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MJD v Director General, Department of Justice and Attorney General[2023] QCAT 210

MJD v Director General, Department of Justice and Attorney General[2023] QCAT 210

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MJD v Director General, Department of Justice and Attorney General [2023] QCAT 210

PARTIES:

mjd

(applicant)

v

Director General, Departmentof Justice and Attorney general

(respondent)

APPLICATION NO/S:

CML212-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 May 2023

HEARING DATE:

16 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Hemingway

ORDERS:

  1. The decision of the Director General, Department of Justice and Attorney General that MJD’s case is exceptional within the meaning of the Working with Children (Risk management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the name or identifying information of MJD or any person associated with her, other than to the parties of the proceedings is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – negative notice – where applicant has no charges or convictions–where multiple historical investigations of alleged harm to a child–where substantiated and unsubstantiated allegations-allegation of sexualised behaviours of some children, where children diagnosed with foetal alcohol syndrome, whether an exceptional case exists

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 (61)

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

RA and RJ v Director-General , Department of Justice and Attorney-General [2018] QCAT 95 [64]

CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26

KTG v Director-General, Department of Justice and Attorney-General [2022] QCAT 157

CA v Director-General, Department of justice and Attorney-General [2022] QCAT 305

Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51

STR v Director-General. Department of Justice and Attorney-General [2022] QCAT 69

APPEARANCES &

REPRESEMTATION

 

Applicant:

Self -represented

Respondent:

Catherine Davis

REASONS FOR DECISION

Background

  1. [1]
    The Applicant was a long-term foster carer for which she held approval and a blue card. She requires a bluecard for this role. She was issued with a bluecard (now referred to as a working with children clearance) on several dates between 2003 and 2017.
  2. [2]
    The Respondent was notified on the 29 October 2019 that the Applicant had been subject to certain disciplinary action by the Department of Communities, Child Safety and Disability Services (“the Department”) regarding her conduct as a foster carer. 
  3. [3]
    The Applicant was given the opportunity to make submissions as to why her blue card should not be cancelled. Her submissions and the further information was assessed by the Respondent.  
  4. [4]
    On the 29 May 2020, the Respondent Director General, Department of Justice and Attorney General pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“WWC Act)”, cancelled her positive notice for working with children (bluecard).
  5. [5]
    The Respondent has provided the Applicant with Reasons for the Decision to issue a negative notice and relevant review information.
  6. [6]
    The Applicant applied to the Queensland Civil and Administrative Tribunal for a review of this reviewable decision on the 8 June 2020.

Legislative Framework

  1. [7]
    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”). 
  2. [8]
    The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.[1] The Review is made by way of a fresh hearing on the merits of the case.
  3. [9]
    In undertaking the Review, the Tribunal considers the objects of the WWC Act which is to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant child related businesses. [2]
  4. [10]
    The chief consideration in this review is that the welfare and best interests of children is the paramount consideration.[3] The Tribunal must apply the paramount principle in its review of the decision to issue a negative notice.
  5. [11]
    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.
  6. [12]
    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.[4] 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 allowing the holder an unfettered right to work with children in any capacity.
  7. [13]
    Therefore, because the Applicant has not been convicted of a serious offence or disqualifying offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case.
  8. [14]
    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.[5]
  1. [15]
    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. Sections 226 (2) and section 228(2) are relevant mandatory considerations in these proceedings as the Respondent considered both police information and disciplinary information about the Applicant.
  2. [16]
    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. [6]This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.

Documents relied upon by Applicant

  1. (a)
    Life story undated
  2. (b)
    Affidavit of the Applicant sworn 27 November 2020
  3. (c)
    Joint statement by MJD and her co-carer LK 21 May 2021
  4. (d)
    Statement of RT 31 January 2020
  5. (e)
    Social Assessment Report by K dated 30 October 2020
  6. (f)
    Statement of former Daughter in law Q of the applicant dated 2 November 2020
  7. (g)
    Statement of the Applicant’s son FG
  8. (h)
    Affidavit of M, one of the foster children sworn 21 May 2001
  9. (i)
    Affidavits of the Applicant’s daughter T dated 27 November 2020 and 21 May 2021

Documents relied upon by Respondent

  1. (a)
    The Applicant’s criminal history
  1. (b)
    A police report (Police brief of facts)
  2. (c)
    Letter dated 3 December 2019 -providing particulars of the disciplinary action against the Applicant
  3. (d)
    Numerous child protection material referred to as NTP 1-233
  1. [17]
    In addition, the Respondent relied upon its submissions made in the course of the hearing.
  2. [18]
    Sections 226 (2) and section 228(2) are relevant mandatory considerations in these proceedings as the Respondent considered both police information and disciplinary information about the Applicant. There are therefore two sets of mandatory considerations to be considered by the Tribunal. The information forming the mandatory considerations is considered as follows.
  3. [19]
    The Applicant has been convicted of an offence. Conviction is defined in section the WWC Act in schedule 7. The Applicant has been convicted of the offence of unauthorised dealing with shop goods (maximum of $150). This was committed on the 17 February 2016. There are no further charges or convictions. The offending was not relevant to children or working with them per se. Relevantly, the police brief of facts states that the Applicant concealed two items of clothing on her person having tried on several items and purchased one item and left the store without paying for the other items.

She denied this when questioned by an employee of the store. She was later contacted by police and was shown CCTV footage of the incident. She admitted stealing the two items. She explained her situation as being that she was under a great deal of stress due to recent contact with a relative who had abused her as a child and was not thinking straight at the time. The Applicant was convicted of the offence and not further punished for the offending. No conviction was recorded.

Whether the Offence is a serious and whether it is a disqualifying offence

  1. [20]
    The Applicant has not been charged with or convicted of any serious or disqualifying offences.

Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWCAct and under section 138 ZG of the Disability Service Act (Qld) 2006

  1. [21]
    There are no reports or information available to the Tribunal under these provisions.

S 228 (2) WWC Act

The decision of the decision maker relating to the disciplinary information and the reasons for the decision or Order

  1. [22]
    The Applicant was approved as a general foster carer in 2004. Her husband was approved with her. Three children were placed with them in 2004, 2006, 2011.  Child E was removed in 2014 due to the Applicants not being able to manage four children in the view of the Department.
  2. [23]
    Between 2004 and 2018 the Applicant MJD and her husband LK were subject to six standards of care review, of which, four resulted in in identified breaches of the Standards of Care[7]  and three were recorded as harm reports.
  3. [24]
    Consequently, the Applicant’s general foster carer approval for the period September 2014 to March 2015 was not approved. The Applicant and her husband were then assessed as kinship carers for the three children placed long term in their care on 15 March 2015.
  4. [25]
    A Standards of Care review on 29 August 2018 resulted in the removal of the children  M, R and Y on 28 September 2018.
  5. [26]
    A suitability assessment initiated by the Department regarding the Applicant’s ability to remain approved for kinship care occurred in September 2018 and the report of the specialist recommended that no further children be placed in her care and that their certificate of approval as kinship carers be cancelled. 
  6. [27]
    The details of the Departmental inquiries are that on 12 November 2018 a substantiated Harm report found that the standards were not met in two respects:
    1. (a)
      The Applicant had breached the statement of the standards in relation to the three children in her care and;
    2. (b)
      That the Applicant was responsible for emotional harm and risk of physical harm to the three children;
  1. [28]
    On 19 March 2019 the Applicant’s approval as kinship carers was refused on the basis of risk of harm to the children’s safety and that the Applicant and her husband were not suitable to be approved as kinship carers resulting in the cancellation of their certificate of approval as kinship carers.
  1. [29]
    Concerns about the Applicant and her husband forming the basis of the decision were:
    1. (a)
      The use of physical discipline to manage behaviours;
    2. (b)
      Verbal abuse towards the children, swearing at them and calling them derogatory names;
    3. (c)
      Use of threatening, intimidating and bullying tactics to manage a child’s behaviours such as grabbing a child by the throat;
    4. (d)
      Failing to work with the Department and support services;
    5. (e)
      Failing to improve standards of care despite opportunities to do so;
    6. (f)
      Lack of insight and failure to accept the seriousness of child protection concerns and an inability to demonstrate suitability to care for the children.

Any decision or order regarding a review of or appeal against the decision or order and the reasons for the decision of order.   

  1. [30]
    There is no information in this regard.

Length of time since the event of conduct

  1. [31]
    The disciplinary information relates to conduct of the Applicant and her husband in the period 2013-2018.

Relevance to employment, or carrying on a business, that involves or may involve children

  1. [32]
    The disciplinary action relates specifically to a person employed as a carer to care for children, so it is directly relevant to employment related to the welfare of children.

Respondent’s case

  1. [33]
    The Respondent contends that the facts indicate that the Applicant’s behaviour overall raises concerns about her capacity to exercise restraint and self-control and sound judgment, to regulate her emotions and control her impulses and to protect children from harm.
  2. [34]
    The Respondent contends that the Applicant does not display insight or the capacity to reflect upon strategies which are unsuccessful and inappropriate in managing behaviours of children in her care when these are brought to her attention.  There is limited evidence of her capacity to learn from past failings and change her behaviour accordingly.
  3. [35]
    A Specialist Assessment report in 2018 considered that the behaviour of the Applicant indicated that it was highly probable that she resorted to inappropriate measures to manage children’s behaviour. The Respondent states that a concern is the fact that despite intensive support that she remained resistant to change and to be unlikely to meet the standards of care for children in the future.
  4. [36]
    The Applicant agreed in or about 2017 that she is easily triggered. She is noted to have volatility towards another person.
  5. [37]
    In the 2018 Specialist Assessment report it was noted that stakeholders reported that the Applicant is easy to escalate when challenged or questioned about her care of children. The Respondent contends that this raises a concern that the children could easily escalate her.
  6. [38]
    In 2018, Life without Barriers staff also reported that she was very quick to escalate and that she avoided interviews when her husband was not present as he intervened when the Applicant became a little heated. Again in this Interview in regard to the conduct towards the assessor in 2018, the Applicant was said to be standing over the Assessor and raising her voice.
  7. [39]
    A further issue of concern was the denial by the Applicant of allegations by children categorising them as making things up. The material demonstrates concerns by the Applicant reflected in the views of the children, that they must not report any of their issues or worries or the Applicant may go to jail. Following removal, the children were contacted repeatedly by the Applicant by text or phone calls. The material also shows that the Applicant discontinued supports for herself or the children where it did not accord with her views, and she was challenged.
  8. [40]
    The Assessor reported that the children’s views appear to be affected by the carers who have influenced the children to mistrust the Department. There appeared to be a perception of the secrecy in the household and that there was evidence the children were coached on how to respond when interviewed by the Department or Child Safety staff.
  9. [41]
    The Financial motivation of the Applicant to continue fostering is also reported upon in the review. The Departmental file indicates that the Applicant made numerous requests for additional financial assistance and declined some appointments for the children on the basis of financial pressure. 
  10. [42]
    The Respondent refers to several cases in support of its argument.
  11. [43]
    They cite the case of RA and RJ, a decision in 2018 where the Tribunal restated the role of foster carers as having a position of trust and of being stand-in parents who must act in accordance with the Standards of Care set out in section 122 of the Child Protection Act 1999.[8]
  12. [44]
    The case of CEB[9] is also cited and is a case where the particular vulnerability of children in care is considered. The Tribunal considered that the standard of care is higher than any parent as these children had experienced considerable trauma being the reason they were in care.
  13. [45]
    The Respondent further cites the case of KTG[10]  in which the Tribunal found that the standard of vigilance expected of the Applicant in that case was even higher in view of the children’s disabilities and the fact that they had been placed in care after removal from their immediate family.
  14. [46]
    The Respondent contends that as a foster carer the Applicant was in a formal position of trust and had a direct responsibility to protect and safeguard the wellbeing of children in her care. 
  15. [47]
    The Respondent submits that the material discloses several instances of the Applicant displaying poor self-control. In either 2014 or 2015, the Applicant is stated to have slammed her phone down on a table and screamed at staff” during a Standards of Care Review meeting. This is referred to in material produced under a notice to produce direction by the Tribunal and is included at NTP 229 as a notified concerns entry made the 22 November 2017.
  16. [48]
    The Respondent cross examined the Applicant on this incident, and she responded that yes she probably did do that but that children were not present at the time and being accused of something she had not done would have made her angry and mad.
  17. [49]
    The Respondent put these instances of loss of control to the Applicant in cross examination, but she denied further instances.
  18. [50]
    The Respondent submits that the Applicant also denied that she was given intensive support or had made insufficient progress or was resistant to change.
  19. [51]
    The Respondent notes that the main issue in the Applicant’s view was the refusal of the Department to acknowledge that the children were not normal children and that had they had a diagnosis of FASD. She contends that everything would have been different if this had been established at an earlier point. Her principal argument was not her inadequacy but that she did not have support for the strategies needed for children with a FASD diagnosis.
  20. [52]
    However, the Respondent submits that the instances of her appearing to escalate quickly, or lose control occurred at times when children were not present and so presented no relevant challenge to her argument as the children were not present when her behaviour was dysregulated.
  21. [53]
    The Respondent contends that the Applicant’s blanket denial of all allegations put to her reflects poorly on her understanding of her role and her ability to create a safe and protective environment for children.
  22. [54]
    The Respondent argues that that allegations and findings are relevant to and reflect adversely upon an evaluation of the Applicant’s eligibility to work with children and young people for the following reasons:
    1. (a)
      The Act is to be administered in a way that protects children from harm including protecting them from any detrimental effects on a child’s psychological or emotional well-being.
    2. (b)
      The allegations and findings raise questions about the Applicant’s treatment of and behaviour towards other adults and suggest a potential for similar behaviours towards children and young people. Children have a right to be protected from such behaviour and to have appropriate modelling of appropriate behaviour to them.
    3. (c)
      The decision in CA reflects upon the propensity of aggression in a person seeking to work with children and that this is inappropriate due to the potential affects upon a child where this conduct is normalised.[11]
    4. (d)
      The Respondent reiterates that proposition that the material before the Tribunal: “raises questions about the Applicant’s ability to act protectively of children and young people and about the extent to which the Applicant has taken seriously his responsibilities in carrying out a child related business”.
    5. (e)
      The Applicant breached his position of trust responsibility and authority.
    6. (f)
      There are concerns about the Applicant’s ability to present a positive role model to children and young people.
  23. [55]
    The Respondent contends that the Tribunal should have regard to allegations (substantiated or unsubstantiated) even if it did not lead to a criminal charge or amount to reportable conduct. The Respondent contends that the decisions in PML and Lister No 2 support this conclusion. 
  24. [56]
    PML is a decision of the Appeal tribunal of the Queensland Civil and Administrative Tribunal which found that a failure to take into account some material consideration is an error of law”.[12]
  25. [57]
    Regarding untested allegations in Lister no 2, the Appeal Tribunal of the Queensland Civil and Administrative Tribunal established that these allegations are relevant and must be accorded appropriate weight.[13] The Tribunal is not required to make findings of fact regarding all untested allegations and uncontested evidence. But the review tribunal must accord them appropriate weight in a consideration of whether the presumption in section 221 of the WWC Act is rebutted and the circumstances give rise to an exceptional case.

Applicant’s case

  1. [58]
    The Applicant states she has been a foster carer for almost 18 years from 2004-2018 and has cared for 38 children and raised her own children all of whom graduated from year 12 and have full time employment. She states that she has cared for a number of nieces and nephews.
  2. [59]
    The Applicant states that her late mother’s evidence was that she did not discipline the children or swear at them and that she disciplined them by the removal of comfort items. She states that the late Mrs A’s evidence should be accepted in its entirety. 
  3. [60]
    The Applicant agrees that she did not work with the Department because they would not listen to her.
  4. [61]
    She states that the children were well cared for with good food, clothes and education.
  1. [62]
    Child R born 2008, Child M Born 2004, Child Y born 2010 and Child E born 2007 were placed with her. Children R, M and Y were removed by the Department in August 2018. Child E was removed in 2014 due to the Applicants not being able to manage four children in the view of the Department.
  1. [63]
    The Applicant contends that the Department indicated that the children were to be returned to her, but they were not, and she states that this shows the inconsistent statements and decisions of the Department.
  2. [64]
    Child M is the eldest of the children and she self-placed with the Applicant. The Applicant contends that the Department agreed to reinstate the Applicant and her husband’s kinship care status so that child M could remain with them, but that this did not occur. The Applicant also submits Child M continued to state that the allegations against the Applicant and her husband were untrue. The Applicant also submits that all of the children wished to return home.
  3. [65]
    The Applicant states that there was no corroborating evidence of the claims that they had hit child Y who had a diagnosis of FASD causing him to make up stories. The Applicant states that there is no evidence to support the view that Child Y was afraid of the Applicant. The Applicant contends that child Y indicated that he loved her.
  4. [66]
    The Applicant contends that it was the Department who had difficulty with the children and used threatening behaviour. For example, she contends that the Department stated that if Child M went to live with the Applicant that she would not be able to have contact with child Y.
  5. [67]
    The Applicant contends that after removal the children stated that they wished to return to the care of the Applicant. She states that the children were harmed after removal from her care. There is a claim that Child R indicated that she was raped whilst out of the care of the Applicant. This is reported in the Social Assessment report.[14]
  6. [68]
    The Applicant asserts that the children in her care were treated as family and she gives high priority to this factor. Child M was placed with them at 3 weeks of age. Child R was placed with the Applicant when she was 7 weeks in 2008 and Child Y when he was 7 weeks old. Child E stayed with the Applicant until she was 7.
  7. [69]
    The Applicant contends that prior to removal neither the Applicant, nor the schools were interviewed by the Department, apart from Child R’s year 6 teacher. The Applicant contends that this proves that there were no concerns about her care expressed by the children’s schools. This she states goes to the issue of independent observations of her care. The Applicant cites the good performance at school as evidence that home life was satisfactory.
  8. [70]
    The Applicant describes that the original removal of the children as a mess and she contends that the K’s report states that harm was caused to children in the Applicant’s care but not that she caused the harm.
  9. [71]
    Rather the Applicant’s position is that the Department caused the harm by failure to diagnose the FASD in two children which diagnosis caused the harm contributing to behaviours. She states that she was not trained to manage these behaviours.
  10. [72]
    The Applicant contends that there is no physical evidence to support the Department’s allegations of harm, such as bruising or witnesses or inconsistency of story.
  11. [73]
    The Applicant dismisses the fact of the child being harmed by the child becoming aware of the sexual assault of the Applicant by a relative. The Applicant stated that it is common for children to overhear and misinterpret adult conversation in a household and that this is excusable. 
  12. [74]
    The Applicant states that the Child Protection Act does not preclude physical discipline and that she has never been charged by police. Regarding allegations of physical abuse of the children, the Applicant relies upon the evidence of her daughter who says the allegations of physical abuse by the Applicant of the children is untrue. The Applicant denies verbal abuse and states that child M supports her version. 
  13. [75]
    The Applicant submits that her shop stealing offence was trivial and should not weigh in the decision.
  14. [76]
    The Applicant refers to the views of the biological family of the children R and Y who approve the Applicant as a competent carer.
  15. [77]
    Regarding the allegation of failing to work with the Department, the Applicant states that the Department had many faults and rejected her opinion. She alleges poor communication between herself and the Departmental staff. The Applicant states that the Department got many things wrong and refused to assist with services and support for FASD (Foetal Alcohol Syndrome Diagnosed) children.
  16. [78]
    The Applicant denies that she failed to attend required training and states that she did attend most training though missed some sessions.
  17. [79]
    The Applicant denies the claim that she lacked insight and states that it was the Department who failed in his regard. The Applicant denies the children’s accounts of events and states that she knows the children better than the Department. One CSO indicated that the Applicant did not engage with support Services, but the Applicant responded with a question as to whether this was prior to, or after removal as her response.
  18. [80]
    The Applicant submits that all Services were trying to get them to manage normal children, which they were not. The Applicant makes a distinction between trauma and brain damage and that the type of impairment would indicate how the behaviours were to be managed. Her evidence is that the Applicant and her daughter sought out a paediatrician at the Gold Coast who diagnosed the children with FASD and stated in the Applicant’s view that they were not poor parents.
  19. [81]
    The Applicant describes various confrontations between herself, the children and the Department. One such exchange lasted several hours when child M refused to handover child Y and another occasion when child M refused a particular placement. It is understood that the confrontation commenced in a moving vehicle and where child M contacted the Applicant by phone. Child M was resisting compliance with the placement decision of the Department. The Applicant intervened and contacted a relative of child M to resist and change the Departmental decision.  She regards this as proof of incorrect decisions by the Department because the children resisted the Department’s directions.
  20. [82]
    The Applicant submits that the actions of the Department were inconsistent. At times they tried to replace the same children with them, despite concerns expressed concerning the standard of care provided by the Applicant. 
  21. [83]
    The Applicant submits that Child Y “told people what they wanted to hear”. It is submitted by the Applicant that children told lies and were unreliable as to events due to their undiagnosed impairments.
  22. [84]
    The Applicant denies allegations regarding her conduct towards the children. She denies any yelling, except in circumstances where it would be justified for example to summon a child; swearing or excessive and repetitive physical punishment. She denied grabbing a child by the throat. She also denied any favouritism amongst the children. She denied any name calling.
  23. [85]
    These issues were put to the Applicant in cross-examination and she continued to maintain that all allegations were untrue. She stated that she did not accept the opinions of third parties concerning her insight into the standard of care required for children. She denied that her care impacted the children negatively.
  24. [86]
    The Applicant states that the Department were not reasonable in their approach to herself and partner and that they were blamed for poor parenting and failure to address the concerns raised with them. They are distrustful of the Department and the decisions concerning the children. The Applicant asserts that the Department refused to obtain medical advice concerning the diagnosis of FASD in two of the children.  She maintains that she was entitled to mistrust the Department.
  25. [87]
    The Applicant asserts that the children with whom they experienced the most difficulty had diagnoses that affected their behaviours; namely Foetal Alcohol Syndrome. The Applicant maintains that the children were not ‘normal children’ and that she and her husband were not equipped and supported by the Department to manage the behaviours of children with this diagnosis.
  26. [88]
    The Applicant relies upon her record of caring for 38 children in her time as a foster or kinship carer. She states that in a very small percentage of cases of the 38 (namely regarding the removed children) were there Departmental concerns about her standards of care of the children.
  27. [89]
    She denies coaching the children to not report events at home or Mum and Dad will go to jail. She denies influencing or attempting to influence the children. She explained the children might believe she and her husband might go to jail because of their visit to their biological mother who was incarcerated at the time. 
  28. [90]
    She states that her daughter and son-in law and late mother attest to her skill in parenting the children removed from her care.
  29. [91]
    She has produced evidence of support from the biological parents of the two children R and Y supporting her as the most appropriate foster carer. Visits with R and Y’s biological mother have been promoted by the Applicant. She maintains that cultural links to family are maintained by her and her husband with frequent visits and regular attendance at extended family events. She states that visits with half siblings were also organised.
  30. [92]
    She states that the removed children wish to return to her and the child M has self-placed with her. The Applicant denies favouritism of any child. She denies that any sexualised behaviour by children R and Y was attributable to her management because she had not observed this herself.
  31. [93]
    On the contrary, she stated that she dealt with outbursts and inappropriate behaviours calmly and by the removal of privileges, time out or stopping the car till the behaviours abated. She states that since removal, she continues to have contact with R and Y at her daughter T’s home.
  32. [94]
    Both she and her husband have stated they were sexually abused, and this was not disclosed to the Department. She states that the children learned of this by overhearing a conversation and that this is normal in a large family setting for children to overhear adult conversation. She further does not believe this impacted the child negatively.
  33. [95]
    The Applicant acknowledges that the child Y had demonstrated sexualised behaviours. She stated that the information given to her by the day-care centre about this was different from what was reported to the Department. 
  34. [96]
    She denied refusing treatment for the children to address the issues of behaviour.
  35. [97]
    The Applicant states that she did the best she could and should be commended as is recognised by K’s report. She contends that the Department failed in the standards of care and ultimately the Department allowed one child to return to the Applicant’s care proving their failure.

Consideration of the Evidence

  1. [98]
    The Tribunal must determine afresh and, on its merits, if this is an exceptional case such that it would not be in the best interests of children for the Applicant to receive a blue card. The presumption is that it is not an exceptional case. Both her criminal and disciplinary history as well as her testimony and that of her witnesses are all relevant considerations.
  2. [99]
    The Applicant has one finalised offence of stealing. There is no evidence that the theft has any relationship to children. She was fined and no conviction was recorded. The circumstances of this offending are discussed elsewhere in these Reasons. The offence goes to the issue of the suitability of her as a role model.
  3. [100]
    There are two Reports concerning the conduct of the Applicant bearing on this review. One is the investigative report by the Department conducted by P dated 14 January 2019.
  4. [101]
    The other is the Social Assessment report of K dated 30 October 2020. K was unavailable for cross examination in the hearing. The contents of the report rely upon untested information given to the report writer.
  5. [102]
    K’s report was commissioned by the separate representative of the children and relies heavily on the information given to the report writer by the Applicant together with K’s interviews and observations with other parties including the daughter of the Applicant, the children and the Applicant and the children’s biological parents apart from M. 
  6. [103]
    The other parties interviewed or observed by K are:
    1. (a)
      Department Worker 1 on two occasions.
    2. (b)
      Department Worker 2 on two occasions;
    3. (c)
      Biological mother, father and grandparent of two of the children;
    4. (d)
      The Applicant’s daughter on two occasions numbering paragraphs 181-232 and also paragraphs 427-444of her report;
    5. (e)
      Interviews with each Child;
    6. (f)
      Observations sessions with Child Y and current carers;
    7. (g)
      Interview with the Applicant, her husband and three children;
    8. (h)
      Relatives of children (mother, maternal grandfather and maternal grandmother and two of the children;
    9. (i)
      The Applicant and her husband on two occasions.
  7. [104]
    K’s report also relied upon;
    1. (a)
      a Kinship carer report dated May 2014;
    2. (b)
      S’s Psychological Report dated 23 June 2014; 
    3. (c)
      Mercy Community Services Intensive Exit report dated May 2015;
    4. (d)
      A Kinship Carer Renewal Assessment report Dated 20 October 2016;
    5. (e)
      An ADOS (Autism Diagnostic Assessment ) Assessment for Child Y  dated 24 August 2016;
    6. (f)
      Placement agreements for Children Y, R, M  and Child E
    7. (g)
      Case plans for children Y and R 20 September 2019;
    8. (h)
      P’s Specialist Assessment Report of the suitability of the Applicant and her husband as kinship carers dated 13 November 2016.
  8. [105]
    K’s report refers to the drug and alcohol issues of all the children’s biological parents. Nothing of child M’s family is noted apart from the death of her father and the fact that M does not seek contact with her mother. It is supportive of the reinstatement of the kinship care status of the Applicant. It gives considerable weight to views of the Applicant and her supporters and complaints about the Department as evidence of her entitlement to be reinstated. It also considers the behaviour of children in the presence of the Applicant.
  9. [106]
    K’s report should be considered with caution as she was not able to be cross-examined as to her conclusions. Her report relies heavily on what she was told by the Applicant and her supporters. The children’s behaviour towards the Applicant (given their awareness of the reason for the sessions with K) must be considered along with the allegations and findings that the children were influenced not to report anything negative towards the Applicant. They were involved directly in conflict (M was kidnapped by the Department and Y was told to run away). The children were exposed to the Applicant’s on-going conflict with the Department. This tempers the observations and remarks of the children to K.
  10. [107]
    The Departmental investigation describes the Applicant’s child protection history and disciplinary proceedings regarding her approval as a foster carer and kinship carer. The Departmental history shows a long standing and consistent history of issues of harm.
  11. [108]
    In October 2010, a MOC (matter of concern was recorded regarding the Applicant swearing and yelling at the children and the older child being left to care for the younger children.
  12. [109]
    Butterfly Kids, Life without Barriers, Child Safety, the Community visitor all reported concerns about the behaviour of the Applicant towards the children.
  13. [110]
    In October 2013, a MOC (Matter of Concern) was recorded that the Applicant was yelling at the children criticised the children, called them idiots or told them to shut up and threatened them with a crack over the head.
  14. [111]
    In September 2015, a Standards of Care concern was noted when the Applicant yelled at a child in the car. A witness reported that the child was crying, was smacked twice by the Applicant, and then pulled forcefully from the car.  The concerns were reported as a harm report and the concerns were substantiated.
  15. [112]
    In March 2019 a harm report was recorded. An allegation was made that the children were told not to talk to or to trust the Department.
  16. [113]
    There are on-going concerns that the Applicant would take the children to multiple health professionals to obtain the medication she wanted for behaviours and that she refused contact for the children with a child’s biological family. The Tribunal notes concerns about the excessive use of physical discipline as a behaviour management technique. 
  17. [114]
    The Department observes that the Applicant refutes the children’s disclosures and deflects responsibility onto the Department and external services. This has been the clear pattern demonstrated throughout the departmental and carer reviews.
  18. [115]
    The Applicant displays some concerning conduct regarding the children and their cultural identity. On the one hand it is reported that she will endeavour to facilitate contact with their familial connections but the Collaborative Assessment [15] states

Aboriginal identity is focused on the carers not their own familial connections. Kinship structure is fragmented. Re-enactment of the stolen generation with carers not wanting the children to know they are in care and who their family is and what role they have.

  1. [116]
    Of concern to the Tribunal is the nature of the responses of the Applicant to the concerns when they have been raised with her. In the Departmental record of a telephone interview with the Applicant concerning Y and R on 20 November 2018, she stated that in regard to numerous serious concerns that:
    1. (a)
      She was on anti-depressants;
    2. (b)
      That some children require younger carers who do not have other children;
    3. (c)
      The Applicant stated that they were moving house for a fresh start, she claimed that she had never laid a hand on the children;
    4. (d)
      That the Applicant’s son -in law had hit the children;
    5. (e)
      That the Applicant claimed that the W’s black eye was a result from a school yard altercation:
    6. (f)
      That she never grabbed a child around the neck only put her hand on their shoulder to stop them running on the road:
    7. (g)
      That to her knowledge her husband never kissed the child R on the lips;
    8. (h)
      That the child D dresses herself and that the child goes off if asked to change;
    9. (i)
      That any sexualised behaviour would come from watching pornography at respite;
    10. (j)
      She stated that one child would play with herself and that she was worried they have been sexually abused at respite;
    11. (k)
      That she believes W has a negative view of himself as a result of kids at school who say he is a naughty boy;
  2. [117]
    The Department concluded that the Applicant denies any harm by her or her partner against the children and that they refute claims by the children of physical abuse. Child Safety concluded that the children have individual and complex needs based on their experience of trauma and that the Applicant does not understand or respond appropriately to this as reported on 31 January 2019.
  3. [118]
    Paediatricians Dr V and Dr Q refer to sexualised behaviour of both Child R and Y in a case plan as indicating that the children have been exposed to sexually inappropriate behaviour or abuse.[16] The Tribunal notes that it was not these practitioners who were consulted regarding the FASD diagnosis, but a Doctor at the Gold Coast (following the Applicant’s own internet research) who was consulted by the Applicant and her daughter. The Applicant considers this doctor’s opinion to be more appropriate, her evidence being that he told her that she was not a poor parent. The Tribunal considers that this action by the Applicant confirms the concerns about the Applicant seeking medical help from those practitioners who agreed with her and medicated the children.
  4. [119]
    Concerns about the Applicant are that she yelled at and mistreated the children. Of further concern are the reports of sexualised behaviour of R and Y. Child R’s behaviour became more and more extreme and fixated on men and boys, declaring she was sexually assaulted, claiming she was pregnant. The Applicant rejected the behaviour as attributable to the Applicant’s care, deflecting the blame the behaviour on other placements such as respite.
  5. [120]
    The Applicant’s response to a concern about R’s fixated sexual pre-occupation was to insist that male workman did not attend the house when child R was present. This directly acknowledges that the child’s behaviour towards males was a concern needing to be managed by her. There is no reference to her seeking assistance or explanation in this regard from the Department. This is evidence of the pattern of secrecy maintained by the Applicant.
  6. [121]
    Other sexualised behaviours are noted in the reports such as Child Y, while on vacation’s care requesting another child to put his doodle in his mouth. Of note is that the Applicant and her husband knew of the incident but did not raise it with the Department on the basis that they did not think child Y had done anything wrong. This response by the Applicant shows her lack of an ability to focus on the psychological well-being of the children by addressing serious concerns immediately and seeking assistance rather than concealing the behaviour in case it reflected negatively upon her.
  7. [122]
    It is reported that the Applicant had direct knowledge of this behaviour because the Applicant’s granddaughter told the Applicant that Child Y had touched her on the vagina when she was standing over him with no pants on.
  1. [123]
    Further, the Applicant denied any inappropriate treatment of Child R by her husband. Child R describes being tickled on the legs to awaken her and that this made her feel uncomfortable. An allegation was made that the Applicant’s partner kissed R on the lips.   A carer stated that she considered the actions of the Applicant’s husband at handover of R to be unusual and inappropriate. The Applicant denies these events. Whilst this specific allegation concerns her partner, this does not release the Applicant from her duty to be aware and vigilant regarding the care of children which she regarded to be not normal. Departmental records confirm her direct knowledge of the sexualised activities of the children, R and Y. The records further indicate that she and her partner concealed their own sexual abuse from the Department.
  2. [124]
    Finally, the sexualised behaviour of the two children is of such concern due to their persisting nature against the background of the paediatrician’s earlier reports. Paediatricians Dr V and Dr Q refer to sexualised behaviour of both Child R and Y in a case plan indicating that R and Y had been exposed to sexual activity. The Applicant’s refusal to accept any responsibility for the behaviours, despite having been the principal carer of the children since early infancy is not accepted by the Tribunal. Her deflection of blame and denials of all allegations undermines her credibility in respect of this issue.
  3. [125]
    The Applicant denies influencing the children. Child Y stated that he was told to run away by his sisters when removed from the Applicant’s care and placed in alternative care.  His independent account of the treatment he received from the Applicant is in direct conflict with her statements that he wanted to return to her care.
  4. [126]
    At supervised contact, the Applicant had unapproved contact with the children having engaged child M to provide a distraction. The Applicant attended contact on another occasion, only identifying herself when requested by a different support worker. Her obfuscation and defiance of the Department’s role is further evidence of her failure to understand the need to act cooperatively with the Department and in particular to resolved differences of opinion constructively. Enlisting the children in the adult concerns is not in their interests and encouraging them to mistrust and defy the Department represents manipulation of them.
  5. [127]
    It is accepted that the children’s circumstances are complex though not unique. The assertion by K that the children should be placed with the Applicant and her husband ignores the real concerns of the continued reports of harm by the Applicant against the children.
  6. [128]
    It may well be that the children would like to return to the care of the Applicant. What is in issue is the extent to which those decisions of the children are free and voluntary. The secrecy of the household and relative isolation of the children from community contact raises ongoing concerns about the appropriateness of the Applicant’s judgment and insight and capacity to understand and manage harm. She appears to give little weight to very significant issues of harm such as the sexualised behaviours of the children of which she had direct knowledge. Instead, her position is to consistently deflect criticism.
  7. [129]
    The Applicant’s conduct in deliberately frustrating contact and placement decisions and encouraging defiance of the Departmental officers remains a troubling matter given the paramount principle which is the well-being of children. P’s report describes the actions of the Applicant which represent a consistent pattern of opposition to the Department.
  8. [130]
    The Applicant’s influence on M is of concern. M’s attitude is extremely oppositional to the Department, aligning with and mirroring the Applicant’s own actions. There is no reported interaction for M with any biological family apart from in connection with them upon her father’s death.  M enjoys favoured treatment being described by the Applicant and other children in positive terms and as being no trouble, unlike Y who has internalised a view of himself as a naughty boy.  The Applicant denies Y’s claims in this regard as a resulting from her care. 
  9. [131]
    K does not address the issue of child M and why her family of origin are not discussed in the report.
  10. [132]
    The role of the Tribunal is not to retry the Applicant regarding the outcome of the Departmental investigation. The Applicant maintains that the version of events of the Department is incorrect in many respects, but this claim is not accepted by the Tribunal as the Department has collated a long history of concerns from third parties over a long period of time and these substantiate a negative child Protection history.
  11. [133]
    The Respondent contends that the unsubstantiated allegations must still be considered by the Tribunal and weighed in the totality of the evidence.  The decisions in Lister No 2[17] and PML[18] support a finding that it is appropriate for this Tribunal to consider the totality of the evidence which includes the unsubstantiated allegations.
  12. [134]
    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.
  13. [135]
    The Tribunal must apply the paramount principle which is to focus on the best interests of children. The purpose of the review is not to impose punishment upon the Applicant. The Tribunal is concerned about the effect on children if the Applicant is issued with a blue card and needs to determine if the Applicant presents a risk; real and appreciable were she to be issued with a blue card.
  14. [136]
    The Tribunal accepts that the Applicant believes she acted in the best interests of the children, but her strategies were harmful and found to be so in the investigations and reviews. The Applicant’s evidence and the rigidity of her thinking does not display appropriate insight into the issues of harm for which she had direct responsibility. Repeatedly, she deflects blame onto others or says the children are untruthful or both.
  15. [137]
    The Applicant contends that she never physically disciplined the children or verbally abused them. In any event she states that physical discipline was permissible and neither this nor verbal abuse are a reason to deny her a blue card. These complaints of physical and verbal abuse of the children are found by the Departmental investigation to have been substantiated. The Tribunal rejects her submissions that physical discipline is not prohibited. The Tribunal accepts that once approved as a foster carer, her obligations are contained in the Standards of care defined in the section 122 of the Child Protection Act. If she wanted to behave to a different standard, then she is not suitable to be appointed according to the boundaries imposed upon her by the legislation. The Tribunal does not accept the submission that she was entitled to behave as she did as she had an obligation to adhere to the Standards of Care.
  16. [138]
    As the standard of proof in this case is not the criminal standard, her submissions that the evidence of third parties is not relevant as it is hearsay is also rejected. In any event, the disciplinary proceedings (arising in part from complaints of third-party notifiers) reached a substantiated harm conclusion and is a matter this Tribunal does not interfere with.
  17. [139]
    The Applicant’s position was that the children were liars and that it was stated in a sexual abuse carer workshop that allegations by a particular child would not be reported for this reason i.e., that they were liars.
  18. [140]
    The Department concluded and the Tribunal agrees that allegations of harm and substantiated findings establish a pattern over a significant time when the needs of the children were not met by the Applicant. She demonstrates an absence of insight and unwillingness to adopt new approaches or accept any help for the children which sat outside her direct control. Her refusal of the offered therapy for the children demonstrates this rigid and controlling approach. 
  19. [141]
    The Applicant’s response to the multiple concerns raised with her was that the children’s behaviours and Departmental interventions did not allow for the children’s subsequent diagnoses of Foetal Alcohol Syndrome together with their other diagnoses. In cross examination, when asked what she would have done differently, she replied that she did not know but insisted that it was the children’s impairments and not the standard of care provided by her which was the issue. The Applicant maintains in her final submissions her view that all offered strategies would not work because of the FASD diagnosis.
  20. [142]
    She stated that the children had improved since removal because now they were correctly medicated. She disagreed that this was due to the removal from her care. She further stated that she did not know how she would manage their behaviours differently as she had not received training. But the evidence is that she rejected any training that did not accord with her views.
  21. [143]
    The Tribunal accepts the proposition of P that the absence of a diagnosis compounded but did not fully explain the behaviours of harm she demonstrated through her ignorance of how to manage FASD children. The Tribunal is also concerned about the convenient labelling by her of the children by their disability.
  22. [144]
    In addition, the Applicant states that the diagnosis of autism of child Y should have been advised to the Applicant by the Department. But the evidence is that Child Y was placed with the Applicant at a few weeks old and so he had no diagnosis at the time.
  23. [145]
    P’s report resulting in the revocation of their approval as kinship carer states that the Applicant had a strong reliance on medication for behaviour control and that when a clinician rejects this or refuses to diagnose, then the Applicant would disengage or seek another health service. This was demonstrated by the Applicant seeking out the Gold Coast doctor for the diagnosis.
  24. [146]
    In cross examination, she continued to deny the allegations of harm to the children made against her continuing to maintain that the children made up stories. At no time did she admits any responsibility for any errors of judgment.
  25. [147]
    The Tribunal has considered the weight of information of concerns about her management of the children’s behaviours made not just by Departmental staff but also by third party services engaged to help her.
  26. [148]
    The Applicant gives significant weight to the children’s wishes to return to her care as evidence that her care was satisfactory. However, a child’s wishes in this respect whilst not to be discounted, may be explained by other imperatives such as being told to keep secrets, not report harm and that the parents may go to jail if complained about. These aspects are considered to be highly relevant by the Tribunal.
  27. [149]
    The Tribunal when considering the totality of the case is concerned as to whether the stated wishes of the children are the free and voluntary views of the children or have been coerced. For example, Child Y is reported to be terrified that when on a journey with new carers, that he was being returned to the Applicant’s care. He required considerable reassurance that this was not the case. The extraordinary kidnapping scene lasting many hours with child M, proved to the children the apparent power of the Applicant to undo Departmental decisions regarding placement. The Tribunal finds that repeatedly the Applicant’s oppositional conduct provided a poor example to the children and unfortunately leaving the impression of the degree of influence the Applicant had over the lives of the children.  In the Tribunal’s view, this would produce compliance with the Applicant’s wishes. 
  28. [150]
    The Tribunal has weighed the risks and protective factors in reaching its decision. The Protective factors include the absence of any criminal charges apart from the one stealing offence, but no criminal history related to the facts referred to in the disciplinary proceedings. Further the age of the Applicant and length of time the Applicant has been a carer is relevant. The desire of the children to return to the care of the Applicant is also a possible protective factor.
  29. [151]
    The Risk factors include an absence of understanding and insight of the role of the foster carer in caring for children with disabilities. The Applicant’s insistence that all fault lay with the Department for not providing a correct diagnosis for the children and appropriate training for her and her husband shows a degree of unwillingness to prioritise the children’s interests over her own preferences. The deflection of blame and responsibility and denial of all allegations, despite a preponderance of evidence and a finding of substantiated harm is a further risk factor. The fact of labelling the children liars and failing to report issues of sexualised behaviours by the children together with a refusal of help is a further risk factor. In addition, encouraging the children to not report matters of harm, to distrust the Department and the active undermining of the Department’s actions is a significant risk factor. The reason being that children in care should be encouraged to seek support if needed and not to remain silent to protect adults. The Tribunal is satisfied that her conduct does not meet the required standard of providing a positive role model to children and young people.
  30. [152]
    The Tribunal did not find the evidence of the Applicant to be reliable. She was not straightforward in her responses in cross examination and at times when asked a question, responded with a question. The Tribunal considered this to be prevarication and not, as is suggested in her material, that she was a simple unsophisticated person unused to the complexities of such proceedings.
  31. [153]
    The Tribunal does not accept her denials of responsibility and regards her evidence as unreliable when considered with the reports of numerous other agencies. For example, that she resisted interventions and help from numerous service providers discontinuing or by being unavailable.  Butterfly Kids, Life without Barriers, Child Safety, and the Community visitor all reported concerns about the behaviour of the Applicant towards the children and resistance to their help. The Tribunal is unable to reject their evidence which is consistent and compelling in favour of a finding that the Applicant was not able to manage and was unwilling to accept assistance.
  32. [154]
    The Tribunal accepts the evidence that she became hostile if challenged, encouraged the children to withhold disclosures; used inappropriate behaviour management strategies including yelling and physical force and regularly sought increased medications for the children.
  33. [155]
    The Tribunal is concerned at the consistency of the harmful approach taken towards the children and in particular labelling the children as untruthful if they complained. 
  34. [156]
    The Tribunal rejects her evidence that the children’s sexualised behaviour resulted from interactions at respite such as in her evidence, viewing pornography or engaging in sex play with other children. She states that she failed to report sexualised conduct by Y on the basis that he was not at fault.
  35. [157]
    The Tribunal gives little weight to the evidence of the Applicant’s daughter, her mother or M of the conduct by the Applicant within the home. There is a lack of independent evidence in favour of the view maintained by the Applicant that she was did not physically abuse the children with verbal of physical abuse. In this regard the Tribunal finds the evidence of the Applicant’s daughter (whom K’s report   relies upon heavily) to lack independence.
  36. [158]
    The Tribunal prefers the evidence provided by different and numerous independent service providers who were placed in their role by the Department anxious to help the Applicant succeed. 
  37. [159]
    The Tribunal also finds the evidence of child safety officers who provided information to K to be credible and reliable. There is no evidence of the allegations by the Applicant that the Department acted in a threatening manner. It is agreed that the departmental officers appeared to the Applicant, at times, to act inconsistently towards her but the obstinacy of her position made it quite difficult for the officers to maintain control. They were required to act within the limitations of the legislation, but the Applicant does not demonstrate a respect for any boundary.
  38. [160]
    K’s report lacks independence because of its heavy reliance upon the versions provided by the Applicant and her daughter regarding events and gives minimal weight to the evidence of Departmental workers. There are numerous examples of the hostile and unco-operative reaction of the Applicant to the Departmental officers. The Tribunal rejects the evidence of the Applicant that the Department was responsible for harm, considering instead that the Departmental took appropriate and considered steps in the face of consistent and concerted attack upon them.
  39. [161]
    Numerous incidents show the applicant to lack insight into the effect of her battle with the Department (in the presence of the child) on the child’s interests.
  40. [162]
    It could be said that the Applicant promoted a confrontational approach to authority.  The Tribunal regards this style of interaction as particularly harmful to the children, already vulnerable because of being in care. The encouragement of mistrust towards entities who were specifically there to assist them is particularly harmful and mitigates against her suitability to be a Carer.
  41. [163]
    The Tribunal rejects the Applicant’s submission that because the children were unaware of being removed from their parents’ care and so were less traumatised than children who were subjected to removal of which they were aware.
  42. [164]
    In the decision in STR[19] The member makes the following comment

The evidence of the Applicant’s witnesses does not displace my concern …about the Applicant and her …her failure properly to understand the boundaries that must be set in dealing with vulnerable young people.

  1. [165]
    The Applicant in her submissions and evidence in the hearing does not display any understanding of the significance of these issues. She is more focussed on whether the Departmental decisions or challenges are unfair to her. She has not explained any change in her views which would help the Tribunal to see that she has developed insight into the events and how to correct issues of concern. She has not sought professional help or can indicate a support network that she respects, has independence and from whom she might seek advice.
  2. [166]
    The Tribunal notes the following remarks in the decision cited by the Respondent of Re TAA[20] 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.

  1. [167]
    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.[21] 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.[22] The decision of the Tribunal is not intended to reward, or punish, the Applicant. The decision of the Tribunal is centred around the interests of children. 

Human Rights Act

  1. [168]
    The Tribunal, as a public entity, is obliged to interpret relevant legislation in a way that that is compatible with human rights.[23]
  2. [169]
    In the event that the Tribunal makes a decision that is not compatible with human rights which are defined in the HR Act.[24] Then the Tribunal must demonstrate that it has considered the issues outlined in section 13 (2) to the HR Act.
  3. [170]
    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.[25]
  4. [171]
    The focus in section 26(2) HR Act 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. 
  5. [172]
    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 2019 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.  
  1. [173]
    The Tribunal makes the following findings:
    1. (a)
      the Applicant has not developed insight into the issues for which she has been disciplined; the interactions with the Departmental staff and other third parties indicate that the Applicant struggles with accepting appropriate guidance and direction with which she does not agree;
    2. (b)
      the Applicant has not expressed any remorse for any harm she has caused and it appears that her belief remains that she has not caused any harm to the children denying all allegations;
    3. (c)
      the Applicant has not adopted a range of strategies to reduce stress and regulate her emotions which would enable her to interact more appropriately with staff than has been the case;
    4. (d)
      the Applicant does not have a support network including non-related adults who may assist in developing the required insight;
    5. (e)
      The Applicant has not addressed the areas of concern with any professional assistance which may assist her to develop insight relevant to holding a blue card.
  2. [174]
    There is no power to issue a conditional card and once issued, 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.[26]
  3. [175]
    The totality of evidence in this case leads to a conclusion that the circumstances raise the possibility of risk to children such that it would not be in the best interests of children for the Applicant to be issued with a positive notice.
  4. [176]
    Weighing all these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that the Applicant’s case is an exceptional case in which the best interests of children would be harmed if a positive notice was issued.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 s 20(2).

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

[3]  Ibid, s 6(a).

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

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), 28(3)(b).

[6] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

[7]   Section 122 Child Protection Act 1999.

[8] RA and RJ v Director-General, Department of Justice and Attorney-General [2018] QCAT 95 [64].

[9] CEB v Director General, Department of Justice and Attorney General [2018] QCAT 26.

[10] KTG v Director-General, Department of Justice and Attorney-General [2022] QCAT 157.

[11]CA v Director -General, Department of justice and Attorney General [2022] QCAT 305.

[12] Director General, Department of Justice and Attorney -General v PML [2021] QCATA 51.

[13] Commissioner for Children and Young people and Child Guardian v Lister [no 2] [2011] QCATA 87.

[14]  Social Assessment report page 443.

[15]   NTP paragraph 153.

[16]  Report of P Paragraph 486.

[17] Lister.

[18] PML.

[19] STR v Director-General. Department of Justice and Attorney-General [2022] QCAT 69, 64.

[20] Re TAA [2006] QCST 11, [97].

[21] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[22] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

[23] Human Rights Act (Qld) 2019, s 48(2).

[24] Human Rights Act (Qld) 2019, s 13.

[25] Human Rights Act 2019 (Qld) section 26(2).

[26] Commissioner for Children and Young people and Child Guardian v Ram [2014] QCATA 24.

Close

Editorial Notes

  • Published Case Name:

    MJD v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    MJD v Director General, Department of Justice and Attorney General

  • MNC:

    [2023] QCAT 210

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    02 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305
2 citations
Jump To
Cite 1 - [2022] QCAT 305
Cite 2 - [2022] QCAT 305
CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26
2 citations
Jump To
Cite 1 - [2018] QCAT 26
Cite 2 - [2018] QCAT 26
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
1 citation
Jump To
Cite 1 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
1 citation
Jump To
Cite 1 - [2015] QCAT 219
Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51
2 citations
Jump To
Cite 1 - [2021] QCATA 51
Cite 2 - [2021] QCATA 51
Gray v Nish [2014] QCATA 24
1 citation
Jump To
Cite 1 - [2014] QCATA 24
KTG v Director-General, Department of Justice and Attorney-General [2022] QCAT 157
2 citations
Jump To
Cite 1 - [2022] QCAT 157
Cite 2 - [2022] QCAT 157
RA v Director-General Department of Justice and Attorney-General; RJ v Director-General Department of Justice and Attorney-General [2018] QCAT 95
2 citations
Jump To
Cite 1 - [2018] QCAT 95
Cite 2 - [2018] QCAT 95
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
STR v Director-General, Department of Justice and Attorney-General [2022] QCAT 69
2 citations
Jump To
Cite 1 - [2022] QCAT 69
Cite 2 - [2022] QCAT 69

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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