MYN v Chief Executive, Public Safety Business Agency
[2016] QCAT 443
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- MYN v Chief Executive, Public Safety Business Agency[2016] QCAT 443
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MYN v Chief Executive, Public Safety Business Agency[2016] QCAT 443
MYN v Chief Executive, Public Safety Business Agency[2016] QCAT 443
CITATION: | MYN v Chief Executive, Public Safety Business Agency [2016] QCAT 443 |
PARTIES: | MYN (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML245-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 23 & 24 March 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard |
DELIVERED ON: | 21 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
(ii) Except to the parties, the reasons for decision may be published in de-identified format only. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - Blue card – where applicant issued with negative notice - where no serious offences – where other recent criminal charges – where history of violent relationship – where history of mental health – where history of substance abuse – where history of Child Safety involvement – whether exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 167, s 221, s 226, s 360, Schedule 2 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 Maher & Anor [2004] QCA 492 Commissioner for Children & Young People v Ram [2014] QCATA 27 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 |
APPEARANCES:
APPLICANT: | MYN represented herself. |
RESPONDENT: | Ms K. Heath, Advocacy Officer, appeared for the Chief Executive, Public Safety Business Agency. |
REASONS FOR DECISION
- [1]MYN was issued with a negative notice by the Chief Executive of the Public Safety Business Agency (‘PSBA’). This means that she cannot hold a blue card and has been unable take up a position to which she was elected on her parish council.
- [2]MYN applied to the Tribunal for review of the decision.
The legislative framework for the review
- [3]The paramount consideration in employment screening decisions under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) is a child’s entitlement to be cared for in a manner that protects the child from harm and promotes the child’s wellbeing.[1]
- [4]It is uncontroversial that MYN has not been convicted of a serious offence.[2] Accordingly, under s 221 of the WWC Act, the PSBA must issue a positive notice,[3] unless it is satisfied it is an exceptional case in which the best interests of children would be harmed if a positive notice was issued.[4] If the PSBA is satisfied that it is an exceptional case, then the PSBA must issue a negative notice.[5]
- [5]‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree.[6] It is settled law that it is a broad discretion considering the merits in each case.[7] Hardship or prejudice suffered by an applicant is irrelevant.[8] What amounts to an exceptional case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur.’[9] It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.[10] The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.[11]
- [6]Section 226 of the WWC Act sets out a non-exclusive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to whether it is a conviction or a charge; whether the offence is a serious offence and if it is, whether it is a disqualifying offence; when the offence was committed; the nature of the offence and its relevance to employment that may involve children; and in the case of a conviction, the penalty imposed by the court and the court’s reasons for its decision.[12] Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[13]
MYN’s criminal history information
- [7]In October 2014, MYN was convicted on charges of wilful damage and common assault. The Magistrate ordered that no conviction be recorded, and imposed a good behaviour period of six months and recognisance of $500.
- [8]The charges arose out of events in July 2014, when MYN attended a hospital emergency department seeking assistance for mental health issues. While she was there, she caused damage to a hospital wall and was asked to leave the hospital. It was alleged that as she was leaving the waiting room, she used her right forearm to push the complainant’s chest, pushing her backwards into a wall. The complainant herself suffered no injuries.
- [9]Following the incident, the police attended. MYN cooperated fully with the police. She said that she had been asked to leave after kicking a waiting room wall. In respect of the alleged assault, at that stage, she said that there were numerous staff around the doorway and she accidently bumped the complainant, but she did not intend to assault her.
- [10]MYN entered a plea of guilty in respect of the wilful damage charge. She pleaded not guilty to the common assault charge. Although she acknowledged there was contact between her and the complainant as she left the room, she raised the defence of accident. Nevertheless, the Magistrate was satisfied on the evidence that MYN had pushed past the victim in circumstances that she could reasonably have foreseen the events which occurred, that is, there was contact between herself and the complainant, unless great effort was made to avoid it. Accordingly, she considered the defence of accident was negated.[14]
- [11]In sentencing MYN, the Magistrate was at pains to say that although she accepted on the evidence that there was an assault, that it was ‘at the absolute lower end of the scale.’[15] MYN says, and it is clear that the Magistrate accepted,[16] that MYN’s attendance at the Mental Health Unit were poorly dealt with by some of the staff at the Mental Health Unit. In light of MYN’s otherwise unblemished record, she imposed a minimal sentence and did not record a conviction.
- [12]Neither of the offences are defined as serious offences under the WWC Act.
MYN’s life history
- [13]MYN was five years old when her parents separated. She began school the following year. At this stage, she went to live with her maternal grandparents. Over her childhood years, she lived with her mother at times, and with her father at others, attending many different schools. She was aware of domestic violence between her parents but cannot recall any particular events. When she was 14 years old, her father was aggressive towards her and the police were called. Shortly afterwards, she went to live with her mother. However, at age 15 she moved out of her mother’s home, although later returned briefly. She was diagnosed with anxiety while she was living away from home.
- [14]She describes her childhood as unstable, and recalls being blamed for ‘everything’. She has since rebuilt her relationship with her mother. It is now stable, solid and nurturing. She would like a relationship with her father, but considers it is not in her interests to engage with him at this stage.
- [15]MYN has worked and/or volunteered for most of her adult life, at least part-time. She has always been involved in sport, and at times has been a sports coach for children’s teams. In her current employment as a [redacted], she receives supervision. In addition to her paid employment as a [redacted] she is also [redacted]. As I understand it, these are all paid positions.
- [16]MYN has four children.
- [17]In 2001, she commenced a relationship with XA, whom she subsequently married. They have two children together, DN and RN, born in 2002 and 2004 respectively. She and XA separated in late 2004, but successfully co-parented the children for many years. There was no domestic violence in her relationship with XA.
- [18]MYN had a relationship with XB between September 2007 and August 2010, although MYN left him for a period of six months in 2009. XB and MYN have a child, HN born in early 2009. XB was violent towards MYN commencing during her pregnancy. On one occasion during her pregnancy, the violence resulted in MYN being hospitalised. She describes him as very angry.
- [19]When she experienced domestic violence with XB, MYN says she sought help but there were gaps in the support available for people in her situation. She also explained that within his social circle she was exposed to drugs.
- [20]HN was born at 28 weeks gestation and spent nine weeks in hospital. During this period, unknown at the time to MYN, she says XB disciplined DN and RN in an unacceptable manner. She says that Child Safety accepted that she was the protective parent. She developed post-natal depression. She moved out as she considered the environment with XB was not safe for her or the children once she became aware of how he was disciplining DN and RN. Although they later reconciled after he claimed he had changed, she says she soon realised that he had not. They separated again.
- [21]She says that subsequently, he became abusive and volatile towards her when he thought she was involved with someone else. During 2012, on one occasion he arrived intoxicated and with a friend at her home at 11pm. As a result of other events that evening, XB subsequently separated from his girlfriend. He blamed MYN.
- [22]MYN’s current partner, XC is the father of her youngest child, who was aged 3 months at the time of the hearing. They began their relationship in 2013. She says that shortly after that, she tried to discuss HN’s education with XB. He responded by telling her that XC was cheating on her and sending abusive text messages. One afternoon when she went to collect HN from day-care, she was told XB had advised the school she was on holidays and cancelled her enrolment. He told her that unless she admitted that XC was harassing him, she would not see HN. He subsequently refused to allow MYN any contact with HN for some two years. MYN sought legal advice. She considers that his actions in withholding HN from her are a further act of domestic violence and an attempt by him to control her. She is still pursing parenting matters in the Family Court of Australia.
- [23]After HN was withheld from her, MYN became very depressed and felt she was not coping. Over the next six months, she describes spiralling downwards. Sometimes, when contact had been arranged for her to see DN and RN, she contacted XA advising him that she was not in a good place and she could not have the children, she says to be protective of them. She cried a lot. She self-medicated with marijuana and alcohol. Around the same time, she was prescribed medication. These events occurred between about August and November 2013.
- [24]Around that period, domestic violence also occurred in her relationship with XC. She says that the domestic violence between them was limited and occurred about six months after XB removed HN. MYN attributes this to her untreated mental health issues. She believes that XC was not coping well himself. In December 2013, she obtained a domestic violence in her favour against XC.
- [25]In November 2013, her Grandfather passed away. In January 2014, her Grandmother passed away. In January 2014, her father had a heart attack, although he survived it. She describes her Grandparents as having been her closest supports until the time of their deaths. She says that her grief and loss was exacerbated by the loss of their support.
- [26]In about March 2014, she says that due to her poor choices, Child Safety was involved and recommended that DN and RN live with their father while she recovered. At some stage, XA explained to her that he had been told by Child Safety that if anything went wrong with DN and RN that they may be removed from him. She became aware of Child Safety’s involvement from him. She had not been aware of any investigations and had not been interviewed. As a result, she was not able to see the children overnight because of concerns about her mental health, domestic violence and drug use.
- [27]Before the various crises in her life over this period, she considers she was highly functioning. She felt medication exacerbated her suicidal ideation and self-harm. Under supervision, she weaned off it. She became pregnant but miscarried.
- [28]Then in April 2014, an incident occurred between her and XC. She says that she had asked him to leave and he would not. She grabbed a cricket bat and smashed a glass table. She called the police. A domestic violence order was made in XC’s favour against her. This occurred shortly after her miscarriage and in the context of all of the other stressors that had occurred in her life leading up to that time. She says that there has been no domestic violence between them since.
- [29]She fell pregnant again in May 2015, and as discussed, at the time of the hearing, her daughter was some three months of age.
- [30]The three older children continue to live with their fathers on a fulltime basis. In the Family Court, she is seeking an integrated parenting plan with respect to DN and RN. She seeks 50/50 shared custody. The plan commenced in February 2015. She claims that XA has not stuck to it exactly because of the children’s sport and her recent confinement, but she has unsupervised visits with DN and RN usually once a fortnight for a few hours. Because of the Family Court proceedings involving HN, she has not pushed him for further contact and has not had overnight visits with the children since March 2014. She explained that by now the integrated parenting plan should be fully implemented. She should be having contact with the children overnight and for half of the time. If XA does not increase her time with the children, she will consider going to the Family Court. However, she is trying not to take on too much at once. She considers that they are safe and happy to see her, although it ‘hurts my heart’ that they are with him.
- [31]At present, she sees HN for two hours once a fortnight at a contact centre. This arrangement commenced in May 2015 following a family report.[17]
- [32]She accepts that the journey to recovery takes time. She acknowledges her history of domestic violence, substance abuse and mental health issues. Although she acknowledges that there are no guarantees that similar issues could not happen again in her life, but she considers that she has a different outlook and greater strength and resilience for managing her mental health and any potential domestic violence.
History of substance use
- [33]MYN acknowledges that she currently drinks an occasional beer or glass of wine. She estimated that she has not drunk alcohol to excess for at least 18 months. She describes not having consumed alcohol to excess generally during her adult life.
- [34]However, following arguments with XB she drove under the influence of alcohol. She was convicted of two drink driving offences. On one occasion, she says he made her drive to her parents’ home. On the other, she did not want to leave HN with XB’s parents whom she considered were intoxicated. She says she moved to leave but XB punched her in the head. She left, although without HN, and he phoned the police resulting in her being intercepted by police and charged with driving under the influence.
- [35]She acknowledges that throughout her relationship with XB she probably drank until she was intoxicated approximately once per month. She described being unable to keep up with ‘his scene’. She says that she was last intoxicated several years ago, in the period after HN was withheld by XB.
- [36]She started using marijuana on a social basis during her relationship with XB in about 2008. She says that in his social circle, it was not uncommon for a ‘joint’ to be ‘passed around’. Sometimes, XB bought it. If he was having it, he offered it to her. After she separated from him, she sporadically used it socially until he withheld HN. She says that she did not smoke in the house when the children were there. She concedes that at the time she was not concerned about indirect exposure to the children to the smoke but she says did not smoke in front of them in any event. As discussed later, the Child Safety material suggests otherwise.
- [37]However, she says that her cannabis and alcohol usage increased significantly in the months after XB withheld HN. Subsequently she went to her general practitioner for help. Her general practitioner apparently did not consider that she needed help, even though she had been smoking cannabis every night for a month to help her sleep. She continued in this way until she found out she was pregnant in approximately February 2014. After her miscarriage in April 2014, she went back to using cannabis again on the same basis. When she was having negative thoughts, she smoked cannabis to calm herself down.
- [38]At the end of 2014, she weaned down. She says she stopped smoking it altogether in February 2015. She still had cravings, but was prescribed Valium for use at times of high anxiety. She has not smoked and has not taken Valium since she found out she was pregnant in May 2015.
- [39]Although she has not sought counselling for alcohol use, she has sought drug and alcohol counselling for her cannabis use. She believes she has learned practical strategies to prevent relapse. Through the Quit Cannabis program she learnt how to ‘ride through’ the cravings. She identifies the trigger for smoking cannabis at the time as emotional trauma and her guilt or shame as a result of the circumstances in which she found herself. She learnt to pre-empt the cravings, using distraction and mindfulness.
MYN’s history of mental health issues
- [40]MYN has a diagnosis of anxiety dating back to 2005, when she was 15 or 16 years of age. Anxiety was diagnosed by her general practitioner. She had, at that time, recently left home and was in a position of managing her own money and living arrangements while attending school full-time.
- [41]
- [42]In 2013, a psychiatric registrar in acute care in a Mental Health Unit diagnosed her with a borderline personality disorder and an adjustment disorder. She acknowledges having a history of anxiety and depression coinciding with relationship breakdowns. However, MYN says she does not have a current diagnosis of depression.
- [43]As she understands it, her only current diagnosis is borderline personality disorder. She is not prescribed medication for this condition. She says she was prescribed medication previously by a general practitioner who did not have a strong mental health background. She took the medication on and off over a period of some fifteen months during the various life crises following HN’s withholding by XB. She says that she last took medication in about early 2015. At some stage, she was advised that she does not need medication for her borderline personality disorder, so she was weaned off it. This was done through the acute care team, although on her instigation because she was aware of negative ongoing side effects from the medication, which appeared to outweigh any benefit. She wanted the opportunity to engage in psychotherapy while she was not taking medication. She explains that her subsequent experience has been positive.
- [44]In about October 2013, she began monthly appointments with a psychologist. She considered that initially therapy did not assist her very much. She also began treatment with a counsellor, JG. In July 2014, when the events occurred at the hospital leading to the criminal charges discussed earlier, she considers she was at her lowest point.
- [45]She began seeking help from non-government organisations, but was apparently not considered severely ill enough for extra services. Then in October 2014, she attended a Partners in Recovery conference, and was accepted into their service as a client. From then on, she says she began a lot of different intensive therapies. These therapies include wrap around therapy, anger management, and parenting programs. During this period, she also had treatment with JG, counsellor, and her psychologist. She was having therapy once a week and seeing her psychologist once a fortnight. As a result of psychotherapy, she says she is now better able to identify her triggers for anxiety and depression and find solutions.
- [46]Until mid to late 2015, she had a mental health plan in place and was being seen by Ms O at a psychology centre. This arrangement was set up through her general practitioner. Ms O has subsequently gone on long leave. MYN does not currently have a mental health plan. However, she says that if she needed it, her general practitioner would re-establish such an arrangement for her. She also accesses phone support services through Beyond Blue, DV Connect, and Life Line as well as others occasionally when she wants that additional support.
- [47]The strategies she has developed include wellness recovery action planning; wrap around therapy; and acceptance and commitment therapy. Acceptance and commitment therapy involves acknowledging the emotion experienced and working through it, by deep breathing and mediation. She explains wrap around wellness recovery action planning teaches a person to identify their triggers and learn to deal with them while still functioning. It is a prevention strategy to avoid reaching a crisis point. It involves interpersonal therapy and dialectical behaviour therapy.
- [48]She describes experiencing a greater enthusiasm for life once she engaged in psychotherapy. She felt she had something to get up and do. She reports that since having the therapy she had been able to deal with not only the stress and trigger of receiving the negative notice which prompted this application, but also Family Court proceedings, without regressing. She attributes her ability to function through these crises and triggers to the strategies she has learnt through psychotherapy.
- [49]She became interested in assisting others before they reached an acute crisis point. She has been studying and has obtained a variety of certificates as well as paid employment as a [redacted]. In this position, she receives supervision through which she can also address issues that she may be experiencing.
- [50]At the time of the hearing, she described having stability in her functioning for over 12 months. She also had in place continuity of care through regular fortnightly appointments with JG.
- [51]She believes she has taken responsibility for her own mental health and developed insight. Her understanding is that her intense reactions stem from her borderline personality disorder. Now that she understands it, she believes she can deal with it. She explains that it is her understanding that she is in a ‘maintenance phase.’
- [52]She was able to identify strategies and triggers. She finds it helpful to make lists of things she needs to do. In terms of life strategies, she explains that she knows she can contact Life Line for example when the Family Court hearing is approaching if she wants some additional support. She says she has reached a point of acceptance and acknowledges emotions when they occur and has a commitment to herself to ‘ride it out.’ She considers she can name ‘name it’ and acknowledge her anxiety. She identified triggers including the Family Court proceedings concerning HN and the domestic violence history that she experienced with XB, which creates anxiety for her when she has contact with him. She considered that this blue card review hearing should have been a trigger, but although it was a big thing in her life, she felt prepared and undertook some deep breathing and other strategies in preparation. She explained she now has a great deal of support in her life and actively accesses that support as well as taking responsibility herself.
Evidence from JG, Counsellor
- [53]JG has been a counsellor for some seven years. He holds a Bachelor of Psychology as well as a Diploma of Justice. He also worked for the Department of Child Safety for a short period as a child safety officer and assessment officer.
- [54]Several reports from JG are before the Tribunal.[20] His report of 7 October 2014 confirms MYN’s previous diagnoses of borderline personality disorder, depression and anxiety, as well as substance use of alcohol and marijuana as dysfunctional coping tools.
- [55]In his most recent report dated January 2016, he confirms that he has treated MYN for three years. He has found her to be a ‘very honest and driven individual.’[21] He considers she has ‘gained an in-depth understanding of her emotional state due to domestic violence, substance use and grief and loss’ which has had ‘a negative impact on her personally, her children and her relationship with them.’[22] He confirmed that she had undertaken numerous courses and counselling to deal with her issues and to develop strategies for the future. He identified the main risk factor as the possibility of future domestic violence and substance use in the event that she was in a negative emotional state.
- [56]However, he considered that to counteract this risk, she has made numerous personal and professional contacts which would allow to quickly ensure the safety of herself and her children in the event that such a situation should arise. These include strategies about places to stay, knowledge of services and a circle of support people and organisations. He believed that she had stopped drug use altogether and that this is supported by urinary analysis. His report concluded by saying that although she has previously been ‘in a bad place at a certain time in her life’[23] that she is very intelligent, driven and currently stable.
- [57]JG was cross-examined at the hearing. He confirms his opinion that MYN has developed good insight into her triggers and has developed numerous strategies, short and medium term for dealing with them. He expanded on the strategies, explaining her use of distraction and mindfulness, which he considers is particularly helpful for her borderline personality disorder. In his opinion, that she no longer has the anxiety and panic attacks that she used to suffer from. When asked about his opinion as to her likely response to a crisis, he said she has many strategies that she can use, but if she did not do that, she would need to seek help again. He considers that if she uses the strategies then she can deal with crises as they arise.
- [58]He acknowledged that there is always some risk, but he considers her risk of relapse is low. In particular, he considers her involvement as a [redacted] in itself keeps her grounded, together with her use of the various strategies and the other groups and organisations that she is involved in. He has received independent positive feedback about how she has been going from them. He confirms that she has a large support network and that he considers her current mental state to be good. He describes MYN as having gone from high to low on a spectrum.
- [59]In his opinion, her diagnosis of borderline personality disorder, in his words, ‘could be true,’ but considers her borderline personality disorder, anxiety and depression to be at the lower end of the scale. He has also observed that she knows what works for her and adapts and uses those strategies that suit her to deal with issues, including some neuroses that previously led her to overfill her days. Now, through distraction, mindfulness, time management and meditation she does not let those interfere with her day-to-day functioning.
- [60]He confirms that her anxiety heightens when she has to attend court, but he does not consider it affects her as it used to. He is aware that in the past, MYN has self-medicated with marijuana and alcohol. His comment was that he understood that she did not drink much, but had mainly used marijuana to help her feel good. When she started seeing him, during the first couple of years, he regularly saw signs of marijuana use and was aware that she was drinking. He has not seen any signs of this in the last 12 months or more. He says that as she did more work on herself, her use of substances grew less. In his opinion she seems to have ‘gone over the top of the mountain’.
- [61]In relation to domestic violence, he explained that he and MYN have discussed strategies to protect MYN and that she has also attended group work, and a course with a domestic violence service. She understands now that she does not have to take abuse or stay in a relationship where she is abused.
- [62]Although acknowledging that he is not a medical practitioner, he does not consider MYN requires medication for her mental health issues. He describes medications as a short-term strategy to cope with particularly dark periods in a person’s life. He spoke of MYN’s strong views that the education system neglects the personal touch and wants to agitate for change to stop children suffering from mental health issues, so that they do not become the mental health patients of tomorrow. She is working with groups in a positive way to advocate about this.
- [63]He does not consider that MYN is a risk of harm to children. In his opinion, she is suitable to hold a blue card. He says that four years ago this would have been problematic but not now, he considers that if anything there is more risk of MYN self-harming than harming any other person. It is also his opinion that she is now unlikely to stay in a violent relationship. He is aware that MYN has history of involvement with Child Safety. He knows of the ongoing issues about custody of the children. He is aware of the incident at the [redacted] Mental Health Unit and the charges. He thinks she recognises the early warning signals and triggers. JG says that XB remains a major stressor in her life.
Child Safety information
- [64]Between 2008 and 2014, there were a number of child safety child concern reports and notifications concerning MYN.
- [65]The records for the period from 2008 until late 2013, largely refer to concerns about domestic violence in MYN’s household. The record created on 7 January 2009, refers to concerns about her mental health. The records of 30 September 2009 and 8 November 2010 refer to concerns about her mental health, and concerns about parental drug use as well as, MYN’s mental health respectively. None of them were substantiated, although in late 2009, HN was assessed at high risk of future harm because of domestic violence and the mental health issues.
- [66]Then in December 2013, there are two records both relating to concerns about MYN’s mental health and exposure of the children DN and RN to domestic violence in her household with XC. The children were not considered to be in need of protection, because DN and RN primarily lived with their father, XA. The notification occurred after DN phoned the police because of a domestic violence incident, which is recorded to be the second reported domestic violence incident between them. XC is recorded as having a history of twelve domestic violence order breaches in a previous relationship, as well as a history of stalking and drug and property related offences.[24]
- [67]Records from January to March 2014, raise concerns about parental drug use, exposure to domestic violence in the household and children being made to travel unaccompanied on trains to school in MYN’s household. DN and RN were interviewed as part of the investigation. The children are recorded as expressing concern about fights between their mother and XC, their mother always having many bruises, and that their mother had not been happy for over a year. They were aware of her self-harming behaviour, and had seen her smoking ‘weed’ and because she drinks 2 bottles of wine at night, she is ill in the morning they have to get the train to school. In March 2014, XA told Child Safety that MYN was not having contact with the children. He agreed that he would keep them away, and would not allow unsupervised contact until the child protection concerns had been addressed. Substantiated emotional harm by MYN was recorded.
- [68]In 2015, Child Safety considered whether MYN’s unborn child was at risk in view of its records. In correspondence dated 1 February 2016, to MYN and XC, a Child Safety representative advised that the child was not considered to be at risk.[25]
Other witnesses
- [69]A number of persons gave witness statements in support of MYN. They include friends, colleagues and parents of children she has previously coached, and her priest. These contain positive references about her. There are also letters from representatives of several support organisations for mental health and domestic violence services confirming her participation/engagement in their services. XC did not provide a witness statement.
- [70]Several of her witnesses were also cross-examined as discussed below, although she also arranged for a number of others to be available for cross-examination.
- [71]JT is a [church official]. MYN had been a regular communicant at her church for 2 to 3 years at the time of the hearing.
- [72]She also performed a pastoral counselling role with MYN in 2014, which lasted for about a year. The catalyst for this was the events at the hospital. They met fortnightly for 1-2 hours for this purpose. She explained that this involves providing emotional and spiritual support embedded with Christian values. She described MYN experiencing an overwhelming sense of grief at the loss of her children and deeply saddened by the events that led to the criminal charges. They talked through MYN’s feelings and choices in life. She explained that she considered that this had brought MYN to a place of forgiveness and led her back to her earlier values. She opines that forgiveness was key in allowing MYN to let go of her sadness. It took about three months to reach the point of forgiveness. She says that after about six months MYN was much better.
- [73]From her experience and observations, MYN is resilient, compassionate and has enormous strength of character. She says her weaknesses include waiting too long to get help, absence of supports at the time, and that she had allowed things to get out of hand, but noting that MYN had unsuccessfully sought assistance. She has seen MYN relate to young children at church and church events. Her partner, XC, sometimes accompanies her, but she attends more regularly. He was also involved in the counselling and she found him to be honest and supportive.
- [74]She explained that MYN was elected to the parish council although she had not sought nomination. Election is subject to holding a blue card and that led to the blue card application. She was aware of the MYN’s criminal charges, her history of domestic violence, and her mental health issues. Although she thought she may have heard about some issues concerning alcohol use, she was uncertain whether MYN had mentioned drug use.
- [75]She does not consider that MYN is a danger to any child. Her behaviour has not caused JT any concern: she is always delightful.
- [76]OY, a friend and former neighbour, gave a statement and was cross-examined. She speaks of MYN as a good sports coach, friend and always attentive to her children. She trusts MYN with her own daughter. She knew of MYN’s previous drug use, but does not believe it occurs now.
- [77]She thought that MYN had previously used both cannabis and methamphetamines, although she did not know how much and had not seen her use methamphetamines. She explained she assumed this was the case, because her partner, XC, was using them. She was aware of Child Safety involvement and of MYN’s older children being with their fathers, which she thought was a result of MYN’s lifestyle, drug and alcohol abuse, and violent partner, XC. That said, she understands that there is no current domestic violence. She gave evidence of positive changes in MYN’s lifestyle, relationships with friends and mental health in recent years.
- [78]Following her evidence, MYN gave evidence from the bar table that use of methamphetamines was not acceptable to her, and that she was not aware of XC using anything but cannabis: it would be a deal-breaker for her.
- [79]SA is a friend of some 17 years. She also holds qualifications in psychology, and completed her PhD in child suicide a year ago. Before the mental health and domestic violence issues arose, she describes MYN as happy, ambitious, focussed, very involved with her children and spiritual.
- [80]She appears to have a reasonably comprehensive understanding of MYN’s history and issues as discussed in these reasons. She usually sees MYN at least once per week. She understands that she has not self-medicated for more than a year, although she has never seen her use cannabis. She remains friendly with XA and she assists with contact with DN and RN. She considers XB was violent to MYN and considers he was a negative influence on her life. Although she did not see him strike MYN on any occasion, she saw bruises on her from his actions and explained that he spoke in a derogatory manner to MYN. In SA’s observations, the relationship with XB damaged her strength and vitality. In the past, MYN has indicated to her that the relationship with XC was tumultuous in that he’d restrain her from trying to hurt herself although she commented that both had potentially been violent to the other.
- [81]She says that MYN now seems very happy, although she (SA) still has some reservations because of the past violence. MYN has told her that she would leave if it happened again. More recently and particularly over the last 12 months , she has seen striking changes in MYN. Although she has always been open with SA, she is no longer preoccupied with her own difficulties in life. Their friendship is better for it. She considers MYN is a fighter who gets on with things and is not afraid to be transparent. She is not afraid to admit things against herself. She is now better able to express her feelings and accept constructive criticism. She says that MYN appears to her to understand the impact of household violence on children: she talks a lot about wanting the children to feel safe with her, acknowledging their distress as a result of seeing domestic violence and the negative ramifications it has for children.
- [82]She has no concerns about how MYN interacts with her children or about her holding a blue card.
Is MYN’s case exceptional?
- [83]MYN was a little inconsistent about timeframes, but she was generally an impressive witness and advocate for herself. Her supporting witnesses impressed me as honest. Generally, I accept the evidence of MYN and the witnesses, except as discussed below.
- [84]MYN has no convictions for serious (as defined in the WWC Act) criminal charges. Accordingly, a positive notice must be issued to her, unless it is an exceptional case, in which it would not be in the best interests of children for a positive notice to issue.
- [85]The charges and convictions[26] for assault and wilful damage arose out of her presentation at a hospital seeking treatment for mental health issues. She was unwell. Although there is a well-publicised zero tolerance for violence in hospitals, as the Magistrate observed the assault here was at the very lowest end of the scale. It seems to involve no more than MYN trying to navigate between several persons standing in a doorway in order to exit a room after being asked to leave. The act of kicking a wall, in frustration when treatment was not provided, is of course inappropriate and unacceptable, but again at the lower end of seriousness. The Magistrate commented to the effect that the matter was poorly handled by some of the hospital staff. The minor sentence imposed is in keeping with her comments.
- [86]Despite MYN’s diagnosis with anxiety at the age of 15 or 16 years, the evidence suggests that until her involvement with XB, she was generally (although she may have had vulnerabilities resulting from her childhood and an underlying borderline personality disorder) fairly highly functioning. After she became involved in that relationship, concerns were raised about Child Safety issues relating to domestic violence, drug use and MYN’s mental health. SA describes the relationship as damaging MYN’s strength and vitality. Ultimately, his actions in withholding HN, followed in quick succession by a number of other very significant stressful events, precipitated a marked decline in MYN’s mental health and ability to function, and to her substance abuse.
- [87]From late 2013, she commenced counselling, but nevertheless she continued to spiral downwards, reaching her lowest point by about mid-2014. Initially, she was prescribed medication, but that had ceased completely over a year before the hearing. She has had regular and ongoing treatment and psychotherapy through a variety of sources, including JG, her psychologist and group therapy. She also has the opportunity to obtain additional formal support through supervision in her role as a [redacted]. She has sought, and intends to continue to seek, additional support through domestic violence and other community services.
- [88]Based on the evidence, I accept that her alcohol use has generally been limited throughout her life. However, during the period that she used it for self-medication, according to the Child Safety records, one of the children suggested she was drinking some two bottles of wine per night. I accept that MYN undertook programs aimed at addiction and that she no longer uses cannabis, and uses little alcohol. However, inconsistently with her assertions that she did not smoke cannabis in the house when the children were there, the Child Safety records suggest that DN and RN were aware of and observed her use of ‘weed’. Although I accept that MYN is now in a better place in her life than in March 2014, having regard to the Child Safety material, her current evidence suggests some minimisation of her past behaviour, which tends to suggest some ongoing lack of insight.
- [89]OY also suggested that MYN had used methamphetamine, because XC used it. MYN denied that she used it, and further said she was not aware of XC using methamphetamine, only cannabis. Even if I accept MYN’s evidence that neither he (to her knowledge) nor MYN used methamphetamine, XC’s current use of cannabis is not clear. MYN’s evidence is that she no longer uses it, but she did not rely upon XC as a witness to support her application. If he continues to use it in her household, that would raise some concerns about her ability to act protectively towards her children. Also, proximity may place temptation in MYN’s way that her own evidence does not reveal. Also, it seems that MYN did not advise JT of her drug use. JT’s account was otherwise detailed and thoughtful, and I consider it most unlikely that she would forget such a detail. Accordingly, it appears her support for MYN was not given with full knowledge.
- [90]I am satisfied that MYN has sought support and now has a more extensive support network around her. She sought pastoral care through her [church official]. She has regular involvement in her church. She has rebuilt her relationship with her mother. She has close friends, such as SA, who has observed her improvement and experienced a greater depth of friendship with her. She has become familiar with and adept at accessing the support which is available. She has also developed a passion to help others, so that they do not reach a crisis point. She has obtained paid work in related fields where she can be involved in the sector.
- [91]She says she appreciates the detrimental effect of domestic violence on children in a household. She says she would leave if it happened again in her current relationship. However, it is concerning that there has been violence in her current relationship. I accept that the violent act of MYN in smashing the coffee table occurred at a time when she was in poor mental health. SA’s evidence suggests that she was told by MYN that some of XC’s violent acts towards her may have been directed to stopping MYN from self-harming. MYN reports that there has been no violence between them since April 2014.
- [92]Also, it is concerning that MYN’s evidence does not disclose XC’s history of violence in his previous relationship, which is referred to in the Child Safety material. Also, the Child Safety records of the interviews with DN and RN suggest a more extensive history of violence between MYN and XC than MYN discloses. The notes from their interviews paint a bleak picture about the extent of the violent arguments, although admittedly during the period when she was heading towards her lowest point. Nevertheless, it appears that she has minimised the extent of the domestic violence issues in their relationship. Accordingly, it is reasonable to infer that the risk of future violence is more significant than is accepted by MYN in her evidence. Of course, I acknowledge that she says that if it happened again she would leave the relationship. JG and SA spoke of her plans in this regard.
- [93]I accept that MYN has made many positive changes in her life since the events of 2013 and 2014. I am satisfied that she has benefited from psychotherapy and other therapies. She has developed some insight, although in light of her apparent minimisation of the extent of the domestic violence in her relationship with XC and cannabis use in front of the children, it appears that her insight remains limited. She demonstrated some knowledge of triggers that may lead to a deterioration of her mental health, and a variety of strategies to deal with them. JG considers she has all the strategies she needs to avoid future problems, as long as she uses them. She spoke about how she has been able to cope with these proceedings without triggering her anxiety. I am satisfied that MYN has some developed protective factors, including her work and her involvement in convening groups. Through these activities, as JG opined, she is grounded by reminders of the issues she has experienced.
- [94]Based on the evidence of JG, SA and MYN, the positive changes in her life and real improvements in her mental health, have occurred in 12 months or so prior to the hearing. She describes stability in her functioning for over 12 months and says there has been no domestic violence in her relationship with XC in that period. JG thinks she seems to have gone over the mountain, and the concerns he held several years ago, he no longer holds. SA describes striking changes over the last 12 month period. MYN stopped smoking cannabis in about February 2015. She stopped using prescribed medication in about May 2015. She started seeing DN and RN again in February 2015 and HN in May 2015. She has developed an understanding of her triggers and strategies to deal with them. She appears to have demonstrated some ability to apply them.
- [95]That said, these changes are still very recent in MYN’s life. As MYN acknowledges, recovery takes time and sustained effort. She has taken significant steps since her lowest point in mid-2014. However, she remains in a relationship which has a history of domestic violence (with a partner who has a history of domestic violence and breaches of orders in another relationship), the extent of which she may have minimised.
- [96]Before the birth of her youngest child, Child Safety’s assessment was that the unborn child was not at risk of substantiated harm. However, a new baby changes the dynamics in the household again, potentially placing strain on a relationship in which previous turmoil has been accompanied by domestic violence. This is a risk factor. It is of particular concern in circumstances that the extent of the violence, and drug use related issues in her household have been minimised or withheld by MYN. Further, she has not had overnight contact with any of her other children. Although admittedly, the evidence suggests that she has dealt with the stress of the negative notice and the ongoing Family Court proceedings, her commitment to and use of the various strategies she has learnt, has not been tested in the context of a busy household coping with the sometimes relentless demands of a baby.
- [97]Weighing all of these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that MYN’s case, at this stage, is an exceptional case in which the best interests of children would be harmed if a positive notice was issued.
Conclusions and Orders
- [98]Accordingly, I confirm the decision of PSBA and make orders accordingly.
Non-publication
- [99]In view of the allegations of domestic violence and Child Safety material, I am satisfied that it is not in the public interest[27] for information to be published which may identify MYN or her children. To achieve this, information published must not identify MYN’s former husband, former partner or current partner, or her friends who provided evidence, or her current employment. The reasons for decision should be published, other than to the parties, in de-identified format only.
- [100]I make orders to this effect.
Footnotes
[1]WWC Act, ss 6 and 360.
[2]WWC Act, s 167 and Schedule 2.
[3]Ibid, s 221(1).
[4]WWC Act, s 221(2).
[5]Ibid.
[6]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.
[7]Commissioner for Children & Young People v Ram [2014] QCATA 27.
[8]Ax v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248.
[9]In the marriage of Sandrk (1991) 104 FLR 394, at 399-400.
[10]Schwerin v Equal Opportunity Board (1994) VR 279 at 287–288.
[11]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[12]WWC Act s 226(2)(a).
[13]Ibid, s 226(2)(e).
[14]Exhibit 5.
[15]Exhibit 6, page 2 line 17.
[16]Exhibit 5.
[17]PSBA 76.
[18]Exhibit 2.
[19]Exhibit 2, record of concerns summary created 7 January 2009.
[20]Exhibit 1 pages PSBA 029 and PSBA 035.
[21]Exhibit 4.
[22]Exhibit 4.
[23]Exhibit 4.
[24]Exhibit 2, page 197.
[25]Exhibit 3, attachment.
[26]Under the WWC Act, a conviction means a finding of guilt or plea of guilty even if a conviction is not recorded: WWC Act, Schedule 7, Dictionary, ‘conviction.’
[27]QCAT Act, s 66.