GEE v Director-General, Department of Justice and Attorney-General
[2022] QCAT 260
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- GEE v Director-General, Department of Justice and Attorney-General[2022] QCAT 260
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GEE v Director-General, Department of Justice and Attorney-General[2022] QCAT 260
GEE v Director-General, Department of Justice and Attorney-General[2022] QCAT 260
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260 |
PARTIES: | GEE (applicant) v Director-General, department of justice and attorney-General (respondent) |
APPLICATION NO/S: | CML542-20 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 12 July 2022 |
HEARING DATE: | 8 April 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hemingway |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where applicant has a criminal history without any serious or disqualifying offences – with no conviction recorded – where child protection concerns – where substantiated concern for emotional harm to a child – where domestic violence concerns – where multiple child concern reports concerning the applicant – whether an exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226 Human Rights Act 2019 (Qld), s 8, s 58, s 31 Commissioner for Children and Young People and Child Guardian v Maher &Anor [2004] QCA 492 Re TAA [2006] QCST 11 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 Kent v Wilson [2000] VSC 98 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Ms J Capper |
REASONS FOR DECISION
- [1]The Applicant is aged 50 and resides in regional Queensland. Since commencing paid employment at age fifteen, she has worked in a clothing company, cleaning, retail, event management and in an audio-visual company. She is a mother to two school-aged children and two adult children. She has undertaken study for diplomas in Community Services (case management) 2016 and in a Diploma of Counselling 2017. The Applicant indicates that she requires a blue card for the practical component of her studies and to host international exchange students.
- [2]The Applicant applied for a working with children clearance and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). The Applicant was previously issued with blue cards in 2007 and 2016.
- [3]The Respondent wrote to the Applicant on the 21 October 2019 and 3 December 2019 enclosing copies of the Applicant’s police information and inviting submissions advising that the Respondent intended to issue her with a negative notice based upon the police information.
- [4]The Applicant provided the Respondent with both oral and written submissions and references in response to the correspondence.
- [5]On 7 December 2020 the Respondent issued the Applicant with a with a negative notice under the WWC Act. The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information.
- [6]On 17 December 2020, the Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the Respondent’s decision that hers was an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
- [7]The following decision and the reasons for it are published in a de-identified format as the Tribunal in these proceedings has previously so ordered.[1]
Legislative Framework
- [8]The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews the decision of the Respondent in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
- [9]The purpose of the review by this Tribunal is to consider whether the Applicant’s case constitutes an exceptional case and to produce the correct and preferable decision by way of a re-hearing.[2]
- [10]The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas related to children or who operate relevant child-related businesses.[3]
- [11]Governing this review are several legislative considerations. The chief consideration is that the welfare and best interests of children is paramount.[4] The Tribunal must apply the paramount principle in its review of the decision to issue a negative notice.
- [12]Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted.
- [13]The legislation does not define, ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.[5] The Tribunal must find an exceptional case exists if based upon all considerations, it would harm the best interests of children to issue a positive notice.
- [14]Therefore, because the Applicant has not been convicted of a serious offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case
- [15]The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities. Neither party bears the onus of proof. The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.[6]
- [16]In reaching a decision, the Tribunal must consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6 (a) of the WWC Act and any other relevant factors.
- [17]It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case.[7] This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.
- [18]The Tribunal has considered the following information:
The Material for the Applicant
- Life story 7 May 2021
- Reference Witness A dated 23 September 2021
- Reference Witness B dated 24 September 2021
- Note by Dr T dated 15 September 2021
- Written submissions 17 January 2022, 23 September 2021
The Material for the Respondent
- Reasons for Negative Notice
- Applicant’s criminal history
- Police Response
- Information from Queensland Police Service
- Material obtained from the Department of Children, Youth Justice, and Multicultural Affairs (the Department) and Toowoomba Magistrates Court
Criminal History and Circumstances of the Offending
Whether the Offence is a serious and whether it is a disqualifying offence
- [19]The Applicant has not been charged with any serious or disqualifying offences, but the Tribunal is required to consider all offences in the criminal history in determining if a person meets the eligibility criteria to work with children in regulated employment.
- [20]Section 226 of the WWC Act requires the Tribunal to consider the following mandatory matters in determining if an exceptional case exists.
Whether it is a conviction or charge
- [21]There is one charge of stealing in the Applicant’s criminal history. The Applicant is alleged to have failed to return a loaned item, the property of her then employer. No evidence was offered, the Applicant was not convicted, and the matter was finalised.
When the Offence was committed
The offence was allegedly committed on 20 October 2016. The Applicant is alleged to have retained a sno-cone maker, the property of her former employer. The complainant maintained that he had requested its return from the Applicant daily over a period of one month. The Applicant denied this and contended that she had difficulty returning it due to transport issues. No conviction resulted from the charge of stealing.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.
- [22]The alleged offence did not involve children, but the circumstances are consistent with the oral and written submissions of the Applicant which demonstrate on-going difficulties exhibited by the Applicant in resolving conflict with numerous people in her life including this employer. An adult’s conflictual approach may have the effect of normalising this conduct in a child’s impressionable mind. This aspect of the Applicant’s conduct will be discussed further in these Reasons.
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 decision.
- [23]No penalty was imposed on the Applicant.
Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWC Act and under section 138 ZG of the Disability Service Act (Qld) 2006
- [24]There are no reports or information available to the Tribunal under these provisions.
Other relevant Matters
- [25]The Respondent submits that other relevant matters of concern for the Tribunal include the Applicant’s child protection history and insight into this aspect of her case and her domestic violence history. The Tribunal accepts these factors to be relevant in this review in accordance with section 226 of the WWC Act.
Child Protection History
- [26]The Applicant has recorded history with the Department of Children, Youth Justice, and Multi-Cultural Affairs (“Child Safety”) between 2008 and 2020. The interaction with Child Safety concerned the children in the Applicant’s care. There were ten child concern reports and one intake inquiry in respect of the Applicant’s children between 2011 and 2020.
- [27]In 2008 and 2011 there was a report of an assault upon a child by the child’s father and of domestic violence between the parents in 2011. In 2011, Child Safety recorded a Child Concern Report regarding a domestic violence incident between the Applicant and the father of her children. The children were reported to be bruised and that these injuries allegedly arose from being assaulted by their father. The Applicant was present on these occasions.
- [28]Between 2012 and December 2014 there were fifteen child concern reports and four intake inquiries regarding the Applicant and her then partner. Child Safety reports included allegations of physical abuse, domestic violence, and parental conflict.
- [29]Child safety investigated these claims and in 2014, there was a substantiated instance of psychological harm found against the Applicant in respect of child Q. The Child Safety investigation was extensive, involving consultation with family, school staff, Queensland Health, police, and doctors.
- [30]Child Safety Concerns centred on the well-being of Q who was the Applicant’s stepchild. Q disclosed that he was told say someone was harming him. Q was also incorrectly told by the Applicant that he had food allergies. Independent evidence found that Q presented to agencies as cautious and weary. The finding against the Applicant was that Q was harmed to obtain vexatious allegations in a Family law conflict between his parents.
- [31]When Q was in the care of his father and the Applicant, he was found to be subjected by the Applicant to repeated police and medical examinations in the context of inter-family conflict between Q’s mother, stepfather, Q’s father, and the Applicant.
- [32]Child Safety concluded that the Applicant’s stepchild had suffered harm when in the care of the Applicant his father. Child Safety concluded that the Applicant and her partner prioritised their needs over those of the child. The Department found that the Applicant and her partner’s disregard of the emotional wellbeing of the child breached their duty to act protectively and in best interests of the child.
- [33]Child Safety based their finding of emotional harm resulting from the attempts by the Applicant to obtain vexatious disclosures to present in contested family court matters. It was established that the child was consistently subjected to medical and police inquiry and examination when in the care of the Applicant and his father. It was established that Q was told to falsely claim being hurt by his mother and stepfather. The child was incorrectly told by the Applicant that he had food allergies causing him confusion and distress shown by his weariness and being withdrawn.
- [34]Child Safety found that although the child’s father and the Applicant were willing to care for the child, they were not able to protect the child from emotional harm. The Applicant was permitted supervised contact with the child who was made subject to a one-year Child Protection Order. The Applicant and Q’s father were required to undergo appropriate child protection training.
- [35]Further Child safety concerns involving the Applicant were notified in 2017, 2019 and 2020. In 2019 and in June 2020 there were further reports of the Applicant using excessive discipline and being verbally abusive to children. The concerns in May 2019 and June 2020 concerned an allegation that the Applicant had hit a child with a wooden spoon and a belt. Child Safety information refers to other instances in the child protection history where the Applicant had used implements to discipline children. The 2020 Child Safety report was referred to Police. Child Safety recorded a Child Concern Report.
Applicant’s insight and understanding of Child protection concerns
- [36]The Respondent’s submissions state that the Applicant does not display appropriate insight or awareness into her personal responsibility for harm to a child in her care. The Respondent cites the failure of the Applicant to appreciate the seriousness of her behaviour and the need to address this behaviour, as demonstrating a lack of insight. Without insight, the Applicant is likely to persist in her behaviours of concern.
- [37]The Respondent’s submissions indicate that despite the passage of time the Applicant alleges bias by the Department, that they lied and were nasty because she challenged them. The Respondent regards these factors as concerning because children require people caring for them to have appropriate understanding and skills in working with vulnerable children such that they can work constructively with specialist agencies, such as child safety.
Domestic Violence
- [38]In 2013 the Applicant filed a Domestic violence application against her mother in whose home she resided with her children. A temporary order was made which included the three children of the Applicant in the order and their grandmother as the respondent. A further temporary order was made naming the Applicant’s mother as Respondent in 2015. The Respondent submits that the material raises significant questions regarding the Applicant’s ability to manage interpersonal conflict in a domestic setting and to protect children from exposure to it.
- [39]The Applicant is named as the Respondent against an ex-partner in a one-year Protection Order issued in February 2019. She was the aggrieved in a cross order. The allegation in the Protection Order is of threatening and intimidating behaviour by the Applicant towards the Respondent.
- [40]The material indicates that children were present when acts of alleged domestic violence were committed by the Applicant. The children were brought to the confrontation with their father by the Applicant and allowed to participate in the incident between disputing parents.
- [41]The Respondent submits that harm can be caused to children who are witness to such a conflict.[8] It is regarded as important for children to be able to rely upon adults in their life to resolve interpersonal conflict in a healthy way to protect children from psychological harm. Adults are expected to be able to regulate their behaviour and provide care and a protective environment for children in their care.
Respondent submissions
- [42]The Respondent submits that the Applicant has multiple examples in her life of unresolved conflict with others. The Respondent submits that the Applicant’s material demonstrates her belief that the refusal of a blue card is caused by the conduct of several people and entities. These people and entities have a “have a vendetta against her.” In the Applicant’s view, they include Child Safety, her former employer, and the Respondent. In her oral submissions to the Respondent, she stated as recently as 15 June 2020, that, “Docs don’t protect children, they destroy lives.”
- [43]The Respondent holds concerns about the ability of the Applicant to act protectively towards children. This is because of her child protection history and history of exposing children to domestic violence together with a lack of insight.
- [44]The Respondent contends that there is limited evidence to support the claim that the Applicant appreciates and understands the need to act protectively towards children in her care. She has been found to have psychologically harmed a child in her care by seeking to manipulate the child to obtain damaging information against an adversary in family court proceedings.
- [45]The Respondent refers to the fact of the transferability of the blue card so that it cannot be made subject to conditions. This means that if the Applicant were issued with a positive notice, she could potentially work unsupervised in child-related areas of employment
- [46]The Respondent states that the role of the Respondent is not to impose further punishment upon the Applicant, but to determine whether it is in the best interests of children for the Applicant to be given unsupervised access to work with or interact with children in activity regulated under the Act should she receive a BlueCard.
- [47]The Respondent has assessed the weight of evidence provided by the Applicant’s witnesses. The Applicant’s first witness, A, states that she is a trusted and valued friend and that she has never known the Applicant to inflict harm on others especially children. She states her understanding that the failure to grant a blue card to the Applicant arises from, “a technicality that has in no way, shape or form being relevant to the criteria as described within Queensland laws and regulations “and that she is more concerned about the behaviours of institutions who abuse power by not following laws and legislations.
- [48]The Respondent submits that this Witness is only partly informed of the child protection history of the Applicant and so her evidence should be given appropriate weight.
- [49]The Respondent submits that Witness B, states that she has supported the Applicant through difficult times and believes the Applicant understands the impact of the accusations made by Child Safety. She states that she that she has never seen ill-treatment or misconduct by the Applicant towards her children or children. Her statement includes the observation identical to witness A that the blue card was refused due to a technicality and that the issuer or others were at fault.
- [50]The Respondent contends that this witness does not assist the Applicant’s case due to her endorsement of the Applicant’s opinion that the refusal of a blue card is based on a technicality and the refusal is unjustified based on the circumstances.
- [51]Dr T’s letter is of limited value also because the details of the child protection history and finding of substantiated harm are dismissed by him as being historical. His view is that because the findings relate to past events that they are irrelevant in the review of the case by the Tribunal.
Cross examination
- [52]The Applicant was asked directly whether she had changed her views since 2014 and she stated that her views on how to protect children remained unchanged. She states that she regards herself as a strong advocate for children and protective towards them.
- [53]The Applicant stated that she did want to work with children; to be helpful to people and to be a voice for children. She claimed that she had never harmed a child despite the finding of Child Safety of substantiated psychological harm to Q.
- [54]The Applicant claimed the Child Safety’s vendetta against her was a witch hunt and that harm to Q was caused by his father not by her. She claimed that Q’s mother was psychologically abusing him. When asked, the Applicant stated that she did not seek help for the child in these circumstances as she did not have the right to take the child.
- [55]The Applicant stated that she contacted Child Safety on thirty occasions in six months. She stated that she telephoned or went in person and that her claims were valid and not vexatious.
- [56]She recounted that every time the child Q was with her and his father for contact, that he was taken to police or the doctor. She attributed this to the child’s father’s attitude which was excessive. She described the father as possibly telling Q what to say. She denied telling Q to say that someone had hurt him.
- [57]The Applicant denied the reports saying that Q had anxiety, was shy and had limited social skills. She denied reports that Q was cautious and weary. The Applicant denied that her diet was extreme and claimed that Q was allergic to salicylates. She maintained that when he was given certain food by his mother and stepfather that he became ill. She denied any ill-effects to Q caused by her.
- [58]The Applicant admitted a conflict with Q’s mother concerning Q’s ability to read. She stated that his mother removed the child from her care, “over child support”. The Applicant maintained the child was happy with her and was abused in the mother’s household and that Child Safety sided with the mother.
- [59]The Applicant admitted making recordings of the child and events. The Applicant indicated that she subscribed to a Facebook site devoted to investigation of suspected child abuse cases involving children in care. She stated that she privately recorded telephone conversations in order to report alleged abuse. She recounted a case where she recorded a conversation and then reported the people involved.
- [60]The Applicant denied the reports concerning the adult focussed nature of the games played by her with Q at supervised contact. She regarded the playing of hangman as having fun and would not concede any alternate point of view.
- [61]The Applicant continued to maintain that the Department was against her as she was “standing up for the child”. She continued to maintain that she would do this again and not be dissuaded from her objective.
- [62]The Applicant admitted that adult matters were discussed with her own children present with their father and in one instance where the children participated in the dispute between parents. She denied the allegation that she was frequently yelling in the street or banging on the door of his home in the presence of the children and neighbours. She agreed that the dispute related to a proposed change to court orders. She agreed that children were present due to her deliberate decision to expose them because the issues affected them.
- [63]She advised the Tribunal that there had been three family reports prepared in the current on-going family court proceedings. She maintained that her children’s father was refused contact either direct or indirect and that he was permitted to receive certain information such as education, health and social on a three-monthly basis.
- [64]She stated that her school-aged children were now home-schooled due to bullying. She said that if the decision of the Tribunal was negative to her that she would just not go out.
Applicant’s Submissions
- [65]The Applicant provided written submissions including a life story dated 7 May 2021. She describes her early life as being in Victoria until Year six at Primary school and that she moved to Queensland to complete year seven. She states that the education system differed from that in Victoria. She completed year ten at R high school. Prior to that she claims sexual abuse at age twelve in 1984.
- [66]She states that she commenced work at age fifteen.
- [67]The Applicant states that she met her first husband W in 1989. They married in 1990 and had one child. They separated but then re-partnered and had another child. They divorced in 2001. W is now deceased due to his suicide.
- [68]The Applicant had a further relationship between 2000 and 2003. The Applicant ended the relationship due to domestic violence and moved to the Gold Coast where she lived with her parents and worked in cleaning and retail at the Gold Coast.
- [69]The Applicant met and married a third partner in 2006. A further child was born in 2006 and another in 2009. She separated from the father of these children in 2009. She states the relationship had domestic violence. She married R in 2014. This was brief marriage again involving domestic violence.
- [70]The Applicant states that she was wrongfully accused by Child Safety of coaxing Q to assist with the custody dispute between R and his former partner. She regards her conduct to this child Q as being protective because she believed her actions were appropriate care for a child.
- [71]The Applicant regards the substantiation of harm to Q as being biased as the Department was friendly with the Q’s mother.
- [72]The Applicant admits discussing the family court proceedings with Q and recording him. She states that he was coaxed by his mother, not by her.
- [73]The Applicant states that she observed harm to the child when he came to her for a for a visit and had bruises on his torso which were (in her view) deliberately concealed by the clothing he was wearing.
- [74]The Applicant further states that the Department unfairly refused permission for Q to participate in a party she had organised for him.
- [75]The Applicant states that she believed the Department lied regarding issues related to her care of Q. The Applicant admitted to “having lots of recordings” at paragraph 28 of her statement.
- [76]The Applicant described her education as including a Diploma of Community Services (Case Management) and Diploma of Counselling. She states that at this time in 2015, she received a blue card so does not understand why she is refused a card now.
- [77]The Applicant states that she commenced study towards a Diploma of Counselling and requires her blue card to complete this. Her stated goal is to work with adults not children; but that she requires her blue card to enable her to have exchange students reside with her and her children.
- [78]In 2016, there was a series of conflicts in her then workplace culminating in her dismissal. In response to the dismissal, she filed an unfair dismissal claim against this employer. The claim details are attached to her submission.
- [79]In her submission, the Applicant names many individuals she believes are more culpable of child abuse or criminal actions but who are still eligible to work with children. She regards this as unfair as she regards herself as innocent.
- [80]Her final statement is that she, “hopes this helps BlueCard finally to act on real abusers etc that should not have blue cards instead of innocent people like myself.”.
Consideration of the Evidence – Risk and Protective Factors
- [81]The Applicant is a person of mature age who has completed further education after leaving school at year 10. She is mother to two adult children and is a grandmother. She has two school aged children in her care. The Applicant maintains a close relationship with her adult children and is attempting to obtain further educational qualifications. These are protective factors for the Applicant.
- [82]These reasons do not seek to excuse any domestic violence towards the Applicant where she is or was the victim.
- [83]The Applicant’s candid personal story contains numerous examples of traumatic and turbulent events. The affidavit material accompanying the multiple protection order applications are distressing to read. They show violent verbal and physical arguments between multiple people in the Applicant’s life in a domestic setting where children were present.
- [84]Repeated traumatic experiences are of concern for a person seeking to work in child- related employment because of their potential to impact the ability of the Applicant to provide the appropriate standard of protective care for children because of their own internalised experiences of harm.
- [85]The Applicant’s life story shows on-going unresolved conflict in interpersonal relationships including with her mother, partners, children, other adults, an employer, and the Department. High conflict behaviour together with limited insight by a caregiver represents a risk factor.
- [86]The Tribunal is concerned at the role of the Applicant in exposing children to domestic violence, to recording and photographing them, to incorrectly manipulating their attitude to food, to repeatedly taking them to police and doctors for examination, to repeatedly reporting that a child was harmed and to discussing adult issues with children. This conduct is a significant risk factor for children.
- [87]The Applicant maintains that she completed additional training in the human services area. This included a Diploma in Community Services (Case management) in 2015 and a Diploma in Counselling in 2017. The Applicant states that her purpose for undertaking a course of study was related to the ‘neglect from the Child Safety Department where her stepson was concerned’ and that she believed she was misled into the belief that this would help her, ‘into the Department’.
- [88]Further education would be expected to provide future employment opportunities and to be a protective factor. Her further education does not appear to have been applied. It has not resulted in the development of any protective strategies or skills to help a positive engagement with children in her care. The Applicant displays an unalterable conviction that hers is the correct approach even in the face of a finding that she was the cause, in part at least of psychological harm to a child. The Tribunal rejects the assertion that the findings of the Child Safety investigation were the result of bias.
- [89]The Applicant stated that she is home-schooling her children who reside with her. They are a girl aged fifteen and a boy aged thirteen. The home-schooling is in response to bullying of her children in mainstream schooling. The Applicant advises that her two school-aged children have diagnoses of PTSD, depression, and anxiety. Her daughter aged fifteen is medicated for PTSD. They see a therapist.
- [90]The Tribunal notes a demanding set of circumstances for the Applicant as a sole parent involved in protracted family law disputation regarding high needs children. A risk factor is the Applicant’s oppositional approach to her current circumstances. This is reinforced by her rejection of the authority of agencies such as child safety, whom she and believes to be victimising her.
- [91]The Applicant appears to reject the help and assistance of agencies put in place to assist families such as hers; regarding them with suspicion and not trust. Modelling this kind of attitude to children amplifies the risk for children who require role models able to work within recognised boundaries.
- [92]The Applicant referred in her evidence to the children’s father as a paedophile. She agreed that if a matter concerned the children, she would take them to the father’s address to speak with him in their presence about an adult matter. She denied yelling in the street or bashing on his door. The conversations which, in her view, affect the children include a change of name, changeover arrangements, general chit chat. The Applicant does not demonstrate any insight into how her on-going disputation with the children’s father and denigration of him has potential to negatively impact the children. The Applicant does not assess the risk benefits to children in taking a particular course of action. Unfortunately, her actions in deliberately exposing children to intractable parental conflict is a risk factor.
- [93]A further risk factor is the lack of independent social supports for the Applicant and children together with a mistrust of child protection authorities. Strangely, the Applicant appeared to identify most strongly with Witness A, a person she has never met in person. The evidence was that the bond between them arises from a mutual enterprise of seeking out wrongdoing in a child protection context, secretly recording alleged malfeasance and then publicising it to denigrate the actions of the parties and the relevant Department of Child Safety. The Applicant continues to assert that this conduct is justified.
Dr T provided a handwritten note dated 15 September 2021. He was not available for cross examination. He stated that he believes that the Applicant has good insight into the behaviours of concern but disagrees with the validity of the concerns. He further supports the views of the Applicant that the concerns are not relevant as the Applicant has no contact with the individuals concerned and does not intend to have contact with these individuals.
Witness B says that the Applicant is a close friend and that they have supported each other through difficult times. She states that the Applicant understands the concerns and allegations but that she has never witnessed any mistreatment or misconduct by the Applicant.
Both Witness A and B regard the negative notice as issued due to a technicality that is not relevant to the criteria stated in the Queensland laws and regulations and eligibility to hold a blue card.
- [94]It was clear that the witnesses were unaware of the detail of the child protection history of the Applicant and in any event, they share the Applicant’s mistrust of the child safety regime. The views expressed by the witnesses served only to reinforce the opinions of the Applicant as the wronged party and that her treatment of children is justified and appropriate. The Applicant shows little understanding of the need for empathy in caring for children and appears to see her own perspective of events and little else.
- [95]A risk factor was the propensity of the Applicant to blame others and fail to accept any responsibility even when a finding of psychological harm was made against her and Q’s father. The Applicant claims that Q’s father was at fault and that she was blameless. In Q’s case he came from a home life of high conflict between his biological parents and stepparents and so was already vulnerable. His subsequent exposure to more trauma when in the care of the Applicant remains a significant concern regarding the capacity of the Applicant to understand and take this into account.
- [96]The Applicant stated in cross examination that even if Q was harmed, the harm he suffered was not caused by her but by his father. She took no action to act protect Q even though she states she thought Q’s father’s actions were excessive. The Applicant continued to maintain in cross -examination that her conduct was not harmful but protective, stating that she would not be dissuaded from her opinion that she was protecting Q, despite compelling evidence to the contrary. These behaviours by the Applicant elevate the concerns of the Tribunal in the review.
- [97]The Respondent refers to the decision in Re TAA[9] which describes the value of insight into the harm caused by the offending as being evidence of a protective factor, as follows:
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.
- [98]The Tribunal accepts the view that it is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[10] The Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[11]
- [99]In this instance, the Tribunal is of the view that the Applicant’s direct actions and views have had a negative impact on children, particularly Q and that this is compounded by her insistence that she is blameless and acting appropriately. Not only is there an absence of any insight but an insistence that her conduct is the correct approach, and any contrary view is wrong and to be opposed because it represents a personal attack upon her.
- [100]The Tribunal is satisfied that her claim of being victimised by child safety is not established on the evidence.
- [101]The Applicant states that she is seeking obtain a blue card for her education pursuits and to enable her to have exchange students reside with her and her children. However, the effect of issuing the Applicant’s blue card is that the Applicant can work in any child related employment or conduct any child–related business regulated by the Act, not just for the purpose for which the Applicant states she seek the card.
- [102]A blue card is not issued subject to conditions and so it is fully transferable across all areas of regulated employment and business. The Applicant could seek and be employed to care for children in regulated employment irrespective of her initial stated intention.[12]
Human Rights Act
- [103]The Tribunal is obliged to interpret relevant legislation in a way that that is compatible with human rights.[13]
- [104]
- [105]The human rights of the Applicant are to be balanced with the human rights of children. The child’s rights are referred to in section 26(2) of the Act.[16]
- [106]The focus in section 26(2) is on the child’s interests because they are a child. Children are a more vulnerable section of the community. Taken with section 6 of the WWC Act the rights of the child remain the paramount consideration and must outweigh any limitation on the human rights of the Applicant such as a right to obtain certain employment or an entitlement to a particular education.
- [107]The Tribunal has turned it mind to these rights which may be abrogated in a decision to deny the Applicant a blue card. The Tribunal finds that the balance is in favour of the rights of the child because of the paramount principle and the Human Rights Act and the fact that the finding must be in favour of the human rights of the child over the adult Applicant’s right to work in chosen employment or to engage in certain educational pursuits.
The Tribunal findings and decision
- [108]The Tribunal must produce the correct and preferable decision in this review. The standard of proof required is that the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
- [109]The Tribunal finds that the Applicant’s significant history of child protection concerns and one substantiated instance of psychological harm to a child indicate an ongoing failure to appreciate and to prioritise the wellbeing of children. She has actively exposed children to domestic violence and consistently involved them in adult conflicts prioritising her desires over their needs.
- [110]The Tribunal finds a consistent pattern of minimisation by the Applicant of her role in the interpersonal conflicts in which she is engaged over an extended period and the impact of this high-level disputation and trauma on children in her care.
- [111]The Applicant struggles with the complexities of resolving adult concerns. The conflicts are perpetual, though those in the conflict may change. This pattern remains unchanged even when she was asked in the hearing to reflect and consider other options for conflict resolution. Her stated preference demonstrated in her conduct is to engage emergency services such as police, or the courts as a first option.
- [112]Whether her perspective arises from past personal trauma is not relevant for the Tribunal in this review though the Tribunal has considered this aspect. It does not alter the obligation of the Tribunal to prioritise the rights of children over any personal troubles of the Applicant.
- [113]The Applicant attempts to justify her actions by citing wrongdoing by other people, naming them and their offence. This strategy reinforces the Tribunal’s assessment that the Applicant is unable to accept personal responsibility or to acknowledge her personal responsibility to place the child’s rights above her own compulsions. The Tribunal finds that the Applicant does not appreciate the negative effects on children of her actions in continued disputation.
- [114]The Applicant admits recording children, whether this is in their interests does not appear to concern her because the purpose of the recording is to serve her interests and objectives. This is a fundamental issue for the Tribunal who finds the Applicant’s prioritisation of her own objectives over the needs of children and continuing absence of insight into the significance of this to be the central reason why she should not receive a blue card.
- [115]The Tribunal finds that the Applicant is unlikely to assist vulnerable children to access proper agencies such as child safety, in the future as she holds such a personal mistrust of them.
- [116]The witnesses for the Applicant share the same view as the Applicant. They have a limited amount of information and are not aware of the finding of substantiated harm against the Applicant. In any event they reinforce the view of the Applicant that she has been wronged by a corrupt system. The Tribunal finds that this network of supporters would not enhance the position of the Applicant to allay Tribunal concerns as they simply reinforce the views of the Applicant.
- [117]Unfortunately, despite interventions by the Child Safety, training and study and the passage of time, the Applicant has not developed appropriate understanding or insight into how her conduct has contributed to negative outcomes for children in her care. She simply rejects the findings of harm and claims bias.
- [118]The Tribunal finds no significant evidence concerning the ability of the Applicant to provide a nurturing and protective environment for children generally. Her responses to stressful life events show a lack of understanding and reflection and an absence of changed strategies to resolve interpersonal conflict.
- [119]The Applicant’s most recent notification to Child Safety in May 2020 alleged that the Applicant had hit a child twice with a belt indicating recent and on-going struggles managing her personal circumstances.
- [120]The Applicant does not work with children but wishes to comply with the practical components of her course of study and to once again have exchange students living with her and so she requires a blue card.
- [121]The Applicant continues to obfuscate and minimise her own responsibility for the numerous and on-going conflicts. The Tribunal finds the Applicant to be highly motivated but misguided in her approach to the needs of children. It is these features and the totality of the evidence which make this case exceptional. I am satisfied to the relevant standard of proof that this is an exceptional case, and it is not in the best interests of children to alter the original decision of the Respondent.
Order
- [122]The Decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
- [123]Pursuant to section 66(1) of the Queensland Civil and Administrative tribunal Act 2009, the publication of
- (a)the contents of a document or thing filed in or produced to the Tribunal.
- (b)evidence given before the Tribunal; and
- (c)any order made, or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.
- (a)
Footnotes
[1] Direction made 26 October 2021 pursuant to section 66(1) of the QCAT Act.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (2).
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[4] Ibid, s 6(a).
[5] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
[7] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).
[8] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 (61).
[9] Re TAA [2006] QCST 11, [97].
[10] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].
[11] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).
[12] Commissioner for Children and Young people and Child Guardian v Ram [2014] QCATA 24.
[13] Human Rights Act 2019 (Qld), s 48(2).
[14] Human Rights Act 2019 (Qld), s 13.
[15] Human Rights Act 2019 (Qld), s 13(2).
[16] Human Rights Act 2019 (Qld), 26(2).