PS v Director-General, Department of Justice and Attorney-General
[2023] QCAT 338
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- PS v Director-General, Department of Justice and Attorney-General[2023] QCAT 338
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PS v Director-General, Department of Justice and Attorney-General[2023] QCAT 338
PS v Director-General, Department of Justice and Attorney-General[2023] QCAT 338
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | PS v Director-General, Department of Justice and Attorney-General [2023] QCAT 338 |
PARTIES: | PS (applicant) v Director general department of justice and attorney general (respondent) |
APPLICATION NO/S: | CML225-21 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 25 August 2023 |
HEARING DATE: | 5 June 2023 |
HEARD AT: | Southport |
DECISION OF: | Member McDonald |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has convictions – where not categorised as serious or disqualifying offences under the Working With Children (Risk Management and Screening) Act 2000 (Qld) – where relevant information pertaining to domestic violence, mental health and child protection- whether applicant had adequately addressed mental health, substance abuse – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – application of factors in s 226 and s 228 of the Working With Children (Risk Management and Screening) Act 2000 (Qld) in considering whether an exception case Human Rights Act 2019 (Qld), s 13, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 360 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 210 Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6 KAP v Director General Department of Justice and Attorney General [2020] QCAT 457. Re TAA [2006] QCST 11 |
APPEARANCES REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Mr Mc Neil, Legal Officer, Blue card Services |
REASONS FOR DECISION
- [1]To protect the applicant’s identity, these reasons have been de-identified by referring to the applicant as PS.
- [2]PS is a 42-year-old woman who applied for a blue card to be issued to further her goal to become a foster carer. On 21 June 2021 the Respondent issued PS with a negative notice, on the basis PS’s case was an exceptional case to the general rule under section 221 that a blue card should issue, unless the case was an exceptional case in which it would not be in the interests of children for the applicant to be issued a blue card.[1] PS sought review of this decision in the Tribunal.
- [3]PS has been very frank with the Tribunal and Blue Card services in disclosing that she has suffered considerable trauma throughout her life and since being diagnosed with complex post-traumatic stress disorder has engaged in extensive therapy.[2] PS submits that her past traumas and challenges have given her insight and understanding to encourage youth in a positive way, and she dreams of opening her home as a foster carer to young people.[3] PS stated that she regretted her past, but did not consider it was a concern to be able to work with children. She noted that she described herself as honest reliable, trustworthy and compassionate, and committed to herself, her goals and a healthy future. The Tribunal acknowledges PS’s courage in revisiting some of the circumstances around these matters during cross examination at hearing.
- [4]The purpose of the review is to produce the correct and preferable decision. Decision making is guided by the principles of the Working with Children (Risk management and Screening) Act 2000 (Qld), “the WWC Act”, which require:
- [5]The Tribunal applies s 597 WWC Act in determining that there is relevant information before the Tribunal pursuant to section 221, and notes there is such information in the form of a charge for a conviction for a non-serious offences,[6] domestic violence information,[7] information that is it believes would be relevant to the best interests of children,[8] and therefore the Tribunal must consider whether an exceptional case exists, and a negative notice must issue if the Tribunal is satisfied.
- [6]Exceptional case is not defined in the WWC Act and it must be determined on a case by case basis, In these circumstances, the Tribunal must have regard to the mandatory factors stated at s 226 and s 228, as well as the principles the Act, the Human Rights Act, The Tribunal is not confined to considerations and may take into account other relevant considerations.[9]
- [7]The legislative framework is designed to ensure that the safety and best interest of children’s interests are priority when assessing eligibility for clearance to work with children.
- [8]The Tribunal made directions on 10 February 2022 for witness statements and any health reports on which PS intended to rely to be filed in the Tribunal. Unfortunately, PS did not present any witnesses in support of her application, or health reports and this was to the detriment of her case. Without these, there was no independent evidence to support PS’s claims. She has relied on her oral evidence and written statements of evidence,[10] together with her application for review.[11]
- [9]Blue card services rely on documents identified as BCS 1-99 and documents produced under notices to produce to Department of Youth Justice and Multicultural, hereafter “Child Safety’; Queensland Police; Southport Magistrates Court.
Mandatory Considerations under s 226
- [10]Where there are convictions for criminal offences, I must have regard to factors stated at section 226 of the WWC Act in determining whether an exceptional case exists. This requires I have regard to:
- [11]Whether the offence is a conviction or charge; whether it is a serious of disqualifying offence; when it was committed; the nature of the offence and its relevance to employment/ carrying on a business that involves children; in the case of a conviction the penalty imposed by the court, and if it decided to not impose an imprisonment order reasons for its decision.
- [12]PS has convictions for the following offences: Common assault, unauthorised dealing with shop goods negligent driving occasioning grievous bodily harm, stealing, unlawful possession of weapons, category D/H/R weapon, possession f a knife in a public place, using a carriage service to menace or cause offence. None of these are serious or disqualifying offences within the meaning of schedule 2 or 4 of the WWC Act. These offences were committed between 2009 and 2021, when PS was aged between 28 and 40. The duration, recency, and mature age of PS is a risk factor relevant to my determination. The nature of these offences and their relevance to children must be considered in appraising whether an exceptional case exists. I will address each offence’s and its relevance to working with children separately below.
Common Assault 2009-
- [13]PS was convicted for spitting in the face and threatening to kill a person on the grounds of a educational facility. The police brief[12] indicated that Ps attended in a group and were asked to leave the facility, started yelling and swearing at the teachers. It further states that PS moved toward the teacher threatening to kill him and when within 20 centimetres of him spat in his face. The event occurred while children were present at the facility.
- [14]Ps told the Tribunal that there was a discrepancy with these facts and denied spitting in the teachers face. She explained that she attended this alternate schooling venue which was like a three bedroom home, with her friends whose child had been threatened by other students. She said that there were some students in inside the building, but the incident occurred outside. She denied spitting but did indicate she had grabbed a male teacher by the shirt. She indicated regretting the incident which she considered had gotten out of control and acknowledged that she acted inappropriately. She acknowledged that she would deal with this situation differently now and try mediation for example to resolve the underlying issue
- [15]Notwithstanding this reflection, I accept the respondent’s submission that willingness to engage in threatening an intimidatory conduct in a space identified for children contributes adversely to the assessment of PS’s appropriateness to work with children. Sentencing remarks were not filed in relations to this offence.
- [16]The incident reflects poorly on PS’s ability to manage conflict, and regulate anger, and provides a questionable model of appropriate behaviour, noting children were likely to have been witness to this conduct. No sentencing remarks are available in this matter.
Negligent driving occasioning grievous bodily harm on 20 December 2012
- [17]The police brief[13] indicates that PS lost control of her car and passengers were injured. PS admitted at having to her 12-year-old being in the car when she turned around when a passenger had taken their seat belt off and taking her eyes off the road resulted in the car losing control and crashing into a pole. She admitted to driving 70 kms over the speeding limit.[14] She pled guilty to this offence and acknowledged that she was being irresponsible at the time. She told the Tribunal that she though she was trying to be responsible by telling the person to put their seat belt on. The Tribunal notes the contradictory understanding of responsible behaviour is concerned that despite PS’s remorse for this, the speed and recklessness of this act with a child in the car act is a risk factor in working with children. No sentencing remarks have been filed in relation to these.
Stealing offences February 2013, July 2013, May 2015,
- [18]Two convictions for stealing and unauthorised dealing with shop goods on are contained in PS’s criminal history.[15]
- [19]
- [20]The sentencing remarks that are available in 2015 reflected that the Magistrate took into consideration previous history of similar conduct and fined PS.[19]
Unlawful possession of a knife in a public place[20]
- [21]The police brief[21] outlines these incident as reported by police: PS was convicted of this offence when she attended a dog park and made threats to harm herself and others at 7:50am on a weekday. Following a disagreement in the dog park with members of the public, she produced a taser and made threats to taser dogs. She also had placed a 15 cm knife to her own throat and threatened to kill herself at this time. When police arrived, she was compliant with police and placed these items on the ground.
- [22]PS denied threatening to taser dogs, seeking only to harm herself, and reflected that she had not been thinking well and she was adversely affected by her mental health at the time. PS reflected that this had been a prompt for her to engage with therapeutic support to manage her trauma related mental health issues, and she states she continues to consistently engage with this support.[22]
- [23]Notwithstanding her subsequent engagement with counselling, PS has engaged in behaviour at a time when her mental health was unstable, which would be emotionally harmful to children if they were witness to these events. Given the location of this public place at time when children are likely to be present, issues of judgement arise as a risk factor. It is a protective factor that since this event, PS has engaged in therapy and management of her mental health issues. In sentencing PS to a good behaviour bond of 6 months, remarks of Magistrate Sinclair indicate that he took into account that PS was only a danger to herself and co-operated with police herself and had taken significant steps to deal with her mental health and place herself in the best possible place to look after herself and her children.[23]
Using a carriage service to menace or harass- February 2021[24]
- [24]The police brief[25] indicates that following PS had attended a house of someone she had met on TikTok, PD held the belief that the person had stolen her son’s shoes. PS was convicted for verbally abusing and threatening this person on TikTok. Threats included “I promise ya I’m gonna jump all over your fucking head…”, “You think that was harassment and bulling, wait till I see you dumb cunt…”, “I am going to fuck you right up…”
While there is no evidence of children being directly involved in this conduct, it is entirely possible that children may have sighted these posts. I accept the Respondent’s submissions that this reflects poorly on PS’s ability to manage her anger and to role model to children appropriate response to address conflict. The risks of harm of a failure to model appropriate behaviour has been identified in the case of CW v Chief executive Public Business Agency:[26]
“it can be harmful for children to become aware that people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.”
- [25]In sentencing PS to a good behaviour bond for 6 months with a conviction recorded, Magistrate Pirie expressed concerns that PS mental health sometimes has severe impact on her functioning and how she responds. She considered that the court would take her illness into account where it affected moral culpability. She noted that there were recent prior antecedent mental health issues requiring hospitalisation. PS denied mental health admissions around that time at hearing. At hearing PS further reflected that following a continuous and extensive period of counselling she would approach this differently, and stated acknowledged that that her approach to manage the conflict was not the best way to deal with this problem.
- [26]PS also has finalised charges for other matters, including assault occasioning bodily harm however, the Tribunal follows the Appeals Tribunal’s decision in CHM[27] and determines that these non-extant charges are not relevant information for the purposes of section 221.
Domestic Violence Information
- [27]Where there is also domestic violence information s 228 requires the Tribunal to consider the circumstances of a domestic violence order, including the conditions imposed on the person by the order, the length of time that has passed since the event or conduct the subject of the information occurred; the relevance of the information to employment, or carrying on a business, that involves or may involve children; anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.
- [28]The material produced indicates that PS was respondent in a temporary protection order[28] and subsequently a 2-year protection order over a former partner in 2012[29] where a child was named person.[30] The protection order imposed non-contact conditions, prohibiting phone calls texts, coming within 100metres of, and attempting to locate the aggrieved. The application alleges that PS made physical threats to the aggrieved, his mother, and the aggrieved’s disabled son and including threats to shoot the aggrieved.[31] The court made a protection order following hearing on 19 September 2012. Some 11 years have elapsed since this incident.
- [29]PS has been a both a victim and perpetrator of domestic violence. The information alleges that PS made threats to shoot her former partner, concern the Tribunal raising questions about PS’s means of managing conflict and regulating anger, and to model appropriate law-abiding behaviour. It is particularly concerning that a disabled child was said to be the target of a threat if harm from PS. Although this has occurred more 11 years ago, PS was a woman of 30 years at the time, and the concerns generated by this information suggest PS is unsuitable to work with children where she has resorted to threats of harmful and illegal means to resolve conflict.
Other relevant information:
Other information:
The Tribunal may also consider relevant information where there the is anything else reasonably relevant to the determination of whether it is in the best interest of children for a blue card to issue.[32]
Pursuant to section 228, the Tribunal must consider the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information; the length of time that has passed since the event or conduct the subject of the information occurred; the relevance of the information to employment, or carrying on a business, that involves or may involve children; anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.
Child Safety information
- [30]PS has many child concern reports on her record in relation to her parenting. She told the Tribunal that she believed that her ex-boyfriend had tried to use the child protection system to be vindicative towards her in making false reports.[33]
- [31]The information throughout the child concern reports reflect allegations made about concerns with PS’s ability to act protectively to the children in her care, between 2010 and 2021. These reports include allegations: that she has assaulted a child and thrown food in his face September 2010, hitting her children in the head and screaming at them, under the influence of drugs (November 2010); a previous violent partner had been attempting to locate her (January 2011), and subsequently were at her house smoking cannabis in front of the children and selling, and she was referred to as having a lengthy domestic violence and drug history (February 2011). Domestic violence concerns were noted (March 2011). Drug use, and possession of a gun and a taser in the house (August 2011); was not meeting children’s basic needs due to drugs use (August 2011); domestic violence incident at school with former partner and multiple reports of domestic violence (May 2012); several breaches of domestic violence orders , including one where a child was present (July 2012). It does not appear that these were investigated, remaining as Child concerns reports.
- [32]There are however there are Child Safety reports which do have corroboration from other sources, and these have more weight, forming part of departmental investigations and records of interviews and professional assessments relating to concerns raised about PS’s protection of children in her care. Concerns corroborated in this material relate to drug use, mental health instability and exposure the children to domestic violence. Specifically, these include: Police advise of domestic violence incidents (November 2013); reports that PS was threatening to commit suicide (May 2014). Following a further notification of these issues, Child safety conducted a safety assessment of the children and determined that they were safe.[34] Subsequently in May 2014, investigations were conducted into allegations that PS had assaulted her daughter, the department assessed an unacceptable risk of harm where the child had been subject to witnessing domestic violence, drug use, mental health issues, and had found the child was targeted by PS and her partner. Harm was substantiated for all three children.[35] I note that PS states that her daughter was not living with her in the relevant July 2014[36] assessment and characterises this as a discrepancy in the alleged facts.[37]
- [33]As part of child safety investigations PS is recorded to admitted in interviews on 26 May 2014, to smoking 12 cones of cannabis a day, and did not feel that it impacted upon her functioning or attending to the children’s needs.[38] A finding of substantiated harm was based on the departments assessment that PS’s drugs misuse was a contributing factor to an assault, instabilities in her mental health, and that the children had disclosed being exposed to domestic violence in the home between SP and her then partner.
- [34]In July 2014 the records indicate that two children were exposed to violence including incidents where a child was kicked in the calf by the male adult when attempting to intervene in a domestic incident. Reports reflect the children’s awareness that SP’s bruising being when her head was “smashed to the floor”, and observing SP and her partner “clocking each other”. One of the children reported that children did not feel safe in the home, and that he had been hurt by SP’s partner.[39] Children disclosed physical harm from PS’s partner and having been injured intervening in an assault.[40]
- [35]This information produced by child safety over time related to the long term and consistent themes of domestic violence, substance abuse and mental health issues. Assessment noted that ongoing domestic violence had been a pattern across PS’s relationships over a number of years and had remained unaddressed despite voluntary intervention form the department to support PS to address this issue. In interviews with child safety she acknowledged escalating domestic violence on a frequent basis, referring to it as every other day.[41] The department found that PS had not acted protectively to protect her children from her then partner’s violence toward them. The record reflects that child safety had assessed that they considered PS had a lack of insight into drug use and domestic violence and how this negatively impacts on the children.[42]
- [36]Child safety records part of PS struggles with her mental health to include suicidality and multiple personalities. In 2019, she disclosed that she has three personalities, one being a demonic aggressive personality which makes her aggressive and agitated,[43] elsewhere this had been described as a demonic homicidal tendencies toward anything that threatened the children.[44]
- [37]In July 2020 and September 2021, the department recorded concerns relating to PS’s mental health, specifically in interviews PS reported that she had as part of her mental health struggles a demon identity which had homicidal tendencies towards anyone that threatens her children[45] Reported concerns around screaming at teenage children, smoking cannabis in the home in front of the children and selling cannabis from the family home.[46] Her mental health was described as unpredictable.[47]
- [38]The information produced by Child safety raises concerns about PS’s ability to act protectively around children, where ongoing themes of domestic violence pervade PDS’s history, with substantiated emotional and physical harm in and multiple reports of domestic violence in the home across a period of 2010 – 2021. Instability in mental health has been a consistent feature impacting on this.
- [39]PS told the Tribunal that there were multiple errors in the child safety material, and she did not accept that the domestic violence was to the extent described. She said she had not read the material before the hearing, although she had been served a copy of the material produced.[48] She said she challenged much of the information reported in the child safety documentation.[49]
- [40]PS agreed that she did consume 12 cones of cannabis on a daily basis up till four years ago when she was diagnosed with CPTSD. She denied that Child protection reports that domestic violence was daily. PS indicated that there were only two significant incidents of domestic violence where she was severely injured by partner former M[50] and these had occurred when the children were not present, and they had been removed from her care in one instant.[51] She recalled only these two occasions when her then partner physically harmed her and stated that most abuse had been verbal abuse.[52] She spoke of domestic violence having a negative effect on children causing mental and emotional damage, and said that this was why she tried to leave the relationship, but this had not happened soon enough. She said it is not easy to leave, it takes, time and she had tried to do the best that she could. She noted that the custodial order over her two boys was challenged at court and the children were returned to her care.[53] She believes that she has put the children’s needs first and they have developed into well rounded young men who are reliable responsible contributing members of society.[54]
- [41]There is inconsistency between PS’s recollection of events in her home and the documented records held by Child Safety services. It is noted that some CCRs are not investigated, but where follow up has occurred, many of the concerns appear to have been corroborated. In circumstances where high level of drug use was confirmed to have been involved, which may impair awareness and recollection, the documented records provide a reliable source of evidence, to which the Tribunal must afford considerable weight. It is significant that Child safety Services have assessed that the concerns about SP’s parenting reflect ongoing struggles to protect the children from violence in the home, emotional instability related to the PS’ s mental health. The information spans an 11 year period with consistent concerns identified across this period, and the most recent concerns indicated less than two years ago. Taken as whole, this information raises concerns about SP providing an emotionally safe environment for children with whom she may be cleared to work.
- [42]The information produced by child safety is gravely serious, and has direct relevance to assessing PS’s suitability working with children. I accept the Respondent’s submissions that the material indicates that instability in PS’s mental health has impacted adversely upon emotional wellbeing of children, and raises concerns about SP’s ability to act protectively. I note this is not accepted by PS, who indicates that she has successfully regained custody of her boys, but there is no evidence before the Tribunal around that such a decision. In the absence of evidence to support her claims, the Tribunal must give more weight to the independent documentation produced. I accept that this material raises concerns about PS’s ability provide a protective environment in the context of evidence of long term drug use, and extensive history of domestic violence.
Other relevant information s 221(3)(f)
Allegations of assault of PS’ daughter, made by daughter aged 15 years.
- [43]The Tribunal notes that allegations were made that PS assaulted her daughter in the home. Charges were laid in this matter were made but dismissed when PS daughter did not pursue them.[55] These charges are non-extant charges and are therefore not relevant information pursuant to section 221(3)(a), so the Tribunal may not consider this matter pursuant to section 226. The Tribunal considers however, that the information that the child has made allegations that PS caused her physical harm is however, relevant information that the that the Tribunal considers is relevant in deciding whether it would be in the best interests of children for PS to be issued a working with children clearance.[56] Relevant information is contained in the child safety material and was explored further at hearing, and should be considered pursuant to section 228 factors in considering whether the case is exceptional.
- [44]PS states that her daughter made the whole thing up, and that her daughter had told the court that she had lied, and that her mother did not physically assault her.[57] This is inconsistent with the information before the Tribunal indicating that the child withdrew the allegations. PS denied grabbing her daughter by the throat or punching her in the eye or face and said that she would never do anything to intentionally hurt her daughter. She acknowledged that a scuffle on the bed occurred. She said she had smacked her on the hand when she was a small child, but she said she never physically abused her child. She said she recalled trying to rub her back, she held her singlet strap to stop her running away, which snapped and caused red marks around the child’s neck. She said she tried to hold her to prevent her running away and self-harming. The allegations are untested, but records of what was said by the child are inconsistent with PS’s version of events.
- [45]The Child safety material that relates to this incident states that PS has little recollection of this incident due to mood/level of substance misuse (marijuana).[58]Substance misuse was assessed to be a contributing factor to the assault. The children were assessed as being at ongoing risk of emotional and physical harm if she continued substance use. PS’s daughter became subject to a long-term guardianship order and their relationship broke down around this time. PS spoke to the Tribunal about how the incident has played on her mind over the past 1O years.[59]
- [46]Although the facts are disputed in this matter, the independent evidence suggests that marijuana usage has contributed to an incident an alleged assault. On the face of it, the information raises concerns about managing conflict and role modelling behaviour to children.
Other relevant information
- [47]The Tribunal is not confined by the Mandatory factors in considering whether an exceptional case exists. The Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 210 found earlier legislation was not exhaustive of considerations relevant to determining whether an exceptional case exists. Other relevant considerations are discussed below:
- Mental Health management
- [48]PS states that since she has been effectively diagnosed with complex post-traumatic stress disorder, she has been able to engage in effective treatment and has had consistent therapy for this, attending for four years, and asserts that this is a protective factor. In written correspondence to the Tribunal PS’s clinical psychologist[60] noted improvements in functioning, since commencing therapy in 2019, but also noted an exacerbation of mental health in early 2022.[61] PS did provide a copy of attended and booked appointments as at 9 January 2023 which indicate consistent attendance upon her therapist.[62] Unfortunately, these are not provided to the current date, and only provide a snapshot of attendances over a discrete period. Further, PS did not provide a health professional report nor witness to support the progress she has made with therapeutic intervention. This has substantially limited her case.
- [49]PS’s ability to provide her evidence under the rigours of cross examination visiting very sensitive and traumatic areas of PS’s history was a testimony to her likely progress, and the Tribunal suggests that the emotional strength PS demonstrated would likely suggest that PS is in a very different place than she has been at times prior to her therapeutic intervention. PS’s willingness to engage in therapeutic intervention is likely to be a protective factor. However, I can only make a decision that is based on the concrete evidence presented to me. It is unfortunate that PS did not provide her counsellor as a witness for the Tribunal to explore this further. The Tribunal acknowledges the sensitive client therapist relationship can be strained when called to give witness in proceedings of this nature. However, the Tribunal is consequently limited to the evidence it has before it in reaching an opinion about the impact of PS’s mental health on her suitability to work with children. That evidence is presented in the documents produced and discussed previously. As noted in KAP v Director General Department of Justice and Attorney General:[63]
“if concerning behaviour has been displayed by applicants who have experienced mental illness in the past the, the Tribunal is entitled to know what if any is the risk of repetition of that behaviour.” It is considered crucial information relevant to the assessment of risk.
- [50]Where multiple threats of suicide were made in the past affecting the children, the Tribunal cannot be satisfied on the current information before that that a risk of repetition of that behaviour has been eliminated.
- [51]KAP further highlighted the need for evidence to support that counselling has reduced the relevant risk:[64]
“…it is not sufficient for [the applicant] to rely solely on attending counselling. He must show he has acquired the necessary ability or skills to cope with stressful situations. That is there must be evidence to support the hypothesis that counselling greatly reduces the risk…”
- [52]In these circumstances, where suicidality and unstable mental health has impacted the provision of emotional safety to children, and emotional dysregulation has resulted in aggressive and illegal means to manage conflict, evidence of progress with counselling is necessary if the Tribunal is to find that counselling can be considered as a protective factor. This was not available.
Marijuana use
- [53]PS stated that she had used marijuana since her mother’s premature death when she was only 14 years of age.[65] She further said that although she did use marijuana up to 12 cones a day in the past, she used this as a coping mechanism, and since receiving supportive therapy, no longer smokes marijuana illegally, but is prescribed CBD oil for her diagnosis. She said she never smoked in front of the children when she did smoke.[66] This is inconsistent with the departments recorded concerns.[67]
- [54]There is no independent verification of alternate prescriptions before the Tribunal.
Insight
- [55]Insight into the impact one’s conduct has long been considered by the Tribunal as a protective factor as outlined in Re TAA.[68]
“The issue of insight into the harm caused in 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 on others is less likely to re-offend 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.”
- [56]I accept the respondent submission that PS made repeated admissions that her drug use did not harm her children. PS told the Tribunal of a high tolerance due to her long-term use. Notwithstanding PS submission, it was clearly the view of Child Safety Service that such use did harm the children, where this forms part to their assessment of substantiated harm and findings of that she was not able to protect the children form harm. In my view this demonstrates an absence of insight into harm caused by her high level of marijuana use.
- [57]PS emphasised at hearing that she had never physically hurt the children, but acknowledged that her mental health struggles had impacted on her daughter’s instability.[69]
- [58]The evidence indicates that PS made multiple attempts to seek protection from violent partners and former partners through protection orders,[70] but also sees a longstanding pattern of maintaining abusive relationships while parenting children, which the department have found to be factors in substantiated emotional harm.[71] PS in her statement of evidence stated that she acknowledged and deeply regretted that there were periods that her children were exposed to domestic violence. She said that it was to protect the children that she left these relationships.[72] She further articulated that domestic violence can be damaging to children.[73] It is not apparent that PS demonstrated insight into the impact of domestic violence on her own children, where she provided substantially inconsistent evidence of the extent of violence than identified in the records. The inconsistency of this information, which including her own reports to Child safety and interviews with the children at the time,[74] which suggest that her recollection is impacted, or she is minimising the extent of the violence the children were exposed to.
- [59]PS evidence was that Child safety did not want her to be with one particular partner who threatened to blow up the Child Safety customer service centre. The department record concerns about this person to have physically assaulted the children[75], to be affected by Drugs such as ice that led to physical violence on members of the household, including PS and her children[76] I find that the inconsistency in information reported at the time to child safety and PS’s current recollections do not support that she has insight in to the risks of harm associated with exposing children to domestic violence and drug use.
Is this an exceptional case?
- [60]I have had regard to the mandatory considerations and the above matters in considering whether an exceptional case exists. The Tribunal notes that blue cards are transferable and apply in all child related work and volunteer contexts, not just to the area for which PS seeks to make use of a blue card.
- [61]I find that PS’s offending behaviours over a long period spanning more than a decade, including as recently as 2021 have demonstrated a pattern of emotional regulation difficulties and resorting to unlawful means of conflict resolution, which have included threats to shoot people, assault, and menacing threats of harm. These responses serve to provide poor role modelling to children. While LJD’s evidence is that she has engaged in therapeutic making her better able to manage her emotions, there is no independent evidence of this before the Tribunal.
- [62]I find that there is a substantial record of children being exposed domestic violence in PS’s home which she denies. The denial of documented statements made by PS and her children about the violence in the home at the time of the events is of concern to the Tribunal and undermines PS’s argument that she has insight into the harm that domestic violence causes to children.
- [63]The gravity and longstanding nature of the information outlined in the produced documents weighs heavily as a risk factor in this determination of whether exceptional case exists. Insufficient evidence in support of PS claims has been made available for the Tribunal to be confident of the extent of the protective factors. I acknowledge that PS’s presentation at hearing is likely to suggest that she has made progress in dealing with part of her challenging past, however such presentation, of itself, is not sufficient to evidence for the Tribunal to rely on in assessing her suitability to work with children.
- [64]With the paramount principle of the welfare and best interests of children guiding this decision, having considered all the evidence, the mandatory considerations under section 226 and 228, the risk and protective factors and findings of facts, on the balance of probabilities balance, I am satisfied that this is an exceptional case in which it would not be in the best interest of children for PS to be issued a working with children clearance.
- [65]The Tribunal is acting as a public entity when reviewing this decision and is obligated to make a decision that is compatible with human rights[77] I must give proper consideration to any human right that may be limited by this decision.[78] It is possible that this decision may limit rights to privacy and reputation[79], to take part in public life[80], further educational and vocational training.[81]Human Rights may only be subject to limits that are reasonable and demonstrably justifiable.[82] Noting the nature of the limitation and the purpose limitation[83] which is to apply the principles of the WWC Act to ensure that the welfare and best interests of children are paramount when determining child related employment screening decisions. Since the WWC Act is protective legislation, I find that it is reasonable and justifiable to limit these rights to ensure the protection of children in accordance with the purpose of the Act.
- [66]PS is to be commended for the steps she has taken to work toward managing her mental health, and the traumas that have impacted upon her past behaviour. I note with high regard the courage and emotional strength PS demonstrated throughout the hearing process.
- [67]While it is desirable that matters are reported publicly, it is clear this may have adverse impact PS or the children of the applicant. In these circumstances it is not in the interests of justice for PS’s identity to be public, and I make orders pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) accordingly, and protecting this privacy is a decision compatible with human rights[84].
Footnotes
[1] Reasons for the decision BCS 1-13.
[2] Application 14 July 2021, attachment A.
[3] Submissions PS filed 19 June 2023.
[4] WWC Act, s 360.
[5] Ibid, s 6(b).
[6] s 221(3)(a)(iii).
[7] s 221 3(c).
[8] s 2213(f).
[9] Per Phillipides in Commissioner for children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[10] Filed 4 January 2023, 3 May 2023, 18 August 2021.
[11] Filed 14 July 2021.
[12] BCS 23-24.
[13] BCS 25-26.
[14] Oral evidence at hearing.
[15] BCS 18-19.
[16] BCS 70-72.
[17] BCS 73-75.
[18] BCS 79-81.
[19] BCS 92.
[20] BCS 18-19
[21] BCS 30-32.
[22] Oral evidence at hearing.
[23] BCS 95-99.
[24] BCS 69.
[25] BCS 83.
[26] [2015] QCAT 209, [67].
[27]Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6.
[28] NTP 395.
[29] NTP 393.
[30] NTP 393.
[31] NTP 399-411.
[32] WWC Act, S 221(3) (f).
[33] PS Oral evidence at hearing.
[34] NTP 91-96.
[35] NTP 177.
[36] NTP 134.
[37] PS Submissions filed 19 June 2023.
[38] NTP 180.
[39] NTP 188.
[40] NTP 134.
[41] NTP 190.
[42] NTP 191.
[43] NTP 197-198
[44] NTP 214.
[45] NTP 208-214.
[46] NTP 256; NTP263.
[47] NTP 256.
[48] PS Closing Submissions in reply, 17 July 2023.
[49] Ibid.
[50] PS Oral evidence at hearing; PS closing Submissions filed 19 June 2023.
[51] PS Closing Submission filed 19 June 2023.
[52] PS oral evidence.
[53] Ps oral evidence at hearing.
[54] PS submission filed 19 June 2023.
[55] NTP 278.
[56] S 221( (3) (f).
[57] PS oral evidence at hearing.
[58] NTP 106.NTP 134.
[59] PS oral evidence at hearing.
[60] Filed by PS 10 October 2022.
[61] Clinical psychologist letter, 29 September 2022, filed 10 October 2022.
[62] Statement of Evidence PS, filed 4 January 2023. Annexure 6.
[63] [2020] QCAT 457, [60].
[64] KAP [2020] QCAT 457, [60].
[65] PS Oral evidence.
[66] PS Oral evidence.
[67] NTP 26.
[68] [2006] QCST 11, [97].
[69] PS Oral evidence at hearing.
[70] NTP 279- NTP 519.
[71] NTP 131- 132
[72] PS Statement of Evidence filed 4 January 2023.
[73] PS oral evidence.
[74] NTP 189.
[75] NTP 188.
[76] NTP 190.
[77] Human Rights Act 2019 (Qld), s 58.
[78] Human Rights Act 2019 (Qld), s 58(i)(b), s 58(5).
[79] Human Rights Act 2019 (Qld), s 25.
[80] Human Rights Act 2019 (Qld), s 23.
[81] Human Rights Act 2019 (Qld), s 36.
[82] Human Rights Act 2019 (Qld), s 13(1).
[83] Human Rights Act 2019 (Qld), s 13(2)(b).
[84] Human Rights Act 2019 (Qld), s 25.