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LCA v Director-General, Department of Justice and Attorney-General[2017] QCAT 244

LCA v Director-General, Department of Justice and Attorney-General[2017] QCAT 244

CITATION:

LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244

PARTIES:

LCA

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML180-16

MATTER TYPE:

Childrens matters

HEARING DATE:

20 March 2017

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

18 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal orders that:

  1. The decision of the Director-General, Department of Justice and Attorney-General that there is an exceptional case for LCA under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and a new decision is substituted that there is not an exceptional case for LCA.
  1. Publication, other than to the parties to this proceeding, of the applicant’s name and the names of her children, is prohibited, under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  1. Publication of the documents obtained by the Director-General of the Department of Communities, Child Safety and Disability Services is prohibited save as was and is necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue card – where applicant issued with negative notice – 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

Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171

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

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

FMA v Chief Executive Officer, Public Safety Business Agency (No. 2) [2016] QCAT 381

RPG v Public Safety Business Agency [2016] QCAT 331

Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407.

APPEARANCES:

APPLICANT:

represented by Mr S Jones of Counsel

RESPONDENT:

represented by Ms H Marunda , In-house Lawyer, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    LCA requires a blue card to enable her to undertake nursing placements in connection with her studies to become a registered nurse. She had held a blue card since 18 March 2014 when, on 29 June 2016, the Director-General decided to cancel her positive notice and blue card and issue her with a negative notice. LCA has applied to the Tribunal to review the Director-General’s decision.
  2. [2]
    In conducting the review, I must apply the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) as that is the legislation under which the reviewable decision was made. I have all the functions of the Director-General relating to the reviewable decision.[1] The purpose of the review is to produce the correct and preferable decision following a fresh hearing.
  3. [3]
    If I reach the same conclusion as the Director-General, I must confirm the reviewable decision. If I reach a different conclusion, the appropriate order is for me to set aside the reviewable decision and substitute my own decision.[2]

What is the reviewable decision?

  1. [4]
    It was argued by counsel for LCA that there are two reviewable decisions before me:
    1. The decision as to whether or not there is an exceptional case for LCA; and
    2. The decision not to issue a positive notice.
  2. [5]
    It was argued that I have the power to determine that a positive notice issue and that decision be implemented by the Director-General. I was referred to this Tribunal’s decisions in RPG v Public Safety Business Agency[3] and Tilahun v Chief Executive Officer, Public Safety Business Agency[4] and FMA v Chief Executive Officer, Public Safety Business Agency.[5] There was a second decision in this matter, FMA v Chief Executive Officer, Public Safety Business Agency (No. 2).[6]
  3. [6]
    Section 353 of the Act sets out the reviewable decisions. It is clear that a decision of the chief executive as to whether or not there is an exceptional case for the person is a reviewable decision if, because of that decision, the chief executive issued a negative notice.[7] I accept that the reviewable decision is the decision of the Director-General that there is an exceptional case for LCA.[8] That decision resulted in a negative notice being issued to LCA.
  4. [7]
    However, I do not accept that I have another reviewable decision before me. To issue a negative notice is not listed in s 353 of the Act. I have also considered whether I have the power to direct the chief executive (the respondent) to issue a positive notice to LCA as I have concluded that there is not an exceptional case for her.
  5. [8]
    In Tilahun, the learned member considered the decision of a Judicial Member of the Tribunal in RPG where the Tribunal determined a contempt application against the Chief Executive, the respondent at that time. I agree with the learned member’s analysis of RPG and the learned member’s conclusion to follow it. In Tilahun, the learned member said:[9]

The Tribunal held that on review the tribunal had power to set aside PSBA’s decision that is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act and replace it with the Tribunal’s decision that there is no exceptional case. It further held that the Tribunal had no power to order that a positive notice or blue card be issued, suggesting that the Chief Executive was obliged to issue a positive notice within a reasonable time of the Tribunal’s decision. The Tribunal observed that failure to do so may render the Chief Executive liable for criminal prosecution.

The RPG decision was made by a Judicial Member of QCAT. Without determining whether in an administrative review proceeding, I am technically bound by the decision in RPG, it is at least highly persuasive. For reasons of consistency,[10] I consider that I should follow it.

  1. [9]
    For those reasons, I have not gone further and directed the Director-General to issue a positive notice. However, in my view it follows from my decision that one should issue.

The issue for the Tribunal

  1. [10]
    LCA has not been convicted of any criminal offences. LCA was charged with assault occasioning bodily harm between 1 November 2015 and 5 November 2015, pursuant to s 339(1) of the Criminal Code. However, on 23 February 2016, the outcome recorded by the Richlands Magistrates Court was ‘no evidence to offer’.
  2. [11]
    As LCA has not been convicted for offences that meet the definition of ‘serious offence’ in the Act,[11] a positive notice must be issued to her unless I am satisfied that there is an exceptional case for LCA in which it would not be in the best interests of children for a positive notice to be issued. If that is the case, the Director-General must issue a negative notice to LCA.[12] A blue card cannot be issued to a person in the absence of a positive notice.
  3. [12]
    The issue for me to determine is whether or not there is an ‘exceptional case’ for LCA.

What is meant by ‘exceptional case’?

  1. [13]
    The term ‘exceptional case’ is not defined in the Act. What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case[13] but I must have regard to the particular matters set out in s 226(2) of the Act.
  2. [14]
    Section 226(2) of the Act sets out a non-exhaustive 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:[14]
    1. Whether it is a conviction or charge;
    2. Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. When the offence was committed;
    4. The nature of the offence and its relevance to employment that may involve children; and
    5. In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [15]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[15]
  4. [16]
    The paramount consideration in an employment-screening decision made under the Act is the welfare and best interests of the child. The Act must be administered under the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[16]
  5. [17]
    The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[17]
  6. [18]
    I accept that a positive notice is unconditional and fully transferrable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities.

Discussion of evidence and findings of fact

  1. [19]
    I have considered all of the documents tendered at the hearing and the oral evidence of LCA and others. Amongst the documents tendered at the hearing were documents produced to the Tribunal by the Department of Communities, Child Safety and Disability Services (the Department) in response to a Notice to Produce issued by the Tribunal upon application by the Director-General. Those documents included LCA’s child protection history.[18] In addition, the Director-General provided the Tribunal with documents relevant to the tribunal’s review of the decision in satisfaction of s 21(2) of the QCAT Act.

LCA’s criminal history

  1. [20]
    It is not in dispute and I find that LCA has not been convicted of any criminal offences. However, LCA was charged, on 23 February 2016, with assault occasioning bodily harm between 1 November 2015 and 5 November 2015, pursuant to s 339(1) of the Criminal Code. The outcome recorded by the Richlands Magistrates Court was ‘no evidence to offer’.[19]
  2. [21]
    LCA did not deny the facts set out in the court brief in her evidence to the Tribunal. I accept them and make findings of fact accordingly.
  3. [22]
    The victim of the assault was LCA’s daughter who was then aged 14 years and resided with LCA. The court brief sets out the version of events obtained during an interview with the victim child as follows:[20]

…the victim child stated that on or about the evening of the 3rd day of November 2015, she had been at the offence location with the defendant when an argument ensued. The victim child states that during this argument, she has been in the kitchen of the dwelling when the argument has become heated and she has called the defendant a bitch. As a result, the defendant has attempted to strike what the victim believes is her face with a wooden spoon the defendant had in her hand. The victim child stated that she has raised her arm in front of her face for protection and was struck with force on the back of her left forearm four or five times with the spoon. This has resulted in bruising and swelling to the forearm and elbow of the victim child requiring ice to reduce the swelling. The victim child was not provided with any medical assistance by the defendant and she states that she had to wear a sling on her arm for six days as she was unable to bend her elbow. Police observed discoloration to the arm of the victim child she states she received from ice burns she received in her attempt to reduce the swelling.

  1. [23]
    LCA was interviewed by police on 29 November 2015 and agreed with the version of events provided by her daughter, stating that she had become angry causing her to lash out. The court brief also records that LCA:
    1. Said her actions exceeded that of normal domestic discipline;
    2. Acknowledged she had committed an offence against the victim child;
    3. Was aware at the time that she had committed an offence;
    4. Was remorseful for her actions; and
    5. Wished to make amends with the victim child and was willing to participate in mediation should the Court be willing.[21]

Child protection history

  1. [24]
    I have carefully considered the documents produced to the Tribunal by the Department. At the time of giving evidence, LCA had not looked at the documents provided by the Department. However, she was comfortable answering questions about their contents.
  2. [25]
    In summary, the Department received a notification in December 2008 in relation to concerns around LCA’s care of her children, including that she had pinched her son and had hit and pinched her daughter. According to the records, after contacting the school, the Department determined that departmental involvement was not warranted at that time.
  3. [26]
    The relevant documents did not themselves indicate that LCA was contacted by the Department in relation to that notification. LCA offered that it was likely the notifier had been her ex-husband from whom she separated in 2007. The only other evidence LCA ventured was that in 2008 she may have incidentally scratched her daughter when her daughter was kicking her driver’s seat and she attempted to grab her leg to stop her from doing so.
  4. [27]
    The next notification appears to have been in approximately June 2014 when concerns were raised that LCA had punched her daughter, splitting her lip open and belittling her daughter. LCA was referred to a service for active intervention[22] in July 2014.[23]
  5. [28]
    The next notification occurred on 24 October 2014.[24] As a consequence of that notification, Mission Australia engaged with the family. It was suggested to LCA in evidence that she had scratched her daughter. However, from my reading of the documentation, it appears that it was, in fact, LCA’s daughter who engaged in self-harming behaviours on that occasion. LCA informed the Tribunal that her daughter was taken to the hospital in relation to those concerns.
  6. [29]
    The only other notification in the documents is that relating to the wooden spoon incident.[25] In respect of that incident, an intervention and assistance order was commenced by the Department. A safety plan was also developed. The child went to live with her father during the assessment, but ultimately returned to LCA’s care and expressed to the Department a desire to live with her mother.[26]
  7. [30]
    I accept the contents of the child protection history as set out in the documents provided by the Department.
  8. [31]
    In relation to the child protection assessment, I note the Department’s view that LCA had unreal expectations of her daughter; that intervention by way of a parental agreement was necessary; that LCA created unrealistic boundaries for her daughter; was, at that time, blaming the child who she reported would ‘push her buttons’; and that she admitted struggling with her daughter’s behaviour. A case plan was developed on 4 February 2016 and was to be reviewed on 4 August 2016.
  9. [32]
    LCA said that in approximately December 2016, both she and her daughter were interviewed by child safety officers and as far as she was aware the Department would have no further involvement with her and her daughter. There is no evidence to the contrary. I accept that evidence.
  10. [33]
    In relation to the child protection history, I accept that there has been ongoing conflict in the relationship between LCA and her eldest child.
  11. [34]
    LCA admitted she had not handled her child’s behaviour well, partly because it was not behaviour with which she had not anticipated having to manage. LCA is of Filipino background and she reported that in her culture such behaviour is unacceptable and would have been managed with physical discipline.
  12. [35]
    I accept LCA’s evidence that she found herself ill-equipped to appropriately manage her daughter’s behaviour as she progressed into teenage life.
  13. [36]
    LCA regards education as extremely important. She is keen for her daughter to reach her potential at school and progress to university. LCA has attempted to set an example for her daughter by studying for a nursing degree, whilst also working in aged care. LCA’s affidavit[27] also states that she enrolled her daughter in private school because she believes that to be her daughter’s best opportunity to receive a good education. From her evidence, it was clear that it is her perception that her daughter does not value her education as much as she should and that she has become distracted by matters such as her appearance, having a boyfriend, and engaging in her social life. This has also resulted in LCA being concerned about what other choices her daughter might make in the future.
  14. [37]
    All of these matters cause LCA significant stress. As LCA’s daughter is a minor and a high school student, I consider it unlikely that her behaviour will dramatically alter in the foreseeable future. Indeed, LCA’s evidence was that her daughter still swore at her on a regular basis and was non-compliant with her mother’s attempt to set boundaries around her social life and around her use of her phone, iPad, and social media.
  15. [38]
    I also accept LCA’s evidence that she has sought to engage in counselling with her daughter but her daughter does not wish to engage.
  16. [39]
    LCA gave evidence and I accept that in her employment in aged care she has, on occasion, been subjected to verbal abuse and non-compliant behaviour from patients. I also accept her evidence that such behaviour has not triggered any violent or aggressive response from her.
  17. [40]
    I asked LCA whether she was involved in the care of any other children. In the past, she had babysat the young child of a close friend on a fairly regular basis. Due to her work and study commitments, she had been unable to do so regularly in recent times. She said that she missed the child and offered to babysit on any days she might have free.
  18. [41]
    LCA has family support. She said her husband was a good support to her, and there was one close friend (the mother of the child that she enjoys babysitting). However, she has chosen not to seek advice from other friends as they had urged her to ask her daughter to move out and that is not something she could even contemplate. LCA wants to finish her nursing degree and continue to work to support her children through their university degrees. I accept LCA’s evidence in that regard.

Domestic violence history

  1. [42]
    There is reference in the documents to LCA’s former partner and father to her children admitting acts of violence against LCA. LCA also gave that evidence saying that there had been repeated incidents of domestic violence from approximately 2001 until they separated, with her first moving in with her mother-in-law for a time in 2006, but finally leaving her partner in 2007. She said she had not been able to leave prior to that time because she was not in a financial position to do so, and had waited until she had obtained her driver’s licence, sufficient funds to purchase a vehicle, and was able to leave with her children.
  2. [43]
    LCA said that at that time she was without other family support and her mother-in-law was a dominating influence. Whilst her partner’s mother did not live with them, LCA said that she was at their home most days and, by way of example, said she would come home to find that her mother-in-law had rearranged things in her house. She also said that as she was not married to her former partner, there was a certain degree of guilt associated with having children out of a marital relationship and so she felt that she had to be committed to making the relationship work.
  3. [44]
    LCA left the relationship when her children were aged approximately 6 years old and barely 1 year old respectively. There is no suggestion that their father had been physically abusive towards them. LCA admitted though that her daughter at aged 3 or 4 years may have witnessed incidents of domestic violence perpetrated upon LCA.
  4. [45]
    The Director-General does not take issue with LCA’s account of her violent relationship with her children’s father. I accept her evidence as truthfully given.

LCA’s insight

  1. [46]
    It is clear from the material referred to in the documents provided to the Tribunal by the Director-General that when the reviewable decision was first made, LCA did not display any insight into her offending behaviour. She took issue with the laws of Australia which she perceived rendered parents’ rights subservient to the rights of children. She denied she was a criminal and reflected on Australian children being disrespectful.[28]
  2. [47]
    In her affidavit, LCA accepts that the submissions she made to the Director-General[29] in January and February 2016 did not show insight.[30] She acknowledges the differences between discipline in the Philippines and Australia, and states that she now understands those differences. The Director-General accepts that LCA now shows insight.
  3. [48]
    The insight LCA is now showing, she says, is the result of her having engaged both with Department and with other courses and counselling, in particular:
    1. Counselling with Donna McPherson, Family Intervention Service;
    2. Counselling with Ms Annelie Hughes, Counsellor Family Intervention Service;
    3. Engagement in the Teen Positive Parenting Program course with psychologist Mr Sean Webber; and
    4. Engagement with her GP, Dr Mary-Anne Lee.
  4. [49]
    All of those people have authored reports and gave evidence at the hearing.

Evidence of Donna McPherson

  1. [50]
    Ms McPherson is a family worker at Inala Community House in the Family Steps, Family Intervention Service funded by the Department of Community Services, and she holds a Bachelor of Social Work.[31]
  2. [51]
    Ms McPherson explained the role of the service is to support Child Safety Service Centre clients when ongoing intervention with a family is required. The principal aims of the program are to preserve families where a child remains living in the home under ongoing intervention backed by Child Safety Services, as well as to support in the reunification of the child with their family from out of home care placement where this is determined to be in the best interests of the child.
  3. [52]
    Family Steps provides education and support including but not limited to parenting information and strategies, mental health, medical, and financial supports.
  4. [53]
    Family Steps processed the Department’s referral on 13 January 2016 and placed LCA on a waiting list. The referral was allocated to Ms McPherson on 24 February 2016. The referral requested Family Steps to provide support to LCA to develop positive parenting strategies to work towards lessening conflict between herself and her teenage child.
  5. [54]
    Ms McPherson reported that she first engaged with LCA on 10 March 2016 and since that date had had approximately 15 face-to-face contacts occurring alongside other forms of communication such as phone calls and text messages. In her oral evidence, Ms McPherson indicated that she had last seen LCA on 1 November 2016 and that on 21 December 2016 the file was closed because the Department was no longer involved with the family. Therefore, Ms McPherson was unable to comment on anything that might have occurred since that time.
  6. [55]
    In her report, Ms McPherson states that LCA had begun developing insight into her behaviour through gaining knowledge of alternative parenting strategies. She reported that LCA was honest and forthcoming about what had occurred with her daughter and over time had developed greater insight into the behaviour and how it was viewed in Australian society. In particular, Ms McPherson provided some examples of comments that LCA had made:[32]
    • On 30 June, 2016 [LCA] verbalised to me “I would never harm a child” and discussed having left children’s father to “remove from harm of domestic violence’.
    • On 6 July, 2016 [LCA] verbalised ‘I would never hurt child’. On this occasion when challenged that this had occurred with harm being caused to [her daughter] [LCA] was able to discuss awareness and understanding of behaviour towards [her daughter] and appeared to accept issues with Blue Card as consequences of her actions.
    • On 14 July, 2016 [LCA] demonstrated continuing development of insight into parenting skills and was able to verbalise other ways to manage conflict such as; respectful communication; discussion rather than demanding.
    • On 28 July [LCA] demonstrated further developing understanding through describing her own behaviour for example, perfectionism, and recognising ways this impacted on her relationship with [her daughter].
  7. [56]
    Ms McPherson also set out what she considered to be protective factors in the case:
    • [LCA] reports a supportive relationship with her General Practitioner.
    • [LCA] has willingly engaged in therapeutic support with counsellor, supported by Family Steps.
    • [LCA] reports seeking support when needed from her husband… and friends.
    • [LCA] has willingly engaged with Family Steps.
    • [LCA] has recognised and sought medical assistance through medication in relation to own emotional regulation.
    • [LCA] has expressed willingness to engage in Family therapy with this remaining an option with ongoing engagement with Family Steps when [LCA]’s emotional state is more stable.
  8. [57]
    LCA takes Lexapro and has found it has calmed her. She has been able to continue working and studying while taking the medication.
  9. [58]
    Ms McPherson also set out preventative factors, including:
    • [LCA] reported on 9 May, 2016 attending Triple P parenting education…
    • [LCA] has been working with me through Engaging Adolescents Workbook by Michael Hawton which has assisted [LCA] to develop a greater understanding of her own childhood experiences and how these differ to parenting in Australia.
    • [LCA] is developing understanding of differences in cultural beliefs and values in relation to parenting and adolescent behaviour.
    • [LCA] has also begun working toward identifying behaviours that can be ignored rather than cause conflict.
    • [LCA] has developed further knowledge of developmental stages and subsequent behaviours of children/adolescents.
    • [LCA] has begun to implement strategies of managing her own emotional reactions such as, removing self and listening to music.
  10. [59]
    The report also indicates that LCA has been experiencing difficulty in coping with her current circumstances in relation to the blue card decision and that she had disclosed to Ms McPherson on a number of occasions that ‘life would not be worth living if I was unable to provide for my family and finish my dream of becoming a nurse’. It is reported that those suicidal thoughts were disclosed on 30 June 2016, 6 July 2016, 7 July 2016, 11 August 2016, 18 August 2016, and 30 September 2016. She stated that they were the result of distress at the thought of not being able to provide for her family.
  11. [60]
    Ms McPherson was asked about these matters at the hearing. In her oral evidence, Ms McPherson said that in relation to the reported suicidal thoughts she had checked in with LCA and that it did appear to be linked to the loss of her blue card. She also said that when she checked in with LCA she did not appear to have a plan. She said she had worked on keeping LCA’s thoughts in the present, rather than thinking ahead to what would happen if she did not secure her blue card.
  12. [61]
    In relation to questions around LCA’s anger management, Ms McPherson said that LCA was willing to work on that and had developed insight into why she responded in that way. Ms McPherson was unable to provide an opinion as to how LCA might react towards her daughter if challenged at the current time. She also declined to comment on what risk factors there might be in the case.
  13. [62]
    While Ms McPherson considered that LCA would benefit from ongoing support from counselling or psychology, there was no further support needed in respect of any child protection concerns. Ms McPherson acknowledged that there certainly was conflict between LCA and her daughter, that both of them became emotionally overwrought, but she had also observed LCA control that. Ms McPherson said that she was unable to determine how LCA would behave around other children, but could only say that she had been in conflict with her own teenage child.
  14. [63]
    Based on Ms McPherson’s evidence, I accept that due to the involvement of the Department, work was done with Family Steps to address the child protection concerns. That the Department has not elected to continue its involvement with the family, I consider to be a fact which should be given significant weight.

Evidence of Sean Webber – Psychologist – Positive Parenting Program (Teens)

  1. [64]
    Mr Webber confirmed the contents of his report dated 1 November 2016.[33] LCA had attended six individual sessions of the Teen Triple P Positive Parenting Program and that the sessions focussed on a range of strategies to promote children’s social and emotional development and strategies to prevent and manage problem behaviour and to promote self-regulation in children. The specific attention was focussed on dealing with emotional behaviour and managing risky behaviours in teenagers.
  2. [65]
    The report states that LCA actively engaged in discussing the application of the strategies within the program in her home environment. She reported feeling able to utilise a range of strategies successfully, particularly the use of descriptive praise, spending quality time together with her child, and talking calmly with her child. LCA had successfully utilised the strategy of dealing with her daughter’s emotions and practised remaining calm when her daughter became upset or angry.
  3. [66]
    Several situations were reviewed where remaining calm had helped LCA to resolve issues with her daughter and allow them time to talk and problem solve together. An example given in the report was coming home on time from school.
  4. [67]
    In his oral evidence, Mr Webber confirmed that his last session with LCA was 22 October 2016. The sessions were hour-long sessions over a period of approximately six weeks. He said it was a very structured program and that it involved a number of strategies including the parent remaining calm, being available, acknowledging the teenager’s feelings, offering assistance, and developing problem-solving techniques to resolve issues. He said that one of the issues expressed by LCA was that both she and her daughter would become angry and she was given guidance around that, which was effectively the core of the program.
  5. [68]
    Whilst he was unable to comment on how LCA was going with implementing the strategies since he last saw her, as he indicated in his report, it was his view that based on what LCA reported she was able to talk more effectively with her daughter and they were able to spend more time together. She was able to report a number or situations where she remained calm and used problem-solving techniques.
  6. [69]
    Mr Webber said that he had administered a number of assessments. In the initial assessments that measured the over-activity of the parent, or the parent reacting excessively, and secondly the parent being permissive in terms of giving in, LCA scored in the elevated category or above average on both of those scales when first assessed. At the end of the program towards the final session, he again administered the assessment and LCA was then in the average range so that over-activity had halved. The average range meant that she was no longer in the clinical range.
  7. [70]
    When questioned about LCA’s level of insight, Mr Webber said that he would regard it as fairly high, that she was aware that she had managed the situation poorly, and that her daughter would model her behaviour was also discussed. It was his view that LCA was very aware that she had done the wrong thing. He reported that there were tears during the sessions. He said that LCA’s daughter would likely continue to test the limits. He also acknowledged that LCA was keen to change her behaviour and was keen to learn the strategies and ideas. He assumes that she will continue to practice the strategies and that her progress should continue if she does.
  8. [71]
    The program is primarily for parents so that it is not usually the case that the children become involved in the program. It is a prevention management process. He said it was not usual for parents to participate in the program more than once. They are able to look back at their resources from the program to assist them in the future.
  9. [72]
    I find that LCA has engaged in the Triple P Parenting Program. I accept the contents of the report of Mr Webber and his oral evidence. LCA, in her evidence showed and understanding of what she had learnt in the program. She said she is able to walk away from situations when her daughter is particularly heightened and abusive. She will walk outside or perhaps walk the dog just to absent herself from the confrontation. She said that she is also working on building her relationship again with her daughter, spending more time with her, and developing their closeness again.
  10. [73]
    LCA reported that when she left the children’s father she had been very close to the children with them all sleeping in the one bed and she feels that since the marriage the closeness in their relationship was missed by her daughter so she is attempting to rebuild that. LCA also said that she realises now that there are some things that she cannot control and whilst she can always be there for her daughter to provide advice on problems, but that ultimately she may not be able to completely change her behaviour and that there are certain behaviours that she will just have to learn to accept. I accept her evidence in that regard. That evidence is also relevant to LCA’s current level of insight.

The evidence of Annelie Hughes – Counsellor

  1. [74]
    Ms Hughes confirmed the contents of her report dated 30 October 2016.[34] Ms Hughes reported that the nature of her relationship with LCA was a therapeutic one and that she was provided counselling support only and no clinical assessment or opinion was offered. Family Steps referred LCA to Ms Hughes.
  2. [75]
    Ms Hughes has had 10 sessions in total with LCA, the last session occurring on 18 November 2016. Ms Hughes gave evidence that LCA had acknowledged during their sessions that she had not acted appropriately in the treatment of her daughter. She expressed regret and acknowledged that her discipline was inappropriate.
  3. [76]
    One of the recommendations Ms Hughes made at the end of her report was that LCA engage in the parenting program. She said that this was something that LCA herself suggested and that she thought all parents would benefit from. She said that the recommendations made at the end of her report were recommendations she considered appropriate for the relationship between LCA and her daughter to improve and grow.
  4. [77]
    Ms Hughes considers that LCA has strategies to deal with her daughter’s behaviour. She said that LCA had reported that she was able to control herself and would take herself away from the situation. Further, that she would engage in strategies to calm down rather than being reactive to her daughter when she gets angry.
  5. [78]
    Ms Hughes said she was unable to comment on whether she had strategies to deal with other children.
  6. [79]
    I asked Ms Hughes some questions about how she approached the counselling. Ms Hughes explained that she explores issues so she relies on what LCA wants to discuss, but they had discussed her past history and how that might impact on her behaviour. When LCA brought up having experienced domestic violence, that led on to a discussion on what is fair and not fair in respective behaviour which then might lead on to other things such as cultural differences, what is acceptable and not in terms in discipline, and discussion around different forms of violence and how that impacts the family. There was also a focus on strengths that LCA might have and how they can be used to assist her in the future.

Evidence of Dr Mary-Anne Lee

  1. [80]
    Dr Lee confirmed the contents of her report dated 31 October 2016.[35] She has known LCA since 2000 around the time of the birth of her first child. During a period of time in which Dr Lee relocated to another practice, she did not see LCA. However, they reconnected approximately two years ago when LCA started experiencing problems with her daughter’s behaviour. Dr Lee continues to see LCA periodically in respect of that issue. Prior to the November 2015 incident, LCA presented with concerns about her daughter becoming self-conscious about her appearance and had sought psychological counselling for her daughter for those issues.
  2. [81]
    At the time of the hearing, she had last seen LCA about two months prior. LCA’s daughter had returned to live with LCA and, in Dr Lee’s view that reflected that there were no significant concerns around her daughter.
  3. [82]
    In Dr Lee’s opinion, LCA is not a danger to either her own daughter or children generally. It is her opinion that LCA has learned from the experience in November 2015 that good communication lines are, in fact, the best way to handle conflict with teenagers. Further, Dr Lee is of the opinion that LCA’s emotional response outside her relationship with her daughter is not likely to impact others and that she has, in fact, shown this in her employment in aged care.
  4. [83]
    Elaborating on that point, Dr Lee said she was aware that LCA worked with patients with dementia and that in some respects they are not unlike children in their responses. From all accounts, LCA had always received positive reviews in the course of her employment and from the patients for whom she has cared. I have already accepted LCA’s evidence in respect of her engagement with patients in her employment.
  5. [84]
    Dr Lee said that in her dealings with both LCA and her children, there were never any notable red flags in terms of child protection concerns. She did not see LCA as a ‘Jekyll and Hyde’ type character. The personality shown to her over the years was, in her view, LCA’s genuine personality. She considered LCA quite patient and sensible about how she approaches things.
  6. [85]
    Dr Lee expressed the opinion that, in the absence of the level of emotional involvement she has with her own child, she could not see any risk of violent or irrational behaviour towards another child. Dr Lee said that a parent is more emotionally invested in the future of their child and LCA is concerned about her daughter’s future if she does not stay on the straight and narrow.
  7. [86]
    It did not appear from her evidence that Dr Lee was aware of any previous child protections concerns outside the November 2015 incident. However, Dr Lee said that whether or not there had been other incidents of violence, she would be more concerned about a parent who turned a blind eye to their child’s irresponsible behaviour. She was aware that there had been some engagement in other services. Dr Lee agreed that counselling was recommended but also acknowledged the importance of LCA’s daughter participating in the counselling in order for that to be successful. She was aware that LCA’s daughter had refused to participate in counselling.
  8. [87]
    Dr Lee said she did not consider that LCA had any mental health concerns.  She was prescribed anti-depressant medication to give her some level ability to cope with the stress of the blue card decision, which is of significant concern as it is likely to affect her ability to financially support her family.
  9. [88]
    Dr Lee likened the situation with LCA’s daughter as a comparison with a death in the family versus the death of another person outside the family. She said that while LCA had not responded appropriately to the provocation by her daughter due to her level of concern and frustration about keeping her daughter safe, in the absence of the same degree of emotional investment in another child, she did not consider that there would likely be any violent response by LCA.
  10. [89]
    Dr Lee reported that she always saw a rational person who was just experiencing concerns as a mother. She would recommend the continuation of medication if LCA considered that they were helping her. LCA told the Tribunal that she was prepared to continue taking anti-depressants which she had found helped her to remain calmer in interactions with her daughter.
  11. [90]
    Dr Lee said she understood that LCA was planning to engage with a psychologist at a practice in Brisbane as was also stated by LCA in her evidence.
  12. [91]
    While Dr Lee is one of LCA’s treating health professionals and could not be regarded as an independent expert, I consider it appropriate to weigh her evidence with the evidence of the others with whom LCA has engaged for support. Dr Lee has known LCA for many years and has over the years become familiar with the family. I consider that as a general practitioner she is able to express an opinion about LCA’s health matters.

Is there an exceptional case for LCA?

  1. [92]
    Turning then to the matters to which I must have regard in s 226(2) of the Act. The Director-General did not seek a report on LCA’s mental health under s 335 of the Act. No information was given to the Director-General under s 318, s 319, s 337 or s 338 of the Act.[36] As there was no conviction in this case, s 226(2)(a)(v) cannot be further considered.
  2. [93]
    The remaining matters to which I must have regard are those set out in s 226(2)(a)(i)-(iv) and (e) of the Act and any other relevant circumstances of the case.

Whether the offence is a conviction or a charge: s 226(2)(a)(i)

  1. [94]
    LCA’s criminal history reveals charges of assaults occasioning bodily harm between 1 November 2015 and 5 November 2015, the complainant being LCA’s then 14-year-old daughter. LCA was not convicted, the result being recorded in her criminal history as ‘No evidence to offer’. LCA participated in mediation with her daughter.
  2. [95]
    There is no other criminal history. While there has been no conviction for any offences, LCA does not deny that she assaulted her daughter in early November 2015, hitting her on the forearm four or five times with a wooden spoon which resulted in injuries to her daughter in the form of bruising and some swelling. The court brief reflects that the complainant child admitted that she had argued with her mother and called her a ‘bitch’.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence: s 226 (2)(a)(ii)

  1. [96]
    The offence is not a serious offence, nor is it a disqualifying offence.

When the offence was committed or is alleged to have been committed:
s 226(2)(a)(iii)

  1. [97]
    The offence was committed in late 2015, now 18 months ago. At the time of the hearing, there was no new information provided by the Director-General that LCA had been charged with any other offences. I accept that the offending behaviour is relatively recent. However, I consider that the recency of the offending behaviour must be weighed with the considerable work LCA has done to address her behaviour and prevent a repeat of such behaviour.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children: s 226(2)(a)(iv)

  1. [98]
    The offence involved physical harm to a child in LCA’s care. Her behaviour reflected an inability to exercise self-control, both in relation to her anger and her physical response to her daughter’s behaviour which she found challenging. I accept that in working with children, it is necessary to be able to respond in an appropriate way to any challenging behaviours that may present.
  2. [99]
    There is no evidence that LCA has been unable to control her anger or physically harmed or disciplined a child who was not her own. I have found that in her work in aged care, LCA is able to professionally manage non-compliant and aggressive behaviour.
  3. [100]
    I will deal with the child protection history under this heading. The first child protection concern was raised in December 2008 when her children were aged 7 years and 18 months old. Her daughter’s school held no concerns regarding LCA or her daughter’s safety. There was insufficient evidence to warrant any departmental intervention at that time.
  4. [101]
    Investigations were made in June 2014 as a result of concerns that LCA had punched her daughter. The family was referred to an RAI service, Mission Australia, and were engaging with that service in late 2014 when there were concerns that LCA’s daughter was engaging in self-harm. LCA herself contacted the Department. The records reflect that the family was then engaging with Mission Australia.[37]
  5. [102]
    It is the case that, despite the involvement of Mission Australia, the incident in November 2015 occurred. I have found that LCA has engaged in physical assaults on her child. She admits engaging in physical discipline over the years.
  6. [103]
    LCA’s cultural background and her own experiences of growing up in a household where physical discipline was acceptable underscored her belief that such discipline was appropriate.
  7. [104]
    The events of November 2015 did not occur out of a single argument but against a background and history of repeated arguments between mother and daughter where LCA struggled to set boundaries for her daughter’s behaviour with which her daughter would comply. According to the evidence, LCA’s expectations for her daughter’s behaviour might be considered strict causing push back from her daughter seeking to socialise with peers and seeing her school work as less important than her acceptance in social circles. There is nothing new or novel about the difficulties many parents have in finding the balance between setting boundaries for the protections of their adolescent children and giving them a level of independence. Of course, not all parents resort to physical discipline or name calling which causes emotional harm to the child and the level of physical assault LCA perpetrated on her daughter is clearly unacceptable and must be considered to be significant. LCA has caused harm to a child.
  8. [105]
    While I do not condone LCA’s behaviour, I accept Dr Lee’s evidence and that of the other professionals who gave evidence and LCA herself that her emotional investment in her daughter’s future heightened her responses to her daughter’s challenge to her authority within the household and her efforts to set boundaries for her daughter’s behaviour.
  9. [106]
    I must also consider whether her most recent efforts and work to prevent a recurrence of that behaviour are sufficiently preventative given that in late 2014 her involvement with Mission Australia was not enough to prevent the serious incident in November 2015 from occurring.
  10. [107]
    It is accepted that LCA was the victim of domestic violence in her first marriage to the father of her two children. The Director-General submits that LCA failed to protect her children from potential harm by ongoing exposure to this type of damaging conflict and that is something I should now take into account. LCA separated from her husband in 2007 when her daughter was seven. LCA conceded that her daughter may have witnessed some abuse. As a general proposition, I accept that any child who witnesses one parent being assaulted by the other could be adversely impacted emotionally. I have no evidence before me as to the impact on LCA’s daughter of any abuse she may have witnessed as a young child.
  11. [108]
    I accept LCA’s evidence that she left the household when she felt financially able to do so and was in a situation where she had no support from members of her own family. I do not consider it appropriate to retrospectively judge LCA’s decision about when to leave her violent relationship. The fact is she left when her second child was still a baby. I do not consider that the decision about when to leave the relationship can support a finding that LCA would not remove a child from harm in any regulated activity.
  12. [109]
    It is also submitted that her failure to engage with the father of her children causes emotional harm to her children which is ongoing. Again, I do not have objective evidence as to the nature of the relationship between LCA’s children and their father. I do not consider that any decisions that might be made about her daughter’s contact with her father can support a finding that LCA would make decisions which would cause emotional harm to children in an regulated activity.

Other relevant circumstances

  1. [110]
    I have found that, at the time of the decision to issue her with her negative notice, LCA’s responses showed no insight into her behaviour being unacceptable and criminal in nature. She blamed her daughter and Australian law for giving too many rights to children over their parents. She minimised her behaviour. I accept that at 46 years of age LCA should have been of sufficient emotional maturity to understand the seriousness of her behaviour and the potential consequences of her actions.
  2. [111]
    However, since that time she has engaged in considerable work with the Department, counsellors, and the parenting program to modify her views and develop alternative strategies for managing her daughter’s behaviour. The Department is no longer engaging with the family and has not since late 2016. LCA has expressed remorse. She told the Tribunal it was the worst thing she has ever done.
  3. [112]
    LCA was able to explain the strategies she employs in her household and her success in employing those strategies. She is committed to engaging in counselling and continuing to take medication to assist with regulating her moods while they remain effective. She has the support of some friends and her partner as well as Dr Lee to assist her in remaining committed to employing the strategies she has learned over the years through her involvement with the Department and since. While I am somewhat concerned that once the Department ended its engagement with the family a number of other services with which LCA was engaging have also ended and, at the time of the hearing, she was yet to engage a psychologist, she has shown a willingness to engage in services. Indeed, she contacted the Department herself about concerns with her daughter’s behaviour in late 2014.
  4. [113]
    LCA has also now been through this review process, a stressful experience where she was subject to cross-examination regarding her behaviour over a number of years. I consider that she now understands the seriousness of her past behaviour and the various adverse consequences that are likely to follow should she ever engage in such behaviour again.
  5. [114]
    LCA remains committed to helping her daughter. While it is to her credit that she recognises the importance of both herself and her daughter engaging in counselling, she is unable to force her daughter to participate.
  6. [115]
    I accept that LCA’s circumstances have changed in the last two years and that she has learned strategies that will significantly reduce the risk of her repeating her past behaviour towards her daughter. There are also other protective factors such as the support she has from her partner and others and her willingness to engage with supportive services.

Conclusion

  1. [116]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is not an exceptional case for LCA in which it would not be in the best interests of children for a positive notice to issue to her. I therefore set aside the reviewable decision and substitute a new decision that there is not an exceptional case for LCA.

Non-publication order

  1. [117]
    LCA did not argue that a non-publication order should be made. However, in this case, I am concerned that publication of the applicant’s name will identify her children, particularly her daughter, in connection with matters which are very private and personal to the applicant’s daughter. There are also matters of domestic violence raised in the evidence.
  2. [118]
    Given the principles for administering the Act that the welfare and best interests of a child are paramount, I do not consider that publication of any information that would identify a child should occur.
  3. [119]
    I order that the publication of the name of the applicant and the names of her children are prohibited other than to the parties to the proceeding pursuant to s 66(1)(a) of the QCAT Act.
  4. [120]
    I also order, pursuant to s 66(1)(a) of the QCAT Act, that the publication of documents obtained by the Director-General from the Department of Communities, Child Safety and Disability Services is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.

Footnotes

[1]QCAT Act, s 19.

[2]QCAT Act, s 24.

[3][2016] QCAT 331.

[4][2016] QCAT 407.

[5][2016] QCAT 210.

[6][2016] QCAT 381.

[7]The Act, s 353(a)(i).

[8]The Act, s 353.

[9]Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407, [12] and [13].

[10]An object of the QCAT Act is to promote consistency of decision-making: QCAT Act, s 3(c) and 4(d).

[11]‘serious offence’ is defined in s 167 of the Act.

[12]The Act, s 221 and s 353.

[13]Re FAA [2006] QCST 15, [22].

[14]The Act, s 226(2)(a).

[15]Ibid, s 226(2)(e).

[16]Ibid, s 6.

[17]Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill p.4391.

[18]Exhibit 2.

[19]Exhibit 1, s 21(2) documents, “PSBA-005” and “PSBA-006”.

[20]Exhibit 1, “PSBA-008”.

[21]Ibid.

[22]Referral for Active Intervention or RAI service.

[23]Exhibit 2, 9.

[24]Ibid, 12-13.

[25]Ibid, 15 onwards.

[26]Ibid, 40.

[27]Exhibit 4.

[28]Exhibit 2, “PSBA-023” – “PSBA-024”.

[29]The submissions were made at that time to the Public Safety Business Agency.

[30]Exhibit 4: Affidavit of LCA dated 27 October 2016.

[31]Exhibit 5 report dated 1 November 2016.

[32]Exhibit 5.

[33]Exhibit 6.

[34]Exhibit 7.

[35]Exhibit 8.

[36]The Act, s 226(2)(b), (c), and (d).

[37]Exhibit 2 states that concern was raised on 24 October 2014.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 244

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    18 Jul 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
1 citation
Jump To
Cite 1 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
1 citation
Jump To
Cite 1 - [2014] QCATA 27
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
2 citations
Jump To
Cite 1 - [2016] QCAT 210
Cite 2 - [2016] QCAT 210
FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381
2 citations
Jump To
Cite 1 - [2016] QCAT 381
Cite 2 - [2016] QCAT 381
Re FAA [2006] QCST 15
2 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331
Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407
3 citations
Jump To
Cite 1 - [2016] QCAT 407
Cite 2 - [2016] QCAT 407
Cite 3 - [2016] QCAT 407

Cases Citing

Case NameFull CitationFrequency
AA v Director-General, Department of Justice and Attorney-General [2022] QCAT 4432 citations
Buildmaster Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 3801 citation
DM v Director-General, Department of Justice and Attorney-General [2022] QCAT 1992 citations
Kuramea Akahotu Vaeau v Director-General, Department of Justice and Attorney-General [2020] QCAT 2442 citations
LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 3332 citations
LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 162 citations
LSR v Director-General, Department of Justice and Attorney-General [2021] QCAT 3802 citations
MAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 5272 citations
MB [2022] QCAT 1852 citations
PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 1882 citations
Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 1522 citations
1

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