DR v Director General Department of Justice and Attorney General
[2023] QCAT 79
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- DR v Director General Department of Justice and Attorney General[2023] QCAT 79
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DR v Director General Department of Justice and Attorney General[2023] QCAT 79
DR v Director General Department of Justice and Attorney General[2023] QCAT 79
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | DR v Director General Department of Justice and Attorney General [2023] QCAT 79 |
PARTIES: | DR (applicant) V DIRECTOR GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO/S: | CML183-21 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 2 March 2023 |
HEARING DATE: | 20 February 2023 |
HEARD AT: | Southport |
DECISION OF: | Member McDonald |
ORDERS: | The decision of the Respondent made on 13 May 2021 that this is an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has charge – where other relevant information – application of s 226 and s 228 considerations Human Rights Act 2019 (Qld), s 8, s 11, s 13, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66, s 99(2)(a) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 353, s 354, s 360 CEB v Director General Justice and Attorney General [2018] QCAT 26 [45] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Re TAA [2006] QCST 11 WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190 [70] |
APPEARANCES & REPRESENTATION: | |
Applicant: | DR self-represented |
Respondent: | Davies C, Legal Officer Blue Card Services |
REASONS FOR DECISION
- [1]DR is 38 years old mother of four. She works as a volunteer fire fighter.[1] The role brings her into contact with children in an educational capacity and in times of emergency.[2] She seeks a working with children clearance to continue this work and to enable her to participate and support her own children’s school and extra-curricular activities.[3]
- [2]DR applied to the Tribunal to review the decision of the Respondent made on 13 May 2021 that hers was an exceptional case in which it would not be in the best interest of children to issue a blue card.
- [3]DR provided the Tribunal with a life story. Attached to her application was a response to the decision, and 7 references appendixed at A-G.[4] Three of these witnesses gave evidence. Her submission to Blue Card services was included in the respondent’s material.
- [4]The respondent provided documents marked BCS 1-71, and NTP 1-173 which included material produced under a notice to produce by the Queensland Police Service, Department of Children, Youth Justice and Multicultural Affairs, and Queensland Children’s Hospital. DR’s witnesses were cross examined by the respondent. The respondent also provided written and oral submissions.
- [5]
- [6]The decision under review was made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), and this enabling act applies to the review. The object of the WWC Act is promote and protect the rights of children in employment screening decisions to ensure that people who work or propose to work with children are suitable to do so.[7] Guiding this decision is the principle that that that the welfare and the best interests of a child are paramount.[8] The Tribunal must also be guided by the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’.[9]
- [7]The issue for the Tribunal to determine is whether DR’s case is an exceptional case within the meaning of the s 221 of the WWC Act. If the Tribunal is not satisfied that this is an exceptional case, a working with children clearance must issue.
- [8]The term ‘exceptional case’ is not defined in the WWC Act. Whether this case is an exceptional case is a question of fact and degree, to be decided in on a case-by-case basis having regard to:
...the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to – children.[10]
- [9]In these circumstances here, there is a charge that has been dismissed, and there is relevant information, including domestic violence information and other information from the Queensland Police, Department of Children Youth and Multicultural Affairs, hereafter “Child Safety,” and Queensland Childrens’ Hospital. Sections 226 and 228 of the WWC Act are relevant in determining whether an exceptional case exists. These considerations are not exhaustive and the Tribunal may and have regard to other relevant matters.[11] The Tribunal however must at all times be guided by the paramount principle that the welfare and best interests of a child are paramount and make a decision which is consistent with the object of the WWC Act.[12] The Tribunal must also act in a way compatible with human rights,[13] and can only limit a human right where it reasonable and justifiable.[14]
Application of s 226?
- [10]DR was charged with assault occasioning bodily harm for smacking her stepdaughter causing bruising. The charges were ultimately not pursued by the prosecution. DR asserts that this is because there was medical evidence from the child’s cardiologist that the aspirin the child was on in preparation for upcoming surgery made her more likely to bruise. This evidence is not before the Tribunal.
- [11]The Respondent submits that this charge should be considered despite the decision in CMH v Director General Department of Justice and Attorney General [2020] QCATA 15, which the Appeal tribunal states that the legislative intent was that charges that have been dismissed should not be considered. I do not deviate from that expressed view of the Appeals Tribunal.
- [12]The Tribunal considers it unnecessary to consider the dismissed charges where the same facts which led to the of the charges are replicated information provided as domestic violence information and other relevant information. It is unnecessary for the Tribunal to consider s 226 in these circumstances where the same information is to be considered under s 228.
Section 228(2) Considerations
- [13]Section 228 (2) relevantly requires the Tribunal to consider the following factors:
- (a)if the chief executive is aware of domestic violence information about the person—the circumstances of a domestic violence order or police protection notice mentioned in the information, including the conditions imposed on the person by the order or notice;
…
- (d)if the chief executive is aware of other information about the person mentioned in subsection (1) —the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information;
- (e)the length of time that has passed since the event or conduct the subject of the information occurred;
- (f)the relevance of the information to employment, or carrying on a business, that involves or may involve children;
- (g)anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.
Domestic Violence information:
- [14]A Temporary Protection order naming DR as the aggrieved, and naming four children on that order to be protected was issued on 7 May 2013 and lapsed at expiry. Blue Card Services record DR as telling them that the reason this was allowed to lapse was so that her former partner could join the army.[15] DR confirmed the accuracy of this record under cross examination. DR gave oral evidence that she had been in a violent relationship with the children’s father. Evidence provided by Child Safety reflects that in 2013 there were multiple unreported domestic violence incidents,[16] and DR’s former partner was recorded to have punched and headbutted a brick wall and upturned a coffee table.[17] DR told Blue Card Services that she had separated from her former partner but resumed the relationship despite concerns she held for her and the children’s safety. DR also stated that she did not forgive herself for going back to her former partner.[18]
- [15]Child Safety records indicate that there were cross applications for protection orders. The record state that the police applied for a protection order naming DR as respondent, arising from an incident on 24 August 2013.[19] The record identifies that there was a verbal altercation and DR bit her former partner and scratched him on the hand/ forearm[20]. DR told the Tribunal that she was very drunk on that occasion, “acted like an animal”.[21] She described the incident as “Not my finest moment”, and agreed that she had attempted to leave the house to drive the car under the influence of a considerable amount of alcohol.[22] She told the Tribunal that the children were in the house, but were in another section of the house and she believed that the children would not have been aware of her altercation. The Tribunal is reluctant to accept that that the children were unaware of the incident in circumstances where the altercation necessitated the police to have arrived. Irrespective of whether the children were able to hear the altercation, the conduct demonstrated is that which is unlikely to have made the children feel safe in their own home. The conduct does not take into consideration the children’s needs for emotional safety, and demonstrates poor judgement and poor role modelling.
- [16]These incidents happened 9 years ago, and DR indicates that she no longer drinks, and is not in a relationship with at his or any partner. She reflects negatively on this behaviour. However, it is in evidence that at this time, DR had caring responsibilities for three children aged 1, 2 and 6.[23] DR demonstrated behaviour that compromised the emotional wellbeing of the children irrespective of their location within the house.
- [17]The evidence also indicates that DR admits to resuming a violent relationship where she held concerns for her and the children’s safety. This has direct relevance to her ability to act protectively for the children’s interest, and raises serious questions about her judgement around safety for the children.
- [18]A protection order dated 7 May 2015 named the aggrieved and four children for protection from RD’s former- partner.[24] She gave evidence that she separated from her former partner in December 2014. The Tribunal notes that December 2014 was around the time that physical injuries were identified in 3 of DR’s 4 children, discussed below, and is consistent with DR’s evidence that she left her former partner when these injuries were identified.
- [19]The information referred to below in paragraphs 20-34 is also domestic violence information, in that it involves substantiated physical harm to the children, however this Child Safety information is dealt with as ‘other relevant information’ in accordance with s 228 (1)(iii).
Other relevant Information – Child safety information
- [20]Two child Safety investigations resulted in findings that children in DR’s care sustained physical harm:
2013 Investigation: Bruising on stepdaughters bottom
- [21]Although the charge of assault occasioning bodily harm relating to DR’s 6 year old step daughter was ultimately dismissed with the prosecution not pursuing, Child Safety conducted an Investigation and Assessment, finding physical harm to be substantiated. In October 2013, Child Safety became aware that significant bruising on the child DR admitted to smacking the child causing bruising to the child’s bottom, but denies that she smacked with sufficient force to cause injury.[25] In oral evidence DR told the Tribunal that she used “very little force” and she “was not angry.” She described that she and the children were ‘walking on egg shells” at the time due to her former partners volatile behaviour.
- [22]
- [23]The police brief identifies that the 6 year old child had cerebral palsy requiring a leg brace, hearing impairment a heart condition, which required surgery. She attended a special school and required toileting assistance.[28]
- [24]The respondent submits that the actions related to the smacking and bruising of DR’s steps daughter are aggravated by these vulnerabilities. The child was also identified to have an intellectual disability.[29] The respondent submits that DR’s smacking the child in these circumstances raises questions about DR’s ability to exercise restraint and self-control and regulate her emotions; and brings into question her judgement where she ought reasonably have known that she was may have been likely to bruise easily. I accept the Respondent’s submissions that the behaviour reflects concerns about DR’s judgement in the decision to use physical discipline on a child who had multiple vulnerabilities including a vulnerability to bruising.
2014 Investigation: Unexplained bruising and broken bones[30]
- [25]In December 2014, DR presented to the Children’s Hospital for an arm injury sustained by DR’s daughter, then aged 3 years.[31] While there, the medical team examined the two three month old twins. Investigations revealed bruising and historical rib fractures.[32] The records reflect that bruising was observed on both twins,[33] and x-rays revealed rib fractures that are likely to have occurred at 2-4 weeks of age.[34] The rib fractures were identified as being non accidental injuries.[35] Bruising was also noted on left arm, right arm and sole of feet of the male baby aged three months.[36] The parents reported no unusual handling to the hospital.[37] That evidence deviated from DR’s evidence given at hearing.[38]DR told the Tribunal that she suspected that her former partner’s tight swaddling of the babies may have caused these injuries, and while she tried to prevent him from swaddling them so tightly and handling them roughly, he ignored her requests.[39]
- [26]In December 2014, Child Safety determined that two twin three-month-old children who had sustained bruising and broken ribs while in the care of DR were had been physically harmed and the two other children in her care aged 2 years and 3 years were at risk of harm.[40] Child Safety assessed DR was a parent that was willing but unable, without ongoing supervision, to enact measures to protect the children from harm.[41] The children were placed in kinship care for one month until the mother removed herself from the relationship.
- [27]Material produced by Child Safety state that DR saw her former partner break her daughter arm[42] on 14 December 2014.[43] This is the date she advised the Tribunal that she separated from her former partner.[44] Child safety officers who spoke with her about the injury recorded “her story keeps changing.”[45]
- [28]A fractured ulna was diagnosed via x-ray.[46] The record reflects that action did not take action to engage a medical review for 5 days from when she observed her former partner injure her daughter’s arm. The Respondent submits that the delay in seeking medical attention for this child demonstrated poor judgement and ability to act protectively.
- [29]DR told the Tribunal that she waited to speak with the child health nurse who visited each week and this was only a wait of 2-3 days in which the child was using her arm normally. She indicated that it was uncertain that the arm had been injured and sought nursing advice before going to a doctor. This does in my view raise concerns about judgement and responsiveness to medical concerns identified.
- [30]In oral evidence, when asked if she failed to act protectively in relation to the childrens’ exposure to domestic violence in the home DR conceded that she should have left the relationship earlier but didn’t believe in herself at the time.
- [31]These events occurred 8-9 years ago. However, despite the passage of time they have direct relevance to DR’s ability to work with children, raising concerns about her ability to act protectively at all times. Vulnerable children who had no ability to protect themselves from harm relied upon her to take action to ensure that they were safe. Her failure to notice bruising, and to take action to prevent injury, her delayed responsiveness to medical needs weighs heavily against her suitability to work with children.
Witness Evidence
- [32]JC works for a rural fire service in a senior role. He gave evidence that he had observed DR in many setting with children and had no concerns about her. He was aware of the concerns that had been raised in the 2013 and 2014 incidents. He gave evidence that DR was aware that DR was not a heavy drinker. He strongly supported DR obtaining a blue card and considered that there should be nothing that impeded her.
- [33]KW is a close friend and former neighbour of DR and also volunteers with her in the rural fire brigade. She confirmed that DR was not a heavy drinker. She described DR as someone that would do anything to help people, and indicated that she had received much help from DR. She saw her as being empathetic with children in emergency situations, with skills in being able to calm the children at times of distress.
- [34]ND is DR’s mother. She gave evidence that she observed DR’s former partner roughly swaddling the babies from their early days. Her written statement describes observations she made during the 2014 examination of nurse, despite not being there.[47] She stated that DR had been under a lot of pressure in her living situations where her former partner would frequently go into rages. She said DR was fiercely protective of her children and a good mother. She commented of the difficulty in putting two twins and two toddlers in the car to visit a GP, and noted that she was out of town when the 2014 events occurred. She spoke very highly of DR’s parenting skills and noted that her children were her priority.
- [35]I accept the witnesses’ evidence that DR is no longer a heavy drinker and is a dedicated mother who is considered by those who know her best as a capable and loving mother.
- [36]DR submitted references from other friends who were not available to be cross examined. The Tribunal places no weight upon these untested statements. The evidence of psychologist LC was in this material. The report refers to DR making “every effort to ensure that her children’s needs are safe, well balanced and equipped to overcome and manage life’s experiences.”[48] No basis has been provided for this conclusion. The letter is in the form of a reference rather than an assessment. The letter does not indicate knowledge of the child protection and domestic violence information, nor provides assessment of critical considerations such as insight, or strategies developed to prevent behaviours. The psychologist was not available to be questioned and cumulatively, the value of this report is limited such that no weight can be placed on this evidence.
Other factors
- [37]DR has evidence of a wide and active support network through her local community. Those who spoke with the Tribunal confirmed that DR no longer drinks heavily. These are protective factors in DR’s favour.
- [38]Risk factors by virtue of DR’s child safety record and domestic violence history weigh heavily on this decision.
Consideration
- [39]DR’s witnesses all spoke highly of her skills and abilities with children. Each considered that she had much to offer children and endorsed her parenting of her own children as capable. This evidence, however, stands in contrast to the public investigation which found that on two separate occasions children in her care were not protected from harm. The professional assessment of child protection specialists must have more weight.
- [40]It is noted that DR describes the times around 2013 and 2014 events as having four children under four, with twin babies to be a demanding and difficult time. Notwithstanding that this is very likely to be the case, very young children in her care were exposed them to physical and emotional harm over an extended period, with a violent partner who she was aware was handling her children roughly, and whose behaviour was erratic and violent and unpredictable. She failed to act protectively to avoid injuries in three of her children, and only took action when her children were removed from her care. She was responsible for causing injury to a vulnerable child with special needs whom she knew had a propensity to bruise. This has direct relevance to DR’s demonstration of her capacity to respond to children’s emotional and safety needs and to put children’s welfare and best interest first.
- [41]A primary decision making principle of the WWC Act is that children have a right to be cared for in a way that protects them from harm and promotes their well-being. Child Safety’s two substantiated findings of physical harm raise serious concerns about DR’s ability to do this.
- [42]DR has demonstrated that there have been at least two specific occasions that she has not demonstrated this vigilance to protect children from harm.
- [43]The Tribunal makes the following findings of fact:
- [44]In 2013 and 2014 the Department of Children Youth Justice and Multicultural Affairs, determined that physical harm had occurred to children in DR’s care;[49]
- [45]DR has admitted to smacking and causing bruising to her stepdaughter because she did not eat her lunch. The child had multiple special needs and vulnerabilities, including cerebral palsy, intellectual disability, hearing impairment, with a heart condition requiring surgery and needing callipers to support mobility;
- [46]DR has admitted to biting her former partner one occasion during 2013 during an occasion of heavy drinking while the children were in her care. DR admitted to attempting to drive while under the influence of substantial alcohol on that occasion.
- [47]Having regard to all of the evidence, the relevant considerations of the WWC Act, the findings, and the risk and protective factors, on the balance of probabilities, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to DR. The respondent’s decision that this is an exceptional case is confirmed.
- [48]I have had regard to the Human Rights Act in making this decision, and consider this decision is compatible with human rights.[50] Although the individual human rights of the applicant to privacy and reputation,[51] to take part in public life,[52] and to further vocational education and training protected[53] may be limited by this decision, the WWC Act operates to make children’s welfare and best interests the paramount consideration. Noting the objects of the WWC Act, the purpose of a decision in assessing working with children clearance screening decisions, is the protection of children. It is therefore reasonable and justified that these rights are limited by this decision pursuant to s 13 Human Rights Act 2019 (Qld) to ensure this purpose is achieved.
Non publication
- [49]Pursuant to s 66 of the QCAT Act, the Tribunal may make non-publication orders. In the interests of justice,[54] the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child. Accordingly, these reasons have been de-identified.
Footnotes
[1] Applicant life story filed 20 July 2021.
[2] Oral evidence.
[3] Oral submissions of applicant.
[4] Applicant Life story filed 30 July 2021.
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 19(a) s 20.
[6] QCAT Act s 20.
[7] WWC Act, s 5 B; WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190, [70].
[8] WWC Act, s 6, s 360.
[9] WWC Act s 6.
[10] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[12] WWC Act, s 360.
[13] Human Rights Act 2019 (Qld) s 58.
[14] Human Rights Act 2019 (Qld), s 13.
[15] BCS 7.
[16] NTP 23.
[17] NTP 23.
[18] BCS 7.
[19] NTP 27.
[20] NTP 29.
[21] DR oral evidence.
[22] DR oral evidence.
[23] NTP 26.
[24] BCS 49.
[25] NTP 20.
[26] NTP 8.
[27] BCS 45.
[28] BCS 23.
[29] Oral evidence of KW and ND.
[30] NTP 71.
[31] NTP 44.
[32] NTP 155, 156.
[33] NTP 115.
[34] NTP 163, NTP 167.
[35] NTP 160.
[36] NTP 118.
[37] NTP 166.
[38] DR Oral evidence.
[39] DR Oral evidence.
[40] NTP 27.
[41] NTP 60, NTP 31.
[42] NTP 64.
[43] NTP 136.
[44] Applicant’s Life Story. filed 30 July 2021.
[45] NTP 64.
[46] NTP 115.
[47] Application, Appendix A.
[48] Application, Appendix G.
[49] BCS 27.
[50] Human Rights Act 2019 (Qld), s 58.
[51] Human Rights Act 2019 (Qld) s 25.
[52] Human Rights Act 2019 (Qld) s 23.
[53] Human Rights Act 2019 (Qld) s 36(2).
[54] s 66(2)(e) Queensland Civil and administrative Tribunal Act 2009 (Qld); s 66(3).