HPM v Chief Executive Office, Public Safety Business Agency
[2015] QCAT 445
•11 November 2015
| CITATION: | HPM v Chief Executive Office, Public Safety Business Agency [2015] QCAT 445 |
| PARTIES: | HPM (Applicant) |
| v | |
| Chief Executive Office, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML065-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 16 September 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne, Presiding Senior Member Brown |
| DELIVERED ON: | 11 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 17 February 2015 to issue a negative notice to HPM is confirmed. 2. The Tribunal prohibits the publication of the name of the applicant, her former partner and any references to the applicant’s children. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to refuse the application to cancel the negative notice – where previous decision to issue negative notice was confirmed by the former Children Services Tribunal – where history of offending behaviour – where serious offence – whether exceptional case exists – whether it would not harm the best interests of children to issue a positive notice Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 225, s 226, s 236 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; cited |
REPRESENTATIVES:
| APPLICANT: | Self represented |
| RESPONDENT: | Chief Executive, Public Safety Business Agency represented by Natalie Taylor, in house solicitor, Public Safety Business Agency |
REASONS FOR DECISION
HPM wants a blue card so she can complete her training as a nurse and be a role model to indigenous Australian children.[1]
[1]Applicant’s submission letter, material filed by the respondent pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Exhibit ‘1’, p 279.
HPM is a proud Aboriginal woman of the ‘Wakka-Wakka and Ewamin tribes’.[2] She is a single mother to two boys and is a student with Careers Australia.[3]
[2]Ibid.
[3]Ibid.
It is important to acknowledge the many personal challenges presented to HPM in her early years of life. She and her older brothers left their family in Cherbourg to live in a Christian foster home.[4] Some years later HPM and her brothers were ‘given’ to her Grandmother to live in Cherbourg before moving to Brisbane to live with her mother.[5]
[4]Ibid.
[5]Ibid.
HPM described the transition from a small Aboriginal community to Brisbane as presenting challenges of ‘inferiority, discrimination, racism, disempowerment and prejudice because of [her] obvious Aboriginality’.[6]
[6]Ibid.
This is not the first time HPM has applied for a blue card and exercised her review rights. In 2007, the former Children Services Tribunal (CST) confirmed a decision made on 9 March 2007 by the former Commissioner for Children and Young People and Child Guardian to issue a negative notice to HPM.[7]
[7]Decision made by the CST on 12 October 2007.
On 5 May 2014, HPM made a new application to the Public Safety Business Agency to cancel her negative notice so she could hold a blue card. As part of the screening process under the Working with Children (Risk Management and Screening) Act 2000 (Working with Children Act), the Chief Executive decision-maker received information from the Queensland Police Service (QPS) about HPM’s offending behaviour.[8]
[8]See the Working with Children Act, s 8.
There are several offences disclosed in the criminal history from 1997 to 2014 (inclusive). The offences include stealing, taking a vehicle without consent, behaving in a disorderly manner, assaulting and obstructing a police officer, consuming liquor on land controlled by the local authority, contravening a direction or requirement, possession of property suspected of being stolen or unlawfully obtained, committing a public nuisance, burglary, fraud and common assault.
There is also a serious offence of supplying dangerous drugs with a circumstance of aggravation in late 2004. HPM was convicted and ordered to serve a term of imprisonment for six (6) months by way of an intensive correction order.
HPM was given an opportunity to respond to the material obtained from the QPS. The Chief Executive considered HPM’s material and applied the ‘test’ of whether this was an exceptional case in which it would not harm the best interests of children for HPM to be issued with a positive notice.[9] The Chief Executive determined on 17 February 2015 to refuse HPM’s application to cancel her negative notice.
[9]Exhibit 1, p 286.
HPM wants to review the Chief Executive’s decision. HPM says that she does regret what she has done (in the past) and has come a long way. She says she has not been involved in drugs since the incident in 2004 and her alcohol use is ‘infrequent’ and if she does drink it is in a ‘controlled’ area such as pub or nightclub.[10]
[10]Ibid, p 279.
In the event that the Tribunal confirms the decision made by the Chief Executive, HPM can apply at some future time for a blue card to enable her to work with children.
What is an exceptional case?
HPM’s offending behaviour is a serious offence so the Chief Executive must issue a negative notice unless satisfied it is an ‘exceptional case’ in which it would not harm the best interests of children to issue a positive notice. If so satisfied, the Chief Executive must issue a positive notice.[11]
[11]HPM’s eligibility to hold a blue card is reassessed under s 236 of the Working with Children Act, see also s 225.
The Tribunal on review is standing in the shoes of the Chief Executive decision-maker and must arrive at the correct and preferable decision.[12] The Tribunal must therefore be satisfied that this is ‘an exceptional case in which it would not harm the best interests of children’ for a positive notice to issue so HPM can hold a blue card.[13]
[12]Queensland Civil and Administrative Tribunal Act 2009 s 24.
[13]Working with Children Act s 225.
The Working with Children Act does not define the meaning of an ‘exceptional case’. There are certain factors that the Tribunal on review must consider in determining whether this is an ‘exceptional case’. The factors include, amongst others, whether it is a conviction or charge, whether the offence is a serious offence, when the offence was committed, the nature of the offending behaviour, the penalty imposed and anything else that the Chief Executive or the Tribunal on review reasonably considers relevant to the assessment of the person.[14]
[14]Ibid, s 236 and s 226.
In determining whether HPM’s case is ‘exceptional’, the Tribunal must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.[15]
[15]Commissioner for Children and Young People & Child Guardian v Maher & Anor [2004] QCA 492 at [29].
In Commissioner for Children and Young People and Child Guardian v FGC[16] the Appeal Tribunal said that the meaning of an exceptional case is a matter of discretion and should not be confined to ‘any general rule’.[17] The Appeal Tribunal considered the Court of Appeal decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[18] and said that each case should be considered ‘unhampered by any special meaning or interpretation’.[19] The Appeal Tribunal said:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[20]
[16][2011] QCATA 291.
[17]Ibid, [32].
[18][2004] QCA 492.
[19]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
[20]Ibid.
The Tribunal must also consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.[21] The Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.[22]
[21]Working with Children Act s 5.
[22]Ibid, s 6(a).
At the oral hearing Ms Taylor appearing for the Chief Executive submitted that there are issues of concern or risk because of HPM’s criminal history. The issues are summarised as follows:
a) Whether HPM has insight into her offending behaviours and the triggers for the offending behaviours.
b) Whether HPM has insight into the impact the offending behaviours have had on others.
c) What steps have been taken by HPM to address the risks associated with alcohol consumption that appeared unresolved in 2007 and related to some of the offending behaviours.
At the hearing HPM was given an opportunity to answer questions about the material prepared and filed by the Chief Executive decision-maker and material produced by the Department of Communities, Child Safety and Disability Services (the Department of CCS&DS).
In giving her evidence at the hearing HPM said that since the decision of the former CST in 2007 she has been raising her two children aged 13 and 9 and has been proactive in the community and focused on her ‘personal stuff’. HPM said she has ‘reached out’ to services and received help through counselling.
HPM also said that she has been studying to obtain certificates in Business Administration, Public Art and a First Aid Certificate. She has been working as a receptionist, administration assistant and medical receptionist.[23]
[23]Exhibit 7.
HPM said that she previously did not ‘reach out’ to services. She said that in the past 3 or 4 years she has focused on her health. HPM talked openly at the hearing about the reason why she decided to ‘reach out’ to services. She said that she previously had ‘trust issues’. She said that drugs and alcohol are ‘big issues’ in ‘our community’.
In relation to the recent offending behaviour on 18 July 2014, HPM said at the hearing that she was out with a friend and they were being ‘a bit loud’. She said she asked the taxi driver to take her and her friend home and he said ‘No’. HPM said she was very intoxicated, she did throw a mug (at the taxi driver) and she knows that she should not have done it. She described her actions as ‘embarrassing’ and ‘a bit upsetting’. HPM said she realises she ‘can’t keep doing this’. She said she has children; and it is hard (for her) growing up around alcohol, violence and drugs.
Are there exceptional circumstances before the Tribunal and therefore an ‘exceptional case’ exists?
The Tribunal has identified the following factors as being relevant to the exercise of discretion to determine whether HPM’s case is ‘exceptional’.
a) Nature of the offending behaviour
The most recent offending behaviour on 18 July 2014 was for common assault. No conviction was recorded and HPM was required to complete a period of probation for 6 months. The QPS information contains a copy of the court brief. HPM is reported as being intoxicated and ‘argumentative’. Police report that HPM ‘grabbed a steel coffee mug’ belonging to the complainant and she ‘threw it at him’.[24]
[24]Exhibit 1, p 42.
HPM said at the hearing that she was ordered as part of her probation to attend drug and alcohol counselling because she was intoxicated. HPM completed the counselling as part of her probation with Dr Ursula Oertel, clinical psychologist. HPM relies on Dr Oertel’s report dated 31 August 2015 in support of her application.
There are other offences (in 2009 and 2007) involving HPM being intoxicated that have been committed since the former CST decision was published on 12 October 2007.
On 17 March 2009, HPM became involved in a verbal argument with a taxi driver in a public street. The court brief states that HPM was seen to ‘swear and abuse’ the taxi driver and ‘lean towards the taxi driver and project spit from [her] mouth on the taxi driver’s leg’.[25] HPM was arrested for public nuisance. HPM was taken by police to the custody area (in the station) and she was seated on a plastic seat. HPM is reported to have ‘leaned forward and has projected spittle from her mouth on to the left arm of [the police constable]’.[26] HPM is reported as being intoxicated at the time of the incident and was later charged with ‘serious assault – assault/resist/obstruct police officer/person acting in aid of police officer’ and committing a public nuisance.[27] For each charge, a conviction was recorded and HPM was sentenced to 1 month imprisonment to be suspended for 9 months.[28]
[25]Ibid, p 40.
[26]Ibid.
[27]Ibid.
[28]Ibid. See Exhibit 2.
On 15 December 2007, HPM was observed by police to be drinking in a public place with other people. HPM is reported as being ‘very angry and aggressive’ towards the police and used ‘obscene language’.[29] HPM was charged with committing a public nuisance and contravening a direction (for failing to provide her name). HPM was ‘convicted’ and probation imposed for 18 months with special conditions that she ‘attend drug and alcohol counselling’.[30] The court brief states:
At about 03:20am on the morning of Saturday 15 December 2007 [HPM] was in Centenary Place, Ann Street, Brisbane…Police noticed [HPM] to be in possession of an open container containing liquor. Police exercised their powers under the Liquor [sic] and disposed of the liquor.
[HPM] became very angry and aggressive towards the Police, a number of times she used obscene language towards the police and she [threw] the liquor container at the police. As the police walked away and attempted to enter their motor vehicles [HPM] threw a small stuffed Kangaroo at the police and yelled, ‘You f*****g c**ts’.[31]
[29]Exhibit 1, p 35.
[30]Exhibit 2.
[31]Exhibit 1, p 35. Text quote intentionally altered for publication of these reasons.
There are other offences in 2007 and 2006 that occurred before the former CST decision that also involve HPM being intoxicated.
On 11 August 2007 at approximately 11:00 pm police were called to HPM’s mother’s residence because she was reported to be ‘causing a disturbance’ and refusing to leave.[32] HPM is reported to have complied with the request made by police to leave and was transported home by police. The court brief states that HPM was ‘extremely uncooperative and abusive to police’.[33] She was intoxicated, her speech was slurred and she was unsteady on her feet. HPM was escorted outside. She is reported to have taken a garden spade which she suddenly and without warning ‘swung back over her head’.[34] Police took evasive action to avoid being struck. HPM did strike a nearby motor vehicle cracking the windscreen and denting the ‘A-pillar’. HPM was charged with ‘obstruct police officer’.[35] HPM was convicted and fined $100.[36]
[32]Ibid, p 32.
[33]Ibid.
[34]Ibid.
[35]Ibid.
[36]Exhibit 2.
On 21 December 2006, at approximately 9:00 am HPM was outside a restaurant ‘causing a disturbance’.[37] She is reported to have thrown a drink at the manager (of the restaurant) and was being ‘verbally abusive’ to staff and customers by shouting ‘obscene language and using threatening words’.[38] The court brief states that there were families seated in an area outside the restaurant. HPM was charged with ‘commit public nuisance’.[39] No conviction was recorded.[40]
[37]Exhibit 1, p 28.
[38]Ibid.
[39]Ibid, p 28.
[40]Exhibit 2.
On 23 September 2006, HPM was charged with assault occasioning bodily harm and wilful destruction. HPM is reported as being verbally abusive towards a taxi driver. She ‘struck’ the taxi driver in the neck and shoulder area with a stubby of beer.[41] She also threw beer bottles at the rear of the vehicle.[42] HPM was convicted on all charges and a period of 9 months probation imposed.[43]
[41]Exhibit 1, p 20.
[42]Ibid.
[43]Exhibit 2.
On 23 March 2006 HPM threw an object at a security officer and said ‘F***k off c**t’.[44] The security officer told police that HPM had also hit him in the face. HPM is reported to have been very intoxicated and verbally abusive towards police when they tried to speak to her. She said to police ‘You are all a bunch of f*****g dog c**ts’.[45] She was charged with committing a public nuisance and convicted and fined $250.[46]
[44]Exhibit 1, p 16. Text quote intentionally altered for publication of these reasons.
[45]Ibid.
[46]Ibid and Exhibit 2.
The serious offence for the purposes of the Working with Children Act, occurred in late 2004 and early 2005. HPM supplied her boyfriend who was an inmate in a correctional facility with marijuana and ‘Subutex’ (prescription medication) on two occasions. She pleaded guilty before the Supreme Court on 5 January 2006 and was convicted and sentenced to imprisonment for 6 months to be served by way of an intensive correction order. In the sentencing remarks, Justice Fryberg refers to the offence as being ‘serious’ because it involved supplying drugs to a person in gaol. Justice Fryberg said that HPM has been ‘really stupid’ and has a criminal history with ‘a lot of offences since the year 2000’ stating that most of them are ‘trivial offences, vagrancy offences’.[47]
[47]Exhibit 1, p 57.
Before the serious offence in late 2004, there were numerous offences from 1997 to 2005 (inclusive) where no conviction was recorded. The offences include stealing (in 1997), attempted stealing (in 1999), taking a vehicle without consent (in 1999), possessing property suspected of being tainted property (in 2000), behaving in a disorderly manner and assaulting a police officer (in 2001), vagrancy or loitering in a public place (in 2003).[48]
[48]Exhibit 2.
The offences where convictions were recorded include consuming alcohol on land under the control of a local authority (in 2001), obstructing a police officer on two occasions and assaulting a police officer (in 2001), unauthorised dealing with shop goods (in 2001); and committing a public nuisance (in 2005).[49]
[49]Exhibit 2.
b) Remorse and insight into the offending behaviour
The Tribunal accepts that HPM is remorseful for her actions that resulted in the offending behaviours over a number of years. HPM said in her written submissions to the Chief Executive decision-maker that she is ‘wholly remorseful’ for what she has done.[50]
[50]Exhibit 1, p 280.
HPM gave evidence at the hearing about insight into her offending behaviour and the impacts or consequences for her behaviour. HPM said that she has realised that if she keeps offending her children could be taken away from her care. She said that she has looked at her criminal history that shows her offending every two years. HPM said that her children do not know about her offending behaviour and she has made changes in her life particularly with drinking alcohol.
HPM said at the hearing that she knows she has had issues (in the past) with alcohol and does not consider herself an angry person. She said that when she has alcohol and is intoxicated she has ‘these angry outbursts’.
HPM relies on the report prepared by Dr Oertel in relation to her alcohol use relevant to her offending behaviour. Dr Oertel saw HPM initially on 15 October 2014 for 6 individual therapy sessions ending on 28 August 2015. Dr Oertel reports that HPM has been functionally well and has distanced herself from ‘anti-social acquaintances’.[51] Dr Oertel reports that HPM is passionate about helping young people and being a role model for them.
[51]Exhibit 4.
Dr Oertel reports that HPM completed the Alcohol Use Disorders Identification Test on 28 August 2015 and her score did not suggest dependence on alcohol. Dr Oertel reports that HPM’s ‘alcohol abuse’ is strongly associated with her offending behaviour and displays of aggressive behaviour.[52] Dr Oertel reports that HPM ‘appears to possess’ many protective factors that moderate future aggressive behaviour including relations and social support from family, friends, professional and others.[53]
[52]Ibid, p 4.
[53]Ibid.
Dr Oertel does not identify in her report any risk factors that require management. Dr Oertel reports that HPM does not presently pose a significant risk to the welfare of children. Dr Oertel’s reports as follows:
…
When considering [HPM]’s most recent offending behaviour, this appears to have occurred in the context of psychological problems and alcohol use. It does not appear that she possessed or utilised appropriate coping strategies to manage her emotions, physiological arousal and psychosocial stressors. Furthermore, it is plausible that her alcohol intoxication facilitated significant maladaptive behavioural and psychological changes (e.g. mood liability, aggressive behaviour, impaired judgement) resulting in [HPM] having greater difficulties modulating her emotions and calming herself down. Finally, her offending behaviour appeared to have been spontaneous, impulsive and reactive in nature rather than a carefully planned offence.
It is noteworthy that [HPM]’s alcohol abuse is strongly associated with her historical offending behaviour as well as display of aggressive behaviour. When considering observations of [HPM]’s current or recent functioning as well as the adequacy of her plans for the future, there does not appear to be any risk factors present that require management. Since committing the offence in July 2014, [HPM] has actively participated in psychological intervention and family services (i.e. RAI), and it seems that many of the contextual, intrapersonal and interpersonal factors that were likely related to her alcohol abuse and aggressive behaviour previously have resolved or are no longer present.
…
In summary, [HPM] presently does not pose a significant risk to the welfare of children. Therefore it is unlikely that working with children would compromise their welfare and well-being. She displays reasonable insight into the impact that her behaviour has on children. There does not appear to be any factors or triggers present which could contribute to a risk of [HPM] displaying aggressive or violent behaviour toward children.
The Tribunal has some concerns about the opinions expressed by Dr Oertel in her report. Dr Oertel’s professional opinion about HPM’s alcohol use and protective factors that are reported to moderate future aggressive behaviour relies on a history given by HPM (to Dr Oertel). There are some inconsistencies in the history reported to have been given by HPM to Dr Oertel (in the report) and the evidence given by HPM at the hearing.
The Tribunal was not able to question Dr Oertel about the concerns because Dr Oertel was not available to give evidence for HPM at the hearing.
The inconsistencies in Dr Oretel’s report and HPM’s evidence given at the hearing relate to the last time that HPM was reported (by Dr Oertel) as having consumed alcohol and the support that HPM has in her life from friends, family and other professionals.
In relation to HPM’s alcohol consumption, Dr Oretel saw HPM on 28 August 2015 and reports that HPM reported consuming ‘alcohol infrequently and recalled last having a couple of drinks of alcohol three months ago’.[54] At the hearing HPM said that she drank alcohol on her birthday on 19 August 2015. HPM was questioned at the hearing about why she decided to have a couple of drinks. HPM said ‘I go to test myself’. HPM said that she does not like alcohol to be around her children and her last relationship ended for that reason.
[54]Exhibit 4, p 3.
In relation to ‘support’ in HPM’s life, Dr Oertel reports many protective factors that HPM appears to possess and one of these is social support from family, friends, professionals and others. There is no independent evidence before the Tribunal that HPM presently has social support from family and friends and professionals in her life.
HPM said at the hearing that she has the support of her friend Mary Philips, Mission Australia and phone calls (that she makes) to Lifeline. HPM said at the hearing that family support (in the past) did not work in the context of explaining why she has ‘reached out’ to services.
HPM gave evidence at the hearing about her mother stating that her mother is an ‘inspiration’ (to her) and she (her mother) has come a long way. HPM said it has been a while since she has seen her mother intoxicated. HPM’s mother did not provide a statement in support of HPM’s application.
HPM relies on statements prepared by Mary Philips (friend), her childrens’ teachers (the teachers) and the program manager from Mission Australia.
The Tribunal has some concerns about the evidence contained in statements prepared by the teachers because the Tribunal cannot be satisfied that each of the witnesses are aware of HPM’s criminal history and the nature of her offending behaviour. The teachers have prepared statements that refer to their observations of HPM in a controlled setting because it is during a time when HPM is participating and assisting in her childrens’ schooling. The Tribunal was not able to question the teachers about their evidence because they were not available to give evidence for HPM at the hearing. There is no independent evidence before the Tribunal in relation to HPM’s regular interactions with children including her own children outside a controlled setting such as a school.
The Tribunal has some concerns about the evidence contained in the statement prepared by Mission Australia because the Tribunal cannot be satisfied that the program manager for Mission Australia is aware of HPM’s criminal history and the nature of her offending behaviour.
HPM engaged with the Mission Australia Referral for Active Intervention (RAI) Service between October 2014 until July 2015.[55] At the hearing HPM said that there were issues with one of her sons at school in relation to bullying and the school recommended Mission Australia. She said that she was engaged with the service for 6 months even though it is usually a 3 month service. In the statement prepared by Mission Australia, the program manager states that the aim of the service is to ‘assist families to manage current issues effectively and equip them with knowledge and skills to prevent problems from reoccurring’.[56] The statement does not contain any observations by the program manager about HPM’s participation in the program.
[55]Exhibit 5.
[56]Ibid.
The Tribunal was not able to ask the program manager for Mission Australia questions about the concerns identified because the program manager was not available to give evidence for HPM at the hearing.
The Tribunal has considered the evidence from the witness Mary Philips. She is HPM’s close friend and is known as ‘Aunty’ to HPM. Ms Philips said at the hearing that HPM, in the last 6 months, has recognised the effects of alcohol and acknowledged that she has a ‘problem’. Ms Philips said that HPM was regretful of the most recent offending behaviour and this has triggered a change in her attitude.
Ms Philip was questioned at the hearing about HPM’s alcohol use. Ms Philips said that up until last year HPM would drink if she could get a night off and is now only drinking a ‘few drinks’. Ms Philips said that HPM is no longer ‘doing benders’ and can go for longer periods without having any alcohol.
The Tribunal has concerns about the evidence given by Ms Philips in relation to HPM’s current alcohol use and HPM’s interactions with her own children. Ms Philips said at the hearing that she sees HPM ‘irregularly’ stating ‘once per month’ and has visited HPM only half a dozen times in her current residence and has never visited HPM in her previous residence. Ms Philips said that she does not visit HPM ‘very often’ and that she (HPM) will come to Ms Philips’ house or they will meet for coffee. In relation to interactions with family members, Ms Philips said that HPM is approached by family members asking her ‘for things’ and to have a drink and referred to this as ‘extended family pressures’.
The Tribunal has considered HPM’s evidence about her alcohol use, her offending behaviour and her social and family supports.
HPM accepts that her offending behaviour involving aggression towards others took place when she was heavily intoxicated. HPM said at the hearing that she has developed strategies referred to as ‘tools’ that she uses when drinking. HPM said she will eat before she drinks and will drink plenty of water. HPM said she has been able to have a couple of drinks in the context of using these ‘tools’.
HPM was questioned about the last time she drank alcohol. HPM said she drank alcohol on her birthday on 19 August 2015 after she had a job interview. She said she went to a pub in the Valley, had a couple of drinks and was home by 3:00 pm ready to let her children in the house after they had finished school. She said that she drank alone (on that day) but she did previously drink with family.
HPM was also questioned about her sessions with Dr Oretel. HPM said that she has been very honest with her drug and alcohol use and alcohol can no longer take control of her. HPM said that she has ‘tools’ that she can use to recognise that point when she will be ‘angry’. She referred to taking a couple of breaths, stepping back, being calm and relaxed.
There is no independent evidence before the Tribunal in relation to HPM’s alcohol consumption that HPM says she is able to manage by using her ‘tools’. HPM is not presently attending any counselling or receiving any support from external services or health professionals in relation to her alcohol consumption and aggressive behaviour that has in some instances been the catalyst for her offending behaviour. HPM said at the hearing that it was her intention to see her general practitioner so that she can get a referral to continue sessions with Dr Oertel.
There is no independent evidence before the Tribunal from HPM’s general practitioner or other health professionals about the support that HPM is presently receiving or that she will be receiving in her everyday life particularly in relation to managing her alcohol consumption and other stressors such as extended family pressures referred to by Ms Philips.
c)Documents produced by the Department of Communities, Child Safety and Disability Services
The documents contain a summary of records about concerns received by the Department in relation to HPM’s children. There are two incidents of substantiated risks in 2006 and 2007 respectively and a history of ‘concerns’. In one of the more recent documents the Department reports a ‘child protection history’ as follows:
Between June 2005 and October 2014 the family have been the subject of a number of Child Concern reports and notifications. The concerns have related to lack of supervision, domestic violence, alcohol abuse and physical harm. The notifications occurred between 2005 and 2008. Only one notification in 2007 was substantiated in relation to risk of physical harm and neglect by [HPM].[57]
[57]Ibid.
HPM had an opportunity to give evidence about the produced documents and the reported ‘risks’ in 2006 and 2007 identified as follows:
29/05/2006 – CPN in relation to [HPM]’s depression, binge drinking whilst pregnant and concerns that she was verbally and physically abusive towards [her son]. Substantiated risk of physical harm.
…
21/04/2007 – CPN in relation to physical abuse and [HPM]’s abuse of alcohol. Additional concerns in relation to [HPM] being abusive towards QPS (children were not present). Substantiated risk of physical harm caused by neglect, risk of emotional harm caused by neglect and risk of emotional harm.[58]
[58]Exhibit 8.
HPM was questioned at the hearing about various notified ‘concerns’ referred to in the documents. Some of the ‘concerns’ are summarised by the Tribunal as follows:
a) 29 November 2005 – unsubstantiated neglect. HPM is reported to have left her child in the care of a cousin who is well known for chronic paint sniffing and alcohol abuse. HPM’s child (her son) was found in Musgrave Park with a number of adults who were under the influence of alcohol.
b) 30 June 2006 – HPM is reported to be 30 weeks pregnant and depressed (for 2 years), not sleeping and has seen Mental Health for medication. HPM admitted to yelling and ‘grow[l]ing’ and shaking her son at times.
c) 15 October 2008 – police were called to a store in a shopping centre because there was a heated argument between a man and a woman in the children’s section of the store. The man is reported to have dropped a cigarette lighter from his hand which hit the victim child (HPM’s son) causing a graze to the top of the child’s head.
d) 27 December 2008 – HPM’s son (aged 2 years and 3 months) was found unsupervised about to cross a busy road. He did not know where home was. HPM’s son was returned to his home and left in the care of HPM’s older son (aged 6 years).
e) 21 December 2011 – there was a ‘domestic disturbance’ between HPM and her former partner, Mr AD. The ‘concerns’ relate to an argument that occurred between Mr AD and HPM. HPM told Mr AD to leave. The document reports:
…[HPM] told [Mr AD] to leave and not come back. She proceeded to put [Mr AD]’s property outside and threatened to hit him with a broom. [HPM] then went to the bedroom and called her mother to come and pick up the children and [Mr AD] took the phone off her. Police attended a short time later and observed no injuries to either party or property damage. The children were watching television at the time of the altercation and although in hearing/viewing distance, did not appear distressed or affected by the conflict. Support Link was offered and declined by both parties as [Mr AD] indicated that he is leaving the address and the relationship is unlikely to continue.
f) 5 January 2015 – reported incident of domestic violence between HPM and Mr AD which occurred on 30 December 2014. HPM called police. Mr AD was intoxicated and ‘causing a disturbance’. HPM got into a verbal argument with Mr AD (in the lounge) and the children ‘retreated to the bedroom’. HPM told Mr AD to leave ‘as the argument escalated’. It is reported that Mr AD head butted HPM who pushed him away and then he grabbed her by the throat. It is reported that:
· Police facilitated [Mr AD] leaving the address for the night.
· There was no damage sighted at the house and no signs of a disturbance.
· The living conditions were observed to be unsanitary.
· The children were observed to be fine.
· [HPM] stated that she was fearful of [Mr AD].
· [HPM] accepted Support link and [Mr AD] declined.[59]
[59]Exhibit 8.
The Tribunal is satisfied that HPM has demonstrated remorse and insight into her parenting behaviours in relation to the reported incidents in 2006 and 2007. At the hearing, HPM said that in 2006 she was using alcohol to ‘block depression’. She said she did not have any support and looking back it is ‘hurtful’ for her son who was aged 3 or 4 years at the time.
In relation to the incidents involving a lack of parental supervision HPM said that she has ‘changed a lot’ and her children are with her all of the time. The Tribunal is satisfied that HPM has demonstrated remorse and insight into her parenting behaviours in relation to incidents of leaving her child/children unsupervised. HPM spoke openly at the hearing about the previous incidents. She said that she is regretful and she has made some mistakes and stated that her ‘head was not the right place’.
In relation to the incident in 2005 and leaving her son with her cousin, HPM said that she left for a short period of time and believed that her son would be taken to another unit (to be cared for). She said her cousin came to visit her and he was young and stated she did not know ‘he was under the influence’.
In relation to the incident in the Department store (in 2008), HPM said that her cousin was involved in an argument and threw a lighter at his wife. She said the lighter hit her son on the head. She said she does not have ‘much contact’ with her cousin and his wife.
In relation to the incidents involving Mr AD, HPM was questioned at the hearing about the more recent incident on 30 December 2014 and then (later) about the incident on 21 December 2011. HPM was also questioned about her past relationship with Mr AD. She said that she had been with Mr AD since 2009 (approximately 5 years) and he previously would have a couple of beers after work. She said he had never been intoxicated like he was on that night (in 2014).
The Tribunal observed some inconsistencies in HPM’s evidence about her past relationship with Mr AD when questioned (at first instance) about the incident on 30 December 2014 and then about the incident on 21 December 2011.
When giving her evidence about the incident in 2014, HPM said she ended the relationship (with Mr AD) because of the incident on 30 December 2014. She said Mr AD was intoxicated at the time and ‘it got out of control’. She said he tried to attack her and she told him to leave. HPM said she had to get her children ‘out of there’. When questioned about whether she was previously ‘fearful’ of Mr AD, HPM said ‘No’, he (Mr AD) was very good with the boys and described him as a hard worker.
HPM was later questioned about the earlier incident on 21 December 2011 and whether loud disagreements happened ‘a lot’ in her relationship (with Mr AD). HPM said ‘No, not really’. She said they were close, he (Mr AD) loved her children and they worked things out. She later said when talking about the circumstances of the incident that she could have ‘felt threatened’ (by Mr AD) which is why she ‘retaliated like that’. She said that ‘he [Mr AD] used to threaten me a lot’.
HPM was questioned at the hearing about why she had previously said she was not threatened by Mr AD (when questioned earlier about the 2014 incident). HPM stated she ‘worked through stuff’ and ‘that time’ (in 2011) she ‘felt fearful’. HPM also said that she reached out for ‘domestic violence’ and moved out of the house to live in a shelter (at Glen Haven) for women subjected to domestic violence and stayed there for a ‘couple of months’. She said that she lived in the shelter with her children for approximately 3 months in December 2011.
When questioned about why she sought assistance after the 2011 incident, HPM said there was ‘a lot of threatening’ (by Mr AD) and that he was not ‘really violent’. HPM said ‘he [Mr AD] might of choked me or pushed me at one point’. She said she did not want to ‘deal with that stuff’ and she wanted to get out of the house and start ‘a fresh’. HPM said (when questioned) she agreed to take Mr AD back in late 2013.
In relation to the notation in the Department’s documents about HPM’s house being ‘unsanitary’ (in December 2014[60]), HPM said she was working at the time. HPM’s friend, Ms Phillips was also questioned about whether she had observed HPM’s house to be unsanitary. Ms Philips said that she has seen HPM’s living conditions to be clean and tidy.
[60]See [66(f)].
d) The former CST decision
The former CST found that HPM had a long history of alcohol abuse in ‘anti-social behaviour’ and criminal offences which ‘pattern of behaviour’ had continued to date of hearing.[61] The CST was not satisfied that HPM did not represent an unacceptable risk to children.
[61]HPM v Commission for Children and Young People and Child Guardian (Unreported, Children Services Tribunal, 12 October 2007), Exhibit 1, p 262.
The CST referred to HPM’s evidence given in support of her application. HPM said in 2007 that her over-use of substances including alcohol and drugs such as amphetamines and marijuana that led to her committing the offences. HPM gave evidence in 2007 that she decided to cease the use of drugs and to restrict her use of alcohol to ‘special occasions only’.[62]
[62]Ibid, p 257.
HPM was questioned at the hearing about the CST decision and in particular what has happened in relation to her alcohol use (since 2007). HPM said she has ceased the use of drugs stating alcohol is ‘very limited’. She said that she now has the ‘tools’ stating that she can ‘handle it a bit better’. HPM said that she might have relapsed in 2009 when she moved from Brisbane to Geelong. She said she has stopped ‘associating with drugs’. When questioned about how the Tribunal can now be satisfied that she is equipped to deal with her impulses and manage her aggression, HPM stated she ‘regrets doing those things, [it’s] hard to explain’.
Are there exceptional circumstances before the Tribunal and therefore an exceptional case exists?
HPM has a history of offending behaviour including a serious offence. The Tribunal standing in the shoes of the Chief Executive decision-maker must refuse HPM’s application to cancel her negative notice unless satisfied that this is ‘exceptional case’ in which it would not harm the best interests of children to issue a positive notice.
The Tribunal’s primary consideration in determining whether HPM’s case is ‘exceptional’ is the safety and wellbeing of children because every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[63]
[63]Working with Children Act, s 5 and s 6.
HPM’s history of offending behaviour is extensive because it includes several offences over a number of years. Some of the offending behaviour involved aggressive outbursts towards police and others. Some of the offending behaviour took place when HPM was heavily intoxicated.
The Tribunal has before it various documents produced by the Department of CCS&DS that contain a history of ‘concerns’ relating to HPM’s children. There is a recent notification in 2014 involving a domestic violence incident between HPM and her partner at the time.
The Tribunal is not satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a positive notice.
The Tribunal accepts that HPM is remorseful for her past offending behaviour and wants to change a pattern or history of offending that has involved excessive alcohol consumption and aggressive behaviour in some instances.
The Tribunal is not satisfied that HPM has insight into the triggers for her alcohol use that is relevant to her outbursts of aggressive behaviour.
There is no independent evidence before the Tribunal to support HPM’s evidence about her alcohol consumption and the ‘tools’ that HPM says she now has in place to manage her alcohol use and aggressive behaviours.
The Tribunal has identified inconsistencies in the history given by HPM to her treating psychologist, Dr Oertel, about her alcohol consumption and the support that she says she has in her life from family, friends and professionals.
The Tribunal has identified inconsistencies in HPM’s evidence given at the hearing in relation to her relationship with her former partner Mr AD. The evidence given by HPM as to the reason why she and her children left the family home to live in a shelter (in 2011) was inconsistent with her earlier evidence that she was (previously) not ‘fearful’ of her former partner Mr AD.
The Tribunal has identified concerns about the evidence in the form of written statements from Dr Oertel, the teachers and Mission Australia. The Tribunal has identified concerns in relation to the evidence of Ms Philips about HPM’s interactions with her children because the Tribunal cannot be satisfied that Ms Philips has regular contact with HPM.
Conclusion
The Tribunal acknowledges the achievements that HPM says she has made in particular managing and overcoming her past depression and drug use; and recently engaging with services such as Mission Australia.
The Tribunal has identified risks or concerns in relation to HPM’s history of offending and the nature of her offending behaviour that occurred over a period of 17 years (from 1997 to 2014). Some of the offending behaviour occurred when HPM was heavily intoxicated and involved aggressive outbursts towards members of the QPS and other people. One of the offences (in 2004) includes a serious offence. The Tribunal has also identified ‘notified’ concerns in the Department of CCS&DS documents about HPM’s children and a domestic violence incident in 2014.
The Tribunal has carefully considered the evidence of HPM and the evidence of her witnesses. The Tribunal has identified inconsistencies in the evidence given by HPM at the hearing. In relation to HPM’s witnesses, the Tribunal has identified concerns in relation to the evidence given by Dr Oertel, the teachers, Mission Australia and Ms Philips.
The Tribunal cannot be satisfied based on all of the material and evidence before it that this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. The correct and preferable decision is to confirm the decision made by the Chief Executive on 17 February 2015 to issue a negative notice to HPM.
Non-publication order
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as HPM, her former partner and her children to be identified in circumstances where it would not be in the interests of justice to identify their names.
Some of the material considered by the Tribunal in these review proceedings contain information about child safety notifications with the Department and incidents involving domestic violence. The interests of justice require the Tribunal to make a non-publication order in relation to HPM, her former partner and her children. The Tribunal is satisfied that there is no public interest served by disclosing HPM’s name and her former partner’s name in circumstances where disclosure of her name and her partner’s name would identify her children. The Tribunal therefore prohibits the publication of the names of HPM, her former partner and her children.
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