her behaviour was unclear.
- [27]However, during the hearing, Mr Thompson of Counsel for the Chief Executive assisted me by highlighting more recent illuminative evidence. In particular, Mrs Hattersley provided an expert report from her treating psychologist, Jan Gudkovs.[16]
- [28]In preparing her report, Ms Gudkovs had the benefit of the Chief Executive’s reasons for issuing Mrs Hattersley with a negative notice and was aware of Mrs Hattersley’s criminal history. Ms Gudkovs’ report noted many protective factors:
- Mrs Hattersley has a deep love for children and capacity to help the most vulnerable. She is a confident and outgoing person who deeply cares about children and is strongly motivated to care for and protect them;
- Mrs Hattersley and her husband treat all of their children as their own;
- The two year old child who suffered neglect and abuse from a previous carer has made significant progress in Mrs Hattersley’s care;
- Mrs Hattersley has shown insight into her behaviour and its impact on others. She understands the causes of her anger and how it can damage others. She is deeply committed to having better anger management strategies. She acknowledges her behaviour as thoughtless and lacking consideration for others. She has much greater insight and self-control and is particularly regretful if the neighbour’s children witnessed any verbal abuse towards her neighbour;
- The triggers for Mrs Hattersley’s inappropriate behaviour relate to herself or her children being threatened or abused;
- Mrs Hattersley has a happy and social disposition. She is normally kind and caring and translates this into action as evidenced by the character of her children who have been described as displaying “loving, respectful and merciful behaviour”.[17] In Ms Gudkovs’ professional opinion, children can only develop in this way through consistent example provided by their parents;
- Mrs Hattersley has an extensive support network and readily avails herself of informal and professional counselling;
- Mrs Hattersley accepts her share of responsibility for the incidents. She feels “appropriately remorseful” but more importantly, has learned about the instigation of anger and its consequences. In Ms Gudkovs’ professional opinion, Mrs Hattersley is “deeply saddened” that her actions could upset her children or those in her care;
- Mrs Hattersley showed “considerable self-control and thoughtfulness” to protect both her own biological children and her foster children from emotional disturbances when removed from her care;
- Mrs Hattersley recognises that her “buttons only needed to be pressed lightly when it came to perceived wrongs towards herself and her family”, resulting in verbal - but never physical – abuse;
- Mrs Hattersley has implemented preventative strategies to reduce the risk of repeating inappropriate behaviour including regular meditation, assertiveness skills, reducing her workload outside her family and children and continuing to attend counselling sessions targeted towards her particular circumstances;
- In Ms Gudkovs’ professional opinion, Mrs Hattersley’s grief over her past anger and lack of judgement is not superficial, but relates to a deep commitment she has to the well-being of children; and
- In Ms Gudkovs’ professional opinion, Mrs Hattersley had learned not to react to what people say.
- [29]Ms Gudkovs’ evidence specifically addresses the triggers for Mrs Hattersley’s behaviour. It reveals Mrs Hattersley to be a lady who has learned from and is regretful about her past indiscretions and highly motivated to be the best she can for the children she loves.[18] Mrs Hattersley understands the nature and causes of her previous behaviour[19] and most importantly, its impacts on others. She has a long and stable relationship with her husband who is a former police officer and remains supportive.[20]
- [30]Mrs Hattersley’s strong support network was underscored by positive character references attesting to her dedication to and inspirational work with children.[21] Two of these referees, senior police constable Rebecca Raper and school principal Christine Dolley gave oral evidence.
- [31]Both Ms Raper and Ms Dolley were aware of the 2012 and 2015 incidents and were steadfast in their positive views of Mrs Hattersley. Both ladies described Mrs Hattersley as “inspiring” with children. Both ladies were unflinching, firm, confident, open and direct when giving their evidence. Both ladies have experience with children and have known Mrs Hattersley for a considerable period. I therefore accept their evidence of Mrs Hattersley’s positive and caring influence on children for whom she cares and with whom she interacts.
- [32]During the hearing, Mrs Hattersley expressed remorse and concern on how her behaviour might have affected children and others involved. She admitted and recognised her poor choices in the situations and showed a genuine regret for her behaviour. She was adamant she would behave differently and articulated coping strategies.
- [33]Mrs Hattersley spoke at length about her family. She expressed the same deep and caring emotions and used the same descriptions for her foster children as she did for her own children. She described each of them as “perfect”. She became distraught at the mere thought of any of them being hurt. She became visibly distressed when describing her foster children’s ordeals when not in her care.
- [34]Mrs Hattersley has a passion for children with high needs. She successfully fought to have one of her foster children’s medical treatment prioritised, as any caring parent would.
- [35]Situations of conflict and turmoil will arise that may test a mother’s love. Significantly, Mrs Hattersley’s love as a mother shone at the moment of greatest upheaval to her family. When her foster children were being removed from her care, Mrs Hattersley selflessly placed the interests of her foster children above hers, by reframing it for them as a positive experience and facilitating their move to other carers with the least disruption, while keeping her own emotions in check.
- [36]It is clear that Mrs Hattersley provides a stable, supportive and safe environment for children. Given Mrs Hattersley’s unblemished record prior to these two unrelated incidents and her positive actions before and since, I am satisfied they are aberrations arising from real or perceived threats to Mrs Hattersley and her own children, unlikely to repeat.
Is this an ‘exceptional case’ to not issue a positive notice to Mrs Hattersley?
- [37]The Tribunal does not condone Mrs Hattersley’s behaviour. Adult behaviours can harm children even when not directed towards them. Witnessing or being exposed to anti-social behaviour can adversely affect children. For example:
It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[22]
- [38]However, Mrs Hattersley has led a mainly responsible life as a contributing member to her community. I am not satisfied that the incidents represent a permanent departure from her usual standards of behaviour.[23] Mrs Hattersley’s indiscretions appear to have arisen from situational circumstances, rather than her inherent character.[24] I am satisfied that Mrs Hattersley has taken steps to address the triggers for her aberrant behaviour, sufficient for these triggers to present as minimal risk.
- [39]Her positive steps and her lengthy history of caring for others ameliorate the relative recency of the behaviour.[25] Even in the 12 months since the 2015 incident, Mrs Hattersley has shown considerable personal growth and continues to work on herself.[26] She has another job with a far more pleasant environment, she has engaged health professionals and her strong support network for help on how to behave in threatening situations and is learning preventative strategies to minimise the risk of repetition (she articulated them several times throughout the hearing). She has tried to send a written apology to one of the other persons involved.
- [40]The community expects those working with children to at least understand how and why their past discretions were inappropriate, as children depend on adults to have insight into their actions and their likely effect.[27] I am satisfied that Mrs Hattersley has shown this understanding.
- [41]Mrs Hattersley has a sincere and demonstrated commitment to the welfare of children.[28] She works well with children generally and has performed exceptionally well as a foster parent. She is attuned to the cultural needs of children in her care and has consistently worked with government agencies to achieve the best result for children in her care, often at considerable cost to herself - emotional and otherwise.[29]
- [42]I am satisfied that Mrs Hattersley’s demonstrated insight into her conduct, her proven commitment to her family and children as a parent and foster carer over an extended period[30] and the impressive results she has achieved with children in her care[31] and her ongoing efforts to address her behaviour leading to her past indiscretions, outweigh any risk factors.
- [43]During the hearing, Mrs Hattersley’s solicitor, Mr Seitz assisted me by referring me to the following legal proposition:
The Tribunal is not to determine the question predicated on the basis that there is to be no risk. That is not the appropriate test. The relevant function of the Tribunal is to undertake an analysis and evaluation of risk. The weight the Tribunal applies to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.[32]
- [44]The risk factors do not outweigh the protective factors.
- [45]Mrs Hattersley’s case is not ‘exceptional’.
Conclusion
- [46]The correct and preferable decision is therefore to set aside the decision of the Chief Executive Officer, Public Safety Business Agency on 5 August 2016 that Stacey Lea Hattersley’s case is “exceptional” within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) and replace it with the Tribunal’s decision that there is no exceptional case.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 156 and
Schedule 1.
[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
[4] Harley v. Department of Justice and Attorney-General [2012] QCAT 620 at [8], citing
with approval Kehl v. Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
[5] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[6] Commissioner for Children and Young People and Child Guardian v. Maher & Anor
[2004] QCA 492.
[7] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6(a), 360.
[8] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(b).
[9] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226(2)(a)(i).
[10] Briginshaw v. Briginshaw (1938) 60 CLR 336, per Dixon J (as His Honour then was) at
[11] Pritchard v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
at [36], citing with approval Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293 at [19]; Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 at [37].
[12] Working with Children (Risk Management and Screening) Act 2000 (Qld) s
226(2)(a)(iv).
[13] Working with Children (Risk Management and Screening) Act 2000 (Qld) s
226(2)(a)(v).
[14] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226(2)(e).
[15] Peri v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 at
[49], citing with approval Re TAA [2006] QCST 11.
[16] Report of Jan Gudkovs, Psychologist dated 23 September 2016.
[17] Reference of Leanne Reinbott dated 15 November 2015.
[18] DD v. Chief Executive, Public Safety Business Agency [2015] QCAT 349 at [41].
[19] GW v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 252 at
[46].
[20] CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [45];
Moore v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 123 at
[58].
[21] References of Leanne Reinbott, foster carer dated 15 November 2015 and 24 August
2016; References of Rebecca Raper, police officer dated 23 November 2015 and 22 August 2016; Reference of Scott Boyd, kinship carer undated; References of Christine Dolley, School Principal dated 25 February 2016 and 28 August 2016; Reference of Aleysha Schmidt dated 24 August 2016; Reference of Kirsten Armstrong dated 25 August 2016; Reference of Kylie Matai dated 23 August 2016.
[22] CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [61], [67].
[23] Pritchard v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 at
[44].
[24] CON v. Chief Executive Officer, Public Safety Business Agency [2014] QCAT 395 at
[44].
[25] MWL v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 370 at
[26]; Pritchard v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT
25 at [44].
[26] Moore v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 123 at
[60].
[27] Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [49],
citing with approval Re TAA [2006] QCST 11.
[28] CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [45].
[29] Foster Carer Applicant Assessment and Recommendation Form dated 4 March 2015.
[30] Moore v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 123 at
[58].
[31] Moore v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 123 at
[59].
[32] Sargent v. Chief Executive Officer, Public Safety Business Agency [2016] QCAT 333 at
[26].