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LKK v Department of Justice and Attorney-General[2019] QCAT 185

LKK v Department of Justice and Attorney-General[2019] QCAT 185

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LKK v Department of Justice and Attorney-General [2019] QCAT 185

PARTIES:

LKK

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML 096-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

5 July 2019

HEARING DATE:

9 November 2018 

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

  1. The decision of the respondent that the applicant's case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
  2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application.
  3. The decision of the tribunal is to be delivered to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – review of negative notice – review of a decision to issue a negative notice and cancel a Blue Card

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – exceptional case – where applicant has a criminal history without any serious or disqualifying offences – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Non-publication Order – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would endanger the mental health of a person – where to publish would disclose confidential information – where to publish would be contrary to the public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 353

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

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

I McCowie, Government Legal Officer for the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    At the Brisbane Magistrates Court on 30 June 2011, the applicant was convicted of an ‘offence to remove child from carer’. The child in question was hers and by her actions the applicant simultaneously placed her child at direct risk of harm by removing the child from her approved carer, she committed a criminal offence, she disregarded a court order granting temporary custody of the child to the Chief Executive of the Department of Communities, Child Safety and Disability Services (‘the Department’), and she disregarded the decision of the Department to place the child with the applicant’s mother. Two weeks later, the applicant was apprehended and later convicted for public nuisance and obstructing a police officer. Three weeks later, the applicant breached her bail conditions. On 11 January 2012, the applicant was convicted for possession of counterfeit money, uttering counterfeit money and fraud.[1] For this offending, the court imposed a period of imprisonment that it wholly suspended. The applicant also breached her bail conditions. On 6 August 2013, the applicant was convicted of possession of amphetamines.[2]
  2. [2]
    Part of the basis upon which the court made an interim order granting temporary custody of the applicant’s son to the Department was as a result of the behaviours of her (then) partner. The offence of removing the child occurred brazenly. The Department placed the applicant’s child into his maternal grandmother’s care, and the applicant was allowed supervised visits. On the morning of 9 June 2011, the applicant, her two-year-old son and the carer were in the carer’s vehicle. The carer entered a shop, leaving the applicant alone with the complainant child. Upon returning, the carer found the applicant, the complainant child and the vehicle missing. Police became involved immediately and Police quickly ascertained that that the applicant's partner had family that resided in the area. Police located the complainant child's father who denied knowledge of the whereabouts of the applicant and her son. But police located the carer’s vehicle, hidden at the back of that property. Police from the Child Protection unit attended and spoke with the occupants. Police attended several locations in the area in an attempt to locate the applicant and her son. At approximately 5.50am on 10 June 2011, a call was received on the phone which belonged to the carer. Police called the number back and spoke with the applicant. The applicant advised police that she and the complainant were at an address. Police attended the address and located them.
  3. [3]
    In removing the child from the care of the maternal grandmother, it is clear to the tribunal that she went to her partner’s residence.
  4. [4]
    On 9 September 2010, concerns were received[3] alleging that there was domestic violence occurring between the applicant and her partner. A family member had been caring for the applicant’s daughter since June 2010 due to concerns that she was being sexually abused within the household. Reportedly, the applicant rarely contacted the child. The youngest child (then 17 months old) was residing with the applicant and the applicant’s partner. The applicant and her partner used illicit substances and spent $800 per week on drugs between both of them. The applicant had resided in a car for three days. The applicant held the youngest child during domestic violence incidents and admitted the child was dropped during an incident. Although denied by the applicant, the Department formed the view that the applicant and her partner had exposed the youngest child to various sexual activities. A domestic violence incident occurred on 5 September 2010 in front of the youngest child.
  5. [5]
    On 29 November 2010, additional concerns were received[4] alleging that a domestic violence incident had occurred recently whereby the applicant’s partner verbally abused and physically assaulted the applicant, causing physical injuries to the applicant and property damage to a taxi. The youngest child was exposed to the incident.
  6. [6]
    On 4 March 2011, additional concerns were received[5] alleging that a domestic violence incident occurred between the applicant and the applicant’s partner. The applicant was unable to prevent her partner from removing the youngest child and driving with the child whilst he was under the influence in an unregistered car with inadequate child restraints.
  7. [7]
    As a result of these reported concerns, the Department intervened, investigated, assessed and substantiated the allegations. The applicant’s daughter had suffered emotional harm due to the following:
    1. (a)
      The child made clear disclosures of being exposed to domestic violence and the negative emotional impact this had upon her;
    2. (b)
      The applicant continued to return to the relationship with her partner; and
    3. (c)
      The applicant demonstrated limited insight into the effects on her children.[6]
  8. [8]
    In substantiating the allegations, the Department concluded that in relation to the two children, they needed protection because there was:
    1. (a)
      Risk of physical harm caused by neglect; and
    2. (b)
      Emotional harm; and
    3. (c)
      Risk of emotional harm caused by neglect.[7]
  9. [9]
    The two children were placed into the care of the Department.
  10. [10]
    In August and September 2011, the Department received concerns in relation to the applicant having given birth to her third child. The Department assessed a high-risk situation due to previous child protection concerns and the allegation was that the applicant would allow the applicant’s partner to have access to the baby if he was to be with her. On 13 September 2011, the Department recorded additional concerns that the applicant had been in contact with the applicant’s partner, who already had unsupervised contact with the baby and that he intended to visit the family in the future. Evidence was gathered that the applicant had not been truthful with departmental officers and services and that the applicant had been having ongoing contact with her partner.
  11. [11]
    The Department successfully applied for a child protection order for the third child, the baby. In substantiating the allegations, the Department concluded that in relation to the baby, he needed protection because there was:
    1. (a)
      Risk of emotional harm caused by emotional abuse; and
    2. (b)
      Risk of emotional harm caused by failure to protect from emotional abuse.[8]
  12. [12]
    The applicant unsuccessfully applied to the respondent for a blue card. The applicant requests this tribunal review the decision dated 15 March 2018 made by the respondent.
  13. [13]
    In rejecting the application, the respondent identified the applicant’s history of child neglect, prior willingness to associate with her partner, and the applicant’s criminal history, primarily relating to the possession of dangerous drugs, as the primary reasons for its decision. In issuing the negative notice, the respondent acknowledged that none of the offending amounted to a ‘serious offence’ as defined in the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the ‘WWC Act’).
  14. [14]
    In material filed prior to the tribunal hearing, and in direct evidence at the tribunal hearing, the applicant explained her circumstances, and to some degree her actions, during the relevant period. She explained that her troubles began when she formed a relationship with her partner, who was referred to extensively in the departmental material. In 2007, at the age of 25 years, the applicant was a single mother. Her daughter was two years old at that time. She was living independently in a fully furnished apartment, she owned her own car, and she was working full-time as a housecleaner. She enjoyed the love and support of family and friends. Upon meeting her partner, over the next five years, she became the victim of domestic violence. During that time, they had two children together (the applicant’s second and third children – both boys). Her partner was controlling, and the applicant gave evidence that she found herself doing things with him and for him that she would never normally do. If she refused, she would be brutalised and because of the domestic violence, she lost friends and family. The Department intervened and placed the two older children into her mother’s care. In June 2011, she took her son without authority which led to the charge. She minimised the offending by saying she was charged with taking a child from its carer ‘even though it was my son from my mother’. She did not attempt to justify her decision to have contact with her partner after taking the child unlawfully.
  15. [15]
    As part of her submissions,[9] the applicant explained events from July 2011 to July 2013:

On July 19, 2011, I gave birth to [her third child] at the Gold Coast hospital but was not allowed to take him home because the child services team were worried I would go back to [her partner]. In October 2011, [her partner] found out where I was living and within a few weeks of seeing him again he burnt the house down of which I was renting, and I lost all that I had left. When [her partner] went to jail in March of 2012, I started associating with the wrong people as I felt broken and worthless.

On the 12 July 2013, I was pulled over for a random licence check by the police and because my passenger was known to the police. My car was searched, and they found an empty zip lock bag which was believed to have once contained a dangerous drug. The bag belonged to the passenger; however, I was charged with possessing dangerous drugs because it was in my car.

  1. [16]
    The applicant said that, at the start of 2014, she was determined to turn her life around. By that stage she had all three children living with her and she enjoyed the support of her family and good friends. To achieve that level of stability, and the confidence of the Department, she attended counselling[10] and parenting courses, she provided drug tests and hosted Departmental home visits. She gave evidence that she has not contacted her partner since he was imprisoned. The applicant gave evidence about the destructive role that he played in her life and that she would never have contact with him in the future.
  2. [17]
    The applicant developed level of insight, as evidenced by her statement[11] to the tribunal:

I realise now and understand why my children were taken out of my care due to the impact domestic violence had on my family. I thought because I loved my children that was enough. I didn't understand that I was not providing them with a safe environment, and I didn't make good decisions due to being influenced and controlled by [name withheld]. I didn't realise I could not even protect myself let alone my children. I do now understand that my children deserve to be in a safe, secure & nurturing environment & that my relationship with [name withheld] was not a healthy relationship. I endured emotional & physical abuse from approx. 2008-2012 but when in the abusive environment it was difficult to acknowledge that it was harmful on the children or myself. Most times I was blamed for causing the arguments and eventually I think I thought I was the one in the wrong. [Name withheld] introduced drugs/methamphetamines into our relationship in approx. 2010 and I didn't realise the impact it would have on my family. I now know I put my children in danger. I have been drug-free for the past 5 years and have made a conscious decision to never be involved or use drugs nor be around people who do. My family had every reason to be concerned for the welfare of my children and I understand why they informed the department of their concerns. I am very grateful that my mother was there to provide a safe home for my children, and they weren't put into foster care.

  1. [18]
    The applicant explained her reasons for offending on 9 June 2011, when she committed the offence of removing the child from his carer. At that time, she was heavily pregnant, she had been arguing with her mother, she was in an extremely emotional state, and she took the opportunity to drive away in her mother’s car with her son. She said that she was not thinking clearly and because she did not know what to do, she phoned her partner who advised her to drive to his residence. She feels her actions could have been a ‘fight or flight’ reaction due to her emotional state.
  2. [19]
    The applicant described her action as ‘spur of the moment’. It is difficult for the tribunal to understand why the applicant compounded her mistake to the extent that she did. She put her child in danger by driving in a confused and irrational state. To her credit, she did acknowledge the wrongfulness of her behaviours, which goes towards her insight, but it does not detract from her behaviours. The tribunal is concerned that when the applicant was put into a stressful situation, she exhibited poor judgement.
  3. [20]
    Between 29 May 2011 and 14 June 2011, the applicant was involved in offending in relation to the possession of counterfeit money, uttering counterfeit money and fraud – dishonestly obtaining money from another. The applicant described the circumstances that led to this offending behaviour in these terms:[12]

[The applicant’s partner] was such a bad influence over me over the years I nearly ended up in jail. When I was with him, [her partner] had a stupid idea to counterfeit 50 dollar notes. A friend of his and [her partner] printed fake 50 dollar notes and demanded I use them at different takeaway outlets as he said the cashiers were young and wouldn't recognise them as being fake. I remember we pulled into the carpark at a red rooster and when I refused to go in and use the fake notes, he physically assaulted me while I was pregnant with [her third child]. I felt I had no option and I went in there in the hope I would get caught. We did this over a period of a few weeks. I really only did it to keep the peace and he thought he was so good because it worked when I argued and said it wouldn't. Well I was right, we did get caught and I was terrified, ashamed and furious at him. When the detectives interviewed me, I was more than happy to tell them everything.

  1. [21]
    The tribunal notes that during this period, the applicant was using illicit drugs and according to investigations conducted by the Department, she and her partner were spending up to $800 per week on drugs.[13] Whilst the applicant has urged the tribunal to accept that open ‘she had no option’, there is no evidence before the tribunal that at that time she sought out drug rehabilitation. The tribunal is of the view that the applicant has minimised her involvement in the offending behaviour. The tribunal finds that drug-taking continued during the period when the applicant was in her advanced pregnancy with her third child.
  2. [22]
    After apprehension by police, the applicant says that she made the decision to leave her partner and she went to a women’s refuge at the Gold Coast. She gave birth to her third child and returned to the woman’s refuge. However, her child had been taken from her by the Department. She says that:[14]

I returned to the women's refuge at the Gold Coast when I was released from hospital, and some of the girls at the refuge were waiting for me to return with my baby, they were shocked with the news that he had been taken from me. I was emotionally distraught, and I found myself with feelings of worthlessness, depression, anger and I felt deceived as I had been doing everything that the Child Services Dept had asked me to do.

  1. [23]
    The applicant has not demonstrated insight by these statements. Given her background and the circumstances of her life, to expect that the Department would not act immediately upon the birth of her third child was naïve and demonstrates a lack of insight. Clearly, the applicant had spoken to others at the refuge about her expectation of returning to the refuge with her newborn child. Despite what had happened, the applicant maintained her relationship with her partner. She said that:[15]

I couldn't see a light at the end of the tunnel and found myself giving in and contacting [her newborn son’s] father [her partner] to tell him that [her newborn son] had been born and that [her newborn son] had been removed by Child Services. [Her partner] gave me comfort and support via telephone, but I did not let him know where I was living at that point.

  1. [24]
    By seeking out the child’s father, given the background circumstances and the applicant’s failure to engage properly with the Department and her family, the applicant demonstrated extremely poor judgement. During this time, the applicant did not effectively seek, or accept, the guidance and support of the Department. She could have done more to engage with counselling or professional agencies to assist her with being the victim of domestic violence and her ongoing use of illicit drugs. In this period, her children were living with her mother, as a result of the decision of the Department to place them into her care. That was in Brisbane and the applicant continued to reside on the Gold Coast in a hostel. That created difficulty when at the age of about eight weeks, her newborn son became ill and was admitted to Royal Brisbane Childrens Hospital. The applicant stated that:[16]

I wanted to go & be with [her newborn son] in the hospital in Brisbane, but as there was limited public transport at that hour on a Sunday night, I called [her partner] and he picked me up at the Gold Coast and drove me to the Royal Brisbane Hospital. I stayed with [her newborn son] in hospital for 3 days & did not leave. I told [her partner] he was not allowed to see [her newborn son] as there was a court order to say he was only allowed supervised visits with [her newborn son]. I didn't want [her partner] to visit as I knew it would jeopardise my contact and custody, and [her partner] became insistent and threatening and would not take NO for an answer. [Her partner] turned up to visit [her newborn son] even though I told him not to. When [her partner] first saw me at the hospital, he was so angry because I had told him not to come, he head-butted me in the elevator. [Her partner] left after a 2 hour visit.

  1. [25]
    While the applicant may well have had transportation problems, her choice in engaging with her partner at this time demonstrated poor judgement, which was not focused on the best interests of her child. It is also hard to reconcile her decision to do so given that previously she had been visiting her child in Brisbane on a regular basis - ‘via bus/train to Chermside from the Gold Coast 2-3 times per week (approx. 2 hours each way)’.[17] The applicant has demonstrated some insight into her behaviours, by these comments:[18]

I was upset with myself after having contact with [her partner]. I knew I should have listened to everyone who was warning me not to contact him. I know I only contacted him because I was angry & upset with the situation and I suppose I blamed Child Services Dept at the time. I realise I messed up and made a poor decision to involve [her partner]. This contact with [her partner] affected many people and affected [her newborn son’s] safety. My mother was ultimately put under more stress as she had to then cope with a new baby, as well as my 2 older children.

  1. [26]
    The applicant was able to secure emergency housing in Geebung to be closer to her mother and her children, and she said that she did not let her partner know where she was living. However, the evidence of the applicant is that that she did not keep that secret from him for long. The evidence of the applicant was that ‘[Her partner] ended up staying some nights with me in the house in Geebung.[19] The tribunal is of the view that the applicant was aware of the negative influence of her partner during this period and despite her attempts to disengage, she did not, but in fact she proactively sought out her partner during this period. The tribunal is of the view that they were a negative influence upon each other. After an afternoon of drinking alcohol at a local tavern, the applicant and her partner had an argument. Her partner left the tavern and threatened to burn the house down and sent other threatening texts and threatened her life. Concerned that her partner would follow through with at least some of these threats, the applicant called police who went to the house at Geebung and found that the house had been broken into, and the applicant’s belongings were damaged. In the company of police, the applicant returned to the house and took some belongings and she sought refuge. Approximately one hour later police knocked on her door to advise that the house in Geebung was on fire and firefighters were at the scene to try to put it out. She lost all her possessions. The tribunal is of the view that at that time the applicant was well aware of the likelihood of the applicant’s partner following through with his threats, as is evidenced by her call to the police. Despite the obvious and realistic dangers that her partner posed to herself, and her child/children, the applicant was not proactive in dealing with the issue. The tribunal finds that she has minimised her behaviours and her involvement in these matters and did not seek out the appropriate support and guidance that she needed at that time. The tribunal is of the view that while the applicant did at times seek to dissuade her partner from his violent and controlling behaviours, she did not have the ability or foresight to deal with the issues confronting her in a positive manner. In fact, she removed protective mechanisms. In December 2010, as a result of police action, the applicant was named as the aggrieved in a domestic violence order where her partner was the respondent. On 3 February 2011, she made an application to revoke the domestic violence order because she did not feel any threat from the respondent.[20] The Applicant later withdrew this application to revoke.[21]
  2. [27]
    The Department was understandably very concerned about the fire, in the context of child protection. The Department considered the child’s father to be a person of considerable physical threat to the children. The Department raised concerns that the applicant and the applicant’s mother were minimising the threat. The Department determined that the applicant did disclose her whereabouts to her partner:[22]

This act of violence should have resoundingly reiterated to [the applicant’s mother] the threat [the applicant’s partner] posed to the children but it did not appear that this was the case. This incident should have also been further evidence to [the applicant’s mother] that [the applicant] was not able to make sound decisions in relation to her own safety and more importantly, that she would so willingly risk losing [the applicant’s child], that had only just returned to her care, for the sake of her relationship with [the applicant’s partner].

  1. [28]
    The applicant’s partner was imprisoned. Later, the applicant met a gentleman who became a supportive friend. But when he started to smoke marijuana on a regular basis, she severed their relationship and she relocated to Hervey Bay, which is where her father, stepmother and sister resided. The applicant had sought professional help, at least to some degree during this period of her life. She did attend a six-week program conducted by Lifeline Community Care Queensland in relation to parenting in August 2011,[23] but the evidence before the tribunal is that, for a lengthy period, she did not substantially change her behaviours as a result of undertaking that program.
  2. [29]
    One very concerning behaviour appears not to have resulted in charges. It relates to the actions of the applicant’s partner one night on or about 9 November 2009. At that time, the applicant’s oldest child, her daughter from a previous relationship was living in the house with the applicant and her partner. The Departmental records created on 17 November 2009, described the concerns in this manner:[24]

Subject child told notifier that she had gone out to the lounge during the night and her stepfather had put a ‘rudey’ movie on. She described the movie as showing girls taking boys pants off and sucking their wee wees and boys licking girls’ wee wees. She states her stepfather had been touching his own penis, which was out of his underpants, while he was on the lounge next to her. [Subject child] told notifier that stepfather did things to her but would not identify what happened. Stepfather denies. Mother told notifier she will not be returning to stepfather and he will not have further access to the children. Subject child complained that the stepfather had got her to touch his penis on the outside of his clothing previously. Mother states that she is aware that the subject child has observed her and the stepfather having sex on at least one occasion and believes that she may have viewed the DVD on a previous occasion when the child put the DVD on herself. Child is able to operate DVD unassisted and the DVD was stored in reach of the subject child.

  1. [30]
    When speaking to the Department in 2009, the applicant indicated that she did not believe her daughter’s allegations and she was not willing to lay charges with police.[25] At the tribunal hearing, the applicant told the tribunal that, in relation to these events, her partner had been drinking and smoking marijuana. She said that he was ‘silly’. At 2 AM in the morning the applicant went the lounge room to find her partner asleep on the lounge and her daughter was with him on the couch. Her daughter said that ‘daddy got me out of bed’. Her daughter said that the applicant’s partner had put on a ‘rudey’ movie. The investigations by the Department indicated that during the evening, the child was exposed to pornographic material and that the applicant’s partner had been masturbating on the couch while the child was present. The Department substantiated the allegations of sexual abuse by the applicant’s partner.[26] That the applicant maintained a relationship with her partner following this event, in circumstances where there is no evidence that he sought counselling or otherwise dealt with underlying behaviours, is of great concern to the tribunal. The tribunal is greatly concerned that the applicant remained in the relationship after this event.
  2. [31]
    The Department remained a part of the children’s life for an extended period. The children were, as a result of a decision by Departmental officers, reunified into her care on 20 January 2014. During this period, the Department acknowledged the need for the emotional well-being of the applicant’s daughter by deciding for her to attend protective behaviour education sessions and seek individual counselling.[27] The applicant may have agreed with these arrangements, but there is no evidence to suggest that the applicant was proactive in terms of undertaking these protective behaviours on behalf of her daughter. During this time, the applicant was cooperating with the Department in providing drug screen test results. On 29 May 2014, the Department detected the existence of opiates which the applicant described as having been as a result of taking flu tablets.[28]
  3. [32]
    The tribunal accepts that the applicant has gained a degree of insight. The applicant stated that:[29]

I have learnt from mistakes in my past, and at 36 years of age I am a lot stronger, focussed and more assertive and I am not afraid to stand up for myself or my children. I make informed choices and consider consequences of my actions as my decisions affect not only myself but my children and my family. I often discuss problems or concerns with immediate family and listen to constructive advice. I have responsible and positive support networks around me to help when needed.

  1. [33]
    However, the applicant’s statement regarding her insight were minimised during her discussions with the Department. In an assessment and outcome summary created
    7 March 2011, the Department identified a number of risk factors associated with the applicant, and the tribunal notes the following identified risk factors of particular concern:[30]

During discussions and meeting with [the applicant and the applicant’s partner] it appears that there is little insight in relation to the emotional impact on the risk of future harm if the pattern of domestic violence continues within their relationship. This can be seen through the statements made by [the applicant and the applicant’s partner], “they are only little fights, they aren’t domestic violence, the children are in the other room’. In regard to [the applicant’s daughter] concerns of exposure to their sexual acts and pornography it can be suggested that [the applicant and the applicant’s partner] place the responsibility on the applicant’s daughter stating, “she doesn’t stay in her bedroom”. [The applicant] speaks about her feelings towards her daughter as “I hate her for what she has said” and that [the applicant’s partner] has animosity towards [the applicant’s daughter], and it will be difficult for us to allow [the applicant’s daughter] to return to our home. [The applicant’s partner and the applicant] were given a four-week period to engage in community services to address the child protection concerns prior to a further mention to court being heard on 8 March 2011. During this period [the applicant’s partner and the applicant] have not engaged in such services and have not demonstrated an ongoing willingness to engage or redress child protection concerns.

  1. [34]
    The tribunal concludes that in 2011, the applicant was not fulfilling her earlier commitment to have supervised contact between her daughter and her partner, she minimised his very serious behaviours and the domestic violence issues, and she placed her concerns and the concerns of her partner well ahead of the concerns of her daughter. Despite substantiated child protection history from 2009, including the substantiated claims that the applicant’s daughter had been sexually abused by the applicant’s partner and that the children had been exposed to domestic violence and substance abuse over a prolonged period, the applicant did not engage in assistance or counselling in a meaningful way. Despite repeated promises by the applicant to place restrictions on contact between her partner and children, she continued to ignore the Departmental concerns relating to child protection.[31]
  2. [35]
    The applicant said in evidence at the tribunal hearing that she has not had any contact with her partner since her partner was imprisoned in March 2012. However, she said that after she stopped this association, she stayed with his friends, who were not a good influence upon her.
  3. [36]
    The tribunal is of the view that the applicant has minimised her involvement with use of illicit drugs. The Departmental records indicate that as recently as 2013, the applicant appeared to be under the influence of drugs. That is based on reports made by the applicant’s mother and stepfather.[32] Despite that, during this period, the Department’s goal was for reunification of the children with their mother. By this stage, her issues to do with the use of illicit substances were of a major concern. The Department recorded these comments in relation to the goal of reunification:[33]

Whilst the goal for reunification remains, [the applicant] is currently presenting with substance abuse which had been one of the initial child protection concerns. Complete reunification with the children has been deemed quite possible by this stage however [the applicant’s] current lapse (drug use) has hindered this progress and she will continue to be monitored closely.

  1. [37]
    During 2013, the Department identified that there was a risk if the children were to return to live with the applicant. Departmental officers identified that the applicant was sleeping until late (12 PM) and drug results indicate the use of doxylamine and benzodiazepines whilst the children were in her care.[34] Regarding the stated intention of the Department for reunification in January 2013, progress was slow and the risk evaluation of placing the children in the applicant’s care remained high. The Department stated that the applicant had not progressed or achieved any contact plan outcomes or actions due to the very high-risk level identified, primarily in relation to the misuse of alcohol or drugs.[35]
  2. [38]
    The Department suggested that the applicant’s daughter attend protective behaviour counselling session, but the applicant declined, stating that her daughter rarely talked about the past abuse.[36] The tribunal is concerned that the applicant failed to undertake this protective measure for the benefit of her daughter
  3. [39]
    A Case Plan Review Meeting occurred with the Department and the applicant on
    25 July 2014 where goals were set in relation to alcohol and drug use, mental/emotional health, emotional well-being for the applicant’s daughter and child development.
  4. [40]
    On 25 November 2014, the Department reviewed the case plan goals set for the applicant which determines that all goals had been achieved:
    1. (a)
      No concerns were raised in relation to the applicant’s drug use. The applicant completed five drug tests since April 2014; three were clean and the other two detected lawfully prescribed medication.
    2. (b)
      No concerns were noted in relation to the applicant’s emotional stability as most of her mental health concerns were due to the past domestic violence that she experienced.[37]
  5. [41]
    However, at that same time the Department recognised concerns in relation to the children engaging in sexualised behaviours.[38]
  6. [42]
    Of late, the applicant has achieved relative stability. She commenced nursing studies in July 2017 and hopes to work in the aged care sector. She was unable to attend a ‘placement’ without a blue card. It was as a result of this that the applicant decided to visit a psychologist/counsellor. She has attended several appointments. She has demonstrated insight by acknowledging that with this setback she did not want feelings of worthlessness and self-doubt to overwhelm her, and that she understood the impact on her children, which is why she sought help of the therapist. The applicant produced a two-page report from a mental health accredited social worker dated 10 August 2018, attesting to the fact that the applicant had attended nine counselling sessions during the period 23 April 2018 until 17 July 2018. The therapist was not called to give evidence at the tribunal hearing. The therapist’s report does speak of the cognitive behavioural therapy as part of the treatment provided to the applicant and that they discussed coping strategies, assertive training, decision-making processes and goalsetting. The therapist said this in relation to the applicant’s response to treatment and barriers to treatment:[39]

[The applicant] is reaching a level of insight and acceptance but requires ongoing counselling support. [The applicant’s] primary barrier to moving forward is the conflict she has with dysfunctional and distorted ways of thinking which can cause or exacerbate emotions and behaviours. These dysfunctional and/or distorted thoughts are very plausible to [the applicant] as she presented with depression which was associated with her life past and present. At this stage [the applicant] has worked on and utilised interventions to assist her to move on with her life and providing her with a purpose and building her confidence.

  1. [43]
    The therapist concludes the report by saying that the applicant has responded well to counselling. Though asked to do so, the therapist falls short of supporting the applicant for consideration for the granting of a blue card. The therapist’s report indicates to the tribunal that the applicant has not yet reached a level of insight and acceptance and requires ongoing counselling support. The report writer suggests the existence of ongoing dysfunctional and distorted thinking patterns which cause or exacerbate emotions and behaviours. The applicant herself spoke about her inability to focus and make suitable decisions when subject to emotional stress. Other than the applicant expressing a willingness to go to counselling,[40] ‘if needed’, there is no evidence before the tribunal that the applicant has acted upon the recommendations of the therapist by seeking necessary ongoing counselling support.
  2. [44]
    In giving evidence before the tribunal, the applicant said she has made substantial changes in her life and she receives support from her mother, and her father and her stepmother. She said that she has not used methamphetamines since August 2013. The applicant has said that she is not proud of her past, but she is proud of how far she has come.[41] The applicant said in a written statement to the blue card services that she would ‘fight tooth and nail so to speak to make sure that [her partner] had no influence over the boys’.[42] That is not consistent with the evidence.
  3. [45]
    The applicant called her mother to give evidence before the tribunal. The applicant’s mother said that she engages with her daughter on a near daily basis. The tribunal is of the view that the applicant’s mother has minimised her daughter’s behaviours by giving evidence to the tribunal that the Department ‘did not give her daughter a chance and that she is a wonderful mother’. She did say that when her daughter was with her partner she was lost and manipulated by him and she became very selfish and reckless. However, she has now grown up and she is responsible. She cares for the children and provides them with food and proper care. She is now a very different person to the person she was when young and careless. The applicant’s mother did warn the applicant about her partner and she could see that the applicant was starting to neglect her daughter. That led to the children coming into her care for several years. While originally the applicant would not accept her responsibility for the loss of children for some time, she has now come to accept her share of the blame for losing the children to the Department. Previously, the applicant had blamed everyone who challenged her, but the applicant’s mother spoke of a conversation between them which was honest and forthright, and highly emotional, which led to the applicant gaining considerable insight into her past behaviours. The applicant’s mother said that her daughter has proven to be one of the most loving and caring mothers she could ever wish to meet. She only has positive and loving people in her life and has had no contact with her former partner. Since moving to Hervey Bay, the children are very happy and attending school, and are surrounded by their friends and relatives. The applicant started nursing, which has been a passion, and that she would be a wonderful nurse because she is a very caring and compassionate person.[43]
  4. [46]
    The tribunal notes that the Department did have some difficulty with the applicant’s mother. In 2011, as part of an assessment of risk to children, the Department had cause to consider the actions of the applicant’s mother. The Department records state:[44]

The outcome is substantiated – matter of concern. The primary harm identified as emotional harm and the person responsible for causing harm is [the applicant’s mother]. This outcome has been premised on the fact that [the applicant mother’s] actions compelled the department to temporarily remove the children from her care for the duration of the investigation and until such time as it was satisfied that [the applicant’s mother] was able to resume care of the children as per the statement of standards. In being removed from a stable and secure family-based placement, the children would have experienced a significant degree of distress and emotional harm, to the degree that it is considered to be unacceptable. The children were also placed at unacceptable risk physically because of [the applicant’s mother’s] actions. While the investigation finds that [the applicant’s mother] is culpable because of her role and status as kinship carer and that as such, she has a high responsibility to ensure the children’s safety and well-being, it also identified [the applicant] as a person responsible for causing harm.

  1. [47]
    The tribunal is of the view that the applicant’s mother minimised the protective role of the Department during a highly vulnerable time in the children’s lives. Accordingly, the tribunal does not place as much weight on the evidence of the mother as it might otherwise have done.
  2. [48]
    The applicant called her father who spoke candidly about the applicant’s poor decision-making and domestic violence and substance abuse problems. He went on to say however that now she would not harm the children and she is away from negative influences. He said that the applicant does cope with stressful situations by calling out for help but said that he does not have in-depth conversations with her.
  3. [49]
    The applicant also called her stepmother who spoke highly of the applicant’s friends and positive activities, such as attending a gym and helping her friends through difficult circumstances. She said that the applicant has an understanding around domestic violence and is very mindful regarding illicit drugs. She said that the applicant is willing to seek out assistance when necessary and she has seen the applicant deal with stressful situations.
  4. [50]
    The applicant provided a number of testimonials in writing that were untested at the tribunal hearing. Many speak of her positive attributes as a parent and her improvement in her life of late. Two witnesses speak of interaction between the applicant and their own children. The applicant is enrolled at TAFE in order to obtain qualifications for her intended career and the applicant provided a written statement from her lecturer, who spoke positively about her participation in class and commitment to her family and studies. A former employer provided testimony about the applicant’s work ability and parenting. The tribunal considers the statements in the context of the application but given that they are untested and more particularly that they are testimonials from individuals with limited knowledge of the background circumstances involving the applicant’s interaction with the Department, the tribunal regards the testimonials as having little weight.
  5. [51]
    The tribunal accepts that the applicant was the victim of domestic violence for many years. The tribunal also accepts that particularly since moving to Hervey Bay in 2016 and commencing her studies at 2017, the applicant has made improvements in her life and has an improved stability which has assisted her children. The tribunal accepts that she is no longer associated with drugs and that she has re-established positive relationships with important people around her, such as her parents. To some degree, the applicant has sought out professional assistance, but the tribunal is of the view that the applicant must seek out further assistance. As early as 2011, the applicant was undertaking a parenting course and apart from that she has sought out and obtained the benefit of counselling, but only intermittently.
  6. [52]
    The decision under review is whether the Applicant's case is an 'exceptional case'.[45] Unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so, the decision-maker must issue a positive notice.[46] What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, having regard to ‘... the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect children’.[47]
  7. [53]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing 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’.[48] The tribunal decides that application on the balance of probability, bearing in mind the gravity of the consequences involved.[49] Any prejudice suffered by the applicant as a result of a denial of a blue card is not relevant in determining whether the case is exceptional. Decision-makers must consider the protection of children. In coming to a decision as to whether this is an exceptional case or not, the tribunal does consider section 226 of the WWC Act.
  8. [54]
    The tribunal expresses concern in relation to the nature of the applicant’s criminal history. The applicant’s offending associated with the conviction for ‘offence to remove child from carer’ in 2011 was directly related to the applicant’s eligibility to engage in regulated employment,[50] given that she placed her child at risk of harm by removing the child. The applicant disregarded a court order granting temporary custody of the child to the Chief Executive of the Department of Communities, Child Safety and Disability Services (‘the Department’) and disregarded the decision of the Department to place the child with the applicant’s mother.
  9. [55]
    The applicant has a conviction for possessing dangerous drugs, namely amphetamines, in 2013.[51] Children have a right not to be exposed to drug involvement, and persons using drugs may have an impaired ability to protect the children’s best interests. The applicant says that she is no longer associated with the use of drugs. That is supported by statements of other witnesses, but it is not supported by evidence of attendance at rehabilitation or other objective, independent evidence.
  10. [56]
    The applicant’s convictions for fraud, possession and uttering of counterfeit money and attempted fraud are serious and the applicant nearly suffered a term of actual imprisonment as a result of her substantial and direct involvement. The applicant's actions in furthering her own perceived interests and in acting fraudulently is entirely contrary to the protective behaviours expected of the holder of a positive notice and blue card.
  11. [57]
    The information contained in the disclosed material from the Department is of great concern to the tribunal. The applicant has consistently breached acceptable standards of care in relation to her children. Whilst I accept that she was the victim of domestic violence, the applicant continued to have an unhealthy, and from the perspective of children, a potentially dangerous relationship with her ex-partner. On 17 January 2011, the applicant applied to revoke the domestic violence order stating that she felt ‘no threat from [the applicant’s partner]’.
  12. [58]
    As recently as 25 July 2013, the Department assessed that the applicant's children were at a very high risk in any family reunification noting that ‘parental behaviour indicates no progress in all priority outcome areas and refused participation in case plan actions’.[52] The Department reunified the applicant with her children in January 2014 and at that stage the Department concluded that the applicant was acting protectively towards her children. The tribunal accepts that much of the applicant’s offending was as a result of the influence of her partner with whom she was in an abusive relationship for five years. That the applicant has ended the relationship, ceased to have contact with him and relocated are all protective factors. The applicant has gained some insight into her past behaviours and better understands the effect on children of her offending behaviour and the exposure to domestic violence. The applicant has accessed some counselling support through the engagement with the Department. While the applicant has indicated she would seek further support in the future if required, she has not done so independently. The support that the applicant receives through her family is a protective factor.
  13. [59]
    The applicant has a lengthy involvement with the Department with many substantiated allegations in relation to the children being subject to the risk of emotional harm. The applicant failed to act protectively towards her daughter when she was subjected to substantiated sexual abuse by the applicant’s partner. The applicant acted against her own interests and the interests of the children by consistently seeking out and reuniting with her partner during a time when she was using dangerous drugs, committing criminal offences, and not working cooperatively with the Department. Whilst the tribunal acknowledges that it is inherently impossible to predict future risk with certainty, past behaviours are an indicator of future behaviour. The tribunal acknowledges that the applicant has undertaken some level of positive action for rehabilitation. The passage of time is a relevant consideration, but it is not a determinative factor. The passage of time could be a protective factor where it is accompanied by a genuine insight.
  14. [60]
    The tribunal adopts a precautionary approach to decision making on blue card matters, which is consistent with the object and purpose of the WWC Act. The tribunal does acknowledge the transferability of notices under the WWC Act when determining the best interests of children. The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child-related activities. The tribunal acknowledges and accepts that the holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. In concluding that this is an exceptional case, the tribunal has identified and balanced the relevant risk and protective factors in this case.
  15. [61]
    The decision of the respondent that the applicant's case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
  16. [62]
    The tribunal does commend the applicant on the way she presented herself during the tribunal hearing. The tribunal recommends to the applicant that she seeks out professional assistance with a view to obtaining a comprehensive psychological assessment that deals specifically with risk issues as identified by the tribunal in this case.
  17. [63]
    Given that this case involved sensitive issues about children and domestic violence, the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application.[53]

Footnotes

[1]  The offending occurred during the period 29 May 2011 and 14 June 2011. The convictions related to 11 charges of possession of counterfeit money, 11 charges of uttering counterfeit money and 11 charges of fraud – dishonestly obtaining money from another.

[2]  At the tribunal hearing, the Queensland Police Service provided information to verify the criminal history.

[3]  Departmental Record of Concerns Summary, dated 9 September 2010, [NTP-51].

[4]  Departmental Additional Notified Concerns Summary, dated 1 December 2010, [NTP-61].

[5]  Departmental Additional Notified Concerns Summary, dated 7 March 2011, [NTP-102].

[6]  Respondent's statement of reasons dated 15 March 2018, page 3.

[7]  Ibid [3], [4].

[8]  Departmental records dated 4 August 2011, referred to in the respondent's statement of reasons, dated 15 March 2018, page 4.

[9]  BCS-5/6.

[10]  In giving evidence at the tribunal hearing, the applicant said that she attended counselling sessions in 2013 and 2014; and then again in 2018.

[11]  Applicant statement, dated 6 August 2018, [2].

[12]  Ibid [9].

[13]  Departmental Child Concern Report Summary, dated 9 September 2010, [NTP-51].

[14]  Applicant statement, dated 6 August 2018, [14].

[15]  Ibid [17].

[16]  Ibid [20], [21].

[17]  Ibid [15].

[18]  Ibid [26].

[19]  Ibid [27].

[20]  NTP 557.

[21]  NTP 552.

[22]  Departmental Assessment and Outcome Summary, dated 26 October 2011, [NTP-193].

[23]  Applicant statement, dated 6 August 2018, [attachment A].

[24]  Departmental Record of Concerns, [NTP 6, 7].

[25]  Ibid [NTP-9].

[26]  Assessment and Outcome Summary, 23 April 2012, [NTP-176 and NTP-177].

[27]  Departmental Case Note Summary, [NTP-355].

[28]  Ibid.

[29]  Ibid [37].

[30]  Departmental Assessment & Outcome Summary, dated 7 March 2011, [NTP 127].

[31]  For example, see Departmental Assessment & Outcome Summary, dated 23 April 2012, [NTP-177].

[32]  Departmental Child Placement Concern Report, dated 17 March 2013, [NTP-259].

[33]  Departmental Review Report Summary, dated 12 March 2013, [NTP-271].

[34]  Ibid [NTP-273].

[35]  Departmental Family Reunification Assessment Summary, dated 25 July 2013, [NTP 303-309].

[36]  Departmental Case Note Summary, dated 5 June 2014, [NTP-355].

[37]  Departmental Review Report, dated 25 November 2014, [NTP-395].

[38]  Ibid [NTP-409].

[39]  Applicant statement, dated 6 August 2018, [annexure B].

[40]  Applicant’s oral evidence at the tribunal hearing.

[41]  Applicant statement, dated 1 September 2017.

[42]  BCS-47.

[43]  Letter from the applicant's mother to Blue Card Services, dated 5 September 2017.

[44]  Departmental Assessment and Outcome Summary, dated 26 October 2011, [NTP-192].

[45]  WWC Act, s 353.

[46]  Ibid s 221(2).

[47]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 31 (citing Kent v Wilson [2000] VSC 98, 122 (Hedigan J)).

[48]  WWC Act, s 5(b); WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17] (Thomas J).

[49]  The test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[50]  As regulated by the WWC Act.

[51]  Court Brief at BCS59-BCS60.

[52]  Departmental Family Reunification Assessment, dated 25 July 2013, [NTP303 and NTP304].

[53]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

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Editorial Notes

  • Published Case Name:

    LKK v Department of Justice and Attorney-General

  • Shortened Case Name:

    LKK v Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 185

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    05 Jul 2019

Appeal Status

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

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