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  4. RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General - [2018] QCAT 95

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RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General[2018] QCAT 95

RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General[2018] QCAT 95

CITATION:

RA and RJ v Director-General Department of Justice and Attorney-General [2018] QCAT 95

PARTIES:

Ms RA

(Applicant)

v

Director-General Department of Justice and Attorney-General

(Respondent)

Mr RJ

(Applicant)

v

Director-General Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML163-17

CML178-17

MATTER TYPE:

Children’s matters

HEARING DATE:

28 February 2018

HEARD AT:

Brisbane

DECISION OF:

Member Murray

DELIVERED ON:

28 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

In CML163-17:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 17 October 2017 concerning RA that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice is confirmed.
  2. The Tribunal prohibits the publication of any information in these proceedings that could identify children in any way.

In CML178-17:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 17 October 2017 concerning RJ that this is an exceptional case in which it would not be in the best interest of children for the applicant to be issued with a positive notice is confirmed.
  1. The Tribunal prohibits the publication of any information in these proceedings that could identify children in any way.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

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 – whether or not in best interests of children to issue positive notice

Child Protection Act 1999 (Qld), s 122

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 353, s 358

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

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

Re FAA [2006] QCST 15

RPG v Public Safety Business Agency [2016] QCAT 351

APPEARANCES:

 

APPLICANTS:

Ms RA

Mr RJ

RESPONDENT:

Ms Susan Jayatilaka represented the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

QCAT hearing two applications for review together

  1. [1]
    Mr RJ and Ms RA were members of a carer entity and held joint certificates to care for children and young people in foster care. The Department of Child Safety, Youth and Women (“DCSY&W” or “Child Safety”) cancelled these certificates. Following this, the Department of Justice and Attorney-General (“DJAG”) Blue Card Services cancelled Mr RJ and Ms RA’s Blue Cards.
  2. [2]
    Mr RJ and Ms RA filed in the tribunal separate applications to review the decisions of DJAG.  DJAG’s reasons for cancelling their blue cards and issuing negative notices concerned the same issues for Mr RJ and Ms RA.
  3. [3]
    For efficiency and consistency, the hearings for both applications were heard together.

Background

  1. [4]
    This is an application for review of a decision by the Director-General, DJAG to issue negative notices under the Working With Children (Risk Management and Screening) Act 2000 (Qld) (the “WWC Act”) to Mr RJ on 16 June 2017, and Ms RA on 3 July 2017.
  2. [5]
    On 7 July 2017 and 21 July 2017 respectively, Mr RJ and Ms RA filed applications in the Tribunal to review DJAG’s decisions that the Applicants’ cases were “exceptional cases” in which it would not be in the best interests of children for the Applicants to be issued with positive notices and blue cards.
  3. [6]
    Mr RJ and Ms RA had been approved foster carers in Queensland for nine years and for about nine years in Sydney prior to this. Since 2008, they had been caring for a sibling group of children. All of the children have suffered trauma and abuse from their biological parents prior to placement with Mr RJ and Ms RA. The children receive counselling. At least one child has a diagnosis of autism.
  4. [7]
    Material received under a Notice to Produce from DCSY&W showed child protection concerns were received in February 2013 and assessed about the following:
    1. Ms RA admitted to hitting a child with a miniature cricket bat as punishment, but she denies it resulted in bruising on the child’s thigh.
    2. Three of the four children were hit at some time by Mr RJ and Ms RA, with the miniature cricket bat. Physical discipline of the children was used by Mr RJ and Ms RA on a number of occasions.
    3. Mr RJ and Ms RA made threats of physical discipline with the cricket bat on various occasions. Mr RJ and Ms RA attempted to justify the use of physical discipline and the use of threats of physical discipline during the investigation.
    4. Mr RJ and Ms RA used inappropriate disciplinary techniques such as not allowing a child to have dinner as he did not inform Mr RJ that there was no food left for farm animals.
    5. Ms RA often yelled at all of the children to control their behaviour. Mr RJ did not intervene to stop her.
    6. Mr RJ and Ms RA’s home was unclean and unhygienic and did not meet the standards expected of foster carers.
    7. Mr RJ and Ms RA refused from time to time to allow the children to spend time with their extended family or discouraged the relationship with their family.
  5. [8]
    The outcome of the investigation and assessment was substantiated as a breach of standards.  It was found that Ms RA was responsible for physical and emotional harm to one of the children in her care and emotional harm to all of the children in her care. Mr RJ was responsible for risk of physical harm and risk of emotional harm to all of the children in his care.  There was a breach of the statement of standards in relation to their care and treatment of the children.
  6. [9]
    The children were not removed from the care of Mr RJ and Ms RA.  An action plan was developed to assist Mr RJ and Ms RA to better care for children in their care. An intensive intervention support program supported this with the assistance of the Foster Care Agency.
  7. [10]
    On 29 February 2016, Child Safety received further concerns about Mr RJ and Ms RA’s treatment of the same sibling group in their care:
    1. An altercation occurred between one of the children who was 12 years old and her 14-year-old brother over an empty packet of biscuits. Ms RA had asked Mr RJ to keep an eye on the children while she listened to a podcast in her bedroom. She heard the commotion and went outside to see what was happening.  The child was yelling at her brother and did not stop when Ms RA told her to stop. Ms RA intervened and grabbed the child by her throat, pushed her against a wall and yelled loudly directly in her face. The child called out for her to let her go, as she couldn’t breathe.  Ms RA did not let her go. Again the child called out “you’re hurting me, stop it”, Ms RA let her go.  The child was very scared and upset.
    2. During the incident, Ms RA spoke in a highly derogatory and degrading manner about the child’s biological mother.
    3. During the incident, Ms RA threatened to relinquish all of the children and drop them at a police station; all the children heard this.
    4. Ms RA admitted to the incident but said she grabbed the child by her shoulders, not her throat and there was no wall behind her.
    5. Mr RJ did not intervene or provide comfort to the child or offer any positive guidance to the children.
    6. Ms RA asked the child who was assaulted what she had told the community visitor about the incident. She blamed the child for causing the incident and showed no remorse for the assault on the child.
    7. The child said she felt unloved and unwelcome and wanted to hang herself after this.
    8. About two weeks after the incident, Ms RA told the children that she would lose her blue card because of the incident, the children would be moved and she could not finish her study or be allowed to be a foster carer any more.  She was distressed in front of the children. She told one of the children who has a medical condition he “would probably die on the streets” if he was removed from Mr RJ and Ms RA’s care.
    9. The children were called derogatory names.
    10. The home was dirty and unhygienic at the time. Local cleaners were contracted by Child Safety to clean thick black mould from the bathroom and the filthy toilet and bathroom outside.
  8. [11]
    The child who was assaulted wrote a diary note on her phone in response to the incident:

The worst thing life

Today I was pined up against a brick wall and was being held by the throat I could not breath. I just wanted to die like what I do right now as I sit in the caravan. If the Lord will not take my sol I will give it up by killing my self if I have to. I am sick of this life that I have and if the Lord does not want me up there were this will never happen.  I don’t even know if any one will care that I am gone séance no one shows there love or care towards me.  If their was a person that does I would go live with them and be happy it is not fair the way people are treating me I am sick of it all I am telling you.

  1. [12]
    A suicide alert was recorded with respect to the child. 
  2. [13]
    The concerns were substantiated at the outcome of the investigation and the children were removed on 4 April 2016 from Mr RJ and Ms RA’s care and home.
  3. [14]
    Ms Leah Harrop undertook an independent Carer Suitability Assessment of Mr RJ and Ms RA and a report was provided to Child Safety dated 15 August 2016. It was recommended Mr RJ and Ms RA be deregistered as foster carers. Confidential counselling was to be offered to them to support them to work through a decision to deregister them and the grief and loss issues associated with the removal of the children from their care. A mental health assessment of Ms RA was also recommended before any decisions were to be made about contact with these children.
  4. [15]
    On 17 October 2016, Mr RJ and Ms RA’s certificate of approval was cancelled on the basis they were not suitable to be foster carers, did not meet the standards of care and did not act appropriately to achieve the plans for the protection of children placed in their care.
  5. [16]
    The children also reported that Ms RA swore at them and called them derogatory names, including “bitch”, “dickhead”, “mongrel dog”, “dopey”, “the girls would grow up like their mother” and used the word “fuck” towards them.
  6. [17]
    In addition to the two periods of time when child protection concerns were investigated in 2013 and 2016, Child Safety recorded concerns about another child in their care in 2008:
    1. The child disclosed that after Child Safety visited him at school, Mr RJ and Ms RA “interrogated” him about what he had said about them, to the point he was so distressed he vomited.
    2. He was running around outside in the dirt in clean white socks and did not listen to Ms RA to put shoes on. She sent the child to Mr RJ for discipline.  Mr RJ yelled at him and struck him in the face when the child ran past him.
    3. The community visitor reported that she could not always talk to the children in private. Ms RA was often nearby and listening to the conversation.
  7. [18]
    After the children were removed in April 2016, there has been little contact with Mr RJ and Ms RA. Initially the children did not want to see them.

Ms RA’s evidence

  1. [19]
    Ms RA said she and Mr RJ have cared for 65 children over 20 years; one was a respite placement and 64 were short to long term placements.
  2. [20]
    She said she has undertaken a lot of training over the years and discussed various modules such as disability, mental health and autism training.  She commenced the Tripe P program but considered she did not need the training.
  3. [21]
    Ms RA talked about her understanding of abuse and trauma and the effects of this on children’s attachment to family, carers and other positive people in their lives. She discussed her role in restoring children to their natural families. She said her practice is to observe, sit quietly and let children come to her in their time; let them disclose what they want to talk about and she will report back to the case worker. She spoke about her close relationship with the school community, the foster carer agency and in the past, with Child Safety.
  4. [22]
    It was clear there was a fractured relationship with departmental officers.
  5. [23]
    Ms RA spoke of the vast amounts of transport she undertook to take the children to various appointments and to family members.
  6. [24]
    During most of her evidence, Ms RA broke down and cried about the children being removed and she said she was very sorry about what led to the removal of the children and her behaviour to the child she assaulted. She said she has apologised to her. 
  7. [25]
    Ms RA described the effort and time she has put into the children and their particular needs. She said their behaviour had been escalating, particularly for one of the children. She said she had been asking for help from Child Safety but had not received support.
  8. [26]
    She did not agree that she grabbed the child by the throat; she said that it was the child’s shoulders. She said there was no wall behind the child. She accepts it was her mistake and said she took responsibility for it.
  9. [27]
    She said she had never hit a child before this, not even her own children. She accepted she may have hit one or two of the children with the miniature cricket bat and it was a “tap” not a hard hit.
  10. [28]
    Ms RA said she was loud and sometimes had to put on her stern “mother’s voice” but didn’t agree she often yelled at the children.  She agreed she occasionally swore and did call one of the children a “dickhead” but it was said in jest. She said the children swore, for example one of the children called a girl at school a “bitch” but Ms RA told her to change that word to “bych” and they would use this term at home instead of the word “bitch”.
  11. [29]
    She said Mr RJ and Ms RA did withhold dinner from one of the children for not telling them the chicken or pig food had run out to see how the child liked going without food. However, she said she called him from his room after dinner and allowed him to eat it and she sat with him while he did so.
  12. [30]
    Ms RA said at the time she assaulted the child, she was at her wit’s end with the child’s behaviour.  Further to this, she (Ms RA) was not coping with many traumatic events in her personal life. Her mother was in hospital. Her pregnant daughter’s husband had walked out on her leaving her with two other children.  Ms RA’s other daughter, husband and children had recently been involved in an horrific car accident and Ms RA travelled interstate to look after the family. On top of this she was doing all of the transporting.  She was not receiving support from Mr RJ .
  13. [31]
    She said she put everyone’s needs before hers. She was not looking after herself.  She thinks her reaction to the child was the last straw and the result of exhaustion and no support.  She said her behaviour was “unforgiveable what I did to this child.  I spoke to her on the phone and apologised.  She has declined face to face with me.  I am forever sorry about the impact on her, but I wasn’t in a fit state”.
  14. [32]
    Ms RA said after the children were removed she was virtually in a foetal position for months and she felt suicidal.  She has commenced counselling.  She is meditating and making time for herself.
  15. [33]
    She is keen to complete her studies but can’t undertake her placement without a blue card.

Mr RJ’s evidence

  1. [34]
    Mr RJ said he is of an age and described himself as “old school” in his attitudes.  He said he has undertaken some foster carer training but not as much as Ms RA. She has been the primary carer for the children over the years.  He agreed there was an action plan put in place in 2013 but could not remember what was involved.
  2. [35]
    He said he could “vaguely” understand the reasons issued by DJAG but did not agree with them.  He said he was angry that only negative things have been written about them by Child Safety and DJAG when there have been so many positive things they have done for children in their care.
  3. [36]
    Mr RJ disagreed with the concerns stated by Child Safety.  He said he never touched the child in 2008; he grabbed him by the shoulder to stop him running into a steal frame settee and didn’t hit him. 
  4. [37]
    He disagreed that one of the children had a bruise from the cricket bat. He said someone at school would have seen the bruise if he had one and the principal would have gone to the police.
  5. [38]
    He agreed Ms RA has yelled at the children but not overly so. She has sworn at them a few times and this may not have “made them (the children) feel very good”.  He said his wife has a loud voice as their daughter had a tumour in her ear and they had to talk loudly.  He agreed Ms RA called one of the children a “bitch” a few times but this child set another child off who needs special care, and would leave them to deal with him.  He said this child could be a menace and cruel.
  6. [39]
    Mr RJ disagreed with the allegations about Ms RA assaulting the child.  When he walked into the room, Ms RA had her by her shoulders and not against a wall.  “(The child) was screaming her head off and Jo was no better”. He said this was out of character for Ms RA, and this was when he realised she had a problem.  He said he never told the child that she deserved it.
  7. [40]
    He went on to explain how difficult it could be to deal with children with autism and who have come from such abusive backgrounds, including sexual abuse.  He said this affects the children’s behaviour. He described the time and effort Mr RJ and Ms RA have put into caring for and loving these children.
  8. [41]
    Mr RJ agreed he and Ms RA have hit the children with the miniature cricket bat on a few occasions but it was a “tap and the kids were laughing about it at the time”.  He thought it probably wasn’t appropriate but he could not see a problem in threatening to hit them with it, “it was like I’ve got the bat, you behave or else”.
  9. [42]
    Mr RJ said he had a difficult relationship with Child Safety.  He said it was a “girls club” and he had “only seen two males over the years”.  He said he found it infuriating and amusing that “girls who were barely 22 years of age with no children of their own were telling me how to raise kids”. Further, they wouldn’t record anything. He refused to have anything to do with the officers.
  10. [43]
    Mr RJ said he didn’t like Ms P’s carer assessment report, she only spent a couple of hours with them and didn’t contact their referees. He said their house was cluttered but not dirty or unhygienic.  He said there were no holes in the walls, only one wall where he was in the process of removing the wall.
  11. [44]
    Mr RJ said he didn’t know that Ms RA wasn’t coping until the incident with the child.  He said he was busy with the bowls club.  That was his interest and he was often out of the house at the club. He said he didn’t help her with transport and most things around the house. He said she was overworked and worn down.  He said he feels guilty he didn’t help her enough particularly when she put so much into those kids. “I was a typical male, I had a step back approach. Jo started Uni and she did everything.  I regret it now.  I should have done more”.

Witnesses – TO and TR

  1. [45]
    TO provided evidence to the tribunal by phone.  He and his wife are respite carers for the children who were in the care of Mr RJ and Ms RA.  His wife was involved with a Foster Care Agency. Their children went to school with the fostered children.  He said he has known the family and children intimately over the years. The family saw each other at least on a weekly basis.
  2. [46]
    TO said he hadn’t read the reasons for issuing a negative notice but Mr RJ and Ms RA have spoken with him about them. He understood that the child was refusing to co-operate, giving backchat and significant grief to Ms RA and that Ms RA may have overreacted by standing her against a wall.
  3. [47]
    TO understood “there was also a minor incident where Ms RA hit one of the children with a toy clay cricket bat but that was more of a gesture than a hit”.
  4. [48]
    TO said there has never been any indication of abuse from Mr RJ and Ms RA.  They were dealing with children with particular needs including a child with serious autism.  He said the child “tended to fantasise and exaggerate to get attention. We have never seen them hit them, tie them up or lock them in their rooms”.  The children were well cared for and well fed.
  5. [49]
    He said he couldn’t understand why Blue Card Services would take this action.  He knew Ms RA was under considerable stress and had a few run-ins with Child Safety.  He thought Ms RA might raise her voice if children were not following her direction but that she had only been nurturing and loving towards them.  He said the children needed routines in response to their behaviour, the conditions of autism and the stress on them as a result of former abuse. He said Ms RA tends to be reactive to situations but no different to any other mother.  He explained that she had abrupt mannerisms and did not accept criticism but they have a good family bond and treated the children as their own. 
  6. [50]
    TO added, “I’m glad you don’t come over here and hear us yell at our children.  We now try to rationalise with them and they are more conciliatory as teenagers.” He said he was of a particular age where he grew up in a family of yellers. He said he could only speak highly of Mr RJ and Ms RA.
  7. [51]
    TR has been a lifelong friend to Mr RJ and they grew up like brothers.  TR’s marriage had broken down and he needed somewhere to live. Mr RJ offered him the shed or flat that is situated on Mr RJ and Ms RA’s property.  He has been living there for 10 years.
  8. [52]
    TR said he doesn’t know what the reasons are for issuing a negative notice, it wasn’t his business.  Mr RJ and Ms RA interjected and said they had told TR.  TR said he believed it was over an altercation with one of the children.
  9. [53]
    TR told the Tribunal that Mr RJ and Ms RA are good people and have done everything in their power to care for and support the children.  He said “those poor little kids have suffered abuse from their families and each one is individual and needs time and special care”.  He said they can be very loud at times and quite chaotic and that was why it worked so well that they were living on the property with plenty of space to run around with the farm animals and farm lifestyle.
  10. [54]
    He said he has never seen Mr RJ and Ms RA hit or whack or paddle a child. He said they took very good care of them. They needed to be firm with the children for safety reasons with the farm equipment. He saw the children return from their families and they would be very upset sometimes “banshee like” with issues and Mr RJ and Ms RA were gentle and encouraging of them. He rarely heard anything that he considered denigrated them or their families just some comments about their mother “making another baby and I wonder what’s going to happen to this one”.  He said he tries not to judge.

The “blue card” legislative framework

  1. [55]
    Employment screening for child-related employment is dealt with in chapter 8 of the WWC Act.  The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as “precautionary” in its approach.
  2. [56]
    The Tribunal is to decide the review in accordance with the WWC Act and Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). The Tribunal has all the functions of the decision-maker for the decision under review. The purpose of the review is to produce the correct and preferable decision.  In meeting that purpose, the Tribunal must hear the review by way of a fresh hearing on the merits.
  3. [57]
    A child related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  4. [58]
    The WWC Act deals with “blue card” applications in two broad categories.  In in this case it is:
    • Where a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’

  1. [59]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [60]
    The Oxford Dictionary defines exceptional as ‘of the nature of or forming an exception, out of the ordinary course, unusual, special’.
  3. [61]
    The application of the WWC 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.[6]
  4. [62]
    Prejudice or hardship to an applicant are not relevant in determining whether a case is exceptional.  In Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, Buss J observed (with reference to comparable legislation):

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earing capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.

  1. [63]
    Section 226(2) of the WWC Act sets out a non-exhaustive list of matters, which must be considered in deciding whether an exceptional case exists.  The tribunal must consider these but does not confine the tribunal just to these matters.

Discussion about the evidence and observations

  1. [64]
    DJAG considered the information provided by Child Safety raises significant concerns about Mr RJ and Ms RA’s ability and willingness to act protectively towards children.  Particularly as highly vulnerable children were in their care as a result of their abusive upbringings. It was considered Mr RJ and Ms RA made a number of errors in judgment about the children’s care and their discipline.  Children in foster care rely on adult carers to recognise risk and to act in an appropriate and protective manner.
  2. [65]
    Mr RJ told the Tribunal that he does not need a blue card and considered withdrawing his application at the commencement of the hearing. After a discussion with Ms RA, he decided to continue with his application.
  3. [66]
    Ms RA said they did not want to continue to be foster carers but would like to provide respite for the foster child in a relative’s care. She also requires a blue card to complete her placement for the degree which she is currently undertaking.
  4. [67]
    Mr RJ does not accept the reasons for issuing them with negative notices. He does not agree with all of the allegations that were substantiated by Child Safety.
  5. [68]
    Ms RA understands why Blue Card Services has taken this position and said she understood the importance of the protective jurisdiction.  She does not accept all of the substantiations of the allegations made against them.
  6. [69]
    Mr RJ and Ms RA are disappointed that their years of sacrifice and care for the children have come to this; that there are many good examples of their care and treatment for children in out of home care that are not been noted.
  7. [70]
    Ms RA was very distraught throughout the hearing particularly when giving her evidence.  She expressed remorse and sorrow for her actions towards the child she assaulted.  She said she will be forever sorry for what she has done but that at the time she was under considerable stress and strain dealing with her own personal situation.
  8. [71]
    There were two particular periods of time when there were inappropriate discipline and responses to the sibling group; 2013 and 2016. The concerns in 2016 involved action akin to assault of a 14-year-old girl. This has had a serious impact on the child. She was deeply upset by this.  She was believed to be suicidal and she expressed this in a diary note. She did not want any contact with Mr RJ and Ms RA for some time despite the fact she had been in their care for many years.
  9. [72]
    In addition to the incidents in 2013 and 2016, there are historical concerns from another child in 2008.
  10. [73]
    The particular concerns seem to permeate through these years from time to time.  They include Ms RA yelling and swearing at the children, Mr RJ  not intervening, Mr RJ  being absent from the care of the children and derogatory comments made by Mr RJ and Ms RA about the children and their biological families.
  11. [74]
    Child Safety developed an action plan in 2013 following the substantiated findings.  The foster care agency supported Mr RJ and Ms RA in following the plan.  However further concerns were raised again in 2016.  
  12. [75]
    Mr RJ appeared to lack insight into the effects of discipline and punishment for children who have experienced trauma and abuse at the hands of their own families.
  13. [76]
    Ms RA expressed significant remorse and remains focussed on the assault of the child as the cause of the issuing of the negative notice. It would seem Ms RA was left to do all of the caring and transporting for the four children on her own.  She has described a type of breakdown at this time due to severe family difficulties. She still appears to be suffering the effects of this stress.
  14. [77]
    Mr RJ  refuses to work with Child Safety officers and described them as a “girls club” and was not prepared to take instruction from young women who didn’t have their own children.
  15. [78]
    Little weight can be placed on the evidence of TO, as he indicated that yelling at children had been commonplace in his house when his children where younger. He also considered the child who was assaulted by Mr RJ and Ms RA tended to “fantasise for attention”.
  16. [79]
    Mr RJ and Ms RA did not provide a psychological or other professional health report that assessed the triggers that led to these substantiated child protection concerns and their insight and strategies that they have put in place to reduce future risks in working with children in the future.
  17. [80]
    There is no independent evidence before the Tribunal that Mr RJ and Ms RA have undertaken any counselling since the children were removed to deal with the grief and loss of the children or to assist them with their insight and understanding about the child protection concerns.  The carer assessment report recommended Ms RA undergo a mental health assessment. If any assessment has been undertaken, it was not provided to the Tribunal.

Is this an exceptional case?

  1. [81]
    The factors in s 226(2) must be considered in making a decision about whether it is an exceptional case.
  2. [82]
    In terms of meeting the requirements within s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is not an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[7]
  3. [83]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that Mr RJ and Ms RA be supervised when working with children.[8]
  4. [84]
    The Tribunal must consider the non-exhaustive list of matters contained in s 226(2) of the WWC Act but these do not confine the Tribunal just to these matters when deciding whether an exceptional case exists.
  5. [85]
    Disciplinary matters within a child protection framework or the removal of children from carers may also contain elements of an exceptional case.

Protective factors

  1. [86]
    DJAG considered risk and protective factors surrounding Mr RJ and Ms RA in deciding whether their particular cases are exceptional.
  2. [87]
    In assessing whether there is a risk of harm for both Mr RJ and Ms RA, DJAG applied the evaluative approach endorsed by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher[9] which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case.
  3. [88]
    Mr RJ and Ms RA say they are in a loving relationship having raised four of their own children. Their daughter is now a foster carer. They are committed to their family.
  4. [89]
    They have been foster carers for 18 years.  Ms RA has undertaken a lot of training in caring for children who are subject to child protection orders.  She is currently enrolled in a degree and is committed to working in this field.
  5. [90]
    Ms RA accepts responsibility for her actions and to a lesser extent her behaviour such as hitting a child with the cricket bat and at times yelling at the children. She has expressed insight into the emotional and psychological impact her assault had on the child.
  6. [91]
    Mr RJ  accepts responsibility for not assisting his wife with the care and needs of the children; he immersed himself in the activities of the bowls club.  He accepts he should have not allowed his wife to bear all of the pressures of caring for four children, undertaking study and trying to cope with the personal stress of their extended family.
  7. [92]
    Mr RJ and Ms RA expressed their love of the children and the grief and loss they experienced due to their removal from their care.

Risk factors

  1. [93]
    The child protection concerns were substantiated and it was found Mr RJ and Ms RA failed to provide a level of care consistent with the standards of care. Mr RJ and Ms RA disagree.
  2. [94]
    Mr RJ and Ms RA were not able to improve the level of care to the children after the 2013 substantiated child protection concerns with intensive intervention support. Similar concerns re-emerged in 2016.
  3. [95]
    Ms RA described she suffered a type of breakdown prior to the 2016 substantiated concerns that left her feeling depressed for over 12 months and at times suicidal.  This level of stress has weighed heavily on her and it is not evident that she has fully recovered. Her current mental state was not presented to the Tribunal.
  4. [96]
    There appears to be a remaining lack of understanding about the child protection concerns of Child Safety with Mr RJ possibly minimising these concerns.   Mr RJ and Ms RA do not accept the level of concerns expressed by officers. There remains a fractured relationship with Child Safety.  Mr RJ expressed no faith in officers who are young females who are not mothers themselves.  This makes it difficult for working relationships in the best interests of the children in their care.
  5. [97]
    The Tribunal does not have any independent evidence about the extent of Mr RJ and Ms RA’s insight into the impact of their behaviour and whether any risk factors or triggers to this behaviour continue to be present. Any preventative strategies used to reduce their risk of further behaviour are not evident.
  6. [98]
    Foster carers are to an extent the stand-in parents, providing family-based home care when children in the custody of the chief executive are placed in their care.  Importantly, these are children who have already suffered abuse and trauma and require a high level of care in response to what they have experienced.   The statement of standards set out in s 122 of the Child Protection Act 1999 (Qld) ensure children in care are cared for in a way that meets particular standards in recognition of their vulnerability. Children need to feel safe, protected, that they belong to family and community and that they are loved. The community places its trust in foster carers to fulfil this important responsibility.
  7. [99]
    Mr RJ and Ms RA did not meet these standards in their actions that led to the removal of the children from their care.
  8. [100]
    In considering the welfare and best interests of children, I believe the risk factors outweigh the protective factors in Mr RJ and Ms RA’s interaction with children.

Conclusion

Ms RA

  1. [101]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) of the WWC Act and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
  2. [102]
    I therefore confirm the decision of DJAG under review.

Mr RJ

  1. [103]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) of the WWC Act and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
  2. [104]
    I therefore confirm the decision of DJAG under review.

Non-publication

  1. [105]
    I order that the publication is prohibited of the names of the applicants and any information in these proceedings that could identify the children in any way other than to the parties to the proceeding pursuant to s 66(1)(a) of the QCAT Act.
  2. [106]
    Accordingly, these reasons are published in a de-identified format.
  3. [107]
    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 Child Safety, Youth and Women 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]WWC Act, s 5.

[2]Child related employment decision is defined to include a chapter 8 reviewable decision: WWC Act, s 358.

[3]WWC Act, s 360.  See also s 6.

[4]WWC Act, s 221.

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

[6]Ibid, [29], citing the second reading speech Commissioner for Young Children and Young People Bill p 4391.

[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [30].

[8]WWC Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27].

[9][2004] QCA 492.

Close

Editorial Notes

  • Published Case Name:

    RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General

  • MNC:

    [2018] QCAT 95

  • Court:

    QCAT

  • Judge(s):

    Member Murray

  • Date:

    28 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 Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 351
2 citations
Jump To
Cite 1 - [2016] QCAT 351
Cite 2 - [2016] QCAT 351

Cases Citing

Case NameFull CitationFrequency
KTG v Director-General, Department of Justice and Attorney-General [2022] QCAT 1572 citations
LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 3332 citations
MJD v Director General, Department of Justice and Attorney General [2023] QCAT 2102 citations
1

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