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DL v Director-General, Department of Justice and Attorney General[2021] QCAT 61

DL v Director-General, Department of Justice and Attorney General[2021] QCAT 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DL v Director-General, Department of Justice and Attorney General [2021] QCAT 61

PARTIES:

DL

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML363-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 January 2021

HEARING DATES:

18 September 2020

21 September 2020

FURTHER WRITTEN SUBMISSIONS:

By the respondent dated: 9 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that DL’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of DL.
  2. Publication of the name or identifying information of DL or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

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

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – traffic history – criminal history – where not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – where Department found that allegations of emotional and physical harm and breach of standards of care by foster carer were substantiated – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26(2), s 36(2), s 48, s 58

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 15, s 16, s 17, s 221, s 226, s 353, s 354, s 360, s 361, s 580, Schedule 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19, s 20, s 21, s 66

Commission for Children and Young People Bill 2000, Explanatory Notes

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

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

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

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

Commissioner for Young People v Storrs [2011] QCATA 28

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

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

Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186

Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Re FAA [2006] QCST 15

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES & REPRESENTATION:

Applicant:

J. Shanahan, Solicitor, instructed by M. Ingliss, Solicitor of Hub Community Legal

Respondent:

G. Carrington, In-house legal officer, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    DL (‘the applicant’) is a sixty-five year old woman.  She cared for many children as a foster carer for over thirty years since 1987.
  2. [2]
    On 24 March 2017, the Director-General (the chief executive officer), Department of Justice and Attorney General (‘the respondent’) most recently issued the applicant with a positive notice (which is now referred to as a ‘working with children clearance’) and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) (as the WWC Act was then in force).[1]  The applicant required those to enable her to continue working as a foster carer.
  3. [3]
    Subsequently, the Queensland Police Service provided the respondent with the applicant’s Queensland Traffic Record (‘traffic history’).[2]  The traffic history included a number of ‘charges’.[3]  The information was not previously known to the respondent.   
  4. [4]
    On that basis, the respondent reassessed the applicant’s eligibility to continue to hold a positive notice.[4]  The respondent reassessed the applicant’s eligibility pursuant to ss 221(1) and (2)[5] of the WWC Act having regard to the fact that the applicant had not been convicted of a serious offence[6] nor a disqualifying offence.[7]
  5. [5]
    During the re-assessment, the respondent received information from the Department of Child Safety, Youth and Women (now referred to as the Department of Children, Youth Justice and Multicultural Affairs) (‘the Department’) about concerns that had been raised regarding the applicant’s treatment of children in her care.
  6. [6]
    On 29 August 2019, the respondent decided for the purpose of s 221(2) of the WWC Act that the case of the applicant was an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to be issued.[8]  On that basis, the respondent decided to cancel the applicant’s positive notice and to issue her with a negative notice under the WWC Act.
  7. [7]
    The applicant has applied to the Tribunal for a review of the respondent’s decision made on 29 August 2019 that the case of the applicant was an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.[9] 
  8. [8]
    The applicant seeks a working with children clearance to enable her to continue to work as a foster carer.

Jurisdiction

  1. [9]
    A person who is not a ‘disqualified person’[10] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[11] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the respondent issued a negative notice.[12]
  2. [10]
    The applicant has satisfied the prerequisites to apply for the review because the applicant is not a ‘disqualified person’ and the applicant applied to the Tribunal for review within the prescribed 28-day time limit.[13]
  3. [11]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [12]
    The decision under review is the decision of the respondent as to whether or not there is an exceptional case for the applicant, because that decision resulted in her being issued with the negative notice.[14]

The law

Law relating to review generally

  1. [13]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[15]
  2. [14]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[16]
  3. [15]
    The purpose of the review is to produce the correct and preferable decision.[17]
  4. [16]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[18]
  5. [17]
    The role of the respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[19]

Law relating to working with children clearance specifically

  1. [18]
    Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.
  2. [19]
    The WWC Act effectively provides that a working with children clearance must be issued in circumstances which include[20] where a person has been charged or convicted with an offence other than a serious offence,[21] unless the respondent is satisfied it is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. In that case, a negative notice must be issued.[22]
  3. [20]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  4. [21]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if-
    1. the chief executive is not aware of any police information or disciplinary information about the person; or
    2. the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person –
      1. investigative information;
      2. disciplinary information;
      3. a charge for an offence other than a disqualifying offence;
      4. a charge for a disqualifying offence that has been dealt with other than by a conviction; or

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance, the chief executive must issue a negative notice to the person.
  1. [22]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [23]
    The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [24]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. whether it is a conviction or a charge;
      2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. when the offence was committed or is alleged to have been committed;
      4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. 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 or not to make a disqualification order under section 357, the court’s reasons for its decision;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. information about the person given to the chief executive under the Disability Services Act 20016, section 138ZG;
    4. 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.
  1. [25]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [26]
    The Tribunal cannot go beyond convictions and must accept them as they are.[23] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[24]
  3. [27]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[25]
  4. [28]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[26]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [29]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[27]
  2. [30]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[28]
  3. [31]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[29]

‘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. [32]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott (No.2), Buss J observed:[30]

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.

  1. [33]
    The Tribunal should consider risk and protective factors when determining a review decision.[31]
  2. [34]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[32]
  3. [35]
    Neither party bears the onus in determining whether an exceptional case exists.[33]
  4. [36]
    The Tribunal must review a child-related employment decision[34] under the principle that the welfare and best interests of a child are paramount.[35]

Law relating to human rights

  1. [37]
    When conducting a review of a child-related employment decision, the Tribunal is a ‘public entity’ under the Human Rights Act 2019 (Qld) (‘HRA’) and the HRA applies.[36]
  2. [38]
    Accordingly, the Tribunal must interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[37]
  3. [39]
    Further, except when a different action or decision is required because of a statutory provision or other law,[38] the Tribunal must:[39]
    1. (a)
      act or make a decision in a way that is compatible with human rights; and
    2. (b)
      in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[40]
  4. [40]
    A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is reasonable and justifiable under the HRA.[41]

Matters required to be considered by section 226 of the WWC Act

Criminal history information given under section 318 of the WWC Act

  1. [41]
    The applicant has a traffic history between the years of 1998 to 2018 listing a total of twelve infringements, including nine speeding offences as follows:

Offence/
Action Date

Description/
Court

Details

Result Date

Result

20/04/1998

Driver fail to wear seat belt properly adjusted securely fastened

Setons MC

3 pts

07/07/1998

$100.00

Order Setons Court

03/06/1999

Driver fail to wear seat belt properly adjusted securely fastened

3 pts

16/07/1999

$100.00

07/02/2004

Exceeded speed limit in speed zone by at least 13 km/h not more 20 km/h

3 pts

12/03/2004

$160.00

14/04/2005

Exceeded speed limit in speed zone by more than 30 km/h not more 40 km/h

SPER MC

6 pts

17/06/2005

$350.00

Enforcement order

(SPER)

18/06/2005

DEM PTS warning letter

Posted

27/09/2005

Exceeded speed limit in speed zone by at least 13 km/h not more 20 km/h

SPER MC

3 pts

24/11/2005

$150.00

Enforcement order

(SPER)

21/12/2005

Good driving behaviour option until 20/12/2006

07/10/2006

Exceeded speed limit in speed zone by at least 13 km/h not more 20 km/h

SPER MC

3 pts

04/12/2006

$150.00

Enforcement order

(SPER)

04/01/2007

Demerit point suspension until 03/07/2007

11/01/2007

Demerit point suspension

Appeal lodged

20/04/2007

Demerit point suspension

Caboolture MC

Appeal upheld

03/11/2007

Exceeded speed limit in speed zone by less than 13 km/h

Authority is NSW

1 pts

23/02/2008

Finalised interstate

10/02/2010

Exceed 100 km/h (default speed limit) by at least 13 km/h not more than 20 km/h

SPER MC

3 pts

09/04/2010

$200.00 enforcement order

(SPER)

05/07/2010

Follow another vehicle too closely

SPER MC

1 pts

01/09/2010

$233.00

Enforcement order

(SPER)

27/09/2010

Exceeded speed limit in speed zone by more than 20 km/h not more 30 km/h

SPER MC

4 pts

24/11/2010

$333.00

Enforcement order

(SPER)

24/11/2010

DEM PTS warning letter

Posted

18/05/2014

Exceed speed limit in speed zone by less than 13 km/h

SPER MC

1 pts

30/07/2014

$146.00

Enforcement order

(SPER)

02/02/2018

Exceed speed limit in speed zone by less than 13 km/h

SPER MC

1 pts

02/04/2018

$168.00

Enforcement order

(SPER)

  1. [42]
    Schedule 7 of the WWC Act defines ‘charge’ as ‘a charge in any form’ and includes, ‘for example… a charge on an arrest… a notice to appear served under the Police Powers and Responsibilities Act 2000, section 382… a complaint under the Justices Act 1886… a charge by a court under the Justices Act 1886, section 42(1A), or another provision of an Act… [and] an indictment’. 
  2. [43]
    Schedule 7 of the WWC Act defines ‘criminal history’ to include ‘every charge made against the person for an offence, in Queensland or elsewhere, and whether before or after the commencement of this Act’.
  3. [44]
    Schedule 7 of the WWC Act defines ‘police information’ to include ‘the person’s criminal history’.
  4. [45]
    The definitions of ‘charge’ and ‘criminal history’ in Schedule 7 of the WWC Act are non-exhaustive.
  5. [46]
    For the purposes of the WWC Act, a ‘charge’ does not necessarily involve a court appearance.  For example, s 71(5) of the Police Powers and Responsibilities Act 2000 (Qld) describes how a person is taken to be charged with having committed an offence when the infringement notice is served on them.
  6. [47]
    Further, the definitions of ‘charge’ and ‘criminal history’ in Schedule 7 of the WWC Act are not limited by the definitions of the terms found within the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).[42] Accordingly, Chapter 8 of the WWC Act applies to a ‘charge in any form’ and ‘criminal history’ as defined by the WWC Act, despite the definition of the terms found within the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). 
  7. [48]
    It is clear that Parliament intended that all charges and convictions on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.
  8. [49]
    On that basis, the applicant’s traffic history includes ‘charges for an offence’ and constitutes ‘criminal history’ for the purposes of Chapter 8 of the WWC Act.
  9. [50]
    The relevant charges are traffic offences which span a period of 20 years, from 1998 to 2018. They comprise twelve infringements: nine speeding offences, two offences of failing to wear a seatbelt properly adjusted and securely fastened (in 1998 and 1999 respectively) and one charge of follow another vehicle too closely (in 2010). The charges of exceeding the speed limit were in one case by more than 30 kilometres per hour but not more than 40 kilometres per hour (in 2005), in one case by more than 20 kilometres per hour but not more than 30 kilometres per hour (in 2010), in four cases by more than 13 kilometres per hour but not more than 20 kilometres per hour (in 2004, 2005, 2006 and 2010 respectively) and in three cases by less than 13 kilometres per hour (in 2007, 2014 and 2018 respectively).  In the ten-year period since September 2010, the applicant has been charged with only two speeding infringements, both less than 13 kilometres per hour over the speed limit, on 18 May 2014 and 2 February 2018 respectively.
  10. [51]
    The offences with which the applicant has been charged are neither ‘serious offences’[43] nor ‘disqualifying offences’[44] under the WWC Act. 
  11. [52]
    None of the charges were a ‘conviction’[45] under the WWC Act.
  12. [53]
    In some cases, a person’s traffic history may be particularly relevant to that person’s suitability to carry on employment or carry on a business that involves or may involve children.
  13. [54]
    The applicant’s charges indicate a level of unsafe driving which could give rise to concerns about her ability to provide a safe, protective and caring environment for children and to model safe behaviour.
  14. [55]
    However, in the ten-year period since September 2010, the applicant has been charged with only two speeding infringements, both less than 13 kilometres per hour over the speed limit, on 18 May 2014 and 2 February 2018 respectively.
  15. [56]
    Having regard to the nature of the applicant’s traffic charges, their frequency and the time period over which they occurred, the Tribunal finds on balance that the applicant’s charges are of limited relevance to employment, or carrying on a business, that involves or may involve children.
  16. [57]
    Indeed, the respondent’s counsel acknowledged that the applicant’s traffic offences are not of primary concern in relation to her eligibility to hold a working with children clearance and blue card.

Sexual offender order information given under section 319 of the WWC Act

  1. [58]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [59]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under sections 337 or 338 of the WWC Act

  1. [60]
    No information was requested or received pursuant to those sections.

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

  1. [61]
    No additional matters relating to the charges are considered relevant.

Materials provided by way of Notice to Produce

Material from the Department

  1. [62]
    In response to a Notice to Produce, the Department produced material which included the following information:
    1. (a)
      Two children, brothers who were under child protection orders to the chief executive, (‘the brothers’) were in various foster care placements almost since their birth in 2006 and 2009 respectively.  In 2014, the children were initially placed with the applicant on a respite care basis and were subsequently placed with the applicant as their primary foster care placement. At the time, the applicant also cared for their elder brother (‘the elder brother’) pursuant to a long-term guardianship order;
    2. (b)
      On 17 March 2015, a third party notified the Department of concerns in relation to the two brothers when they were in the care of the applicant on a respite care basis.  It was noted that the children had told a third party that the applicant had physically harmed the brothers by hitting, punching and scratching them, which caused bruising and bleeding;
    3. (c)
      On 26 May 2015, the Department conducted a standards of care review and found that the applicant met the required standards of care. It was noted that the children had not reported the harm to their primary carer;
    4. (d)
      On 3 September 2015, a third party notified the Department of concerns in relation to the brothers when they were in the care of the applicant.  It was reported that the applicant had pulled on the shirt of one of the brothers, leaving red welts around his neck line, and grabbed him around the collar. The Department assessed that the applicant had acted inappropriately but took no action apart from recording the concerns;
    5. (e)
      On 30 April 2018, a third party notified the Department of historical concerns in relation to a child who had previously been in the care of the applicant (in 2011 and 2012).  It was noted that the child told a third party that he was locked in a chicken coop for a long time and ate raw eggs and drank from the chicken water, was locked in cupboards and on occasion had to sleep in the cupboard overnight, “the lady” belted him with a stick and screamed and yelled at him.  The child had a scar on his face which he said was from being attacked by a chicken. 
    6. (f)
      The Department provided information about the historical concerns to the Queensland Police Service (‘QPS’).  (It is unclear from the Department’s records when that occurred although it appears from the QPS’ records, as detailed below, that the Department did not notify the QPS until about 12 June 2018);
    7. (g)
      On 11 May 2018, a third party notified the Department of concerns in relation to one of the brothers when he was in the care of the applicant.  It was noted that the child told a third party that the applicant slapped the child on the face in circumstances of conflict and aggression between the children.  It was noted that within the last 12 months it had been identified that the applicant struggled to manage the three brothers and their behaviours and internal conflict between them.  To assist the applicant, the Department had arranged for the applicant to receive various support.  It was noted that the stability of the placement had been discussed in the past and the applicant had voiced that she would continue to care for the brothers however the brothers had expressed anxiety about the stability of the placement and concern that they would be “kicked out” and “be the Department’s problem”;
    8. (h)
      On 15 May 2018, the Department had a discussion about concerns that the applicant did not meet the required standards of care.  It was decided to commence a Harm Report procedure in respect of the allegations;
    9. (i)
      On 16 May 2018, the brothers were interviewed at their school by the Department and QPS in relation to the concerns.
    10. (j)
      Later on 16 May 2018, after the applicant became aware that the brothers had been interviewed, the applicant requested that the Department end their placement with her.  The applicant said that she could not remember hitting the child and did not want to discredit the child and call him a liar.  The applicant expressed concern that, if the placement of the brothers with her continued, her long-term guardianship of the elder brother may be placed at risk.  The applicant also said that she felt that it was obvious that, if the brothers would tell someone that she had hurt them, it was clear that they did not want to live with her;
    11. (k)
      Also on 16 May 2018, the Department advised the applicant in writing that a Harm Report was recorded in relation to the allegations about her causing physical and emotional harm to the brothers then in her care. In particular, it was alleged that the applicant slapped one of them across the face on 8 May 2018, slapped one of them on multiple occasions, threatened them on the instability of their placement and did not act protectively nor report harm caused to one of them by the elder brother;
    12. (l)
      On 17 May 2018, the Department interviewed the applicant in relation to the concerns about her care of the brothers and the elder brother being aggressive towards the brothers;
    13. (m)
      On 23 May 2018, the Department made an internal decision to assess the concerns raised about the applicant’s historical care of the child in addition to the concerns expressed about her current care of the brothers;
    14. (n)
      On 24 May 2018, the Department advised the applicant in writing that a Harm Report was recorded in relation to the allegations about her historical care of the child, in particular that the applicant locked the child in a chicken coop where he would eat raw eggs and drink from the chicken water, locked the child in cupboards and left him there overnight on one occasion and belted the child with a stick and yelled and screamed at him;
    15. (o)
      On 25 May 2018, the Department interviewed the applicant in relation to the concerns about her historical care of the child.  The applicant denied the allegations;
    16. (p)
      On 21 July 2018, the QPS determined that the allegations about the applicant’s historical care of the child were “unfounded”;
    17. (q)
      On 28 August 2018, the Department advised the applicant that the outcome of its investigation was that it had determined that the applicant had caused emotional and physical harm to the brothers by slapping one of them across the face on multiple occasions and threatening their placements with her on multiple occasions;
    18. (r)
      On 8 November 2018, the Department determined that the concerns in relation to the applicant’s care of the brothers were substantiated.  The Department determined that the applicant had caused the brothers physical and emotional harm and had not met required standards of care.  It was noted that the brothers reported being physically slapped or hit by the applicant and that the applicant threatened the stability of their placement with her.  It was noted that the brothers did not want to remain in the care of the applicant and the Department decided to end their placement with the applicant.  The brothers were aged approximately nine and eleven years at the time;
    19. (s)
      On 8 November 2018, the Department determined that the historical concerns which had been notified to the Department on 30 April 2018 in relation to a child who had previously been in the care of the applicant (in 2011 and 2012) were substantiated.  The Department determined that the applicant had caused the child emotional harm and not met required standards of care. It was noted that applicant’s physical harm of the child could not be substantiated because it was at least six years since the alleged events occurred. However, it was noted that the child had permanent scarring on his face caused by the rooster. It was noted that the applicant denied the allegations of harm.  The child was aged approximately two years at the time of the alleged harm;
    20. (t)
      On 5 December 2018, the applicant responded in writing to the Departments determination concerning the historical concerns.  The applicant denied the allegations.  The applicant stated that there had been no chicken coop nor chickens at the subject property.  The applicant acknowledged that the child had been accidentally attacked by a feral rooster which had been reported to the Department at the time of the incident.  The applicant maintained that the child had spent one year in her care and had left her care at the age of two years.  She maintained that the child had an inaccurate recollection of what had occurred during his placement with her (in 2011 and 2012);
    21. (u)
      On 9 January 2019, the Department developed an action plan directed to a church care support organisation and the applicant to address issues identified regarding the applicant’s care of children in placement with her.  It required that by 29 March 2019, the action of “support” be taken with the proposed outcome that the applicant would be able to demonstrate strategies to respond to a child’s inappropriate behaviour, provide emotional care to a child that allows them to experience being cared about and valued and contributes to the child’s positive self-regard, integrate a child into her household and have support for her own well-being such as counselling.

Material from the Queensland Police Service

  1. [63]
    In response to a Notice to Produce, the Queensland Police Service (‘QPS’) produced material which included the following information;
    1. (a)
      On or about 12 June 2018, QPS reported receipt of a referral from the Department about the Allegations;
    2. (b)
      QPS investigated the potential offence by the applicant of Ill treatment of children;
    3. (c)
      On 28 June 2018, the QPS and the Department interviewed the child that was the subject of the applicant’s alleged behaviour and the child’s then carer; 
    4. (d)
      On or about 21 July 2018, QPS reported that the investigation had been finalised, evidence indicated that the Allegations were unfounded, the offence did not occur and that QPS would not take further action in relation to the allegations.  It was noted that Child 1 did not respond to police during interview and that checks of the property which was referred to in the Allegations did not identify a chicken pen with a yard.

Witness evidence

The applicant

  1. [64]
    The applicant gave the following evidence:
    1. (a)
      She is aged 65 years and her life has very much revolved around caring for children, which is her personal passion;
    2. (b)
      She initially trained as a teacher and has since undertaken various other training to develop her skills to support vulnerable children and their families;
    3. (c)
      She has volunteered in positions that support children her whole life;
    4. (d)
      She cared for her children, who are now adults;
    5. (e)
      Since she first became a foster carer in 1987, she has also cared for over one hundred children and young people.  She currently has long-term guardianship of a child that she has cared for over the last fifteen years;
    6. (f)
      Many of the children that she has cared for have diagnosed disabilities;
    7. (g)
      In relation to the allegations of historical harm to the child in approximately 2011 or 2012, she strongly denies the allegations and says that they simply did not occur.  She understands that her denial of the allegations may present as her not having insight into her conduct, but she cannot accept that the allegations are true when they are not.  She acknowledges that the child has memories of a rooster and she acknowledges that he was in fact injures by a rooster on one occasion as she reported to the Department at the time;
    8. (h)
      The applicant provided a copy of an incident report prepared by the Department on or about 16 August 2011. The report noted that on 13 August 2011, the applicant reported that a child in her care had received scratches and bruising when a chicken flew down and tried to sit on his head.  The report noted that the applicant had treated the injuries and soothed the child and that the child did not require hospital treatment. Further, the applicant requested that the chicken be removed from the property to ensure the incident did not reoccur in the future;
    9. (i)
      In relation to the allegations of harm to the brothers in 2018, she admits that she did say the words “I feel like slapping you when you are like this” (or something to that effect).  The situation occurred in the context that the child was kicking the screen door, yelling at her that he hated her and wanted to leave and she was walking away to the kitchen area. She did not hit the child.  She spoke the words ‘under her breath’ and never intended that the child hear them.  The child then replied “I heard that” and then said “I’m going to tell the Department you hit me”.  It was an irrational thing that happened on the spur of the moment and it should not have happened.  She understands that it was not appropriate that she say those words and that she should have dealt with the situation differently;
    10. (j)
      Further, she admits that on occasions when the brothers said that they wanted to leave her care, she replied to the effect that she would call the Department and tell them that.  She admits that she has always said to children in her care that if they don’t want to stay with her that they needed to speak with their Child Safety Officer.  She now understands how her response in telling the brothers words to the effect that they could leave at any time was not appropriate because it further supported their view that they were unstable in their placement with her;
    11. (k)
      The brothers and their elder brother (who is the child that she has long-term guardianship of) all have diagnosed disabilities, namely autism spectrum disorder, fetal alcohol spectrum disorder and anxiety disorder.  Particularly, the younger brothers regularly exhibited violent, destructive and self-harming behaviours.  There was jealousy and sibling rivalry between the children, particularly exacerbated by her long-term guardianship and long-term care of the elder brother whilst the other brothers had a series of other placements before coming into her care;
    12. (l)
      During the last six months of the placement, the child who was the subject of the allegations of harm had become extremely anxious about the impending start of high school and he became more verbally and physically aggressive.  He was disruptive at school, swore at teachers and ran out of the classroom.  At home he was very aggressive and physically hit and kicked the applicant on occasions.  She reported those incidents as required. Some support was provided, including some respite care and a youth worker one afternoon per week, however that caused some other issues for the children and exacerbated the children’s emotional and behavioural issues, which the applicant reported;
    13. (m)
      Since the Department completed the investigation into alleged harm and found that the allegations of harm were substantiated, the applicant agreed with the Department to an action plan to achieve certain training and support goals.  However, the Department never followed up with the applicant to arrange for the action plan to be implemented;
    14. (n)
      However, the applicant has since undertaken the following of her own volition:
      1. She has undertaken counselling with a psychologist.  The counselling has covered matters including the allegations of harm, the loss of her blue card and her personal history. She has found this to be very beneficial and she is committed to ongoing counselling;
      2. She completed a Mental Health First Aid training course;
      3. She completed Foster Care College on-line training modules including dealing with family stress and trauma informed parenting;
      4. She attended a three-day Foster Care and Kinship Conference where she attended various training workshops;
      5. She has maintained her support network and made a conscious effort to obtain support where appropriate;
    15. (o)
      The applicant is committed to engaging in further professional and personal development to further develop her skills to care for and support children, particularly children who have suffered trauma.

Lisa Mazzeo, Psychologist

  1. [65]
    Ms Mazzeo gave the following evidence:
    1. (a)
      Ms Mazzeo is a registered psychologist who is experienced in independently assessing potential and current foster carers to determine their suitability as foster carers having regard to their ability to meet the required standards of care;
    2. (b)
      On 4 April 2019, Ms Mazzeo conducted an independent foster care assessment of the applicant and prepared a detailed assessment report;
    3. (c)
      In conducting the assessment, Ms Mazzeo interviewed the applicant at length on four occasions and obtained comments from the applicant’s foster care support worker, senior child safety practitioners within the Department, a representative of Queensland Foster and Kinship Care and the applicant’s son (pursuant to a long-term guardianship order).  Ms Mazzeo considered relevant material including the applicant’s Foster Carer Agreement, foster care standards of care reviews and Harm Reports prepared in relation to the applicant and the applicant’s foster carer training records;
    4. (d)
      The applicant maintained that the Harm Report investigations did not allow her sufficient opportunity to share her story or to have her supports able to verify information she provided;
    5. (e)
      Throughout interviews, the applicant expressed compassion and empathy toward children, particularly those who have experienced harm, which contributed to her wanting to be a carer. It was evident that the applicant regarded being a carer to be an important and privileged role in her life;
    6. (f)
      She assessed that the applicant remained genuinely and positively motivated to look after children;
    7. (g)
      The applicant and her son (pursuant to a long-term guardianship order) appeared to have a close and relaxed relationship and a strong bond with one another.  The applicant demonstrated that she was aware of his needs and considered him and his opinions in her decisions and he was supportive of her wish to continue to be a foster carer;
    8. (h)
      The applicant reported that she has a close relationship with her three adult children; 
    9. (i)
      The applicant demonstrated during the interviews that she values the relationships she has with her children and spends time with them regularly;
    10. (j)
      The applicant was able to identify friends, family and professional supports who could provide her with emotional and practical supports.  For reasons which included her wishing to maintain the children’s confidentiality and not wishing to overburden or take advantage of family and friends, the applicant often preferred to rely on professional supports. The applicant was observed to be a proud person and, having taken on a role as carer, felt it was important to complete her duties as a carer on her own without relying on others. Nevertheless, the applicant acknowledged the importance of being able to utilise practical and emotional support to ensure she is able to continue in her caring role;
    11. (k)
      She noted that a concern had been expressed by the church care support organisation that the applicant had a limited support network and an action plan was developed in response to the Harm Reports for the applicant to further develop her support network. Given that it was a noted goal on the action plan, the applicant made a commitment to continue to build on her support network. Further, the applicant demonstrated that she accessed her professional support network;
    12. (l)
      She assessed that the applicant had the capacity and willingness to ensure she had sufficient time, capacity and supports to provide foster care;
    13. (m)
      The applicant did not have any health concerns which prevented her from continuing her role as foster carer.  The applicant encouraged an active and healthy lifestyle for children in her care and modelled that herself;
    14. (n)
      The applicant reported that the year 2018 had been highly stressful for her and her family, partly due to the challenging behaviours and complex needs of the children in her care at the time and partly due to the Harm Report investigation and outcome process.  The applicant stated that she shared her concerns with a Child Support Officer in relation to the children continuing in her care and was given the message to “hang in there”. The applicant asserted that she ultimately relinquished the placements with the intention that it would be in the best interests of the children. The applicant felt guilty and upset that the placements could not be maintained despite her efforts;
    15. (o)
      She acknowledged that the applicant had been required to manage highly stressful situations arising from behaviour escalations of the children in her care;
    16. (p)
      Concerns had been raised by third parties in relation to the applicant’s capacity to manage the stress of the challenging behaviours and complex needs of the children and it had been recommended that the applicant undertake further training and skill development to learn more appropriate behaviour management strategies;
    17. (q)
      She recommended that, whilst the applicant had previously undertaken training, additional training and support may provide the applicant with confidence to deal with the challenging behaviours demonstrated by children in her care.  This included the therapeutic support of a counsellor.  The applicant committed to developing her support network and participating in additional training as recommended;
    18. (r)
      She assessed that, with support, the applicant had the ability and willingness to meet the requirements to manage stressful situations which is necessary to work as a foster carer;
    19. (s)
      She noted that, throughout the interviews, the applicant demonstrated her knowledge of appropriate parenting and behaviour management strategies, as well as a thorough understanding of trauma and the impact it can have on children in care.  The applicant provided examples of strategies she has utilised in the past to build relationships and to provide positive guidance.  She was observed to have a relaxed and warm parenting style.  It was evident that the applicant and the child, in respect of whom she had been appointed guardian, had a strong bond.  She demonstrated an awareness of cultural difference and expressed sensitivity to the various cultures of children for whom she had cared.  The applicant demonstrated how she has met the cultural support needs of her son and there was evidence of this in the home.  The applicant also articulated her commitment to nurturing her child’s own identity and demonstrated an understanding of how important this can be, in particular, to children in out-of-home care; 
    20. (t)
      During the renewal period however, the investigations in relation to the Harm Report found that the applicant did not meet the Department’s required standards of care 122.1 a, c and g.  The applicant was proposed to have smacked children, verbally threatened their security in the placement and locked a child in cupboards and a chicken coop.  While the applicant continues to deny these events occurred, she demonstrated insight into why these behaviours would be concerning and why they must be investigated by the Department.  The applicant was able to acknowledge why the alleged behaviours were not appropriate, however, maintained she had not smacked or threatened a child or locked a child in a cupboard or chicken coop; 
    21. (u)
      She noted that the Department had completed their investigation and found the allegations to be valid.  As such, the allegations provide evidence of instances where the applicant has not met the required standards of care.  Conversely, the applicant provided examples of meeting those and all of the required standards of care in the past and how she would continue to do so in the future.  The applicant articulated her knowledge of corporal punishment and punishment which may cause emotional harm being prohibited under the standards of care and expressed her continued commitment to utilising appropriate behaviour management strategies.  As noted, the applicant had also made a commitment to meeting action plan goals, which included further training in appropriate behaviour management strategies;
    22. (v)
      In her opinion, in view of all the information, the applicant was able to provide quality foster care.  However, she recommended that the applicant undertook further training and accessed additional professional support, such as mentoring or coaching, to ensure that she was able to implement strategies appropriately during times of behavioural escalation and that she was coping well in the placement;
    23. (w)
      She considered that the applicant had demonstrated her ability to work within the care team, including ensuring children attend medical appointments, therapeutic appointments, recreational activities and family contact. The applicant had also worked closely with professional supports and demonstrated her willingness to engage, accept feedback and listen to new ideas;
    24. (x)
      In relation to the allegation that the applicant slapped a child on the face on 18 May 2018, slapped the child multiple times in front of others and pulled one of the children to the ground by their arms and dragged them into another room when they tried to get away from her, the applicant maintained throughout all interviews that she has not smacked children in her care, including her own children. The applicant demonstrated her understanding of the negative impact of smacking, particularly for children who have experienced trauma. The applicant stated that on the day in question, the children’s behaviour had been escalated. She said that one child was at the door and she was at the opening to the kitchen and had commented under her breath something to the effect of, “I could slap your face”. The applicant maintained she did not say it to the child and did not intend for him to hear it. The applicant noted it was a stressful situation and she had said this out of frustration. The applicant demonstrated insight into how that would have made the child feel and reiterated she had not intended for him to hear those words. The applicant advised that when the children were escalated, there were times she would separate them or would follow them into their rooms. The applicant said it was not always an easy task to separate the children however she maintained that she had never "dragged” a child.  The applicant said that the children had regularly threatened to tell the school or the Department that she had hurt them. Each time she informed the church care support organisation and the Department what had occurred. She said that on the day that the children had been interviewed by the Department at school, one of them had come home upset, saying, “I didn't mean it. I'm sorry”, which she believed related to him having provided untrue information in the interview;
    25. (y)
      In relation to the allegation that the applicant had continued to threaten the children on the instability of the foster care placement, the applicant maintained that she had not done so and did not have an intention to relinquish her care of the children. The applicant shared examples of occasions when the children said that they did not wish to live with her any longer and she responded that it was not her decision, but she would talk with the Department if that was what they wished. She said that the children were insecure and required frequent reassurance that they could stay with her. She recognised how this was related to their past experience of trauma and of having multiple placements. The applicant acknowledged that there may have been occasions where the children had taken a joke seriously and she tried to be sensitive to ensure they were comfortable with any joking behaviour. The applicant asserted that she would talk through any miscommunication and comfort the children, reiterating her acknowledgement of their insecurity and need for reassurance;
    26. (z)
      In relation to the allegation that the applicant had not acted protectively and reported the eldest child (her son pursuant to a long-term guardianship order) harming the younger children in her care, the applicant asserted that whilst the children had all argued and fought on occasion, and the younger children occasionally hit each other, the eldest child had never hit the younger children nor any other child in her care. The applicant recalled an incident where one of the younger children had hit her and the eldest child grabbed the younger child by the shirt and threatened to hit the younger child if he hit her again. The applicant maintained that she later explained to the eldest child that his behaviour had not been appropriate and that he needed to be patient and understanding with the younger children;
    27. (aa)
      In relation to the allegation that the applicant refused to allow one of the children to participate in extra-curricular activities and did not purchase a new ceiling fan for his bedroom when it broke, the applicant acknowledged that the fan had been broken by the children.  The applicant said that she had requested financial support to have it fixed but that was refused. As it was financially unviable to claim the cost on her household insurance, the applicant purchased a pedestal fan as a replacement. The applicant maintained that the children had participated in many extra-curricular activities throughout the years including Kung Fu, swimming and soccer. She had ceased the Kung Fu lessons as the children were increasingly using it on each other. She planned to find other suitable extra-curricular activities for the children to participate in;
    28. (bb)
      In relation to the allegations that the applicant locked one of the children in a chicken coop where he ate raw eggs and drank from the chicken water, locked the child in cupboards, left him locked in a cupboard overnight on one occasion and that she belted him with a stick and screamed at him, the applicant strongly denied all of the allegations. The applicant shared that she was most confused about the allegations as the child in question was aged from nine months to two and a half years during the time that he was in her care. She described him as a “pleasure” and “fun to be around”. The applicant did not recall there being a requirement for that child to be punished. The applicant acknowledged that the alleged behaviours were concerning and stated that she understood why the Department investigated them. The applicant described the alleged acts as “abhorrent” and stated “if this happened, who did it? They shouldn't be a carer”. The applicant questioned whether the child may have confused events and people. She noted that there was a farm where they used to spend weekends and holidays where the child had been scratched by a rooster. She had reported that incident to the Department at the time. The applicant confirmed that there were no chicken coops on the property and offered that her friends and family who knew the property could confirm that was the case. The applicant also stated that she did not have locks on any cupboards or bedroom doors;
    29. (cc)
      Throughout the assessment and direct interviews, the applicant demonstrated that she would help in appropriate ways to achieve the goals of the foster care plan to ensure the children's protection. The applicant also demonstrated that she understood and was committed to the required principles of care and would ensure that the applicant’s various needs were suitably met;
    30. (dd)
      She noted that during the recent renewal period, the applicant had been found to be responsible for substantiated harm against a child in care and, as such, had not met the required standards of care at all times. Nevertheless, in her opinion, the applicant had demonstrated throughout the assessment process that she had the capacity to meet the required standards of care;
    31. (ee)
      In relation to the requirement that “the child's dignity and rights will be respected at all times”, she noted that the applicant had been found to not have met that standard, having been proposed to have locked a child in a cupboard and chicken coop, threatening children's placements and smacking children in her care. The applicant continued to deny those events occurred. Throughout interviews however, the applicant demonstrated her understanding of the vulnerability of children in out-of-home care and acknowledged the need to respect their boundaries, nurture their identity and provide “unconditional love”. The applicant was observed to have a thorough understanding of maintaining the dignity and rights of children in care, including keeping their information confidential;
    32. (ff)
      In relation to the requirement that “the child's needs for physical care will be met, including adequate food, clothing and shelter”, she noted that the applicant had demonstrated her capacity to provide adequate food and appropriate clothing for the children in her care. The applicant demonstrated her commitment to ensuring the physical safety of children at her home and outside the home;
    33. (gg)
      In relation to the requirement that “the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child's positive self-regard”, she noted that the applicant had been found to have not met that standard, having been proposed to have made verbal threats suggesting the children's placement was unstable. The applicant continued to deny having made those threats. Throughout interviews, the applicant demonstrated her ability to ensure that children in her care feel emotionally supported and she provided examples of how she ensured that their emotional needs were met. The applicant spoke of how she strived to ensure that children in her care were able to thrive and develop their sense of self, maintaining that her role was to support them and provide them with praise and opportunities to grow and develop. The applicant committed to preparing a “welcome book” to ensure that children coming into the placement felt welcome and supported;
    34. (hh)
      In relation to the requirement that “the child's needs relating to his or her culture and ethnic grouping will be met”, the applicant demonstrated her commitment to provide opportunities for the eldest child to explore his cultural identity and the home was observed to have evidence of his cultural heritage. The applicant evidenced her commitment to ensure that children in her care received appropriate cultural and religious support;
    35. (ii)
      In relation to the requirement that “the child's material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met”, the applicant demonstrated many examples of her awareness of the children's needs and her capacity and commitment to meet those needs;
    36. (jj)
      In relation to the requirement that “the child will receive education, training or employment opportunities relevant to the child's age and ability”, the applicant demonstrated that she was supportive of the children's education and ensured they received education;
    37. (kk)
      In relation to the requirement that “the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour”, she noted that the applicant had been found not to have met that standard, having been proposed to have locked a child in a cupboard and chicken coop and smacking children in her care. The applicant continued to deny that those events occurred. Throughout interviews, the applicant demonstrated her knowledge of appropriate behaviour management strategies, including the use of praise for positive behaviours and “time out” when appropriate. The applicant denied ever having smacked a child in her care and acknowledged that smacking and emotionally harmful strategies were prohibited. The applicant committed to ensuring that she does not use those strategies in the future. The applicant indicated her willingness to undertake further skills training and to further develop her support network;
    38. (ll)
      In relation to the requirement that “the child will receive dental, medical and therapeutic services necessary to meet his or her needs”, the applicant demonstrated that she had met the children's needs in the past and she was committed to continuing to do so;
    39. (mm)
      In relation to the requirement that “the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age”, the applicant had ensured that children in her care participated in appropriate activities and demonstrated her commitment to continuing to do so;
    40. (nn)
      In relation to the requirement that “the child will be encouraged to maintain family and other significant personal relationships”, the applicant had demonstrated her capacity and willingness to meet that requirement;
    41. (oo)
      In relation to the requirement that “if a child has a disability, the child will receive care and help appropriate to their special needs”, the applicant demonstrated her capacity and commitment to ensuring that children with disabilities had access to appropriate medical and therapeutic support.

Terrence Rundell, Psychologist

  1. [66]
    Mr Rundell gave the following evidence:
    1. (a)
      The applicant attended nine psychological consultations with Mr Rundell, between 9 October 2019 and 26 August 2020;
    2. (b)
      Mr Rundell conducted an assessment of the applicant’s personality.  The applicant’s responses indicated that she had no significant problems with unusual thoughts or peculiar experiences, antisocial behaviours or problems with empathy.  Her responses indicated that she has no undue suspiciousness, hostility, extreme moodiness or impulsivity.  He noted that the applicant had a rather fixed, negative self-evaluation and that she is likely to be self-critical and prone to focusing on past failures and lost opportunities.  He assessed that she may be troubled inwardly by self-doubts and misgivings and play down past successes.  He assessed her interpersonal style to be autonomous and balanced with a normal level of assertiveness, friendliness and concern for others.  He considered that the applicant’s use of social supports buffered stress that she experienced to promote a favourable outcome; 
    3. (c)
      Mr Rundell had read the respondent’s reasons for the issue of the negative notice;
    4. (d)
      The applicant acknowledged that she did say under her breath that she “would like to backhand” the child, however she stated that it was an empty threat muttered under her breath.  The applicant reported that she was quite surprised that the child heard her.  The applicant said that she was very sorry about the incident and realised that her behaviour was wrong. He considered that the allegation was a less serious allegation because the applicant muttered the threat under her breath and that it was relevant that the applicant did not action the threat;
    5. (e)
      The applicant denied the allegation that she kept a child in a chicken house and said that she was sorry that the child had a wrong perception regarding what happened. The applicant formally stated that it is unreasonable for her to be sorry about something that never happened;
    6. (f)
      He believed that the applicant was reasonably empathic towards the child’s feelings and demonstrated appropriate remorse and insight considering her denial of one of the allegations;
    7. (g)
      The applicant believed that the main risk factors for her inappropriate behaviour were that at the time she was frustrated and personally overwhelmed by having too many behaviourally challenged children in her care at one time and that she had insufficient respite and downtime to recharge herself before she got frustrated and angry.  The applicant rejected the notion that she had anger management issues by pointing out that she had successfully cared for other children for many years.  The applicant said that she would seek help if she found herself in a similar situation in the future.  Based on the information provided by the applicant, he concluded that she had successfully addressed the main risk factors for becoming emotionally overwhelmed in the future;
    8. (h)
      Another risk factor that needed to be managed is to consider the applicant’s current age and her having more than one child in her care at any one time.  He considered that caring for three children with behavioural issues and complex needs was probably “too much” and an unreasonable expectation for anyone;
    9. (i)
      The applicant did not present with anger management issues;
    10. (j)
      In relation to protective factors, the applicant said that in the future she would hand a child back to the Department before she allowed herself to get to the point where her frustrations got the better of her; 
    11. (k)
      He considered that, in the absence of any pattern of the applicant demonstrating emotional dysregulation, her statement that she would return a child to the Department is a reasonable protective factor in managing escalating frustration;
    12. (l)
      He considered that other protective factors should include the applicant walking away from the scene or delaying a difficult conversation during the time she is feeling angry, never arguing with children and modelling those techniques with children in her care;
    13. (m)
      In relation to preventative strategies, he considered that the applicant should not be required to care for so many children that she was overwhelmed. He believed that the applicant would be more assertive in the future and speak up so that she was not placed in such a position.

School tuck shop convenor and friend of the applicant

  1. [67]
    This witness gave the following evidence:
    1. (a)
      She was aware of the Department’s two substantiated Harm Reports in relation to the applicant;
    2. (b)
      She worked as a school tuckshop convenor;
    1. (c)
      She has known the applicant for over ten years through the applicant’s regular volunteer work in the school tuckshop over that period of time and also through their developing friendship.  On occasion, she has supported the applicant in the care of children placed with her;
    2. (d)
      During the last ten years, she had observed the applicant’s interaction with many children including children that were in foster care placements with the applicant, both inside and outside of the school environment;
    3. (e)
      She observed the applicant to be highly diligent, selfless, very caring and genuinely sympathetic and compassionate towards children.  The applicant always acted appropriately with children and was never aggressive;
    4. (f)
      She observed the applicant to be a highly committed foster carer who always prioritised the needs of the children in her care.  The applicant’s life revolved around the children in her care and any volunteer role that the applicant took was to support the children;
    5. (g)
      She had no hesitation in recommending the applicant as a suitable person to hold a blue card and work with children.

Approved foster carer and foster carer representative

  1. [68]
    This witness gave the following evidence:
    1. (a)
      She was aware of the Department’s two substantiated Harm Reports and the reasons for the cancellation of the applicant’s blue card;
    2. (b)
      She has been an approved foster carer for approximately thirty years and is also a foster carer representative;
    3. (c)
      She has known the applicant for approximately twenty years through their respective foster care work and a personal friendship that developed;
    4. (d)
      The applicant often sought the witness and her husband to help her understand and meet the cultural needs of children in her care;
    5. (e)
      She frequently attended the holiday property that the applicant rented for her and children in her care to holiday at, which was the alleged location of the historical child care concerns that had been raised against the applicant.  She could confirm that there was no chicken coop at the property and that no children were placed in one.  She did recall that, when they were at the property, on one occasion a stray rooster attacked the particular child and the child and others were also involved in a car accident which resulted in them going to hospital.  She is aware that the Department was advised of those incidents at the time;
    6. (f)
      She has no hesitation in recommending the applicant to hold a blue card and to care for children.

Volunteer worker

  1. [69]
    This witness gave the following evidence:
    1. (a)
      She was aware of the Department’s two substantiated Harm Reports and the reasons for the cancellation of the applicant’s blue card;
    2. (b)
      She is a volunteer worker with a foundation which supports and empowers children in foster care;
    3. (c)
      She attended the applicant’s home on a weekly basis over a period of about five years to support the children in the applicant’s care.  During that time, she worked with the brothers that are the subject of the allegations of harm by the applicant.  She frequently observed the children with the applicant both inside the home and outside the home at sporting, school and other events;
    4. (d)
      At all times, she was positively impressed by the applicant’s dedication to meet the needs of every child in her care and the positive way in which the applicant interacted with the children and cared for them. The applicant “was an amazing carer and had nothing but the children’s best interests at heart”;
    5. (e)
      The applicant actively engaged with the children in many extra-curricular activities which involved significant personal and financial commitment by the applicant;
    6. (f)
      The brothers regularly exhibited difficult behaviour.  The applicant took steps to avoid triggering the children’s behaviour escalating.  When the brothers did engage in difficult behaviour, the applicant managed it well by remaining calm and acting appropriately.  The applicant always spoke to the brothers in a calm, fair and clear manner;
    7. (g)
      The applicant was very committed to ensuring that the brothers’ learning needs were addressed;
    8. (h)
      She never observed any concerning interactions between the applicant and children in her care.  She observed that the applicant and the brothers had a genuinely positive relationship;
    9. (i)
      Based on her five years of experience working closely with the applicant and children in her care, she has no hesitation in recommending the applicant as suitable to hold a blue card and work with children.

Defence Force Cadet supervisor and friend of the applicant

  1. [70]
    This witness gave the following evidence:
    1. (a)
      She was aware of the Department’s two substantiated Harm Reports and the reasons for the cancellation of the applicant’s blue card;
    2. (b)
      She is a defence force cadet supervisor and has known the applicant for approximately five or six years;
    3. (c)
      The applicant was an active volunteer supporting children in defence force cadets for many years;
    4. (d)
      She always observed the applicant to act in a calm, appropriate and positive manner with children and to properly manage any escalated behaviour which children exhibited;
    5. (e)
      She described the applicant as “an amazing lady that would do anything for anyone’s child” and “calm” and “placid”;
    6. (f)
      She has no hesitation in recommending the applicant to hold a blue card and work with children.

The applicant’s adult daughter

  1. [71]
    The witness gave the following evidence:
    1. (a)
      She was aware of the Department’s two substantiated Harm Reports and the reasons for the cancellation of the applicant’s blue card;
    2. (b)
      She has always experienced the applicant as a committed, caring and kind mother and grandmother.  She and her grandchildren have a close relationship with the applicant;
    3. (c)
      The applicant has been a foster carer for over thirty years and has always put the children’s needs first;
    4. (d)
      The applicant never used any kind of physical discipline or physical handling of her children, grandchildren and foster children even if she was angry;
    5. (e)
      The witness and her children attended the property which is the alleged location of the historical concerns in relation to the applicant’s care of a foster child.  She is certain that the allegations of harm are not accurate;
    6. (f)
      She spent time with the applicant and the brothers who are the subject of the other allegations of harm by the applicant.  The brothers frequently exhibited very volatile, destructive, aggressive and physically abusive behaviour.  When the brothers exhibited those behaviours, the applicant always remained calm and managed the behaviour through appropriate strategies such as “time out” and discussion;
    7. (g)
      She strongly believes that the applicant is a suitable person to hold a blue card and work with children.

Applicant’s submissions

  1. [72]
    Oral and written submissions were made by the applicant’s legal representative.
  2. [73]
    On behalf of the applicant, it was submitted that:
    1. (a)
      In relation to the allegations of historical harm in 2011 or 2012, it is highly probable that the alleged facts were conflated over the six intervening years before the allegations were reported.  The Tribunal should have regard to the fact that whilst the Department found the allegations to be substantiated, the QPS determined that they were unfounded, the subject child was aged nine years when the concerns were raised in 2018 and the conduct allegedly occurred when the child was approximately two years old in 2011 or 2012, the interview of the child in 2018 was inadequate for the purpose of substantiating the allegations against the applicant, the investigation was otherwise flawed and insufficient consideration was given to the possibility that the child’s memory at the age of two years may be inaccurate, the QPS confirmed that there was no chicken shed at the subject property, a contemporaneous incident report of the child being injured at the property by a chicken was provided and in addition to the applicant, two witnesses independently confirmed that no chicken coop existed and the applicant did not act in the manner alleged and, further, the allegations are inconsistent with the core caring values otherwise demonstrated by the applicant over her thirty years of foster care and volunteer work;
    2. (b)
      In relation to the allegations concerning the brothers, the Tribunal should accept the applicant’s evidence that the alleged facts did not occur with the exception that the applicant acknowledged that she said words to the effect of “I get tempted to slap your face when you are like this”, “tell the Department anything you want to” and “if you want to leave, that’s fine, I will call the Department for you”.  Whilst those words were said in the context of a challenging situation and tumultuous placement, the applicant acknowledges that they were unacceptable and breached the required standards of care and it is open for the Tribunal to find that the applicant caused emotional harm by her words.  That harm is considered to flow from the fact that for children from traumatic backgrounds, any threat or allusion to physical violence or the jeopardisation of their placement, is particularly concerning.  The Tribunal should have regard to the consistent and credible evidence of the applicant and the fact that there were no other allegations of such conduct (save the abovementioned historical allegations) over the applicant’s thirty year history of being a foster carer;
    3. (c)
      Flowing from a finding that the applicant used threatening and emotionally harming language to children in a placement in 2018, relevant risk factors include that no limits or conditions can be placed on a positive notice, the applicant may react in a similar non-trauma-informed manner in a placement with children who had experienced trauma and she could cause further trauma and stress to any such child;
    4. (d)
      However, protective factors which minimised such risk include that the applicant has an otherwise positive record as a foster carer over a period of thirty years, she has taken the concerns expressed very seriously, whilst disagreeing with certain allegations she accepted responsibility for her failings, she has demonstrated insight into inappropriate actions, she proactively sought psychological support, she actively engaged with a psychologist and undertook a personality assessment, she has proactively completed further training that will support her to deal with children who have experienced trauma in the future; and
    5. (e)
      Having regard to all the circumstances, the Tribunal should find that the applicant’s case is not an ‘exceptional case’ and that the decision of the respondent should be set aside.

Respondent’s submissions

  1. [74]
    Oral and written submissions were made by the respondent’s legal representative.
  2. [75]
    On behalf of the respondent, it was submitted that:
    1. (a)
      The applicant’s traffic offences are not of primary concern to her eligibility to hold a positive notice and blue card, however the information disclosed by the Department is of significant concern in that regard;
    2. (b)
      The material produced by the Department indicates that the applicant breached the standards of care in respect of children in her care, namely that the child’s dignity and rights will be respected at all times, the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to positive self-regard and the child will receive positive guidance to help him or her to change inappropriate behaviour;
    3. (c)
      The Department held concerns that the applicant lacked the ability to stay calm and implement appropriate strategies during escalations and that she struggled to manage the children’s behaviours and internal conflicts, resorting to threats that the children may be taken away;
    4. (d)
      The Department and the applicant agreed to an action plan for the applicant to undertake further training and receive increased professional support and respite care if required;
    5. (e)
      The applicant wholly refuted many of the allegations of harm;
    6. (f)
      The incident report which recorded the child being injured by a chicken appears to be different from the child’s recollections of harm by the applicant;
    7. (g)
      Whilst the applicant denied ever physically assaulting a child, her denial differs from her statement to the Department that she “can’t remember if she hit him or not”;
    8. (h)
      In any event, the applicant admitted making a threat to do so following an incident of a child exhibiting difficult behaviour;
    9. (i)
      Further, the applicant acknowledged that her actions may have potentially fuelled the children’s insecurity;
    10. (j)
      The applicant failed to address how her actions would have impacted the children’s emotional wellbeing;
    11. (k)
      The applicant’s submissions focussed on the challenging situation and difficult child behaviours that she was dealing with rather than positive proactive steps that she took to manage those behaviours;
    12. (l)
      The applicant’s evidence suggests a lack of genuine insight into the seriousness of her behaviours and why they present a concern for child-related employment;
    13. (m)
      The applicant has evidenced further training that she has recently undertaken, she has not evidenced any recently learnt strategies to manage difficult child behaviour differently;
    14. (n)
      The evidence of Mr Rundell fails to address the applicant’s insight, risk factors or triggers, protective factors and preventative strategies that the applicant may apply;
    15. (o)
      Character references provide positive evidence in support of the applicant;
    16. (p)
      Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment;
    17. (q)
      The Tribunal should adopt a precautionary approach;
    18. (r)
      The Tribunal should find that the applicant’s case is an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a positive notice.

Consideration of the evidence and findings of fact

  1. [76]
    The applicant’s reported traffic history is not in dispute.
  2. [77]
    All witnesses demonstrated knowledge of the reasons for issue of the negative notice and the Department’s findings of harm.
  3. [78]
    To the extent that it was possible to discern, all witnesses presented as open and honest in giving their evidence before the Tribunal.
  4. [79]
    The applicant’s evidence of her long history of dedicated care and support of children through foster care and volunteer work was supported by evidence of the character witnesses and is also not in dispute.  The Department’s material includes an acknowledgement to the effect that the allegations against the applicant which are referred to in these reasons were the only concerns noted in relation to the applicant over her thirty years of work as a foster carer.
  5. [80]
    The applicant’s evidence of the particular challenging foster care placements that she was managing in 2018, in addition to the child that she cared for pursuant to a long-term guardianship order, is also supported by other witnesses and not in dispute. 
  6. [81]
    The evidence before the Tribunal is consistent, and it is not in dispute. that in 2018 numerous allegations of both recent and historical harm were made against the applicant and findings referred to in these reasons were made by the QPS and the Department in that regard. 
  7. [82]
    The applicant’s denial of most of the allegations in her evidence before the Tribunal is generally consistent with her previous statements to the Department.  That is subject to limited exception, for example in evidence to the Tribunal the applicant explicitly denied slapping a child, however in Department interview notes she was recorded as having said words to the effect that she “couldn’t recall” if she slapped the child. 
  8. [83]
    The applicant’s evidence in relation to the allegations of historical harm is supported by the evidence of the approved foster carer/foster carer representative and the applicant’s adult daughter.  QPS records also indicate that no evidence of a chicken coop was found on the subject property.
  9. [84]
    The applicant’s evidence is otherwise generally supported by the evidence of the various personal/character witnesses who know the applicant personally and observed interactions with children.
  10. [85]
    The applicant has admitted that certain of her conduct was inappropriate and in breach of the Department’s required standards of care (being that in 2018 she muttered to one of the brothers words to the effect of “I feel like slapping you when you are like this” and on occasions when the brothers said that they wanted to leave her care, she replied to the effect that she would call the Department and tell them that). In relation to that admitted conduct, the applicant has generally provided consistent explanations of the context in which those events occurred.
  11. [86]
    The expert witnesses, psychologists Mr Rundell and Ms Mazzeo, both gave considered and persuasive evidence.  The Tribunal has placed considerable weight on their evidence.
  12. [87]
    Having weighed the evidence, the Tribunal makes the following findings of fact:
    1. (a)
      The applicant is a sixty-five year old woman;
    2. (b)
      She cared for over one hundred children as a foster carer for over thirty years since 1987;
    3. (c)
      No concerns were notified to the Department in relation to the applicant’s care of children apart from those which are noted in these reasons;
    4. (d)
      On 21 July 2018, the QPS determined that the allegations about the applicant’s historical care of the child were unfounded;
    5. (e)
      On or about 8 November 2018, the Department determined that concerns in relation to the applicant’s foster care of two brothers, then aged approximately nine and eleven years, were substantiated and that the applicant had caused the brothers physical and emotional harm. Allegations included that the applicant had slapped a child across the face on 8 May 2018, slapped the child on multiple other occasions, threatened the children on the instability of the placement and not acted protectively nor reported harm to the children by another child.  In that regard, the Department also determined that the applicant had not met the required standards of care which required that a child’s dignity and rights will be respected at all times, the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard and that the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;
    6. (f)
      The applicant consistently denied those allegations with the exception that in 2018 she muttered to one of the brothers words to the effect of “I feel like slapping you when you are like this” and on occasions when the brothers said that they wanted to leave her care, she replied to the effect that she would call the Department and tell them that.  The applicant admitted that such conduct was inappropriate and in breach of the Department’s required standards of care;
    7. (g)
      The placements of the brothers were challenging.  All three children who were then in the applicant’s care had diagnosed disabilities and at least some of the children regularly exhibited violent, destructive and self-harming behaviours and verbal and physical aggression;
    8. (h)
      On 8 November 2018, the Department also determined that historical concerns which had been notified to the Department on 30 April 2018, in relation to the applicant’s care of a child in 2011 and 2012 when the child was approximately two years old, were substantiated and that the applicant had caused the child emotional harm.  Allegations included that the applicant had locked the child in a chicken coop, forced him to eat raw eggs and drink from the chicken water, locked him in cupboards (including overnight on one occasion), belted him with a stick and screamed at him.  In that regard, the Department also determined that the applicant had not met the required standards of care which required that a child’s dignity and rights will be respected at all times, the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard and that the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;
    9. (i)
      The applicant consistently denied those allegations and maintained that the child’s recollection of what had occurred during the placement was inaccurate;
    10. (j)
      On 9 January 2019, the Department developed an action plan directed to a church care support organisation and the applicant to address issues identified regarding the applicant’s care of children in placement with her.  It required that by 29 March 2019, the action of “support” be taken with the proposed outcome that the applicant would be able to demonstrate strategies to respond to a child’s inappropriate behaviour, provide emotional care to a child that allows them to experience being cared about and valued and contributes to the child’s positive self-regard, integrate a child into her household and have support for her own well-being such as counselling;
    11. (k)
      On 29 August 2019, the respondent decided for the purpose of s 221(2) of the WWC Act that the case of the applicant was an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to be issued.  On that basis, the respondent decided to cancel the applicant’s positive notice and to issue her with a negative notice under the WWC Act;
    12. (l)
      Of her own volition, the applicant has undertaken training and obtained support in accordance with the requirements and objectives of the action plan developed on 9 January 2019.  This included undertaking counselling with a psychologist, completing a Mental Health First Aid training course, completing Foster Care College on-line training modules, attending a three-day Foster Care and Kinship Conference, maintaining her support network and obtaining support where appropriate;
    13. (m)
      The applicant is committed to engaging in further professional and personal development to further develop her skills to care for and support children, particularly children who have suffered trauma;
    14. (n)
      On 4 April 2019, Ms Lisa Mazzeo, psychologist, conducted an independent foster care assessment of the applicant and formed the opinion that the applicant was willing and able to provide quality foster care including for children with disability and special needs.  Ms Mazzeo recommended that the applicant receive training and support to assist her to manage children who demonstrated escalations and challenging behaviours.

Consideration of the law and facts relevant to this case

  1. [88]
    The Tribunal is not required to determine whether the applicant can be an approved foster carer.
  2. [89]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the applicant in which it would not be in the best interests of children for the applicant to be issued with a positive notice.
  3. [90]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  4. [91]
    The Tribunal has also considered the submissions on behalf of the applicant and respondent respectively concerning relevant risk factors and protective factors.
  5. [92]
    The Tribunal accepts that the applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[46]
  6. [93]
    However, the applicant has a criminal history which is described above.
  7. [94]
    It is accepted that the applicant’s traffic offences are not of primary concern in relation to her eligibility to hold a working with children clearance and blue card.
  8. [95]
    However, the material produced by the Department, particularly the Department’s findings that the applicant did not meet required standards of care and caused physical and emotional harm to children in foster care placements with her, gives rise to significant concerns about the applicant’s future ability to provide a protective environment for children and to ensure their physical and emotional safety and wellbeing. 
  9. [96]
    The Tribunal notes that some evidence contradicts the Department’s findings of harm and breach of standards.  In particular, the QPS determined that certain of the allegations of harm were unfounded and some witnesses support the applicant’s denial of the allegations.
  10. [97]
    The Tribunal acknowledges that the alleged harm and breach of standards occurred in the context that the applicant demonstrated commitment to the care and support of vulnerable children through a long, otherwise unblemished, history of work as a dedicated foster carer and volunteer.
  11. [98]
    Further, the Tribunal accepts that the alleged harm and breach of standards occurred, at least in part, in circumstances that would have been challenging for the applicant due to the number of children with diagnosed disabilities and behavioural issues that she was caring for at the time.
  12. [99]
    Nevertheless, that risk factor is a significant consideration in determining whether it would not be in the best interests of children for the applicant to be issued with a positive notice.
  13. [100]
    Having regard to all the evidence, the Tribunal accepts that the risk is currently mitigated by several factors:
    1. (a)
      The assessment of the applicant’s personality by the psychologist Mr Rundell did not identify that the applicant had any significant problems with unusual thoughts, peculiar experiences, antisocial behaviours, lack of empathy, undue suspiciousness, hostility, extreme moodiness, emotional dysregulation or hostility.  He assessed that the applicant did not present with anger management issues.  He assessed that the applicant’s interpersonal style was autonomous and balanced with a normal level of assertiveness, friendliness and concern for others.  He did not identify that the applicant had any particularly adverse features that pose a significant risk to children.  Further, Mr Rundell assessed that the applicant was reasonably empathic towards children’s feelings;
    2. (b)
      Mr Rundell assessed that the applicant demonstrated appropriate remorse given her denial of a number of the allegations;
    3. (c)
      Mr Rundell assessed that the applicant demonstrated insight into her admitted conduct of saying words under her breath to the effect that she would like to slap the child.  In this regard, the applicant acknowledged that her behaviour was wrong;
    4. (d)
      Mr Rundell concluded that the applicant had successfully addressed the main risk factors of becoming emotionally overwhelmed in the future by actively seeking support and potentially handing a child back to the Department before she got overly frustrated. Mr Rundell believed that those strategies were reasonable protective factors to manage potential escalating frustration and being emotionally overwhelmed.  Mr Rundell also considered that other protective factors included the applicant choosing to walk away from a frustrating situation or delaying difficult conversations to a time when she felt calmer, never arguing with children and modelling those techniques to children in her care;
    5. (e)
      Mr Rundell believed that the applicant would implement preventative strategies in the future by being more assertive to ensure that she was not placed in a position that was unduly challenging for her;
    6. (f)
      On the basis of a comprehensive assessment process and consideration of applicable standards of care, the psychologist Ms Mazzeo concluded that the applicant demonstrated that she had the capacity to meet the standards of care required to care for children in a foster care placement; and
    7. (g)
      The applicant has undertaken further training that was identified in the action plan prepared by the Department to minimise identified risk.
  14. [101]
    The Tribunal has placed considerable weight and reliance on the evidence of Mr Rundell and Ms Mazzeo for the reason that their evidence appeared to be well considered and based on comprehensive assessments in the context of the factual background.
  15. [102]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that the applicant presents a low risk to children.
  16. [103]
    Further, the Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the respondent to issue a working with children clearance.
  17. [104]
    For all the reasons set out above:
    1. (a)
      The Tribunal is not satisfied that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act; and
    2. (b)
      It is appropriate that the Tribunal orders that the decision of the respondent that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the applicant.

Non-publication

  1. [105]
    The Tribunal may, on the application of a party to the proceeding or on its own initiative, make an order prohibiting the publication of certain information or evidence if such an order is necessary, relevantly, in the interests of justice.[47]
  2. [106]
    A child-related employment review is required to be held in private.[48] This is consistent with the sensitive nature of information often considered in such hearings and the overriding principle that the welfare and best interests of a child are paramount.[49]
  3. [107]
    In the circumstances, the Tribunal considers that it is appropriate for orders to be made that publication of the name or identifying information of the applicant, or any person associated with the applicant, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  4. [108]
    Accordingly, these reasons are to be published in a de-identified format.

Relevant Human Rights

  1. [109]
    In conducting this review, the Tribunal has:
    1. (a)
      interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights;[50]
    2. (b)
      acted and made a decision in a way that is compatible with human rights;[51] and
    3. (c)
      in making a decision, given proper consideration to relevant human rights that may be affected by the decision and considered whether the decision would be compatible with human rights.[52]
  2. [110]
    Human rights which may be affected by this child-related employment decision made under the WWC Act relevantly include:
    1. (a)
      the human rights of the applicant to ‘privacy and reputation’,[53] ‘to take part in public life’;[54] and
    2. (b)
      the human right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[55]
  1. [111]
    The Tribunal is satisfied that the Tribunal’s decision will nevertheless be compatible with human rights because it is reasonable and justifiable having regard to the matters set out in s 13(2) of the HRA. In particular, the decision will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right.[56] Further, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.

Orders

  1. [112]
    Accordingly, the Tribunal makes the following orders:
  1. The decision of the Director-General, Department of Justice and Attorney-General that DL’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of DL.
  2. Publication of the name or identifying information of DL or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

Footnotes

[1] The WWC Act has since been amended.  Pursuant to s 580 of the WWC Act, currently in force, the Tribunal is required to decide these proceedings under the WWC Act as currently in force.

[2] Pursuant to Chapter 8, Part 6, Division 2 of the WWC Act for the purpose of s 237(1)(b)(i) of the WWC Act as it was then in force: Currently s 304A of the WWC Act.

[3] Refer to definition of ‘charge’ in Schedule 7 of the WWC Act.

[4] For the purpose of s 237(1)(b)(i) of the WWC Act as it was then in force: Currently s 304A of the WWC Act.

[5] Section 221(1) and (2) of the WWC Act as it was then in force: Currently also s 221(1) and (2) of the WWC Act.

[6] WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[7] WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[8] Section 221(1) and (2) of the WWC Act as it was then in force: Currently also s 221(1) and (2) of the WWC Act.

[9] Pursuant to section 221(1) and (2) of the WWC Act as it was then in force: Currently also s 221(1) and (2) of the WWC Act.

[10] WWC Act, sch 7 (definition of ‘disqualified person’); s 17.

[11] WWC Act, s 354(1).

[12] WWC Act, s 353 (definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’).

[13] WWC Act, s 354(1).

[14] WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’); s 354.

[15] QCAT Act, s 19(a).

[16] QCAT Act, s 19(c).

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

[18] QCAT Act, s 20(2).

[19] QCAT Act, s 21.

[20] WWC Act, s 221(1).

[21] WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[22] WWC Act, s 221(2).

[23] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[24] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[25] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[26] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[27] WWC Act, s 5(b).

[28] Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[29] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[30][2008] WASCA 171, [109].

[31] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[32] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[33] Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[34] WWC Act, sch 7 (definition of ‘child-related employment decision’); s 358.

[35] WWC Act, s 360.

[36] SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [109].

[37] HRA, s 48.

[38] HRA, s 58(2).

[39] HRA, s 58(1).

[40] HRA, s 58(5).

[41] HRA, s 8, s 13.

[42] Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 3 (definitions of ‘charge’ and ‘criminal history’); and refer to s 4, s 6.

[43] WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[44] WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[45] WWC Act, sch 7 (definition of ‘conviction’).

[46] WWC Act, sch 7 (definitions of ‘disqualifying offence’ and ‘serious offence’); s 15; s 16. 

[47] QCAT Act, ss 66(1), (2) and (3).

[48] WWC Act, s 361(1).

[49] WWC Act, s 360.

[50] HRA, s 48.

[51] HRA, s 58(1).

[52] HRA, s 58(5).

[53] HRA, s 25.

[54] HRA, s 23.

[55] HRA, s 26(2).

[56] HRA, s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 61

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    21 Jan 2021

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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