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Iosefa v Director-General, Department of Justice and Attorney-General[2018] QCAT 66

Iosefa v Director-General, Department of Justice and Attorney-General[2018] QCAT 66

CITATION:

Iosefa v Director-General, Department of Justice and Attorney-General [2018] QCAT 66

PARTIES:

Poto Phindy Iosefa

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML236-17

MATTER TYPE:

Childrens matters

HEARING DATE:

5 March 2018

HEARD AT:

Brisbane

DECISION OF:

Member Sheean

DELIVERED ON:

8 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

REVIEW JURISDICTION – BLUE CARD – conviction of offence of common assault involving a child in the course of regulated employment – whether an “exceptional case” warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360

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

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

Kent v Wilson [2000] VSC 98

Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1

Re Perry and Brown’s Patents (1930) 48 RPC 200

Re TAA [2006] QCST 11

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

APPEARANCES:

 

APPLICANT:

Ms Poto Phindy Iosefa

RESPONDENT:

Director-General, Department of Justice and Attorney-General

REPRESENTATIVES:

 

APPLICANT:

Self

RESPONDENT:

Mr I McCowie represented the Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General

(Respondent)

REASONS FOR DECISION

Introduction

  1. [1]
    Ms Poto Phindy Iosefa is a mother of 6 and a grandmother of 4.  She wishes to renew her blue card to continue to work with children, as she has been doing for much of her adult life.
  2. [2]
    The Chief Executive, Blue Card Services, which has responsibility for the issuing of positive notices and blue cards, issued her with a negative notice on 8 September 2017.
  3. [3]
    Ms Iosefa seeks a review of that decision.
  4. [4]
    Ms Iosefa was convicted in the Ipswich Magistrates Court of common assault, the complainant being a male child aged 10.  Ms Iosefa entered into a $300 recognisance on her own undertaking and was ordered to be of good behaviour for 4 months.  No conviction was recorded.
  5. [5]
    Because this offence is not a serious offence under the legislation, Ms Iosefa is entitled to receive a positive notice and blue card unless it is considered that hers is an exceptional case such that it would harm the best interests of children for her to have a positive notice.[1]
  6. [6]
    The Tribunal is conducting a review of the merits of the Chief Executive’s decision by way of a fresh hearing.[2]  The Tribunal needs to apply the same law as the Respondent.  The Tribunal has to take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).  This outlines what I have to consider in deciding if an exceptional case exists.
  7. [7]
    The purpose of the review is to produce the correct and preferable decision.[3]
  8. [8]
    The Act does not define “exceptional case”.  As the Tribunal in its appeal jurisdiction said in Commissioner for Children and Young People and Child Guardian v FGC[4] what is an ‘exceptional case’ is a question of fact and degree to be decided in each individual case, having regard to “… the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children”.
  9. [9]
    Each case is to be considered on its own facts.  As Fullager J stated in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions[5]:

“… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion.”

  1. [10]
    Prejudice or hardship to an applicant are not relevant in determining whether a case is exceptional.[6]  Neither is the benefit which might be thought to flow to children by having access to an applicant’s knowledge, experience or flair in working with children relevant.[7]
  2. [11]
    To be exception the case needs to be out of the ordinary, unusual or special.[8]
  3. [12]
    I need to consider the individual circumstances to determine if an exceptional case exists.  I have discretion in this regard taking into account the legislation and the circumstances.
  4. [13]
    The Act’s objects including promoting and protecting the rights, interests and wellbeing of children in Queensland.  I also have regard to ss 5, 6 and 360 of the WWC Act.
  5. [14]
    A child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
  6. [15]
    Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.

Circumstances of the Charge and/or Conviction

  1. [16]
    On 19 July 2016, Ms Iosefa was convicted in the Ipswich Magistrates Court of common assault.
  2. [17]
    It is not a serious offence.
  3. [18]
    The offence occurred on or about 18 March 2015.
  4. [19]
    The facts set out in the Court Brief prepared by the Police were not the facts upon which Ms Iosefa was convicted.
  5. [20]
    Initially, the facts supporting the charge were that Ms Iosefa was working as a day care mother.  While caring for a number of children in her home, it was alleged that Ms Iosefa slapped a child across the face a number of times and pulled his hair and called him a smartarse.  The child’s younger brother was present at the time.  The facts alleged were that Ms Iosefa had pulled the child’s hair and slapped him on a number of other occasions, and that after the second occasion that the child informed his mother of the hair pulling, the child’s mother requested that Ms Iosefa use another form of discipline such as time out.
  6. [21]
    The facts upon which Ms Iosefa entered a guilty plea related to the pulling of hair after having been asked not to do so by the child’s mother and calling the child a smartarse.
  7. [22]
    The penalty imposed by the Court required Ms Iosefa to enter into a $300 recognisance on her own undertaking and was ordered to be of good behaviour for 4 months.  No conviction was recorded.
  8. [23]
    The conviction is concerning because it relates to Ms Iosefa’s conduct in regulated employment under the WWC Act.  Although Ms Iosefa denied having slapped the child, she admitted that she had pulled the child’s hair.

The case put by Ms Iosefa

  1. [24]
    Bishop Stephen Nautu provided a reference for Ms Iosefa and gave oral evidence at the hearing.  The reference was addressed to the Magistrate and was provided in support of Ms Iosefa in relation to her sentencing on the common assault charge.  It spoke of Ms Iosefa as a well respected member of the church community and of her work as a young women counsellor and advisor, Sunday school teacher, seminary/youth teacher and home visiting teacher.  Bishop Nautu has known Ms Iosefa since May 2013.  He described the incident where she pulled the child’s hair as out of character and spoke of the love that she displays in her dealings with people. 
  2. [25]
    Bishop Nautu said that Ms Iosefa had expressed remorse for her actions and that he believed that she is 100% remorseful.  He stated that he had no concerns with Ms Iosefa working in any kind of child-related work and had never received negative feedback about her.  He also said that he had never seen Ms Iosefa deal with children who were other than well-behaved.
  3. [26]
    Ms Iosefa also provided references from Evelini Tavui from the Australasian College of Education and Training who worked under Ms Iosefa’s supervision.  She spoke of Ms Iosefa as a hard worker and a well respected teacher.  She stated that she could not believe that Ms Iosefa would hurt anyone especially a child.  This reference was also written for the Magistrates Court and spoke of the wish for Ms Iosefa to clear her good name.
  4. [27]
    A further reference dated 25 September 2017 from Mrs Sala Laulu was received at the hearing.  Ms Laulu had 3 children cared for by Ms Iosefa from August 2014 to December 2015.  Ms Laulu stated that she had never received a complaint from her children about Ms Iosefa.  She also expressed her belief that Ms Iosefa would never hurt or do anything to harm anyone, especially children.
  5. [28]
    Ms Iosefa also provided a reference from Khadiga Mohamed, the Manager of Tola Kids Services Family Day Care Scheme who had employed Ms Iosefa as an educator assistant from 24 April 2017 to 10 September 2017.  He spoke of Ms Iosefa’s professionalism in all areas of her work and that he had received only positive feedback about her from the children in her care and their parents.
  6. [29]
    The final reference provided by Ms Iosefa was given by Hakim Yusuf, a director of Australian Workforce Development Institute.  Ms Iosefa had worked for that company as an Early Childhood Education and Care trainer since July 2015. 
  7. [30]
    Mr Yusuf also gave oral evidence.  He stated that Ms Iosefa always received strong positive feedback from the students that she taught.  He had seen Ms Iosefa interact with children on at least 3 occasions and the children were very well behaved on those occasions.  Mr Yusuf was not aware of the charge against Ms Iosefa or the outcome of her plea.  She had told him of an incident while in a family day care environment and how the children were behaving.  She told him she had to take some action otherwise the children would have hurt each other.
  8. [31]
    Ms Iosefa provided a brief life history which revealed a strict religious upbringing and a family commitment to ensuring children were properly educated.  She had a very protected upbringing.
  9. [32]
    Ms Iosefa has worked as a teacher, a child care worker and a trainer for child care workers.
  10. [33]
    Ms Iosefa married young.  She and her husband had 3 children and adopted another 3 children.  She told of her love and care for her family, including her grandchildren.
  11. [34]
    One of their adopted children was diagnosed with Attention Deficit Hyperactivity Disorder.  Ms Iosefa said that the treatment, including medication, that child received helped greatly with his behaviour and that he now no longer needed medication.
  12. [35]
    Ms Iosefa recognised the same condition in the child the complainant for the charge and his brother.  She said that she tried very hard for their mother to agree to adopt the approach that she suggested to manage their behaviours.  Ms Iosefa welcomed the children into her home on weekends as a favour to their mother, as well as during the week as part of the family day care program.  She wanted to help the family and believed that she was making a positive difference in the children’s lives. 
  13. [36]
    Ms Iosefa admits to pulling the child’s hair to physically separate them from a fist fight.  She knew it would hurt but believed it was the only action she could take in that particular situation at that particular time.  Ms Iosefa had other alternative discipline strategies but said it was her “instant reaction in the real world with real kids and real situations to deal with”.
  14. [37]
    During the course of her oral evidence, Ms Iosefa stated that she did not see hair pulling as a physical punishment.  She stated that she saw it as acting within her duty of care to protect the children, other children and property.  Ms Iosefa did express remorse for having done it but that she felt if she didn’t do it at the time “something worse could have happened”.
  15. [38]
    Although Ms Iosefa stated that the incident on or about 18 March 2015 was out of character and a one-off incident.  Her evidence that the children involved “don’t like it when you pull their hair” and that “as soon as they feel it, they would stop” suggests that it was not a one-off incident.  She also referred to having to physically separate the children a few times and to altercations involving them happening weekly.
  16. [39]
    Ms Iosefa gave evidence of other actions that could be taken in a similar situation such as:
    1. (1)
      have more talk to get the children to understand her and for her to understand the children;
    2. (2)
      ring a bell;
    3. (3)
      have the awareness to interfere early;
    4. (4)
      talk to the parents more;
    5. (5)
      make sure the children get the right help.
  17. [40]
    Ms Iosefa also referred to the strategies that she teaches for discipline such as:
    1. (1)
      time out;
    2. (2)
      taking away privileges;
    3. (3)
      distract and redirect the children.
  18. [41]
    However, Ms Iosefa also stated that the situation she faced at the time was “not paperwork”, that it was “a real situation”, and that she was there and she “knew what she had to do”, she knew she had to “protect the kids”.  She stated that “real life is different”.
  19. [42]
    Ms Iosefa stated that she did not react to the pressure of the children’s behaviour that day because she was calm.  She stated that she would never do anything to hurt the children but that pulling the hair was her “instant reaction”. 
  20. [43]
    Although her evidence was that she would not use that same discipline, she immediately stated that it was not a punishment because she doesn’t use physical punishment; it was “just a way to separate them at the time”.
  21. [44]
    In response to a question about the impact on the younger child seeing her pull the hair of the other child, Ms Iosefa stated that “they’d seen a lot worse than that”.  Her evidence was that she spoke with the children afterwards and explained that she did it because she had to do it.
  22. [45]
    On several occasions, Ms Iosefa referred to being confused about her duty of care to children, stating that if she did something, she can be wrong but if she didn’t do something, she could be sued.  She said that you must use common sense and that she thought she did the right thing at the time.
  23. [46]
    Since the incident, Ms Iosefa has undertaken courses on a yearly basis as part of the requirements to be a trainer for child care workers.  This training includes courses on dealing with challenging and difficult behaviours.  She referred to the training helping her to know when to use her duty of care responsibilities, the need to put the children first and how to deal with difficult situations.
  24. [47]
    Ms Iosefa was adamant that she was remorseful because she would never want to hurt children, that she has learnt from the experience and has improved strategies.  She was also adamant that what she did at the time was right.

The Respondent’s View

  1. [48]
    In issuing a negative notice, the Respondent considered that Ms Iosefa’s case was exceptional such that it would harm the best interests of children for her to have a positive notice.  The Respondent considered her criminal history in making its determination as well as taking into account the police material.  The Respondent’s view was that the material suggested that Ms Iosefa does not have the ability to restrain her anger and manage children’s behaviour in an appropriate and positive manner when faced with challenging or stressful situations.  The Respondent was concerned because the conduct occurred in her role as the child’s caregiver and, as such, represented a serious breach of the position of trust and responsibility which she held in respect to him.
  2. [49]
    Following Ms Iosefa’s evidence and that of her witnesses, the Respondent conceded that she:
    1. (1)
      has a number of years working with children as a teacher, child care professional and she has a commitment to working with children and improving the community.
    2. (2)
      was able to acknowledge the circumstances involved with the family came about as a result of her wish to help them and their children.
    3. (3)
      was spoken of well by a former employer, in particular in relation to her professionalism and her work.
    4. (4)
      was supported by the Bishop of her Church community who spoke of her involvement in the Church’s programs involving children and gave good feedback about her work in those programs.
    5. (5)
      has a support network, particularly with her family and her Church community.
    6. (6)
      expressed remorse about the offending and could identify alternative strategies she might be able to use if placed in a similar situation in the future.
  3. [50]
    The Respondent remained concerned however that:
    1. (1)
      the charge related to an assault on a child with special needs that occurred in regulated employment.
    2. (2)
      the assault occurred despite Ms Iosefa having several years experience, which experience included training child care workers.
    3. (3)
      there remains a risk of repetition of the behaviour.
    4. (4)
      Ms Iosefa appears to have limited insight into her behaviour, especially given the distinction that she drew between physical discipline and what she did, and the confusion that she expressed in understanding what her duty of care to children entailed.
  4. [51]
    The Respondent submitted that the Tribunal cannot be satisfied that Ms Iosefa doesn’t pose a risk to the safety and welfare of children, bearing in mind the paramount consideration in the Act.  The respondent is seeking that its decision be confirmed, noting that any benefit to children from the applicant having a blue card is irrelevant, as is any hardship to her from not having a blue card.

The Tribunal’s View

  1. [52]
    I need to have regard to s 226(2) of the WWC Act in deciding if Ms Iosefa’s is an exceptional case.
  2. [53]
    I have noted that the charge relating to the incident in 2015 is her only criminal history.
  3. [54]
    I consider that the offence is relevant to child related employment because it took place in regulated employment and involved the assault of a child.
  4. [55]
    I have noted the penalty imposed.
  5. [56]
    Ms Iosefa acknowledges that she pulled the child’s hair and that she believes it was the right thing to do at the time.  She appears genuinely remorseful for her actions and presented as an honest witness, answering questions fully and without hesitation.
  6. [57]
    She has not offended since that time and the passage of time is a factor that I take into account.  However, I note that Ms Iosefa has not been placed in a situation with children displaying challenging behaviours since the time of the offence.
  7. [58]
    In Re TAA,[9] the former Children Services Tribunal stated at [97]:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal.  The Tribunal is of the view that good insight into the harm that has been caused is a protective factor.  A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others.  This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [59]
    Ms Iosefa lacks insight into the effect that her behaviour may have had both on the child involved and the child’s sibling.  She also drew a distinction between the strategies that she has learned, and teaches to child care workers, and situations in “real life”.
  2. [60]
    The Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[10] endorsed an evaluative approach which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the particular circumstances of the case.
  3. [61]
    In applying that approach, I consider the protective factors to be:
    1. (1)
      Ms Iosefa’s extensive experience working with children and her commitment to working with children and improving the community.
    2. (2)
      The support she has from her family, and Church community.
    3. (3)
      Her positive work history.
    4. (4)
      Her remorse and her identification of strategies she might be able to use if placed in a similar situation in the future.
    5. (5)
      Her wish to help people in her Church and in the community.
    6. (6)
      This charge from the incident on or about 18 March 2015 is the only charge that Ms Iosefa has faced.
    7. (7)
      The incident occurred 3 years ago and Ms Iosefa has undertaken continuing training in child care practices since that time.
  4. [62]
    I consider the risk factors in this case are:
    1. (1)
      Ms Iosefa lacks insight into the harm that she may have caused to the child and the child’s sibling as a result of her behaviour.
    2. (2)
      The incident occurred in regulated employment as a response to challenging behaviours from children.
    3. (3)
      Ms Iosefa had undergone training to deal with challenging and difficult behaviours prior to the incident.
    4. (4)
      Since the incident, Ms Iosefa has not had to deal with children with challenging or difficult behaviours.
    5. (5)
      There is a risk that Ms Iosefa may repeat the behaviour or similar behaviour when faced with a similar situation.
  5. [63]
    In my view, the risk factors outweigh the protective factors.
  6. [64]
    After taking into account all of the above matters, I have come to the view on the balance of probabilities that Ms Iosefa’s case is exceptional such that it would harm the best interests of children for her to have a positive notice and blue card.
  7. [65]
    I will therefore confirm the Respondent’s decision.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.

[2] Queensland and Civil Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[3] Ibid.

[4] [2011] QCATA 291 at [31] (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22])

[5] [1983] VR 1 (citing Re Perry and Brown’s Patents (1930) 48 RPC 200 per Luxmoore J)

[6] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 per Buss J at [109]

[7] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 at [33]

[8] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [8]

[9] [2006] QCST 11

[10] [2004] QCA 492

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 66

  • Court:

    QCAT

  • Judge(s):

    Member Sheean

  • Date:

    08 Mar 2018

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
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Grindrod v Chief Executive Officer [2008] WASAT 289
2 citations
Jump To
Cite 1 - [2008] WASAT 289
Cite 2 - [2008] WASAT 289
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
2 citations
Jump To
Cite 1 - [2015] QCAT 56
Cite 2 - [2015] QCAT 56
Perry and Browns Patents (1930) 48 RPC 200
2 citations
Jump To
Cite 1 - (1930) 48 RPC 200
Cite 2 - (1930) 48 RPC 200
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
2 citations
Jump To
Cite 1 - [1983] 1 VR 1
Cite 2 - [1983] 1 VR 1
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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