HK v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 498
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- Unreported Judgment
- HK v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 498
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HK v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 498
HK v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 498
CITATION: | HK v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 498 |
PARTIES: | HK (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML156-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 25 May and 26 August 2016 |
HEARD AT: | Rockhampton |
DECISION OF: | Member Beckinsale |
DELIVERED ON: | 19 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDREN-BLUECARD – exceptional case – where a review sought of decision to issue a negative notice – where person convicted of a number of offences – where no offences were categorised as serious-where child protection history disclosed a number of notifications, including where harm was substantiated – where evidence of risk factors and protective factors – whether or not case was “exceptional” such that it would not be in the best interests of children for the chief executive officer to issue a positive notice – where decision that case was “exceptional” was confirmed Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, s 226(2), s 236, s 237(1) and (2), s 354 and s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19(a), s 20(2) and s 66 Child Protection Act 1999 s 189(1)(a) and s 194(1)(a) Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Minister for Immigration v Gungor [1982] 42 ALR 209 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 |
APPEARANCES: | |
APPLICANT: | HK represented herself |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Ms P. Hughes, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
Background
- [1]HK applied to the Public Safety Business Agency to be issued with a positive notice and blue card under the Working with Children (Risk Management) Act 2000 (the Act). The Chief Executive Officer of the Public Safety Business Agency issued a negative notice to HK on 1 June 2015.
- [2]HK required a blue card to foster children, including as a kinship carer and applied to the Tribunal for a review of the decision.
The Legislation
- [3]Such review is pursuant to section 236 of the Act.
- [4]Under section 354 of the Act, the Tribunal can review a decision to find that an exceptional case exists such that it would not be in the interests of children to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
- [5]The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
- [6]
- [7]The Act does not define “exceptional case” and phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
- [8]Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters, including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
- [9]In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
- [10]The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist[8] when setting aside a decision.
- [11]Neither party bears the onus of proof as to whether an exceptional case exists.[9]
- [12]
- [13]
The Evidence
Life History
- [14]HK is 53 years old. She has three biological children all in their thirties but was a foster mother to a number of others, including two grandchildren and a niece and nephew.
- [15]HK married her partner TK in 1999. At the time of the hearing they lived with his parents as they had been evicted from the home they were renting through a cooperative housing organisation following court proceedings. HK said it had wrongly been claimed they had outstanding rent but they had not been able to prove this.
- [16]HK outlined a varied work history which included coordinator of a women’s shelter, clerk of the court, house painter for five years, youth support worker and foster parent for eighteen years. She has worked assisting a lawyer and says she has completed three subjects of a law degree which she would like to resume. Currently she is not employed.
- [17]HK said at the hearing she was very unwell and had been unwell for a period of time. She said she had emphysema and was being investigated for cancer. She has depression and sees a counsellor.
Criminal Offences
- [18]HK has a number of convictions for criminal offences dating back to 1979 when she was aged 18 to 2014 when aged 53.[14]
- [19]The police brief concerning an offence of aggravated assault was obtained by Blue Card Services.
- [20]In 1979 HK was convicted of aggravated assault. The police brief outlined that a number of school girls were walking down the street as a group about 1pm on their way to attend a school film. The complainants aged sixteen and seventeen were among the group and were laughing and joking between themselves. HK, who was walking in front of them, turned around and spoke to them. She hit the sixteen year old in the face a number of times with her hands and the seventeen year old once. The younger girl sustained bruising to her nose and the older one a cut lip which did not require stitching. HK told police she hit the girls because she thought they were laughing at her and she heard them mention the word “black” and became offended. She was convicted and discharged upon entering into her own recognisance in the amount of $100 and required to be of good behaviour for a year.
Child Protection Notification
- [21]HK was kinship carer for two of her granddaughters, from about 1998, when one was a few months old and the other was aged about two. Additionally her niece and nephew came into her care not long after that. Her granddaughters have both attained the age of eighteen and no longer reside with HK. Her nephew, currently aged sixteen, lived with her until the loss of her blue card. Her niece removed herself from HK’s home in 2010 after an incident of alleged sexual abuse. Other children were placed in her care from time to time.
- [22]Material produced by Child Safety indicated HK was the subject of a number of notifications of concern between 2001 and 2013.
- [23]In March 2001 Child Safety received a notification from a person who observed a bruise around the eye of HK’s niece. In November 2001 there was a notification that HK’s partner had hit and punched a male child (not a nephew) in their care and that TK put his own daughter’s needs ahead of the foster children in their household.[15]
- [24]TK and HK were questioned about these incidents some ten months later. The notification regarding the child’s bruised eye was found to be unsubstantiated. In the case of the male child the Department’s assessment was there was a substantiated risk of physical abuse.[16]
- [25]TK told Department employees that he had hit the boy across the back of the head which caused him to fall forward and strike his head on the floor. He denied ever punching any of the children saying if he hits them it is not with a closed fist but with an open hand. He said this was appropriate discipline for the boy swearing at one of the younger children and minimised the harm caused. HK denied the child was hit in the head, rather that she had seen TK hit him on his lower legs and bottom. HK reportedly complained about the level of support given by the Department. She and TK agreed they needed more assistance with this boy although HK then said she needed more children in her care.[17]
- [26]In February 2003 a matter of concern notification was made to the Department that the six year old boy (the same boy the subject of the earlier notification who was not her nephew) in HK’s care was very scared of her and TK and that HK treated the children in her care “like dogs” and did not care about them. A further matter of concern raised that month was the boy being hit across the arms, back and bottom while being sworn at, being fed dog food, being locked out of the house in the dark for hours, being locked in his room, being left at home when the other children go on outings and being blamed and punished for the misbehaviour of the other children.[18]
- [27]HK informed the Department the boy was only smacked with a hand on his bottom and legs and denied the use of a stick as described by him. She was described as initially denying that the boy was punished by being sent under the house in the dark but then minimised this saying when he was sent downstairs it was not dark. She agreed she used chilli in his mouth as punishment for swearing. Despite the harm caused, the boy was described as genuinely enjoying living with HK. HK was described as aggressive and defensive and laying the blame for concerns raised on the female child who had recently left her care.[19]
- [28]
- [29]In March 2003 a matter of concern notification was made to the Department that an adolescent girl in HK’s care reported she had been “kicked out” and did not spend the previous night at HK’s home. The notifier took the girl back to HK’s home to collect her belongings. A naked child aged about two years old was observed alone in the street at the front of the house. TK was home in the house. The notifier described the girl’s room as filthy and said she had little appropriately sized clothing. What was there was dirty. The girl had no toothbrush, deodorant or personal belongings of her own. She had previously asked a caseworker to buy her sanitary pads as she “couldn’t ask” HK.[21]
- [30]When interviewed by the Department HK strongly denied that she had not adequately provided for this girl. She described the girl as a liar and said she stole from her. She said the girl stayed out at nights and she did not know where she was and recently she was gone from a Thursday night to Monday morning. HK told the department she contacted AICCA when the girl went missing. Again, HK was described as aggressive and defensive when addressing the concerns of the Department and having worked herself into an agitated and distressed state. She was described as giving inconsistent replies. She said the Department was always “picking on her.”[22]
- [31]The Department recorded that HK failed to provide adequate supervision of this young person and failed to notify the appropriate agencies when she was missing for days. That HK presented as not willing to assist the girl with the basics of personal hygiene and failed to provide basic physical needs. At that time HK had the care of four related children aged two, four, four and five, and the six year old boy. She was in full time paid employment at a youth shelter working longer than usual hours and told Department employees that the youth she worked with would come to her home. She made the statement to the Department that she believed these street youth led the girl astray. The Department found that the environment was not appropriate for the young person and she was relocated to another care provider. The Department found that substantiated emotional harm and neglect had occurred.[23]
- [32]In February 2006 a child concern report was made in relation to the treatment by HK of her then eight year old niece. The Department assessment was that a breach of standards had occurred and the concern had had a minor impact on the child. The Department recorded that a new placement agreement would involve respite for all the children and that Child Safety would work with HK to ensure the treatment of that child in the home was equal and to increase HK’s understanding of the concerns raised.[24]
- [33]In February 2007 a matter of concern was raised with Child Safety as a result of HK’s adult nephew staying at her residence without her advising the Department and sharing a bedroom with her niece aged nine. The Department determined that a breach of standards had occurred and the concern has had, or was likely to have had a minor impact on the children. An action plan was put in place as a result, providing for regular contact with the Department and training for HK and her partner.[25]
- [34]In August 2007, a concern to the Department was notified that the relationship between HK and her then ten year old niece had deteriorated to the extent HK wanted her removed from her care. HK was found to have breached the standards of care in relation to the four children in her care aged seven, nine, ten and twelve. The breach was the use of smacking as discipline. The material produced by Child Safety indicated HK initially denied smacking, but then said she had done so on a few occasions. She had told the Department the smacking was relatively light and occurred when the ten year old was being rude, swearing or refusing to follow instructions. She agreed to not smack in the future. The Department was to provide her with additional training managing children’s behaviours and support to assist in managing the behaviours of the ten year old.[26]
- [35]In January 2010, a matter of concern was raised in relation to the children and HK was found not to have breached the standards of care.[27]
- [36]In June 2012 the female child, by then aged 15, and no longer living at the Ks residence, alleged that TK had touched her leg in a sexual manner one night two years previously whilst watching television and when she told HK no action was taken. The allegation was denied by TK. He moved out of the home whilst investigations were carried out.
- [37]Department records describe HK as focussing on the behaviours of the child making the allegations. HK is noted as saying that the girl ran away long before the allegations were made and that she was a naughty girl who wants her own way. She advised Child Safety she had confronted her partner who said he would never do that and was very shocked. The Department records that HK could not explain why she did not contact Child Safety or the Police and that she did not offer any strategies that she put in place to ensure the physical and emotional well-being of the child.
- [38]The outcome of the investigation and assessment of the Department, in relation to HK, was that substantiated emotional harm as a result of sexual abuse had occurred in relation to the child who made the allegations. In relation to the other three children, the outcome was unsubstantiated concerns for sexual harm, however substantiated risk of emotional harm as a result of sexual abuse as HK did not acknowledge the concerns for risk of sexual abuse. TK and HK were also found to have breached the standards of care in relation to the children’s failure to engage in education. No charges were brought by police. These three children were all returned by the Department to the care of TK and HK.[28]
- [39]In June 2012, the children’s case worker also obtained school records which indicated an absenteeism rate of around 80% for the year. HK’s twelve year old granddaughter had not consistently attended school since 2009 when she was due for a review in relation to her Specific Language Impairment. The Department said this significantly impacted her ability to reintegrate into mainstream schooling. The Department said these issues were raised repeatedly with TK and HK with limited improvement. The Department records note that HK agreed to a plan to improve the children’s attendance at school but two weeks later, they had still not returned. HK advised they were sick but had no certificate and the children appeared well when sighted by Child Safety officers. The Department claimed that by not ensuring the children were attending school, they were falling behind academically, had limited external support networks, limited social development and her granddaughter’s disability was unable to be assessed to determine what she required to progress. The Department found HK breached a number of required standards, being: that the child’s material needs were being met in relation to schooling, physical and mental stimulation, recreation and general living; that the child received education relevant to age and ability; that a child with a disability received appropriate care.[29]
- [40]TK and HK agreed to an action plan to address these matters but over the next twelve months concerns continued to be raised with the Department regarding this granddaughter’s poor school attendance and poor health.[30]
- [41]School records showed this child missed 159 days of school during 2012 with 99 days unexplained. HK had offered the explanation on occasion that she had kept her granddaughter home because she couldn’t see the blackboard. She informed Child Safety officers she would be taking her for an eye test. A month later she said the eye test was done and the glasses ordered and that she had just to pay for them and pick them up. Twelve days later she had still not done so.
- [42]The Department recorded that HK failed to ensure that her granddaughter: underwent a full health assessment; participated in social or recreational activities; accessed counselling or engaged in formal education, all matters agreed to in the action plan to which TK and HK were subject. Ultimately, the Department booked a health assessment for the granddaughter and had this done over two appointments on 30 April and 16 May 2013. She was identified as being anaemic and vitamin D deficient and severely underweight. A service provider is recorded as purchasing medications and vitamins after this appointment out of concern that HK would not do so. During a home visit by the Department on 28 May 2013 a Child Safety officer observed HK’s granddaughter to be frail and lethargic with numerous boils on her legs and that she appeared to be withdrawn with flat effect. HK told the Department that she had made a doctor’s appointment later that week. The Child Safety officer said an appointment would be sought the next day. That night HK took her granddaughter to the hospital but returned home without seeing a doctor because it was too long to wait. The next morning her granddaughter was seen by a doctor and a decision made to remove her from HK’s care.
- [43]The outcome of the Department’s investigations was the matter of concern was unsubstantiated but that the Ks had breached the required standards of care. The Department recorded that a current action plan had already not been complied with, along with current concerns related to the care the child had received holistically. The Ks had not progressed with meeting her educational needs, lacked insight into potential mental health problems, did not address her poor diet and nutrition, did not follow up a diagnosis in 2011of anaemia and not had not engaged the child in social and recreational activities. [31]
HK’s Evidence Regarding Criminal Offences and Child Protection Notification
- [44]HK submitted that the school girls had called her derogatory names and when one of them came over to hit her she had defended herself. None of the many onlookers had come to her aid.
- [45]In relation to the minor offences between 1980 and 2003, HK said these had been committed by her sister using her identity. An offence of receiving stolen goods occurred as a result of her accepting a gift of shoes from her niece not knowing they were stolen. She had been charged with possessing liquor in a restricted area after merely stepping outside the yard after a family funeral. An offence of wilful damage occurred when she had actually been trying to repair a mail box damaged by her cousin. The contravene a direction offence occurred in the context of her being in her yard celebrating a birthday when a family member had to be rushed to hospital and subsequently passed away.
- [46]HK provided detailed responses to the child protection material in submissions made to blue card services and no further written material was filed by her.
- [47]Her written submissions regarding the notification in August 2007 are that neither she nor TK hit her niece. She never threatened her niece although the niece physically and emotionally abused HK and lied at school. HK complained of a lack of support from the Department. The Department had supported the child’s visits with her biological mother and the child would call HK seeking to come back home.[32]
- [48]As regards the allegation of sexual harm made in 2012, HK in her written submissions denied any emotional or sexual abuse was done to her niece. As a result of the allegation the child removed herself and lived with friends. Child Safety then placed her in her older sister’s home in another town. The child was using substances, was sexually active and in the “wrong crowd.” She was subsequently sent to a detention centre for armed robbery.[33]
- [49]As regards the children’s high absenteeism from school raised in 2012, HK’s written submissions state the eldest granddaughter and nephew attended school regularly and the younger granddaughter did not like her large school due to her social inhibition. The submission notes the attendance of this granddaughter improved for a time while attending the flexible learning centre. HK said they had sought home schooling for her. She questioned the diagnosis of Specific Language Impairment on the basis the child was able to communicate at home but did not like talking to strangers.[34]
- [50]Regarding the removal of her granddaughter from her care in 2013 due to concerns for her health, HK, in her written submissions, took exception to a Child Safety officer unfamiliar with her granddaughter stating she was “dangerously ill” just by looking at her. HK had been planning to take her to the doctor the following day. The child was small in stature and her anaemia gave her a sickly appearance. The boils were reoccurring and she had been taken often to the doctor for antibiotics. She was taking vitamin D tablets. HK said the child had been assessed by a psychologist as having social anxiety and has regular follow up visits to check her progress.[35]
- [51]HK’s written submissions emphasised the lack of support she had received from the Department as well as a lack of information about what had occurred. She cited the fact she had had to travel to another town to collect her niece and nephew as babies rather than the Department transporting them to her and that it was a local foster care agency who had assisted her travel.[36]
- [52]Her written submission continued:
The children were never at risk of harm as the Department has stated, HK states she has given her life to raising and caring for the children. HK has protected the children and provided shelter and food. HK stated she feels it has been unjust and unfair having the allegations of harm and neglect aimed at her when she has done everything in her influence to care for and provide the children with a loving home.
- [53]In written submissions, HK included a list of circumstances described as “impacting on our life at the time of the events” including: regular change of caseworkers making it difficult to build relationships and to establish rapport with the children; HK’s niece’s behaviours; the Department placing with them another child with problematic behaviour; needing to attend a number of funerals, including that of the mother of two of their foster children and grief and loss issues around that death.[37]
- [54]HK also listed “relevant events that have occurred” since the Department’s recorded history including: HK facilitating her granddaughter’s disability pension; initiating contact with family members in other cities; assisting her granddaughter to attend her mother’s funeral; supporting that granddaughter (who remained living with them after attaining age 18) to obtain benefits; assisting the children to participate in sports by paying fees and attending games; instigating tutoring although the Department was not supportive of the method; participating in the Royal Commission into child abuse; and that her and TK were receiving Red Cross support to acquire new premises.[38]
Witnesses
KD
- [55]KD provided a statement and attended the second day of the hearing to give evidence. After appearing as a witness she acted as a support person to HK in presenting her case.
- [56]KD was employed as chief executive officer with a local Aboriginal and Islander child care agency between 2003 and 2010. She had known HK and her family for sixteen years. She described HK as active in her community and an advocate for Aboriginal rights.
- [57]KD said she read the Reasons and the child protection material. She took issue with the lack of support HK and her husband received to care for her granddaughter who came into her care as an undernourished and very sick little baby. She said the child’s ill health was heightened by the state of the Ks home which she said should have been condemned. She said the housing cooperative had not carried out repairs or maintenance for 19 years and was critical of both the Department and the recognised entity for lack of support and assistance in that regard.
- [58]KD described HK’s niece as happy and vibrant until she began contact with her biological mother. She changed and became moody and difficult to care for. Her behaviour caused anxiety and concern for the entire household but in particular, HK’s younger granddaughter “reacted very quickly and sunk into a depressive state and withdraw generally to her room.” She said her organisation made several attempts to get child protection to act. “This did not occur consequently (the Ks) found themselves subject to a substantiated breach of standards for both (girls)-(one) for not meeting her health needs and (one) who had made allegations (against TK).
- [59]KD noted TK had not been charged although it was substantiated by child protection and that she “did not come across any written documentation that stated he had been interviewed by police.”[39] She also pointed out that the girl had contracted an STD whereas TK did not have an STD.
- [60]KD outlined the difficulties for her organisation providing support to the carers of indigenous children. She referred to child protection services in the region “targeting Aboriginal and Torres Strait Islander Foster carers.” She questioned the validity of blue cards being refused on the basis of a person’s actions “as far back as the 1970s” and pointed out HK had previously received a blue card with her criminal history being known to blue card services. In cross-examination she acknowledged that the relationship between her organisation and Child Safety was very strained. She felt this was because her organisation insisted on the legislation being adhered to while Child Safety disrespected the agency and disregarded the agency’s views.
- [61]KD reiterated the lack of care of Child Safety, giving an example of two boys with sexualised behaviours being placed in the Ks care without advising their history, placing the female children at risk. She said the Ks were not given support in terms of clothes or Medicare cards and were not financially compensated. She said “in a sense (the Ks) were set up to fail by child protection services.”
- [62]KD said the Ks had “committed no crime against” any child and removing their blue cards “would place Aboriginal children and the wider community at a loss to know where to turn.” HK had done an “admiral job of raising her families’ children” and they had been her only priority.
- [63]KD described HK as very ill and that she should be hospitalised. She suggested that HK may have had difficulties reading the material on file and language difficulties, particularly the terminology used in the review process. She said the hearing had not provided natural justice for HK. She said there should be someone telling HK what is involved in layman’s terms. HK did not “know any of this stuff”. She was telling the truth. KD said she has proven over many years that government agencies lie. They lie in writing, on the phone and email. She said she was concerned that the blue card decision rests on material provided by the Department. She said there was a lot of stuff (in the material) she did not know about. She remembered what happened and was concerned HK was being victimised as a result of someone else’s actions and because Child Safety had failed to protect a child.
TS
- [64]TS provided a reference with HK’s submissions to blue card services and attended the hearing. He said he is a licensed pastor with over eighteen years’ experience working with Child Safety and non-government organisations in child protection and with youth. He recently managed an indigenous foster care service and a recognised entity working alongside Child Safety with indigenous families, making recommendations and providing advice on the best outcomes for indigenous children.
- [65]TS had known HK and her husband for over twelve years, both in a personal and professional capacity. He described HK as a well-known and respected member of her community. He said he engaged with them numerous times through community events and had been a regular guest in their household. He said he had observed their parenting and as an experienced worker in the child protection field, their care of their children had raised no concerns.
- [66]TS explained in his role as child protection support officer he had assisted with applications, follow-ups and referrals. He gave an example that if a need for professional or educational support was identified, his organisation would advocate for HK and the children, with Child Safety and follow up that those needs were met. TS recalled HK was frequently frustrated by Child Safety not responding to her requests for support. He recounted that HK had for some years been asking that Child Safety have an assessment of her nephew for foetal alcohol syndrome which they finally agreed to after the agency requested it. He also recalled that Child Safety was slow to respond to requests for help with fees and transport involved for HK’s granddaughter when she was chosen for representative netball sides.
- [67]TS recalled that despite HK’s best efforts, she was unable to get her younger granddaughter to attend school regularly. HK had asked Child Safety for an assessment and his organisation approached Child Safety with concerns that child had social anxiety. He said it was not until they had in depth discussions with Child Safety that they arranged an assessment by a psychologist. He said the girl “basically hibernated in her room and was hard to coax out”. He said “as a result her health suffered and it all came back to the failure of Child Safety to have it assessed.”
- [68]TS said it had been difficult to get Child Safety to act on his agency’s recommendations and the Department showed a lack of willingness to be actively involved. He described the Department as providing limited support for a period of ten years with no visits and then suddenly in 2011, “pushing their way in and wanting to do things” which caused a lot of animosity. He said the relationship between the Department and HK had broken down to such an extent that his agency asked that the Department not have direct contact with the Ks and his agency liaise instead. He said this was in place over a nine month period.
- [69]TS said he was aware there were allegations made by HK’s niece against TK and allegations of breaches of standards of care including neglect, absenteeism from school, behaviour of the children, and living standards in the home. He said none was substantiated and the children were left in her care each time.
- [70]TS said the house in which the Ks lived was very run down and it was understandable that a white, middle class university graduate would make a judgement but that did not mean the children were not well cared for. He said the housing cooperative which managed the residence accused the Ks of owing thousands of dollars and therefore refused to carry out maintenance. Other houses run by the cooperative received regular maintenance and repairs but not the Ks. He added that HK had documentation of the payments being directly debited from Centrelink and he failed to see how she could have been behind.
- [71]TS said he had read the Reasons, although not recently. He said HK had told him that around the age of eighteen she was in trouble with the law but he was not aware of the nature of that trouble as he had not seen a criminal history and was not aware of any trouble since that time.
- [72]TS said the children in their care had expressed to him their love and thankfulness for the Ks raising them and that they would not willingly live in any other placement which he described as a testimony to TK and HK as carers and as people in general. He said he currently sees HK weekly or fortnightly and keeps in touch by phone in between. He was not aware of HK having drug or alcohol issues or mental health concerns.
Written References
Psychologist Report
- [73]A report dated 4 November 2015 was provided from psychologist Edward Mosby. Mr Mosby wrote that he provided the report as a consultant psychologist contracted by the organisation which facilitates the foster and kinship care programme with which HK was registered.
- [74]Mr Mosby reported he had conducted two interviews in person with HK and had meetings with the children who currently reside with her. He “reviewed several documents in relation to the current pending hearing which are also included in her response to the tribunal.” His report only considered the charges “HK explicitly feels relate to her.”
- [75]As regards the assault committed by HK as an eighteen year old, Mr Mosby reported she was “rigid” that she had acted in self-defence. HK also informed Mr Mosby she had been fixing the letterbox and was not aware items she was given were stolen. She described herself as a non-drinker.
- [76]Mr Mosby reported that HK had experienced significant matters of grief and loss. She has been exposed to racial and sexual discrimination and to violence and abuse over the course of her life. Over the course of her life she has experienced instability in accommodation and reduced opportunities for formal education, to gain and maintain employment. During periods in her life HK had been engaged in alcohol consumption to varying degrees. She has maintained close relationships with persons that demonstrate some degree of influence over her either as a result of family or community association. He stated that all these factors had enhanced her susceptibility towards offending behaviours.
- [77]Mr Mosby detailed what he considered were protective factors and preventative strategies to reduce the risk of further offending.
- [78]Mr Mosby reported in his concluding paragraph:
over the most recent years there does appear to be nil documented substantiated concerns regard(ing) her ability to care for children. This in addition to described protective factors appears to have significantly reduced the risk for offending behaviours.
- [79]His report continues:
All reports that I have been provided describe her history as a carer are positive. There have been verbal comments mentioned in relation to unsubstantiated accusations regarding her ability to manage the health of a specified child however the validity of this situation has not been the focus of this report.
- [80]He finally concludes:
With the maintenance of risk mitigation factors as highlighted above and the ongoing employment of the preventative strategies I feel that HK is suitable for child related employment.
Other References
- [81]HK provided letters addressed to the housing cooperative which managed her former residence. One dated 12 October 2015 was from her “social and emotional well-being manager” at her community health service asking that HK’s ill health be taken into account in making decisions regarding her accommodation. The other, which is not dated, was from her doctor who suggested the condition of HK’s house was worsening her breathing problems and that she needed a new house.
- [82]The reasons also refer to a reference dated 21 April 2015 from a placement support worker with an indigenous carer support agency who said she had witnessed HK’s great sacrifice to provide care for her granddaughters, niece and nephew since their infancy and described HK as providing “the best possible care to abide by the Standards of Care.” The tribunal did not receive a copy.
Submissions of Blue Card Services
- [83]The Agency identified a number of protective factors relevant to HK including:
- She has been a foster carer for many years and whilst concerns had been raised, there is evidence children have been happy and settled in her care.
- Despite the concerns, none have resulted in charges being brought by police.
- Her criminal history does not reflect ongoing violence or offences involving children.
- There are positive comments from her witnesses as to her good character in support of her blue card application.
- She has undertaken parenting courses.
- [84]The agency noted that Psychologist Edward Mosby identified[40] what he described as significant protective factors for HK being:
- She maintains a positive and supportive relationship with her husband;
- She currently does not consume alcohol or use illicit drugs;
- She is aware of and demonstrates a willingness to engage with community support agencies on an as needed basis;
- She maintains a positive network of friends and family;
- She demonstrates a good level of insight into the impacts of her past negative behaviours on others and demonstrates an associated level of empathy towards others;
- While demonstrating an appropriate level of frustration she also demonstrates a good degree of problem solving skills and an ability to manage her frustrations in an appropriate manner;
- Her motivations for being a carer are in the best interest of children;
- She has demonstrated in the most recent times a good level of competence and ability to care for children in her care;
- She demonstrates a good level of emotional and cognitive maturity;
- She has the ability to develop a productive working relationship with supportive agencies.
- [85]Mr Mosby also outlined preventative strategies employed by HK to reduce her risk of further offending:
- She regularly maintains contact with a foster and kinship carer program, seeking support with social stressors.
- She engages in the promotion of her own physical health through engagement with her health service.
- She is an active and well respected elder within her community; while maintaining her social connections she further positively promotes the pride she has in her identity as an Aboriginal woman.
- She actively seeks to secure positive supportive relationships within her family and friends within the community.
- She is willing to undertake a revision of training especially into the standards of care requirements.
- [86]The Agency submitted that whilst there were protective factors there were a number of risk factors arising from the evidence which the agency submitted, were significant and numerous.
- [87]The material produced by Child Safety illustrated various concerns were raised over a period of years spanning 2001 to 2013 including: that children were subjected to physical punishment; HK did not ensure children were attending school; she neglected their hygiene and medical needs; an adult was permitted in the home without the department being informed; HK did not disclose allegations of sexual abuse made by a child.
- [88]The agency submitted that the material depicts HK repeatedly responding with hostility and denial. As a whole the material raises concerns about her ability to foster and promote the educational and emotional needs and best interests of children in her care.
- [89]When the child disclosed an allegation of sexual abuse against HK’s partner, HK took no action to ensure the safety of the children and failed to address the emotional distress of her niece. When interviewed she focussed on the behaviours of the girl and on the return to her home of her partner. At the hearing she gave evidence there was nothing she would do differently.
- [90]HK and her witnesses were critical of the Department’s lack of help but the material shows ongoing support with action plans agreed to but not complied with and HK being defensive and uncooperative.
- [91]The agency submitted that although the primary concern is with the Department material, HK’s criminal history is relevant, offences occurring as recently as 2014 and suggesting ongoing disrespect for authority and the law. Whilst HK either minimised or denied completely her offending, the tribunal is unable to go behind the conviction. The agency submitted that raised a concern about HK’s level of remorse or insight as well as credibility.
- [92]The agency submitted there were a number of concerns with the psychologist’s report. The report focuses on criminal history and it is not clear whether he was aware of the Department’s concerns. There was no psychometric testing performed. The fact that Mr Mosby suggests the influence of family and friends is a risk factor is highly concerning given the substantiated sexual assault by her husband. Mr Mosby does not indicate the source of verbal reports referred to. The fact that Mr Mosby was not available meant these concerns could not be clarified.
- [93]The agency submitted that limited weight can be given to references when the authors were not available for cross-examination.
- [94]The agency submitted that the transferability of a blue card means HK’s limited intention for its use is not relevant and that the risk factors clearly outweigh the protective factors, such that HK’s is an exceptional case.
HK’s Submissions
- [95]In addition to her written material and oral evidence, HK made the following oral submissions.
- She swore on the bible and told the truth.
- All the other things came (referring to Child Safety material) and say she is a bad parent and she never knew those things. She never did anything wrong to anybody. She never neglected a child. She did it all on her own without the help of Child Safety. She gave the children respect and support through the years.
- She wants a blue card to be able to work at the court house as a well respected elder.
- She also wants her son to live with her again as he is unhappy.
- Aboriginal and Torres Strait Islander People don’t want to be carers because of the allegations Child Safety make in their file.
Discussion
Adjournment Not Granted
- [96]I will first address the suggestion which was made by HK’s witness, KD, that HK was not afforded natural justice.
- [97]HK filed an application for review in the tribunal on 24 June 2015. Directions were made on July 2015 with the matter set down for hearing on 13 November 2015 and a compulsory conference on 15 September 2015. HK did not attend the conference and a new date for the compulsory conference was set for 21 October 2015. On that date, new directions for HK to file material and provide details of witnesses attending were made. HK did not comply with the directions and the hearing for 13 November 2015 was vacated.
- [98]At a directions hearing on 18 January 2016, the matter was listed for hearing on 25 May 2016 and directions made extending the time for HK to file material and provide details of witnesses.
- [99]On 25 May 2016 HK attended the hearing. She described herself as homeless and “all over the place” and not knowing where copies of documents were. She was accompanied by KD who had not provided a statement but was prepared to give evidence on behalf of HK. HK had not arranged for other witnesses who had provided written statements to attend and mentioned a number of other witnesses she would like to call but had neither obtained their written statements nor made arrangements for them to attend. HK said she had not previously seen the material discovered from the Department.
- [100]The respondent made opening submissions setting out the framework of the legislation and the matters for the tribunal to consider. The matter was stood down for HK to consider the additional material. In the company of KD, who was permitted in the hearing room to assist HK, HK asked for an adjournment to seek legal advice. The adjournment was opposed by the respondent which had allocated resources to the hearing including travel to Rockhampton.
- [101]I granted the adjournment sought by HK and set a date for the hearing to continue on 26 August 2016. That date was suitable to both HK and the respondent. I made directions and recommendations which provided HK with the opportunity to file additional material and obtain an updated psychology report. The hearing process was explained. I told HK a further adjournment would not be granted if she presented unprepared again.
- [102]HK not only had not seen the material discovered from the Department but did not recognise documents filed on her behalf. She was given copies of all the documents.
- [103]At the hearing on 26 August 2016, a solicitor from the Aboriginal and Torres Strait Islander Legal Service appeared seeking an adjournment of the hearing. She submitted it would be unfair to HK for the hearing to proceed as HK had taken steps to obtain legal representation. She said there was a delay in HK getting an appointment. Further delay resulted because that practitioner was ill and then transitioning into retirement and she had only commenced work with the firm recently. She was prepared to represent HK if an adjournment was granted, but otherwise she indicated HK was prepared to represent herself that day.
- [104]The respondent objected to an adjournment and I did not grant one.
- [105]KD questioned HK’s capacity to read the material with which she was provided. I had asked HK in May whether she would have any difficulty reading the material from Child Safety which was lengthy and not easy to follow. She assured me she would have no trouble and referred to having studied law. She described being employed in assisting a lawyer with documents for court.
- [106]KD also suggested there was a need for the process to be described in lay persons terms for HK’s understanding. The tribunal is obliged to ensure that self-represented parties understand the process. There were a number of directions hearings and a compulsory conference where explanations were available. At the hearing in May I also explained what was expected of HK. She was encouraged to make notes and was permitted to have KD in the hearing room as support. There has been ample opportunity for HK to seek further information from the tribunal and to obtain legal advice. I agree that at times HK appeared to struggle with understanding what she was told but I do not think it was unreasonable that the matter proceeded to hearing on 26 August 2016.
- [107]HK and KD appeared to respond with surprise to some of the matters raised in the material from Child Safety but that had been in her possession since 25 May 2016 and was the main reason for an adjournment being granted on that date.
- [108]HK did not take the opportunity to file any further material between hearing dates other than KD’s statement and did not arrange for the additional witnesses she mentioned, other than TS. She did not obtain an updated psychology report, due to the cost.
Witnesses
- [109]KD presented as an articulate and knowledgeable witness. She strongly supported HK obtaining a blue card and was indignant about perceived injustices to her. I accept her evidence as to the numerous difficulties experienced by HK and the challenging behaviours of children in her care but I do not accept her suggestion that the records of Child Safety are not accurate records or that HK is being “victimised”.
- [110]KD was not familiar with much of the detail contained in Department records. The allegation against TK as made to Child Safety would not have resulted in the girl contracting an STD from him and I found it jarring that KD could suggest that the lack of TK having an STD supported that the abuse had not occurred.
- [111]KD took exception to historic actions being taken into account in determining whether a blue card would be issued. HK’s criminal history continues to 2014 and breaches of the standards of care as a carer occurred as recently as 2013.
- [112]I have already dealt with KD’s concerns around HK being afforded natural justice.
- [113]I accept the Department material as a contemporaneous record of what allegations and concerns were raised, the investigations carried out including interviews and meetings held and the outcomes of such investigations and actions taken.
- [114]TS was also articulate and experienced in the field of child protection but also very critical of Child Safety. His recollections of what occurred differed from what is reflected in the Department’s records. He described a lack of willingness for Child Safety to be involved and said that they had not been involved for a ten year period until 2011 when they “pushed their way in.” The records actually reflect ongoing involvement of the Department from 2001 through to 2013.
- [115]Nor was TS’s assertion correct that no allegations made to the Department were ever substantiated or that no children were ever removed from HK’s care. His lack of knowledge around HK’s Child Safety history as well as her criminal history detracts from his evidence in my view. He stated he had read the Reasons but also that he had not seen HK’s criminal history, which was set out in the Reasons.
- [116]TS questioned the position of the housing cooperative that HK was in arrears and that for that reason repairs and maintenance were not carried out. He said other houses were maintained but not the Ks. This seems to be a further instance of alleged “victimisation” which is not substantiated. In fact, according to HK, she has now been evicted from the house due to non-payment of rent after the matter was dealt with in court.
- [117]The written references were of little or no assistance, particularly as the authors did not appear.
- [118]The weight to which I am able to give to the report of Mr Mosby was significantly affected by the fact he did not appear to have been appraised of the Child Safety material. Whilst Mr Mosby reported he had been given a copy of the Reasons, in which much of the child protection material is raised, he states in his report there “appears to be nil documented substantiated concerns regard(ing) her ability to care for children.” This deficiency was not able to be addressed with his not being available for cross-examination.
- [119]HK presented as genuinely wishing to recover her blue card in order to provide a home for her nephew, and to obtain work which would allow her to be supportive of her people. She has experienced significant hardships and has had a period of ill health and stressful events. She described herself as having strong supports, yet only KD and TS gave evidence on her behalf and no family members, including her husband were present or gave statements. She is not only in poor health physically but it was stated she has depression and is seeing a counsellor. Evidence as to how she is addressing mental health issues was not given.
- [120]HK did not appear to accept responsibility for anything which had occurred to her. She denied or minimised the behaviours which led to criminal charges against her. Whilst I agree that the child protection history is more significant to the determination of whether an exceptional case exists, HK’s criminal history has some relevance. The most concerning offence was the assault of two school girls, when HK herself was only a young woman of eighteen. The account as recorded in the police brief is to be preferred over HK’s assertions that she acted in “self-defence”. This offence occurred a long time ago and has not been repeated and would not of itself make HK’s case exceptional. The incident does illustrate an early tendency for HK to act defensively and aggressively when faced with perceived victimisation.
- [121]I would not consider HK’s case to be exceptional because of her criminal history. The child protection material does span a period of years and a number of failures as a carer have occurred, but the most concerning issue for me is HK’s attitude to that history.
- [122]There are inconsistencies between what HK told Child Safety and her evidence before the tribunal. For example, the Child Safety material records that TK and HK were questioned about a boy in their care being hit in 2001. TK had told the Department he hit his head causing him to fall and strike his head on the floor. HK told the Department at the time she had seen TK hit the boy’s legs and bottom only. At the hearing she denied these concerns had been raised about this child saying that (at the hearing) was the first time she had heard it. She did not recall admitting to disciplining a child for swearing by putting chilli on their tongue. She denied ever sending children under the house although she had years before admitted this, though denying it was dark. She reacted with disbelief at the hearing as these matters were raised with her although she had been given a copy of the material three months before the second hearing day. She responded that “I have never ever mistreated children in my care.” She did not recall her nephew sharing a room with a child in her home. She said “this all comes from the Department and they seem to lie about us carers.” She was asked “It’s a lot of lies?” She replied “Yes. Why would I mistreat the children when I love them?”
- [123]In 2007 she admitted to smacking after initially denying it, but in written submissions returns to a denial that smacking of her niece occurred. The smacking alleged was not physically severe but corporal punishment is a breach of standards required of a carer. In context, it is understandable that HK would resort to inappropriate discipline on occasion, parents often do. She was caring for a number of children, some with challenging behaviours. Mostly she was found to be merely in breach of standards of care. She was required to undertake extra training and agree to action plans and the children remained in her care, with the exceptions noted. However, her denial that much of this occurred, including matters she has previously admitted to the Department, affects her credibility and shows a lack of insight into the unacceptable discipline. This raises the concern that she may repeat the behaviour.
- [124]It may be understandable that HK does not recall the details of concerns raised as far back as 2001 but at the hearing she reacted with disbelief about the poor attendance at school of the children which were raised with her by the Department over 2012 and 2013. She stated that they always dropped the kids to school and never got any notes from the school.
- [125]HK continues to deny harm was caused to her niece by the actions of her husband or herself. While it does appear HK disbelieved her niece and continues to do so, the allegation of harm was substantiated. At the time the girl made the disclosure to HK, whether she believed her or not she was required to act protectively to the child, to report that the allegation had been made, if not to police, then to Child Safety. HK continued to allude to the child’s behaviours as the issue and stated at the hearing she would not do anything differently, showing ongoing lack of insight.
- [126]As noted, HK’s evidence, and that of her witnesses, often contradicts the material provided from Child Safety. I reiterate that I accept the material from the Department is a contemporaneous record and I prefer that evidence over that of HK and her witnesses.
Risk and Protective Factors
- [127]I accept the submissions of the respondent as to the protective factors which apply to HK. These include the matters set out in Mr Mosby’s report although I have noted that the weight I give his views in that regard are tempered by his lack of knowledge of the child protection history.
- [128]I accept the submissions of the respondent as to the risk factors which apply to HK. I would add to that list, HK’s current ill-health, particularly her mental health and her lack of permanent accommodation. That was not raised with Mr Mosby and there was no evidence before the tribunal as to how HK is addressing her situation, other than she was attending counselling.
- [129]I also do not accept HK’s assertions she is well supported in the absence of family which she claims are part of an extensive support network.
- [130]These risk factors are all capable of being addressed. HK expressed a passion to be an advocate and leader within her community and to resume her long term role as a foster carer. I would encourage her to reapply for a blue card after she has addressed the matters identified as risk factors. At present I find that there are risk factors which outweigh the positive factors and I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the decision of the chief executive officer of the Public Safety Business Agency that the applicant’s case is “exceptional” within the meaning of section 221(2) the Act is confirmed.
Non-Publication of Identifying Information
- [131]The Agency submitted it would be appropriate for the Tribunal to make an order prohibiting the publication of any information that would identify, or may lead to the identification of a child, or a person who was a child at the time of the offending pursuant to section 66 of the Queensland Civil and Administrative Act 2009 and section 194(1)(a) of the Child Protection Act 1999 and I agree.
Orders
- The decision of the chief executive officer of the Public safety Business Agency made on 1 June 2015 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is confirmed.
- Publication of this matter will occur in a de-identified manner.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
[3]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.
[4]Ibid s 221.
[5]Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 at [31].
[6]Ibid at [33].
[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].
[8]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[9]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
[10]Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.
[11]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
[12]Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 at [65].
[13]Grindrod v Chief Executive Officer, Department for Community Development op cit.
[14]Criminal History Information detailed in Statement of Reasons at page 2.
[15]At page 78 of material produced by Department of Communities, Child Safety and Disability Services.
[16]Ibid at page 79.
[17]At pages 78 and 79 of material produced by Department of Communities, Child Safety and Disability Services.
[18]Ibid at page 79.
[19]Ibid at page 80.
[20]Ibid at page 79.
[21]At pages 79 and 80 of material produced by Department of Communities, Child Safety and Disability Services.
[22]Ibid at page 81.
[23]Ibid at pages 81 and 82.
[24]Ibid at pages 82 and 83.
[25]Ibid at pages 83 and 84.
[26]At pages 84 and 85 of material produced by Department of Communities, Child Safety and Disability Services.
[27]Ibid at pages 85 and 86.
[28]Ibid at pages 107 to 138.
[29]At page 205 of material produced by Department of Communities, Child Safety and Disability Services.
[30]Ibid at pages 205 to 210.
[31]At pages 181 to 186 of material produced by Department of Communities, Child Safety and Disability Services.
[32]Reasons at page 25.
[33]Reasons at pages 25 and 26.
[34]Ibid at page 31.
[35]Ibid at page 26.
[36]Ibid at pages 26 and 27.
[37]Reasons at pages 31 and 32.
[38]Ibid at page 32.
[39]At page 122 of material produced by Department of Communities, Child Safety and Disability Services it was reported that TK attended at police station in relation to the matter with his solicitor who advised him not to take part in an interview.
[40]Report dated 4 November 2015.