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TJM v Director-General, Department of Justice and Attorney-General[2019] QCAT 125

TJM v Director-General, Department of Justice and Attorney-General[2019] QCAT 125

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TJM v Director-General, Department of Justice and Attorney-General [2019] QCAT 125

PARTIES:

TJM

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML061-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 May 2019

HEARING DATE:

2 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

  1. The Decision of the Director-General, Department of Justice and Attorney-General On 7 February 2018 to issue TJM a Negative Notice is confirmed.
  2. The tribunal prohibits publication of any information in these proceedings that could identify the applicant or any other person mentioned in these proceedings and particularly in regard to any information obtained from the Queensland Police Service or the Department of Child Safety.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where issue of negative notice – application for review – where applicant had conviction for minor offences – where applicants partner had convictions for offences involving children – where partner given unsupervised access to children – where allegations of sexual offences against applicant partner by children for whom she was paid – whether exceptional case in which it would be not in the best interests of children to issue a positive notice

Child Protection Act 1999 (Qld), s 140A, s 189

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 156, s 188, s 220, s 226 s 353, s 354, s 360

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

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

Commissioner for Children and Young People v Storrs [2011] QCATA 28

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

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

I McCowie, in-house lawyer for the Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    TJM was the holder of a positive notice[1] (Blue Card) under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable her to be employed in areas where she would be dealing with children. TJM made an application for renewal of her positive notice and the decision of the Department was to issue a negative notice[2] which meant that she was no longer eligible for a blue card and could not work in employment where she was dealing with children. TJM has applied to the Tribunal for a review[3] of that decision.
  2. [2]
    TJM was the paid carer for the children of her daughter, BK. BK and her husband BR had six children. TJM’S partner CW drove TJM to BK’s residence when she was providing care and was on the premises with her during the time she cared for the children. There were also occasions when CW would stay overnight with the children while their parents were away or while at least their mother was away. After one of those stays two of the children made disclosures to BK of alleged sexual abuse of them by CW and of another child BC which resulted in BK making a complaint to the police. At the time two of BK’s children BC, and BB were staying with TJM and CW. BK advised TJM of the allegations and that she wanted TJM to leave where her and the children were and hand them back to BK. Instead, TJM took the children home with CW and she spoke to BC about the allegations. There has been a rift in the family since and TJM has not had contact with BK or her family except for one time when TJM visited their house and she alleged that she was physically assaulted by BR, though she was in fact fined for trespass.
  3. [3]
    Subsequent to these events a complaint was made to the Department which is set out below. The decision to issue TJM a negative notice was based primarily on the complaint information in regard to TJM’s partner CW.

The Law

  1. [4]
    The Tribunal in its review jurisdiction stands in the shoes of the decision maker and must make the correct and preferable decision[4] based on a fresh hearing on the merits.[5] The Tribunal must apply the law and may perform the functions conferred under the WWC Act and the QCAT Act as modified by the WWC Act.[6] The role of the Department is to assist the Tribunal to make its decision, and part of that process is to provide the Tribunal with its reasons for decision and any documents or thing in its possession or control, that may be relevant to the Tribunal’s review of the decision.[7] The object of the WWC Act is to promote and protect the rights, interests and well-being of children in Queensland through a scheme, to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so.[8] The Tribunal when reviewing a decision under the WWC Act must do so under the principle that, the welfare and best interests of a child are paramount.[9]
  2. [5]
    TJM has not been convicted of a serious offence,[10] and the Department must issue a positive notice to her unless it is satisfied that it is an exceptional case in which it would not be in the best interests of children for her to have a positive notice.[11] The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency[12] set out the relevant principles in regard to what is an exceptional case and the approach to these review decisions as follows:

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’ It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [6]
    In determining whether there is an exceptional case the Tribunal must do so on the balance of probabilities, bearing in mind the gravity of the consequences involved.[13]Neither party bears the onus in determining whether an exceptional case exists.[14]
  2. [7]
    In Chief Executive Officer, Department of Child Protection v Scott No. 2 2008 (WA) SCA 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 earning 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. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [8]
    In the words of Buss J in Scott, the Act is only intended to benefit children insofar as it is intended to protect them.
  2. [9]
    The WWC Act also sets out matters that the Tribunal must have regard to in determining whether there is an exceptional case where TJM has been convicted of or charged with an offence generally.[15] That is relevant in regards to any offence, whether it is a conviction or a charge; when the offence was committed or is alleged to have been committed; the nature of the offence and its relevance to employment, that involves or may involve children; in the case of a conviction – the penalty imposed by the court, and, if the court decided not to impose an imprisonment order for the offence, the courts reasons for its decision; and anything else relating to the commission or alleged commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

The material and evidence

  1. [10]
    TJM’s criminal history comprises a conviction in 2009 for two charges of obtaining a financial advantage she was required to pay a recognisance of $1,500 with a two year good behaviour bond and to pay reparations of $7,966.01. TJM confirmed orally to the Department on 17 February 2017 that the criminal history information was correct and that it related to a miscalculation of Centrelink entitlement which she paid back. The Department noted that the offences weren’t serious offences and that the nature of the offences are not of concern in this present assessment of TJM’s eligibility to hold a positive notice and blue card. However the nature of the complaint information set out below and the information from Child Safety are of concern in determining whether TJM is an appropriate person to care for the wellbeing of children and young people.
  2. [11]
    TJM also has notifications of substantiated physical harm from the Department of Communities, Child Safety and Disability Services (‘Child Safety’). This related to an incident in 1994 when she strapped a child and struck their face. The material from Child Safety notes that TJM was highly remorseful and that she had panicked when the child tried to run away after being denied a sleepover. Organisations involved with the family provided no concerns with TJM’s parenting prior to the incident. Specialist referrals reported the risk of further abuse was minimal. While the outcome was reported to be substantiated physical harm the child was not in need of protection. TJM provided a statement to the Department on 10 April 2017 which confirmed the smacking of her child. She said it was out of concern that the child, BK wanted to spend the day with a 10 year old friend on a property out of town which was unsupervised. She said that the notification had been by the friend’s mother who wanted to get BK to be company for her daughter. She said that the matter was investigated with visits to the hospital where TJM worked, BK’s school and the local doctor and the Department was then satisfied TJM had BK’s interests at heart.
  3. [12]
    There was further notifications in the material from Child Safety in regard to the allegations of abuse by CW and contact with the Queensland Police Service is noted. These notifications were from the perspective of the parents of the children and Child Safety noted that they had acted appropriately in reporting the allegations and arranging to pick up the children. There was one notification dated 29 November 2016 where it was alleged that TJM and CW had threatened the children and yelled offensive things at them such as ‘bad things happen to bad children that tell lies’ and ‘we know which school the children attend’.
  4. [13]
    There was also complaint information received by the Department in respect of TJM as follows:-
    1. (a)
      2 March 2017 – TJM was a blue card holder and she lived with CW. A complaint was made to Queensland Police that CW sexually offended against children in TJM’s care. CW drove TJM to the homes of children TJM was providing care to through a service provider. TJM allowed CW into the homes while she provided care to children. TJM allowed CW to be alone with the children. CW has offended sexually against children and was under investigation by the Queensland Police Service and expected to be charged within weeks. CW was previously charged for sexually offending against his own daughter. TJM’s organisation was advised of this. The informant was not aware of the action taken by the organisation, however held concerns TJM was likely to continue to provide regulated child care if not through this organisation, then on her own. This was concerning to the informant as the Department would not be aware of this activity.
    2. (b)
      15 March 2017 – there was a current ongoing investigation into CW. CW had a significant criminal history including: several charges for indecent dealing (three counts); conviction for child abduction; conviction for breaches of his domestic violence order; and charges between 2001 and 2005. TJM may be a carer for CW.
  5. [14]
    TJM’s response to the complaint information was to deny:
    1. (a)
      that CW could have sexually assaulted the children, due to his own medical issues and that it was most probably their father BR, or a neighbour who had assaulted them; or
    2. (b)
      that any assaults could not have occurred during her paid days of care which were Saturdays and Sundays as she was always present. It was CW that drove her to BK and BR’s house to look after the children.

I note that the allegations were in fact that two of the children were assaulted during a stay over by CW at the children’s house when TJM was not present. The other allegation was that CW had taken nude photos on the iPad of BC the eldest daughter of BK and BR. TJM stated that CW did not have the skills to use the camera on an iPad. TJM said that that BK and BR had arranged for the children to lie because they were jealous of the way the children liked TJM and CW better than their parents and that if there had been any sexual abuse it was perpetrated by BR or a neighbour, not her partner. It worried her that someone else had done it. TJM would not condone such thing, she held a nurses licence and if she suspected any abuse she would report it. TJM provided copies of her current certificates of registration as a nurse. TJM stated CW had been under police investigation however he never committed those acts, was never charged, and it had been 1 and ½ years since the allegations.

  1. [15]
    In response to the allegations of the B children being sexually assaulted by CW while in her paid care, TJM said that this is definitely not true, as her paid days of childcare were Saturdays and Sundays. In fact, she and CW were often asked to look after the children many times over the 5 years, school holidays, at their house, which was not paid care, as they ‘did this to help the children’. The children loved to see both of them, as they knew that that she worked to routine regulation and discipline. TJM watched very carefully, because of the severe behaviour problems, especially with BA, BH, BL and BN. BK and BR were aware that CW didn’t have a blue card and he was never paid any money. He only minded the children as he was pressured into it, even when he was ill, because he felt the need to help them, and felt bad about the poor circumstances they were living under, as she did herself, being her grandchildren.
  2. [16]
    TJM stated that BK and BR were told about CW’s past history by CW and herself. When CW’s daughter had made false allegations of sexual assault on herself when she was 11 years old by her father CW. However after two years this was dismissed, as she admitted she had lied to the court. When she was 17 years she became a drug user with her friends wanting to bring them home to CW. When he refused, his daughter and her friends bashed him, while he was asleep. They were all charged with severe bodily harm and convicted and CW was hospitalised resulting in him having post-traumatic stress syndrome.
  3. [17]
    At the hearing TJM said CW told her about his involvement with the police not long after she met him in early 2012. He said his daughter had made allegations against him when she was younger. She said she met this daughter and she had been disappointed when they went out to the country. She had made allegations of indecent assault, that he had touched her and that it was dropped after two years. She said she saw this in the police material. That the step-daughter appeared to like him and that CW had known her since she was 2 years old. That CW had been with the mother for 9 years and that in TJM’s opinion he was gullible and thought he was helping people and got himself in trouble. She said that the step-sisters were in on allegations and one of them was told they would get money.
  4. [18]
    TJM was asked her reaction to the disclosure and she said that she had a lot going on. She had asked why he was involved in all of these things. They seemed ‘not well to do people’ and perhaps he tried to help them too much. TJM said that the girls involved still say hello to CW and that CW is a person who can be manipulated easily. She was asked if she sought further information about what he had told her and she stated ‘No, I didn’t because she was getting to know him.’ She observed that person, what sort of things they do in conversation. She said it started with the step-daughter in 2012 coming for a visit. He said ‘make sure you hide your purse’ and told me what had happened. That she had asked her for a loan of $50. TJM said that the step-daughter had nearly killed CW when she was 17 and there was documented medical evidence and that she was living with CCW when she met him. TJM said she had told him she wanted to know the whole story. He disclosed to her in 2012 that he had been convicted of abducting a 14 year old girl and that she could only judge what he is. TJM said that CW had told her in 2012 that there were a few things on his police check and that a lot was not substantiated. She had commented to him that a lot had gone on his life. She said she thought she would like to clarify things before he starts interacting with her grandchildren. She said she spoke to his barrister who was representing him in regard to being bashed.
  5. [19]
    She said that CW had told her he had been convicted of abduction and that she had said to him she wanted honesty. She said she was vigilant in relation to him after he had made these disclosures. She was asked what steps she had taken. She said the girl next door was drug addled with two kids who were in and out of care. That the children were coming over for help and food and that she had said to CW that he had to draw the line and that they had grandparents. He tried to help children and she had never seen him in the time she had known him to abuse children.
  6. [20]
    TJM was asked when and what was disclosed to BK and BR. She said that in 2012 BK and BR had split and that was when she had met CW. That conversations were held and BK used to disclose shadowy things she used to do. She said that CW had said the same things to BK as he had said to her. She confirmed that BK still approved CW being around the children, she said that BK was a criminal herself. It was suggested that she didn’t take any steps to stop him minding the children. TJM stated she told CW not to go up there. She could not understand that they wanted him to mind the children. It was not that she did not trust CW. BK and BR were arguing that they wanted a holiday.
  7. [21]
    TJM stated in response to being asked what made her confident that CW is appropriate to be with children, that she had never seen him do anything that he was accused of. BK trusted CW said that he was the best person she had met. She said BR schooled the children. She said she was wary and BK and BR should have been wary but it did not matter to them.
  8. [22]
    She said that CW had never done anything to her grandchildren and that it was all fabricated after the iPad had been bought. BC had said at school she was happy to go to her grandmothers. That there was no intimation of any of those things. She asked why the school principal would have asked CW to be Santa Claus.
  9. [23]
    TJM was asked if there were times in her house where the grandchildren with CW only. She said no, that the grandchildren had a habit of smashing things, that she was vigilant all of the time and that they were always in her sight. There were 6 children and 4 of them had behavioural problems. TJM said the perpetrators of neglect were the parents.
  10. [24]
    TJM believed that BK and BR thought they would use this incident to recreate the false sexual abuse on their daughters at 11, 7 and 8 years old to get rid of CW and her, as ‘their children enjoyed our company’ and also to relieve themselves of their jealousy, of TJM and CW being liked more than their own parents.
  11. [25]
    TJM states she now has to deal with CW’s retriggered PTS after she was assaulted by BR, being on crutches for two months and ongoing physio on her left knee. CW has nightmares most nights and poor sleep, for 2 ½ years now. His body is continually run down, becoming ill, with infections, requiring many hospitalisations with also mental fatigue. He was in hospital once again after these false allegations in June 2018.
  12. [26]
    TJM states that if none of these damming and shocking lies had been told by BK, BR and their children in the first place, they would not be having this conversation and blue card services. Queensland Police Service resources and time would have not been wasted, when it could have been spent on other people’s genuine cases, to protect children who are actually abused. TJM stated that yes she did care about children, especially those being abused, in her role as a child carer, and a nurse of 40 years, and all children. TJM stated that Child Protection or children services as it was then known had failed to protect her and her sibling from abuse when she was a child. As they were placed in an orphanage and then long term foster care where they were abused by her alcoholic foster carer who was undetected by the Department despite complaints and phone calls to them by family members and neighbours. Therefore she says she has always been particular with any children and her grandchildren, to protect them from home while in her care.
  13. [27]
    TJM stated BK and BR went after her blue card when they were told that CW would not be charged in 2015 and 2016 using blue card services and in-home care (child care). If CW had of been charged, then they would not have sought to have her blue card taken off her.
  14. [28]
    One of the allegations was that CW had taken nude photos of 12 year old BC which were found on her iPad along with photos of a man’s penis. TJM said there is no way CW could have taken the nude pics of BC, they were never alone, and CW had no camera and doesn’t know how to work BC’s iPad, and never had any interest in any sexual matters in the 5½ years TJM had known him, and he does not approve of this kind of behaviour and sees it as indecent.
  15. [29]
    TJM believes that BR and BK had told all three of their girls, BC, BA and BH to lie about CW to get CW out of BR’s life so his children will never see CW again. The one person along with herself who made them happy. When BR couldn’t due to excessive jealousy, and he also felt undermined by CW. TJM would like to know what happened to the allegations of CW accused of touching BA, 8 years old and BH, 7 years old, which BK had told her at the start.
  16. [30]
    TJM said she won’t be blackmailed by lies from 7, 8, and 11 year old granddaughters saying that CW touched them, and BC saying CW took nude pics of her. Also BK and BR getting their children to tell lies for them.
  17. [31]
    TJM after speaking to her neighbours stated that on a day when her and CW were absent from the house that a 4 wheel drive had been seen parked outside her house and a woman got out of the vehicle with some young girls then entered the house. TJM thought that this was when the nude pictures in her lounge room were taken.
  18. [32]
    She said that BK had also said there were photos of CWs penis on the iPad. She noted that: KB had asked her previously when she would be going to the course which would mean that she wouldn’t be at home; and BK was the only person beside herself and CW who had a key to the house.
  19. [33]
    TJM said that BK had told her that nude pics of BC were taken in the lounge and that CW was having sex with BC on TJM’s bed while she was in the shower. TJM asked BK how she would know that. TJM said hr shower is located next to her bedroom wall, with a sliding door dividing it into her bedroom. The door has a small visible gap from top to bottom when it is closed and the bedroom is able to be just visible while the bathroom light is on, while in the bathroom. TJM says to her knowledge she witnessed no such events happening while she was in the shower.
  20. [34]
    TJM stated that BC often liked to watch TV in her bedroom, sitting on the bed and watching it with CW till she came out of the bathroom and shower, and then she was told to go to her own bedroom to sleep, which she did willingly. Her duration in the shower was usually 5-7 minutes. The new information given to her by BK was not on the original allegation of CW making child exploitation material and indecent images of her granddaughter.
  21. [35]
    TJM says the week before the allegations she had refused to lend BK money for Christmas and had mentioned the dirty, untidy state of the house and BK had hung the phone up.
  22. [36]
    TJM maintains that it was BK and BR who made the allegations, and they were currently under investigation for fraud after they had used her licence to rack up a Telstra debt. She said her daughter and son-in-law were not good people and it was their children she minded. She stated that the grandchildren have known CW for five years. TJM questioned the older children about the allegations and they said CW would never commit those acts. The children had a problem with telling lies and the school principal was aware of this. The two girls have been caught out with telling lies and manipulating adults. Even one of the children has admitted to CW that she had a problem with telling lies. BC had admitted at the time of the allegations to TJM when she asked her ‘has CW ever touched you indecently or taken nude pics of you’ She replied ‘no never’ and had a bewildered look on her face on the day BK told her of the allegations against CW.
  23. [37]
    TJM also asked BH the same question separately in one of her bedrooms with the door closed. He also said that CW had never done anything to him or the other children that he could recall: ‘Both these older children had come down to our place for a couple of days’ holiday and appeared very happy to be there.’
  24. [38]
    TJM felt that BC has not told the truth about an incident about a man she was communicating with on Facebook and her mother, BK banned her form using it. BK rang BR and told him and he wasn’t worried. BK told TJM that since she had bought BC her new iPad she was on it a lot and she thought this man was grooming BC and that BC wasn’t the little angel TJM thought she was. BC had only taken her iPad home once, and no more than twice between October and December 2015, and then brought it back to TJM’s house so it wouldn’t get broken by her siblings. BC often told TJM and CW that they would never know her password.
  25. [39]
    TJM gave examples of where BR had become violent towards the children when he drank, and because the children liked CW, and he spoke out about BR’s violence the false allegations were made. CW has seen this abuse, when BR drank he would get angry and pick the children up by the hair and CW had confronted BR about it and he said he could do what he wanted as they were his children.
  26. [40]
    TJM stated that at about 11:30am on 6 November 2016 she attended her daughter’s residence with CW. Her intention was to speak to BK about ongoing family issues, including debts incurred in her name by BK and BR without her knowledge or consent from 2014 and allegations made against CW which were false. As it had been one year of no communication (16/12/15) between herself and BK, this led TJM to believe that BK was willing to sort family issues out. However, when she arrived at BK’s gate, BK agreed to let her talk for 65 minutes just inside the gate. BK then spoke about more serious new allegations and changed her and BR’s stories from what she had originally told TJM last year. TJM stated that BK had told her that the school principal had told her that BA, BH and BC had approached her several times stating that all three girls, not the other three boys, had been indecently dealt with by CW between October and December 2015.
  27. [41]
    TJM stated that the principal had asked CW would he perform the ‘school Santa’ at Christmas school break up as he had done for the last three years at Christmas. Nothing had been said to CW about any indecent dealings with the three girls by the principal, as she had told TJM prior to this that BH, BA and BC had not said anything to her at all.
  28. [42]
    It was at this time that BK had told TJM that nude pics were taken of BC in her lounge room and that CW had sex with BC in her bed every time she had a shower and that CW’s penis pictures were on BC’s iPad. BK assumed it was CW. TJM had told BK that she was present in her own house and she had witnessed no such events and that neither she nor CW know how to use an iPad or take pictures. None of the children were ever out of her sight in her house for such events to occur. Following this TJM was assaulted by BR which put her on crutches for three weeks, and BK threatened to run her over with her car.
  29. [43]
    After TJM was assaulted she never had contact with the children, or her daughter and son-in-law, after the fraud and allegations against CW. TJM had held her card for over 20 years without a problem and said ‘they are out to make trouble’. TJM had never done anything to the children, and her partner did not either. CW was a good person. The children trusted him and their father was jealous of this.
  30. [44]
    TJM’s 11 year old grandchild told her CW had never done anything, ever. TJM stated that if the children were really sexually assaulted then they would not want to visit and they would have been afraid of CW, however they were not. They loved CW and would fight over him. One of the children BC, idolised TJM. BC did not like her mother and father because her father drank and got abusive with the children, and TJM had evidence of this.
  31. [45]
    TJM stated that BC had told her that when she was five she had been taken to hospital to receive stitches in her head, BK told the hospital BC had tripped over and split her head. BC and BK later confirmed that BR had become angry after drinking and threw an object at BC head, splitting it. BK said she covered up for BR instead of telling the truth as BC was only five. BC had also told TJM of an incident involving an unpaid babysitter where a child had been made to eat his own faeces.
  32. [46]
    TJM said BC had kept a lot of secrets for a long time and is afraid of BR’s abuse, physically and mentally and afraid of BK. TJM said this is why BC is a very emotional child as she hasn’t been allowed to get her emotions out due to fear. She would appear nervous when around BR and BK and would jump at their every command. Or else, as BC was used to it, even when there requests were often outlandish. And yet, when she was with TJM and CW, away from the parents, or at school in front of the teachers, they witnessed BC being a bubbly, full of life, with a very good sense of humour and loving caring nature.
  33. [47]
    TJM says that she was an orphan herself as a young child until she was 5 years old in the ‘Old Nudgee Orphanage’ (known as St Vincent’s home for children). TJM was determined to make something of herself as she grew up and always had a ‘plan B’. Being independent she tried hard to cope with what life handed her. She had a successful athletics career, loved music, art, and nursing. At 56 years old now, she says she has learned a lot of important lessons in life, and that honesty is a good thing as it paints a clearer picture when problems arise. BK is her eldest, and had always been a difficult child to raise, unlike her other 2 siblings. With the support of professional people e.g. Mater Children’s Clinic and extra help at BK’s school, she says they both coped.
  34. [48]
    TJM’s concern was that her daughter was using the children who were aged 7, 8 and 11 years at the time. BK once said the grandchild had been sexually abused, but when the child was taken to hospital for examination there was no sign of sexual assault. TJM believed that BK and BR have now targeted her with her blue card. This was all because BK sent TJM a text stating, ‘because you didn’t support me from the get go now it’s too late’. This was because TJM did not believe the lies the girls had told her. She said to her daughter, ‘how would you know, you weren’t in the house, there’s no way because I’m on the ball when it comes to children, especially ones with behavioural problems, no such thing happened and now [CW] and I are trying to prove that we’re innocent.’
  35. [49]
    TJM says she had a good working record as a nurse with Queensland Health and BK is making up allegations about her and CW that are not true. The allegations against CW to the police and the false allegations about TJM to blue card had ruined the last two Christmases for then since 2015. Which is remembered each time CW performs Santa Claus for businesses in town. TJM says BK liked CW and trusted him, as he helped her a lot over the years and did more and cared more than BR did about important things and it seemed out of character for her to suddenly dislike him. It seemed almost like BK had been threatened to suddenly dislike him, as she knew he was very trustworthy with the children. TJM said, if foul play with the children was suspected why wasn’t it apparent over the prior five years.
  36. [50]
    TJM said she would not be with a person that preyed on innocent children in the first place: ‘I have a duty of care’. TJM stated that CW was at a hotel in March 2017 when a member of the public advised him that BK admitted to ‘setting’ CW up, by taking photos of BR’s penis and putting them on BC’s iPad. They also noted that BC looks emotional whenever she comes into the shop with BK and that last year 2016 BC tried to run away from home up to the shop. BC was told they would have to ring BK and BR, BC was upset as she didn’t want to go home two years before she had been told if anything happened at home she could go up to the shop and they would ring TJM and CW to pick her up if she wanted. TJM stated if that happened they would be charged with kidnapping and that ringing the police would be a better option and BC needed to express herself and her concerns to the police  so they could help her legally.
  37. [51]
    TJM provided details about BK’s Centrelink fraud and hiding from creditors. TJM stated that they went to extreme lengths to avoid prosecution, rather than be up front and tell the truth. They told their six children to tell lies in order to support their parents. This is because BK and BR knew that minors would not be prosecuted when telling lies. They rewarded their children for supporting their lies and bad behaviour, instead of rewarding good behaviour.
  38. [52]
    TJM stated that she had divorced BK’s father TR after 24 years due to his ‘controlling, jealousy and violence’ and that he had remarried TE. TJM said BK had told her TR had sexually molested her when she was younger, but TJM had not witnessed this. TJM noted that she was fined for trespass on BK’s property but BR was not prosecuted for assaulting her because of a lack of evidence.
  39. [53]
    TJM had looked after the children since birth. She was a paid part-time carer on holidays. Some of the children were under child therapists for behaviour problems. TJM alleged that Child Safety had been contacted by other babysitters for such things as BR watching pornography in front of the children and drinking, getting drunk, and physically and mentally abusing the children on several occasions during the three years that she minded the children. The baby sitter stated to Child Safety that the house was very dirty and that BK and BR slept every day until 2pm, sat on their computers and did online gambling. BR also physically abused BK over money issues. BR used to keep a pile of ‘Penthouse books’ on the toilet floor when BC and BB were young.
  40. [54]
    BK told TJM that she ‘whipped’ BL, aged 7 years, with a whip to discipline him. Lately TJM caught BA hitting her younger siblings with that whip. TJM took it off her and reprimanded BK and BA. The school principal had been aware of the poor living arrangements. As a result TJM was told by BK and BR that she was not allowed to ever see or speak to their six young children ever again. This was said to be ‘blackmail’ as the children were not able to tell TJM the truth about the lies BK and BR told. Especially how things have resulted presently ‘involving detectives and police, dealing with child sexual assault allegations on all 3 girls against her best friend of 5 years’. All of this has caused undue stress on TJM and her friend, CW, in relation to this extensive medical history from birth.
  41. [55]
    TJM provided her school certificate for the years 11 and 12 which described her as a conscientious girl who gives a great deal of thought and effort to everything that she does. TJM provided references from a number of people. A person who had known TJM for 20 years stated that she was a very caring and kind person and trustworthy when caring for others. An area school crossing supervisor stated that she carried her duties as a school crossing guard in a professional manner. She was always punctual, reliable and co-operative and she possessed good personal presentation and has always been courteous and polite. TJM also provided certificates of appreciation for 10 years as a school crossing supervisor and her authorisation to be a school crossing supervisor. Someone who had known TJM for two years stated TJM had been observed with her grandchildren over a two year period to be very patient with them and they had never seen her raised her voice to them.
  42. [56]
    TJM gave oral evidence at the hearing and stated that there was no risk factor with her and CW and that she would not allow anyone to hurt any children, not just her grandchildren in her care. She was asked if there was anything else she wanted to tell the Tribunal about her background and upbringing. She said that BK ‘had her own reasons for getting rid of [TJM]’, she refused to keep giving her money. She then confirmed what she had said about BK and BR making the allegations against her and CW that they had staged the whole thing and the children were placed in the hands of the perpetrator who had been abusing them for years. That the DNA sample from the doona was checked and it was not CW’s. She noted that BK had told the police that the sheets had been washed before CW stayed but the police said they were dirty.
  43. [57]
    She was asked about her awareness of training in regard to child protection matters. She said there were new guidelines so that if you suspected child abuse there was a form to fill in bruising etc. and that would protect the child. She was asked about occasions when she was concerned about the welfare of her grandchildren. She said it was going on for a long time and she had approached BK and BR most of the time. She said that other carers had approached child protection and she had worked closely with them, afraid something was going to happen. She said she had discussions with Child Safety in Toowoomba. She said she was abused as a child by an alcoholic foster carer and she did not want to see a repeat of that.
  44. [58]
    TJM was asked about her statement that the allegations of abuse did not occur during her days of paid care (BCS -123), she said that she was paid carer for the children in her home. She stated that they knew CW did not have a blue card and he was doing it as a favour. CW cared for the children in between her care.
  45. [59]
    TJM confirmed that she met CW in 2012 and that moved in together 6 or 7 months after meeting. At the time she was living in a country town in South East Queensland. BK asked her to move closer to her to help with the kids. TJM said she knew the town where BK lived as she had been a jillaroo out there.
  46. [60]
    TJM stated in regard to the allegations made by BK that the police did not ask her and CW questions, they were never formally interviewed.
  47. [61]
    On 15 December she had received a call from BK and they, herself and CW were at a Hotel and that the older girls were with them and they were excited. She said that BK had rung and said the two younger girls had said CW had touched them and she should leave CW in the pub. She said that they all came home with CW, as she doesn’t drive. That the whole thing was a ploy. She told the girls to pack their stuff up. She said that they had been telling lies. TJM was asked that, when allegations were made did she have concerns about CW’s history. TJM, said ‘No, I can only vouch for what had gone on here and now with the children’. She said she is concerned about her grandchildren and that the perpetrator in this particular case is still up there. She said she did not believe that CW was responsible for this, definitely not. TJM said to him he had had a lot of interactions with the police and he said he has never done anything to these kids.
  48. [62]
    TJM acknowledged at the hearing that CW would not have received a blue card. She said she did not allow him to care for BK’s children and that she knew he should not be caring from them. She said it was not on her paid days and she knew if something happened she would be liable.
  49. [63]
    TJM stated she had been through a lot in her life and that she would tell him not to care for the kids. She agrees children should be protected. She agreed the children were cared for in her home and that it was 1½ hours to the children’s home and that CW could not drive there and back on the same day. TJM stated that CW cared for them not on her paid days but when BK and BR demanded.
  50. [64]
    It was noted from the police material that there was an inconsistency in the evidence. TJM had been placing loyalty to CW ahead of possible harm to the children. It was noted that the children said do not let CW go to jail as Nan will kill them. TJM stated their lies will kill them. She was asked if she denied any allegation of calling children lies.
  51. [65]
    The Department submitted that while TJM was concerned about the welfare of the grandchildren and suitability of CW caring for them there were time when TJM was there and times when she wasn’t.
  52. [66]
    TJM was given the opportunity to make submissions following the hearing in which she confirmed what she had already said. She also said one of her biggest fears was that BK and BR were going to get away with what they thought they had carefully planned out and that thankfully a lot of Brisbane police detectives and Child Safety officers saw through BK and BR’s lies. Which she had told them from the start but it had to be proven after 2 ½ years, clearly, the children were not assaulted in her care or CW’s and the parents had used CW’s past to put the blame on him for what BR had done himself to the children. TJM stated that after spending two days reading the police investigations prior to the hearing she realized what had already been confirmed as the police report stated that the children had been coached by their parents to put the blame on CW and that the parents’ stories had a lot of inconsistencies. That the police evidence had proven that the parents had lied. And the police DNA investigation showed that CW was not a match from the DNA obtained from CW’s bed. The DNA was then named unknown male suspect.
  53. [67]
    TJM stated that there was no evidence found at their house. That the girls in a separate police interview had said that CW did not assault them and they did not want him to go to jail. She said that it was clear though that the girls had not made up the sexual abuse and it had been going on for a long time especially when their mother was away. That the girls had said they were told by the male person that ‘if they ever told anyone or the police that he would kill them and their pets’. That the oldest girl had admitted that she had taken the nude pics of herself, on her iPad, not CW and had been sending them to men of Facebook, as her father had his own porn site. BK had bought her the iPad between October and December 2015 and obviously had not been monitoring her daughter. She was only 11 years old and the younger girls 7 and 8. TJM stated that all said and done the blame was put on CW and herself. To cover up what the parents had done, as it was obvious who this male was, that had sexually assaulted the girls: ‘He couldn’t keep his hands off me when he almost broke my knee over these allegations and if the police haven’t got him yet it will only be a matter of time.’
  54. [68]
    TJM provided references from others in support of her application. A doctor stated that she had known TJM for 12 months and that she was said to be a responsible, well-mannered lady who is always organised. She is a caring person who works as a nurse at a hospital. A neighbour stated that she had known TJM for the past two years. That her children visit CW and her regularly and she has found them to be wonderful and caring people to her children. TJM is a wonderful, smart, caring person who she trusts around children. She has never had any trouble with her and her children speak highly of her all the time. She has never seen TJM speak badly of people or be malicious towards anyone. She has found her and her partner to be respected to by all those who have had contact with them. A neighbour of 20 years stated that he had found TJM to be a very good citizen, housewife and mother and he would have no hesitation recommending her for any employment which she may consider. None of the people who provided the above references stated that they had any knowledge of CW’s offences.
  55. [69]
    Further references were filed in the Tribunal from people who had known both TJM and CW and were aware of the charges against CW. One stated that TJM was caring and nurturing with young and old and they believed the allegations were out of spite and malice and that they would have no problem allowing TJM to care for any of her family. Another described the allegations as ridiculous and that they and their husband had been good friends with TJM and CW and have never witnessed any wrong doing with their grandchildren. The same doctor as above stated that she had known CW since 2010 and she was aware of the charge. The local priest, BOM stated that he had known TJM and CW for a number of years and he offered TJM support in her application for a blue card, he stated that he was aware of the allegations against CW and understood that the police have not proceeded with those allegations. Father BOM confirmed his evidence at the hearing and stated that he was not aware of any other involvement that CW had had with the law. He also stated he had no knowledge of TJM’s conduct with children or young people.
  56. [70]
    Another friend MM echoed what TJM had said about the state of BK and BR’s house and how they slept in until 2:00pm and the way they treated the children. She stated she has found TJM and CW to be honest, true and reliable people. She has never known them to have abused any children in TJM’s care. She has known CW for 6 years and TJM all her life. She believes that all the allegations made of sexual abuse are false and untrue, she feels they were made out of spite and greed as an endeavour to obtain what BK wanted. At the hearing MM confirmed her statement and said that TJM was quite capable of looking after children including children with autism as she had a child with autism. MM Stated that she only had knowledge of the current allegations against CW. She stated that CW was always there to lend a hand.
  57. [71]
    HJ provided oral evidence stating that she had known CW longer than TJM and that TJM had contacted her about the allegations against CW, she was not aware of any other police investigations or charges against CW. That she had seen CW interact with children and that children came first. She said that she had observed TJM with children and she was loving caring person but strict when she needed to be. SD also gave oral evidence. She said she had known TJM for 8-9 years and saw her at least once a week and she visited TJM and CW when she comes to town. She stated that she was aware of the allegations involving TJM’s grandchildren and she was not aware of any other allegations. She said that TJM was very friendly and liked to play with children.
  58. [72]
    There was material obtained from the Queensland Police Service under a notice to produce which the Department submitted raised the following concerns:
    1. (a)
      In December 2015, investigations were commenced into allegations that CW had indecently dealt with three young children related to TJM. It was alleged that CW behaved indecently in relation to the children on a number of occasions and various allegations of a sexual nature were made against him;
    2. (b)
      Police concluded that there were external factors which impacted on the allegations and therefore it was difficult to verify the validity of the allegations;
    3. (c)
      CW was previously charged, but not convicted, in respect of three further children, including 15 charges of a sexual nature between 1996 and 2001;
    4. (d)
      CW was further charged with sexual offences against another child in 2001 while the child was staying with CW;
    5. (e)
      While CW was not convicted of these offences, the charges are concerning as they involve common elements of behaviour;
    6. (f)
      CW was convicted of the abduction of a child under the age of 16 years in 2002. This offence is particularly concerning as it included CW behaving in a predatory manner in order to encourage a vulnerable child to go along with him, further CW told a series of lies to various people in order to retain the child in his possession. While with CW, the police material indicates that the child’s medical needs were neglected, which placed the child in danger.
  59. [73]
    CW provided statements to the Department in support of TJM. He outlined that he had been asked on 14 December 2015 by KB and BR to mind their six children until 15 December and then set out his recollection of the events that occurred on the night of the 14December 2015. He stated his belief that the allegations against him had been fabricated by the children’s father BR because he is jealous of CW. As he didn’t want his oldest daughter BC ‘coming to live with us to complete high school in town’. He stated that BR has a major drinking alcohol problem, and is abusive when intoxicated, which CW has witnessed, physically kicking and pulling the girls hair, their grandmother TJM, who he lives with has also witnessed this behaviour. He described the chores that the older children BC and BB had to do.
  60. [74]
    CW stated that he had told BH, 7 years old and BA, 8 years old that they could not come to town with him and with BC and BB because of an incident they had been involved in. That is they were having a bath together which CW was observing with BB and they had been touching each other’s private areas around the groin and he had immediately told them to leave the bath and they had pulled the curtain across so he couldn’t see what they were doing. He said he reprimanded them for what he had seen them doing.
  61. [75]
    CW stated that BR was also angry that CW wasn’t that taking BH and BA back to his place with BC and BB for a few days break. He says it was then that BH and BA told him if they weren’t allowed to come to his and TJM’s house that she would ‘get back [him] back’. He asked her what she meant and she hung her head down, smiled, and did not reply. CW states BH has been diagnosed with having a split personality by a child physiologist at 5 years old.
  62. [76]
    CW stated that BA on the other hand has a history of problems with telling on people and telling lies on her own siblings on a daily basis, and also manipulating adults even at school to get what she wants, and portrays herself as the victim if she cannot get what she wants. BH has learnt a lot of these behaviours from BA. CW states BA has told a number of lies, about boys at school, other children taking her things and was later found to be lying each time.
  63. [77]
    CW said he explained to BA that she should stop the lies, because no one will believe her when she gets older, on 16 December 2015 he was then accused of indecently touching BH and BA by BK and BR, and the next morning BK sent TJM a text stating, tell CW I found the nude pics of BC on BC’s iPad.
  64. [78]
    CW stated a detective came to his house 2 weeks later with a search warrant and handed CW alleged allegations on paperwork of him making child exploitation material and indecent images involving BC. This case is still being investigated and ongoing as at 9 January 2017.
  65. [79]
    CW states he has honestly done none of these bad things that he has been accused of. He has been named and shamed by BK and BR in this difficult time, which has stressed him out and contributed to his existing health problems, his medical carer, friend and nan to these children, has been also physically assaulted by the children’s father BR, and told she can never see her grandchildren again because she didn’t believe BK that her three girls had been sexually assaulted by CW and nude pics of BC taken supposedly by him as well.
  66. [80]
    CW says he has told the truth, and been honest with the police from the start. He would never hurt any child. He also sets out the details of BK’s suicide attempt 7 years ago. CW also supplied a statement setting out his recollection of the day TJM was allegedly assaulted by BK and BR.
  67. [81]
    CW made a statement that the allegations made against him by blue card that he is a known sex offender are false and that he has proof in his police check which was provided to blue card and the Tribunal. As far as TJM is concerned she has never subjected these children to any known ‘sex offender’.
  68. [82]
    CW stated at the hearing that he had known TJM for 6 years and that she is his partner. He said that TJM was honest and caring and that she trusted him with her grandchildren. He said he told her about his criminal history about four years ago. He said that he told her that his daughter made allegations against him of abduction and sexual abuse. He said that she had run through the court house saying he didn’t do it and she ran away from foster care to his house. He confirmed that the abduction charges were against his step daughter, he was then taken to the material that had been provided by the Queensland Police Service in respect of a notice to produce. This material showed that there were charges in relation to three step daughters. He said that the charges were all thrown out of court, he was asked if he had spoken to TJM about all charges he said, yes. He was asked if this included an indecent dealing charge against a 13 year old boy he said, yes and that it was thrown out of court. He was asked about the 2002 conviction for child abduction. He said he was not going to hurt her and that he pleaded guilty as he didn’t wish the young person to go before the courts. He said the girl’s father was an ex-police officer and he would throw her up against the wall. He said he was trying to help the child not hurt her.
  69. [83]
    CW said that he told TJM that he didn’t tell her everything because he didn’t remember everything. He said he told her he was convicted. CW was asked why he failed to mention the charges he had. He said that if they weren’t on his police history then he was not convicted. He was asked that up to 2013 there had been 4 children who had accused him of abuse. He said nothing happened, and it was proven in court that there was no evidence. It was noted that the abduction in a northern Queensland town occurred at a time when he was on bail for other charges and that this was extremely concerning behaviour. CW said the behaviour towards the child was to help her not to hurt her and that there was no sexual abuse.
  70. [84]
    CW was asked about his looking after BK’s children. He said that he did so regularly and that he was left with no money for food and that the children appreciated him. CW said TJM told him quite often don’t go up there you’re too unwell. He said that twice he and TJM put in a complaint to Child Safety which they did not investigate. He confirmed that quite often there were times when he looked after the children when he was left alone with them. He confirmed that allegations had been made by 3 of BK’s children. It was put to him that meant that 7 children had made allegations against him. He said he only received allegations about taking photos of the eldest girl and that was since dismissed because she was doing it for men and that he was not informed of any other allegations. He also confirmed that he was not subject to any current charges.
  71. [85]
    The Department submitted that CW’s evidence should be treated with concern as he was given the opportunity to recite his criminal history and failed to include convictions and charges.
  72. [86]
    TJM filed a letter from MB, CW’s Uncle in support of him. It stated that he has known CW his whole life and TJM for five years. That CW has grown into a person who cares about people as evidenced by his care for his elderly mother. He stated that he is aware that CW has been investigated by the QPS following allegations by TJM’s daughter that he had behaved inappropriately with her children. He stated that he found these allegations unbelievable as during all the time that he has known CW he has never observed such behaviour, nor has been aware of any. He noted that he had been visited by CW with TJM and CW’s mother and also occasionally BC that BC was very relaxed in CW’s company and displayed absolutely no indications of fear, resentment or being uncomfortable in her interactions with him. He is also aware that following a long exhaustive investigation the QPS found no evidence to support BK’s allegations and no charges were laid against CW. Throughout this ordeal CW maintained his innocence and was vindicated following the investigation. NB notes that CW volunteers for community involvement including such as acting as Santa Claus during Christmas festivities. Not once, to BM’s knowledge, has anyone voiced any concerns about CW’s interaction with children during these events and the allegations mentioned above should not tarnish his reputation or reflect in any way on his partner TJM’s reputation or ability to care for both children and adults. MB confirmed his evidence at the hearing.

Protective and Risk Factors

  1. [87]
    The Department noted that the Court of Appeal in Maher accepted the approach of considering relevant risk and protective factors in deciding whether a particular case is exceptional.
  2. [88]
    The Department submitted that the following protective factors are relevant in this matter:
    1. (a)
      TJM only has one entry on her criminal history and it is not an offence that is concerning in relation to her eligibility under the WWC Act; and
    2. (b)
      TJM has a strong support network, many of whom have provided references in relation to this process.
  3. [89]
    The Department submitted that the following risk factors are present:
    1. (a)
      TJM is a mature adult and an experienced nurse. This is concerning as she is of an age where she should understand the risks posed to children by allowing them to be alone with a person who has previously been charged with child sex offences;
    2. (b)
      TJM allowed CW access to her grandchildren, including physical contact and contact in close proximity, despite being aware that CW had been previously charged with child sex offences, statement dated 12 June 2018 filed by TJM;
    3. (c)
      When first notified of the allegations against CW, it does not appear that TJM took any steps to act protectively of her grandchildren that were in her care at the time. TJM declined to take the children to meet their mother, and had a conversation with her granddaughter against the express wishes of their mother. The conversation with one of the grandchildren about the abuse apparently took place in a room with CW in close proximity. The material indicates that TJM further confronted the children’s mother in the presence of the children, referring to the children in a derogatory manner and accusing them of lying;
    4. (d)
      Further, in her submissions TJM places great weight on the impossibility of CW offending on account of his health, suggesting that TJM had formed her own view of any risk to children that CW may pose, and attaches greater weight to that than to the investigations of the police;
    5. (e)
      TJM was not sufficiently vigilant to her circumstances and the need to act protectively towards her grandchildren. The Tribunal had previously recognised that as an important obligation on those caring for children CEB v D-G, Dept. of JAG [2018] QCAT 26 at [45] per Member Hughes;
    6. (f)
      TJM has not demonstrated any insight into how her actions in allowing CW access to her grandchildren could potentially place them at risk of significant harm;
    7. (g)
      TJM’s conduct towards her grandchildren following their disclosures is particularly concerning. Specifically, the conduct mentioned in the material provided by Child Safety that her and CW threatened the children and called them liars;
    8. (h)
      TJM has not demonstrated that she now understands the risk associated with such behaviour;
    9. (i)
      While every citizen has a right to the presumption of innocence until proven guilty under the criminal law, the Queensland Parliament has determined that in very limited circumstances the rights of the individual should be displaced by the desire of the community to protect children. In undertaking this balancing act between the rights of the individual and the rights of children to live in safety, Parliament has tipped the balance in favour of children. As stated in the explanatory notes to the bill introducing the WWC Act:

The infringement [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.

While the charges against CW relating to sexual offences against children did not lead to convictions, the highly concerning nature of the allegations made on three separate occasions by seven different children, against CW, is of relevance to TJM’s eligibility to engage in regulated employment. It is particularly concerning given CW has had access to children for whom TJM has been caring;

  1. (j)
    The Department submitted that there is no evidence before the Tribunal to make a finding or draw any conclusion in relation to innocence or otherwise of CW. The Tribunal is not in a position, nor is it the Tribunal’s role, to arrive at a definitive conclusion as to whether the alleged offences did in fact occur: TWV v Chief Executive, PSBA [2015] QCAT 489 at [89]; and
  2. (k)
    TJM appears willing to put her loyalty and relationship with CW ahead of the possible harm of her grandchildren and this raises significant concerns about her ability to act in the best interests of children and young people who may be in her care.

Discussion

  1. [90]
    TJM is no doubt a good carer of children generally and it is clear from the support she has in the community that she is well respected. The charges she has been convicted of are also not of great moment. She has one Child Safety matter which does not in itself reflect adversely on her. What is concerning though is that CW has come into her life and she became aware of his past which showed that he had criminal convictions for offences involving children and charges involving offences against children which had not proceeded. He had a long history of charges involving numerous children.
  2. [91]
    Crucially TJM was of the view that CW would not have been eligible for a blue card as a result of his criminal history and therefore would not have been able to be in employment involving children. She makes a point of saying that the care that he may have provided was not at the time she was providing paid care of the children and that the children’s parents had knowledge of his criminal history.
  3. [92]
    TJM submits that CW could not have abused the children because of his medical conditions; that the children’s parents, her daughter and son-in-law, made up the allegations with an ulterior motive and that the children lied and further that the allegations were investigated by police and no charges were laid.
  4. [93]
    It is not a question in regard to whether or not the charges against CW in respect of TJM’s grandchildren are proven or not. The question is whether or not having regard to CW’s criminal history TJM showed an appropriate level of consideration for the welfare and best interests of children by allowing him access to children. In knowing that CW was not eligible for a blue card TJM knew that he was not suitable to care for children and she should have ensured that he was not put in a position where he had unsupervised access to children which were in her care.
  5. [94]
    For TJM to accuse the children of lying and their parents of conspiring to against her and CW also shows a lack of insight into the paramount needs of children. Where there is doubt such as in the case of CW as a result of his criminal history then vigilance is required and she should have ensured he did not have unsupervised access to the children. TJM says that it was the children’s parents’ decision for CW to provide them with care. Clearly though she has no respect for their ability to parent their children and she states that she has made referrals to Child Safety in regard to the children. As the holder of a blue card with care of the children and in her role as their grandmother she should have ensured that the children were not put at risk and that required her not to allow CW who she knew had a history of offences against children to have unsupervised access to those children.
  6. [95]
    When the allegations were first notified to her and her daughter requested her to leave where she was without CW she chose not to and took the children home with CW and interrogated at least one of them with CW outside the room. At that stage she should have protected the children by separating them from CW instead she showed that her allegiance was with CW by allowing CW to bet there when she raised the issues with the children.
  7. [96]
    For these reasons I am satisfied that the risk factors in regard to TJM outweigh the protective factors having regard to the submissions of the Department above and that this is an exceptional case where it is not in the best interests of children for TJM to have a positive notice and therefore a negative notice should be issued.
  8. [97]
    The decision of the Department is confirmed.
  9. [98]
    Much of the material that has been filed in this application in particular the material filed as a result of the notice to produce identifies children in accordance with s 189 of that Child Protection Act their identity and all information which may identify should be confidential. There is also a great deal of material in relation to CW and children subject to child protection orders identified that was obtained in the notice to produce from the Queensland Police Service. I therefore make a confidentiality order under s 66 of the QCAT Act that the entire file in respect of this application is confidential and no information may be published which could identify the applicant, TJM, CW or any person associated with them in particular the children for whom she was carer.

Footnotes

[1] WWC Act s 220(a).

[2] WWC Act s 220(b).

[3] WWC Act s 354; Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 17.

[4] QCAT Act, s 20(1).

[5] Ibid s 20(2).

[6] Ibid s 19.

[7] Ibid s 21.

[8] WWC Act, s 5.

[9] WWC Act, s 360.

[10] WWC Act, s 167

[11] WWC Act, s 221(2)

[12] [2016] QCAT 210, [8].

[13] Commissioner for Children and Young People v Maher & Anor [2004] QCA 492.

[14] Commissioner for Children and Young People v Storrs [2011] QCATA 28

[15] WWC Act, s 226.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 125

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    07 May 2019

Appeal Status

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