JQM v Director-General, Department of Justice and Attorney-General
[2018] QCAT 32
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- JQM v Director-General, Department of Justice and Attorney-General[2018] QCAT 32
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JQM v Director-General, Department of Justice and Attorney-General[2018] QCAT 32
JQM v Director-General, Department of Justice and Attorney-General[2018] QCAT 32
CITATION: | JQM v Director-General, Department of Justice and Attorney-General [2018] QCAT 32 |
PARTIES: | JQM (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML223-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 1 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 9 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review – blue card – negative notice – whether exceptional case – whether not in best interests of children to issue positive notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – protective factors – where protective factors included ending relationship of domestic violence, undergoing psychological treatment and counselling, maintaining strong support network, identifying triggers for behaviour, maintaining drug-free lifestyle for over four years, expression of remorse, some insight and development of coping strategies FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – risk factors – where conviction for failing to take reasonable precautions in respect of syringe or needle – where failure to ensure safe environment for children – where contravention of domestic violence order – where contravention was response to significant provocation from partner – where applicant had long history of drug abuse and toxic relationships, exposing her children to protracted periods of violence and abuse causing them both physical and emotional harm – where applicant’s children not properly protected – where serious concerns about applicant’s ability to provide protective environment for her children and exposing them to risk of harm – where evidence shows that in recent past applicant reverted to behaviour exposing her children to risk despite engaging with support services – where Tribunal not satisfied that applicant has yet had opportunity to apply her coping strategies over sufficiently extended period to protect children’s interests FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – exceptional case – where applicant’s failure to provide protective environment over extended period for her own children is relevant to child-regulated employment – where applicant must act to protect children in potentially stressful or threatening situations – where applicant recently allowed former partner to see her youngest child despite him being perpetrator of domestic violence – where applicant needs more time to demonstrate her ability to always act in best interests of children – where applicant’s failure to protect her children from abuse and violence and attempts to minimise violence as recently as 2016 are risk factors that presently outweigh protective factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 167, Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 Re TAA [2006] QCST 11 Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 |
APPEARANCES: | |
APPLICANT: | JQM appeared in person |
RESPONDENT: | Ms Susan Jayatilaka, Solicitor, appeared for the Director-General, Department of Justice and Attorney-General |
REASONS FOR DECISION
Non-publication order
- [1]The Tribunal considers that it is the interests of JQM’s children and in the interests of justice that an order is made to prohibit the publication of any information in these proceedings that could identify the children in any way.[1] This order extends to material on the Tribunal file and the names of the applicant and family members. Neither party objected to this.
- [2]Accordingly, these reasons are published in a de-identified format.
What is this Application about?
- [3]JQM is a 34-year-old mother of four children aged 15 years, 13 years, 11 years and four years. Sadly, she became involved with drugs from a young age and has been in and out of several toxic relationships characterised by abuse and violence.
- [4]The Director-General, Department of Justice and Attorney-General issued JQM with a positive notice for a ‘Blue Card’ on 16 May 2016, allowing her to work in her chosen career of early childhood.
- [5]However, on 23 August 2017 the Director-General issued JQM with a negative notice due to police notification of a change in her criminal history. This means that JQM cannot obtain a Blue Card to work in certain types of employment and volunteer work.[2]
- [6]JQM wants the Tribunal to review the Director-General’s decision. Because JQM is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.[3]
- [7]In reviewing the Director-General’s decision that JQM’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for JQM to obtain a Blue Card.[4] To determine this, I must identify and balance protective factors with risk factors.[5]
- [8]In her material filed with the Tribunal, JQM raised natural justice issues about how the Director-General arrived at the decision to issue her with a negative notice. However, JQM is not required to show any error by the Director-General: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[6]
Is it not in the best interests of children to issue a positive notice to JQM?
- [9]Because a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to JQM.[7]
- [10]Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[8]
What protective factors favour issuing a positive notice to JQM?
- [11]It has been a long and difficult journey for JQM and her four children. One of her children suffers from cystic fibrosis. After a history of drug abuse, three volatile and abusive relationships, and neglect for her children, she is making positive changes to her life in an effort to move forward.
- [12]Following another domestic violence incident in 2016, JQM made the brave, wise and momentous decision to end the “unbearable” relationship with her then partner and relocated.
- [13]Since then, JQM has undergone psychological treatment and counselling for both herself and her children,[9] sought and received help from a strong support network of family and friends,[10] identified triggers for her behaviour and developed coping strategies,[11] obtained employment as a permanent part-time Assistant Educator,[12] continued her professional development and education,[13] and attended a drug information session.[14] She has maintained a drug-free lifestyle for “at least four and a half years”.[15]
- [14]JQM’s aim is to further her skills to gain more secure and long-term employment and she is considering a Diploma in Child Care, hoping to continue on to a degree.[16]
- [15]
- [16]Her psychologist, KKM, reported that JQM has attended all her fortnightly sessions from 15 July 2016 to 17 February 2017, and another session on 21 December 2017. In KKM’s opinion, JQM is motivated to continue her treatment and has expressed genuine remorse for her offending behaviour.[19] During the hearing, KKM said that in her view:
- JQM now understands the consequences of being in a relationship of domestic violence;
- JQM has made progress: she is calmer, not as reactive and has become insightful;
- JQM still needs to develop more resilience and strengthening skills; and
- There were no concerns about JQM working with children.
- [17]KKM’s above evidence must be treated with some caution, as it was based on JQM’s self-reporting, without the benefit of the Director-General’s reasons and Child Safety reporting of domestic violence incidents in 2012, 2013, 2014 and 2016. When these incidents were put to KKM, she recommended a full psychological assessment but otherwise said she cannot comment.
- [18]JQM’s counsellor, ELJ, reported that JQM had engaged with domestic violence counselling in November 2016 for practical support, and then re-engaged since September 2017, attending two counselling appointments.[20] ELJ said that in both sessions, JQM had demonstrated a willingness to make positive changes in her life for the sake of her children and herself.[21] JQM had followed through on actions and committed to further counselling to continue her work,[22] ELJ said she was confident in JQM’s “willingness to work hard to leave the past behind her given the correct support to do so.”[23]
- [19]
- [20]FQJ said that she believes JQM is a very good mother and that JQM’s children are now mending. FQJ also believed that JQM “is now required to work on all areas of her life if she has any hope at all of ever having a blue card reissued to her”.[26] FQJ said she had observed positive changes in her daughter, including her being more controlled both in relation to her children and herself. FQJ is now retired and supporting JQM and her children as much as possible and in her view, JQM is “never going back”.
- [21]JXW had observed JQM’s ability to relate to children from a young age. He emphasised JQM’s care and love for her children and noted her recent positive progress in confronting her past “erratic” behaviour, which he attributed to her internal and mental pain. He noted that JQM had attempted to remedy her issues in the past, but each time was “bullied, threatened and blackmailed” by her partner. JXW described his daughter as a “wonderful woman”, patient and level-headed with children and held in high regard for her ability to work with children.
- [22]JQC said that most times her sister is an excellent mother and a very good aunty and is “fantastic with children”. She explained that although her sister can be volatile, she had been seeking help and support over the past few years and she believes that her sister has left her past behind.
- [23]MXS observed JQM to be a good worker with children and sensitive to their needs and “is changing for the better”.
- [24]JQM clearly has a strong supportive network who were all frank, open and honest when giving their evidence. I am satisfied that the above evidence shows that JQM has been making considerable effort to confront and overcome her past. She has focused her energy on becoming a good mother for her children, building a career for her and provide for her children, and actively sought support from professionals, family and friends.
- [25]JQM expressed remorse over her criminal history and the anguish she had caused her family and her children. She showed self-reflection when assessing her “very many poor choices” and key triggers for the causes of her anger. JQM was honest about the reality of her current situation, recognising her own internal challenges and the understandable demands of raising four children alone.
- [26]JQM also showed some insight into her past and her current situation and is developing coping strategies to manage her anger and violence, including a positive outlook, reducing less important demands on her time, making time for herself and staying away from drugs and unhealthy relationships.
What risk factors prevent issuing a positive notice to JQM?
- [27]The Tribunal notes that none of JQM’s criminal history involves offences relating to children[27] or deemed by the legislation as ‘serious’.[28] However, it does reveal that JQM has been involved with drugs as far back as 2001 and was also convicted in 2014 for failing to take reasonable care and precautions in respect of a syringe or needle.
- [28]JQM claimed to have not been using drugs for at least four and a half years and that the syringe was high up and belonged to her then partner. While the Tribunal has no reason not to accept JQM’s evidence in this regard, the Tribunal cannot go beyond the conviction and must accept it as is.[29] At the very least, it shows a failure by JQM to ensure a safe environment for her children.
- [29]As recently as June 2016 JQM was herself convicted of contravening a domestic violence order in May 2016. This related to JQM breaking a door during an altercation with her then partner. While the Court did not record a conviction, it did impose a probation period of 12 months suggesting a need to deter her from similar behaviour.
- [30]Despite this, the Tribunal is satisfied that JQM responded to significant provocation from her then partner, who appears to have been manipulating both the situation and JQM. Because of this and her severing of the relationship, the Tribunal considers that JQM is unlikely to repeat the behaviour.
- [31]Unfortunately, JQM has a long history of drug abuse and toxic relationships, exposing her children to protracted periods of violence and abuse that has caused them both physical and emotional harm. Moreover, in her long journey to get her life together, she has also had some previous ‘false starts’.
- [32]Specifically, Child Safety records reveal incidents of domestic violence in 2012, 2013, 2014 and 2016 and attempts by JQM to improve her situation. During the hearing, JQM agreed with most of the information from Child Safety relating to these incidents, as set out below.
- [33]In 2012:
- JQM and her partner both had domestic violence protection orders against each other;
- JQM and her then partner were abusing substances;
- JQM’s then partner assaulted her and damaged property;
- The children were exposed to verbal aggression within the home, including threats by the then partner to set fire to the children’s bedroom;
- JQM engaged well with departmental officers and said she was willing to work with the department to address the child protection concerns; and
- JQM allowed her then partner to spend significant amounts of time at her residence, despite being aware of his behaviour and threats that placed the children at risk of harm, including a threat to set fire to the children’s bedroom.
- [34]Similarly, in 2013:
- A domestic violence protection order was in place;
- JQM’s then one-month-old baby and an older child were “caught in the crossfire” of a domestic violence incident between JQM and her then partner, resulting in injuries to her back;
- JQM and her then partner fought daily with high severity while the children were present;
- The domestic violence was ongoing despite departmental intervention and support of multiple services;
- JQM had not completed any of the actions in her case plan;
- JQM had not made progress in her ability to protect her children from domestic violence and it continued around her children;
- Departmental intervention was needed to help JQM learn how to adequately protect her children from emotional and physical harm from domestic violence.
- [35]Again, in 2014:
- JQM and her new partner were involved in two domestic violence incidents with property damage;
- The new partner exposed JQM’s children to drug paraphernalia and informed them that their mother was a drug addict;
- The stress of the home environment and ongoing exposure to multiple incidents were having physical effects on at least one child;
- JQM admitted she needed to address her anger and commenced attending psychological appointments;
- JQM admitted her relationship with her new partner was detrimental to her children and needed to improve;
- JQM recognised a pattern of domestic violence in her relationships, but denied that her current relationship was characterised by domestic violence. She said she was confident no other domestic violence would occur because she now had the skills to address the issues; and
- JQM was assessed as “willing and able to protect the children due to her engagement with a psychologist, her ability to meet the day to day needs of the children, the stability of the home environment (accommodation), and strong bonds were observed between [JQM] and children”.[30]
- [36]Then, as recently as May 2016:
- Both JQM and her then partner were subject to domestic violence protection orders;
- JQM and her then partner engaged in domestic violence resulting in police being called regularly;
- One of JQM’s children was not coping with the home environment;
- Arguments were increasing in frequency;
- The children worried about each other, with the older children protecting the younger children during domestic violence incidents;
- JQM’s then partner set a car alight;
- JQM’s children had emotional reactions to the domestic violence expressed as anxiety, anger and fear and worried about each other, with the older children attempting to protect the younger children;
- The children’s other parent organised for the children to attend therapeutic services;
- JQM minimised the domestic violence and did not adequately acknowledge its impact on her children;
- JQM was engaging well with counselling;
- Cumulative emotional harm was substantiated for three of the children due to exposure to ongoing domestic violence;
- The children were assessed as “not at unacceptable risk of harm in the future due to [JQM] and partner engaging with counselling, the engagement of the children in therapeutic services and the level of violence decreasing over the past three months”.[31]
- [37]The Tribunal accepts that although JQM has committed at least one act of domestic violence, on the whole it would appear that she has been the victim of domestic violence and her own limited violence has been a response to years of physical and emotional abuse from multiple partners.
- [38]However, the evidence does show that her children were not properly protected.[32] The evidence shows serious concerns about JQM’s ability to provide a protective environment for her children and exposing them to risk of harm.
- [39]Her psychologist and counsellor’s reports of JQM implementing strategies to deal with triggers for her behaviour are encouraging. However, the Tribunal’s concern is that it is fewer than two years since the most recent domestic violence and the ending of her most recent abusive relationship for JQM to demonstrate her resistance to abuse, for the welfare of herself and her children. Unfortunately, the evidence shows that in the recent past, JQM has reverted to behaviour exposing her children to risk, despite engaging with support services and after longer periods.
- [40]Sadly, like many cases of physical and emotional abuse, the evidence shows a cycle of abuse. The evidence shows a pattern of JQM leaving one abusive relationship and then entering another. The most recent example being when she left her abusive relationship with one partner in 2013, only to enter another abusive relationship in 2014.
- [41]Similarly, the most recent incidents of violence in 2016 occurred some four years after JQM had engaged well with department officers and saying that she had been willing to work voluntarily with multiple support services, and only two years after admitting she needed to address her anger and had commenced psychological appointments.
- [42]Because of this, the Tribunal is not satisfied that JQM has yet had an opportunity to apply her coping strategies over a sufficiently extended period to protect her children’s interests. It is only a comparatively short time since she last relapsed into her old ways.[33]
- [43]JQM is starting a new journey of hope and promise for her and her children. However, the journey has just started. Her ability to provide a protective environment for her children and resilience to risk-prone behaviour over an extended period is still to be tested.
Is this an ‘exceptional case’ to not issue a positive notice to JQM?
- [44]JQM and her children have been the victims of domestic violence, but encouragingly, she has recently made substantial changes in an endeavour to turn their lives around. Most significantly, JQM has ended what is hopefully the last of her abusive relationships. The evidence is that she works well with children.
- [45]However, by continuing her abusive relationships and preventing her children from alerting others to the ongoing violence and abuse - even after intervention by support agencies - as recently as 2016, JQM unnecessarily placed her children at risk by exposing them to more violence and trauma. She failed to acknowledge the full extent of the risks to her children and do anything about them.[34] She had other options, including family and a support network. However, she failed to act protectively.
- [46]JQM submitted that all of her issues have been in her private life and she has never had any problems or issues at work. However, her failure to provide a protective environment over an extended period for her own children is relevant to child-related regulated employment. JQM must act to protect children in potentially stressful or threatening situations.[35]
- [47]The Tribunal cannot be satisfied she would be able to withstand the impact of an overbearing person in the workplace if she was required to protect children.[36] Her behaviours would impact on any children exposed to them. Children depend on adults to have insight into their actions and their likely effect.[37] Although JQM expressed knowledge of the cycle of domestic violence, she still has limited insight into perpetrators and their actions.
- [48]In particular, it is a concern that JQM only severed her relationship with her partner in September 2017 and has since allowed him to see her youngest child in the last two weeks – albeit briefly and in public. When questioned about this, JQM explained the father role he had towards her child, and said she focused “on the positives”. However, the evidence is that he is also one of the main perpetrators of the domestic violence. JQM still does not appear to fully appreciate that the need to provide a protective environment for her children is paramount.
- [49]The law requires that in considering whether to allow a person a positive notice for a Blue Card, the interests of children must take priority over an applicant’s interests. JQM needs more time to demonstrate her ability to always act in the best interests of children – even when confronted by extreme emotions of others and dealing with her own emotions in response.
- [50]This means that unfortunately for JQM, issuing her with a positive notice at this time is not in the best interests of children. JQM’s case is exceptional because she needs to show she will always act protectively of her children, over an extended period.
- [51]Her failure to protect her children from abuse and violence and attempts to minimise that violence as recently as 2016 are risk factors that presently outweigh the protective factors. It is too early to be satisfied that JQM has developed her skills and attitudes sufficiently to take responsibility for her own actions and the protection of children.[38]
- [52]I therefore consider that JQM needs some more time to apply her coping strategies over an extended period and thereby gain the community’s trust for her to be authorised to work with children.
Conclusion
- [53]Because JQM’s case is ‘exceptional’, it prevents issuing her with a positive notice at this time.
- [54]The correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 23 August 2017 to issue JQM a negative notice.
- [55]JQM should continue her journey on its current positive path. With some more time, ongoing treatment with her psychologist and counselling and the continuing love and support of her family and friends, she might in future demonstrate that she fully appreciates situations of risk for children and is sufficiently resilient to ensure their interests are paramount.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.
[2]Working with Children (Risk Management and Screening) Act 2000, s 156, Schedule 1.
[3]Ibid, s 226.
[4]Ibid, s 221.
[5]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[6]Queensland Civil and Administrative Tribunal Act 2009, s 20.
[7]Working with Children (Risk Management and Screening) Act 2000, s 6(a), s 360.
[8]Ibid, s 6(b).
[9]Report of KKM, Psychologist dated 21 December 2017; Report of ELJ, Domestic and Family Violence Specialist Counsellor dated 21 November 2017; Applicant’s Statement of Evidence filed 16 January 2018, paragraph 10.
[10]Applicant’s Statement of Evidence filed 16 January 2018, paragraph 6.
[11]Ibid, paragraphs 8, 9.
[12]Ibid, paragraph 10.
[13]Ibid, paragraph 10.
[14]Ibid, paragraph 10.
[15]Ibid, paragraph 15.
[16]Ibid, paragraph 17.
[17]Ibid, paragraphs 12, 15, 16.
[18]Ibid, paragraphs 10, 12, 15, 16.
[19]Report of KKM, Psychologist dated 21 December 2017.
[20]Report of ELJ, Domestic and Family Violence Specialist Counsellor dated 21 November 2017.
[21]Ibid.
[22]Ibid.
[23]Ibid.
[24]Reference of FQJ dated 13 January 2018; Reference of JXW dated 13 January 2018; Reference of JQC dated 14 January 2018; Reference of MXS dated 15 January 2018.
[25]Although under cross-examination, MXS appeared to have only limited knowledge of JQM’s criminal history, while JXW did not go into detail about his daughter’s history of domestic violence and drug use.
[26]Reference of FQJ dated 13 January 2018.
[27]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(iv).
[28]Ibid, s 167, s 226(2)(a)(ii), Schedule 2.
[29]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257, [37].
[30]Letter Department of Communities, Child Safety and Disability Services to Blue Card Services dated 11 July 2017, p 5.
[31]Letter Department of Communities, Child Safety and Disability Services to Blue Card Services dated 11 July 2017, p 6.
[32]JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [47].
[33]HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [70].
[34]JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [47].
[35]Ibid, [48]–[50].
[36]Ibid, [50].
[37]Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.
[38]JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [49].