JAJ v Commission for Children Young People and Child Guardian
[2014] QCAT 351
•16 July 2014
| CITATION: | JAJ v Commission for Children Young People and Child Guardian [2014] QCAT 351 |
| PARTIES: | JAJ (Applicant) |
| v | |
| Commission for Children Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML110-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 31 January 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Member Watters Member Dooley |
| DELIVERED ON: | 16 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the Commissioner for Children and Young People and Child Guardian to issue JAJ with a negative notice is confirmed. |
| CATCHWORDS: | Childrens Matters – Blue Card – Review of decision of Commission for Children and Young People and Child Guardian to issue a negative notice – whether case is “exceptional” |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | JAJ represented by Ms Anne Halliday of Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd |
| RESPONDENT: | Commission for Children and Young People and Child Guardian was represented by Ms Louisa Keown |
REASONS FOR DECISION
Background
JAJ is a 28 year old woman of Aboriginal descent. She is the mother and full time carer of her four children, aged between 3 years and 9 years, with her previous partner ED. JAJ and ED have never lived together but have maintained a cordial relationship.
In March 2011, after the birth of her youngest child, JAJ moved with her four children from Inverell, NSW to reside on the Gold Coast. ED supported JAJ’s decision to relocate with the children to the Gold Coast and subsequently relocated himself to the Gold Coast at a later date.
One year after relocating to the Gold Coast, JAJ enrolled to study full time for a Diploma of Community Service and Counselling. She completed the study in 2013.
On 7 December 2012, JAJ applied to the Commission for Children and Young People and Child Guardian for a volunteer blue card through Careers Australia. She required a blue card to undertake a placement to complete her Diploma.
The Commissioner was notified of the applicant’s police information as recorded at 20 December 2012.
On 13 May 2013, the Commissioner for Children and Young People and Child Guardian refused the application for a positive notice and blue card and issued a negative notice to JAJ.
On 13 June 2013, JAJ applied to the Tribunal to seek a review of the Commissioner’s decision.
Relevant law
The relevant legislation that applies is the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) as amended and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
The police information indicates that JAJ has not been convicted of an offence categorised as a serious offence or disqualifying offence under the CCYPCG Act. Sections 221(1) and 221(2) of the CCYPCG Act provide that where the Applicant has been convicted for an offence other than a serious offence, the Commissioner, and upon review the Tribunal, must issue a positive notice unless satisfied that it is an “exceptional case” in which it would not be in the best interests of children to issue a positive notice to the Applicant – in which case the Commissioner must issue a negative notice.
However, if the Commissioner is satisfied it is an “exceptional case” he must issue a negative notice to the person. This is the issue that the Tribunal must address in relation to JAJ’s application.
The standard of proof for which the Tribunal must be satisfied is upon the balance of probabilities. There is no onus of proof on either the applicant or the respondent[1].
[1]Commissioner for Children and Young People and Child Guardian v Storrs (2011) QCATA 28.
It is well established that determining whether an “exceptional case” exists is a matter of discretion having regard to the merits of the individual case and the legislative intent of the CCYPCG Act[2]. When reviewing the Commissioner’s decision, the Tribunal must have regard to the paramount consideration[3] of the welfare and best interests of a child and the criteria set out in section 226 of the CCYPCG Act. Section 226 is not an exhaustive list of the matters that may be taken into account. Other factors may be relevant to determining whether a case is an “exceptional case”.
[2]Commissioner for Children and Young People and Child Guardian v FGC (2011) QCATA 291.
[3]CCYPCG Act ss 6, 155.
The Tribunal is guided by the decision of Philippides J in Maher[4], which requires that the Tribunal should identify any risk factors and protective factors.
The evidence
[4]Commissioner for Children and Young People and Child Guardian v Maher and Anor (2004) QCA 492 (Maher).
Criminal history
JAJ’s criminal history as at 20 December 2012 includes convictions and charges for offences and alleged offences heard in Inverell Children’s Court, New South Wales over the period from 1999 to 2002 as follows:
a) 3 charges of using offensive language in/near a public place/school on:
i)20/08/1999 – Dismissed with caution;
ii)24/05/2002 – Convicted, Community Service Order 10 hours;
iii)22/11/2002 – Convicted, $100 fine;
b) 1 charge of behaving in an offensive manner in/near public place/school on 11/01/2001 – Dismissed;
c) 6 charges of common assault on:
i)20/08/1999 – Dismissed with caution;
ii)27/01/2000 – Convicted, $10 recognisance to be of good behaviour for 6 months;
iii)26/10/2001 – 2 charges withdrawn and dismissed;
iv)10/12/2001 – Convicted, 12 months probation;
v)24/05/2002 – Convicted, Community Service Order 75 hours.
During the period 2004 to 2009, JAJ’s adult criminal history record includes charges and convictions heard in the Inverell Local Court as follows:
a) 14/10/2004 – 1 charge of behaving in an offensive manner in/near public place/school – Convicted, $400 fine;
b) 16/11/2006:
i)Driver/rider state false name/address – Convicted, $150 fine;
ii)Never licensed person drive vehicle on road 2nd offence – Convicted, 12 months bond, Disqualification 3 years;
iii)Never licensed person drive vehicle on road 2nd offence – Convicted, $100 fine;
c) 30/04/2009 – Stalk /intimidate intend fear of physical mental harm – Convicted, 6 month good behaviour bond.
JAJ’s adult criminal history record also includes a conviction in 2012 for driving with middle range PCA heard at Tweed Heads Local Court resulting in a fine of $640 and disqualification from driving for six months.
Applicant’s Evidence
In her application for review and response to the Commissioner’s Reasons for issuing a negative notice, JAJ stated that the Commissioner had placed too much weight on her past behaviour and insufficient weight on the changes she had made and her future goals. She argues that her past offending behaviour has not been directly child related and not caused any harm to children and therefore does not warrant that hers is an “exceptional case”.
JAJ stated that she required a positive notice and blue card so that she could pursue her career and work as a support worker with Indigenous families and children and thus help others experiencing similar circumstances as herself in her teenage years.
JAJ told the Tribunal that her teenage years were difficult. She acknowledged associating with a group of peers who got involved in group altercations and street fights which led to a number of the charges and convictions documented in her police record. JAJ described her teenage years as being influenced by making ‘a few bad decisions which I am deeply ashamed of’.
JAJ commenced a relationship with her now ex-partner ED, at the age of 15 years. Between the years of 2004 (when JAJ was 19 years old) and 2011 she had four children with ED.
JAJ agreed with and acknowledged her criminal history as outlined in the Commissioner’s Reasons at paragraph 2.1.
In relation to a conviction for common assault on 10/12/2001 where the applicant was found to have punched a five month pregnant woman in the back, the applicant stated that she had a short temper when she was young and she regrets her actions. She told the Tribunal that she had undertaken anger management and completed community service work during her 12 months probation period. JAJ stated that she has since apologised to the victim and they have renewed their friendship.
In relation to a conviction for common assault on 24/05/02 where the applicant was found guilty of punching an 18 year old woman three times in the face and arm through the window of a stationary vehicle, the applicant in oral evidence to the Tribunal and to the Commission was unable to recall the offence.
JAJ could not recall the specific circumstances that led to convictions in 2002 and 2004 for behaving in an offensive manner in/near public place/school. She told the Tribunal that she lived across the road from a school and that she was angry at the time and had a lot of arguments with people and did not think through the consequences of her actions.
In her written response to the Commissioner’s Reasons, in relation to the conviction in 2009 for ‘stalk /intimidate intend fear of physical mental harm’ for which the applicant received a 6 month good behaviour bond, JAJ denied that she made any threats to staff or children at the child care centre. JAJ’s written evidence indicates that she was at a funeral and at a wake which was being held across the road from a licensed premises. The child care centre where her children were in care rang the licensed premises requesting that JAJ pick up her children. JAJ was expecting that the children’s father would pick up the children but attended the child care centre after the phone call. JAJ told the Tribunal that when she got to the centre, a teacher was angry and yelling. This same teacher had been reported to JAJ by her four year old son as having smacked him on more than one occasion while in care.
In oral evidence, JAJ stated that she left the centre without threatening staff or retaliating and rang the Director of the child care centre to make an appointment to discuss the issue of her son being smacked by a teacher. JAJ indicated that the meeting with the Director was at an office separate to the child care centre that her children attended. From the outset of the meeting, JAJ described the Director as being angry with her and not listening. She acknowledged that she was also angry about her son being smacked and that she talked loudly to the Director, repeating herself to be heard, which may have been perceived as aggressive, but she denies that she yelled, swore at or threaten the Director or her children or staff and children at the child care centre stating that ‘I love children’. She thought the meeting went ‘smoothly’ and was surprised that the Police were at her home when she returned after the meeting with the Director.
JAJ expressed the view to the Tribunal and to an officer of the Commission that the Director of the child care centre had had a previous negative experience with a person of African descent in relation to her child and ‘had a problem with black people’ and made false allegations about her to the police in relation to three threatening phone calls allegedly made on 23 October 2008. While denying that she made any threatening phone calls to the Director, JAJ stated that she was influenced at Court to plead guilty which she would not do now with the benefit of hindsight.
In relation to motor vehicle offences which occurred in 2006 and 2012, JAJ indicated that both of these offences occurred in Inverell following incidents with family members. In 2006, JAJ had an argument with her father who was intoxicated. She drove a vehicle to remove herself from a potentially violent incident. The 2012 drink driving charge was incurred after drinking 3 – 4 drinks with family members. No children were with her during both of these motor vehicle offences. JAJ told the Tribunal that she now abstains from consuming alcohol except at a few family social events.
JAJ provided written material to the Tribunal outlining the lifestyle and behavioural changes she had made in recent years. Her Personal History/Life Story (6 August 2013), Response to Commissioner’s Reasons (6 August 2013) and Affidavit (14 October 2013) detail the changes, aspirations and goals JAJ wishes the Tribunal to consider and balance in relation to her past offending. The Tribunal has considered JAJ’s written material and oral evidence about the protective factors in her favour. In brief these are outlined in paragraph [30] – [36] below.
JAJ is the primary carer of her four young children. The three older children attend school and are involved in rugby league. The youngest child attends day care four days per week. J AJ reports that she has never had any issues or involvement from statutory agencies in relation to her care of her children. Her witnesses attest that she is a loving and caring mother. One of her witnesses, a non-family member, who stated she was aware of JAJ’s criminal history, shares occasional child care arrangements with JAJ, entrusting her three children aged 13 years, 4 years and six months to JAJ’s care. JAJ’s brother describes her home as ‘the go to place for our immediate family and our extended families for when we need advice or when times are difficult’. JAJ’s ex-partner states that she ‘puts her children first before anything’.
JAJ has the support of family members and her ex-partner which allows her to undertake paid and voluntary work. A written reference from the Manager of the Aged and Disabled Aboriginal Corporation where she now works indicates that she has worked initially in a voluntary capacity and currently as a casual employee, predominantly working night shifts, supervising the care of elderly residents. The Manager had access to police information from the Queensland Police Service and a brief statement from JAJ in relation to her criminal history and particularly the 2009 matter which resulted in a conviction for ‘stalk /intimidate intend fear of physical mental harm’. The Manager expressed the view that JAJ is of good character and has always displayed good practices in her work capacity. JAJ also informed the Tribunal that she does some telemarketing work during the day.
JAJ completed a Diploma of Community Service and Counselling in 2013. Her previous educational attainment was to year ten at Inverell High School. She is to be commended for this achievement.
JAJ describes her decision to relocate to the Gold Coast with her children as setting a goal to start afresh, removing herself from the types of people she had previously associated with and choosing positive role models to better life for herself and her children.
JAJ told the Tribunal that studying for the Diploma of Community Service and Counselling has provided learning opportunities to develop strategies to manage situations that would have made her angry in the past and may have lead to a violent response. In her written material and in oral evidence, JAJ provided the Tribunal with a number of examples of her managing challenging situations differently. Some of these examples were situations involving perceived unfair treatment of her children and others were situations involving management of wider family dynamics and choosing not to engage in argument and possible violence. In one example, she referred the issue to the school principal to deal with rather than intervening directly herself and explained this as an example of learning to seek the help of professionals.
JAJ also articulated that the Diploma had a strong focus on the protection and rights of children and that this was a strong driver for her future career path. She stated that she personally knew what it is like to be a child in need of care and support and she strives to have the opportunity to help other children, particularly Indigenous children in similar situations.
In the context of being a Diploma student and as a volunteer parent, JAJ has undertaken a number of volunteer roles at her children’s school including providing regular Indigenous culture classes. Some of these roles have ceased due to not having a blue card. Others, undertaken as a volunteer parent, have continued.
The Commissioner’s Perspective
The Commissioner submitted that the applicant’s criminal history as a whole raises significant concerns regarding her ability to manage her anger and respond appropriately to situations of conflict without resorting to violent and threatening behaviour, particularly when she is feeling aggrieved. The Commissioner notes that the applicants offending, as outlined in police briefs, appears largely unprovoked and disproportionate in the circumstances. The applicant’s inability to judge appropriate behaviour and exercise restraint raises questions about her ability to provide a safe environment and present as a positive role model to children in her care.
The Commissioner is concerned about the ongoing nature of the applicant’s violent offending – a period of nine years 1999 – 2008, while acknowledging that there was a gap of six years between violent offences (2002 – 2008). However, the similar nature of the most recent violent offence to previous offences suggests that the passage of time should not be a determinative factor in assessing whether this is an exceptional case.
The Commissioner acknowledged that none of the offences were serious offences or excluding offences as defined in the CCYPCG Act and none were directly child related offences. However, the Commissioner noted that one violent offence was committed knowingly against a pregnant woman and the 2008 offence involved persistent threats, over the course of three telephone calls against the safety and wellbeing of children. The Commissioner argues that the applicant’s real intention to carry out the threats is not a relevant factor.
In final submissions, the Commissioner’s representative acknowledged that the applicant had demonstrated that she had made positive changes in her life including establishing a stable support network, obtaining further education and gaining employment to provide for her family and contribute to the community.
However, the Commissioner questioned the applicant’s degree of insight and adequacy of addressing the triggers to her offending behaviour. The Commissioner argues that the applicant’s submissions fail to accept responsibility for the 2008 offence despite being found guilty, being sentenced to a good behaviour bond and having an apprehended Domestic Violence Order application made by the police. The Commissioner raised concerns regarding the applicant’s veracity, credibility and attempts to minimise her behaviour in regard to this offence. The Commissioner notes that at the time of this offence the applicant was 24 years of age and therefore her offending behaviour cannot be mitigated on the basis of age. The Commissioner proposed that no weight should be afforded to the applicant’s submission about this offence and the police brief of evidence should be afforded significant weight.
The Commissioner also concludes that the applicant has demonstrated limited insight into the emotional and physical harm of her offending behaviour on complainants and emphasises the importance of insight as a protective factor.
The Commissioner was of the view that the applicant had demonstrated only a limited range of strategies to avoid confrontation in future and noted that the applicant had not provided a relevant independent psychiatric or psychological report addressing the issues of insight, risk and protective factors, triggers for offending and preventative strategies.
The Commissioner was unconvinced that the applicant had adequately dealt with her use of alcohol as a potential trigger to her offending and noted a recent 2012 conviction for an alcohol related driving offence. This raises questions as to the sufficiency of time passing to be satisfied that the applicant has addressed this potential trigger.
The outcome
The task for the Tribunal is to determine if this is an “exceptional case” in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
We accept that when considering if this is an “exceptional case” ‘the proper approach is … to consider its application in each particular case, unhampered by any special meaning or interpretation’.[5]
[5]Commission for Children and Young People and Child guardian v FGC (2011) QCATA 291.
In order to determine if there is a “real and appreciable risk” to the safety of children, we have identified potential risk factors and potential protective factors following the example in Maher.
The Tribunal found the applicant’s demeanour to be calm and positive, if somewhat reserved. She provided the Tribunal with extensive written submissions, particularly about the positive changes she has made and the protective strategies she has developed since 2011 after relocating from Inverell to the Gold Coast.
We accept that the applicant has made significant positive changes in her life in the last three years, following her relocation of her family to the Gold Coast to make a new start. We accept that in significant part the applicant was child focused in making this move. She is to be commended for her goals, plans and actions to improve the stability and opportunities she is able to provide for her children.
We accept that the applicant has demonstrated some insight and remorse about her past offending, particularly in relation to her youthful offending. The Tribunal accepts her submission that insight can be demonstrated by changed behaviour and lifestyle, even though the applicant demonstrated some difficulty in verbally explaining her insight into the impacts of her past offending behaviour on her children and on the victims of her offences, including children.
The Tribunal would have been further assisted in its decision making if the applicant had provided an independent, professional assessment of her triggers and strategies to manage her anger and the risk and protective factors if she were to be given unfettered access to children in employment situations. The Tribunal also notes that three of the four witness statements provided by the applicant are from family members or friends and that the work referee is unable to provide comment on the applicant’s suitability to work with children. The weight that the Tribunal can place on the applicant’s references is influenced by these factors.
The Tribunal agrees with the Commissioner that the totality of the applicant’s offending behaviour is relevant to this application, including her offences as a child. The Tribunal however places more weight on the applicant’s four adult offences:
a) 1 charge of behaving in an offensive manner in/near public place/school in 2004 when the applicant was 20 years old for which she was convicted and fined $400. The Commissioner did not request a police brief of facts in relation to this offence and the applicant told the Tribunal she had no specific recollection of this offence, noting that she lived across the road from a school and was in the habit of having lots of arguments with people at the time. The Tribunal places weight on the fact that the applicant was a mother at the time of this offence and the offence had the potential to negatively impact the applicant’s own young child as well as children attending the school and pre school.
b) 2 driving offences, one in 2006 and the other in 2012. The 2006 offence included driving unlicensed for which the applicant was disqualified from driving for 3 years and in 2012 the applicant was convicted for driving with middle range PCA resulting in a fine of $640 and disqualification from driving for six months. The Tribunal notes that in 2006 JAJ had three young children including a one year old child and a just born child. There is no evidence before the Tribunal that JAJ’s children were with her in the car at the time of these offences therefore the Tribunal makes no finding about the direct impact of these offences on JAJ’s very young and vulnerable children. However the Tribunal is concerned that JAJ has minimised this offence in her evidence to the Tribunal. JAJ’s evidence has sought to convince the Tribunal that in 2011 when she moved to the Gold Coast she put her offending behind her. JAJ also provided evidence that she doesn’t have an issue with inappropriate alcohol consumption and that alcohol is not a trigger for her offending behaviour. Two of JAJ’s witnesses identified alcohol as a significant factor in negative social and inter-personal interactions in JAJ’s past life in Inverell. The Tribunal is not convinced about the role of alcohol in JAJ’s past and relatively recent offending and is not convinced that JAJ has adequately addressed the impact of alcohol on inappropriate behaviour that may lead to offences, including violent offences.
c) The Tribunal places significant weight on JAJ’s limited insight and remorse in relation to the 2008 offence of ‘stalk /intimidate intend fear of physical mental harm’ for which JAJ was convicted and given a 6 month good behaviour bond on 30/04/2009. The Tribunal accepts the Commissioner’s submission that it can’t go behind the conviction and that JAJ pleaded and was found guilty of this offence. Despite this JAJ sought to convince the Tribunal that she committed no offence in relation to this matter and that the complainant lied to police. JAJ was unable to provide a credible explanation for why the Police would immediately visit her home with an AVO following a face to face meeting with the child care centre Director which she herself described as ending ‘smoothly’. In her Response to the Commissioner’s Reasons at paragraph 6, JAJ disagrees with the Commissioner obtaining oral evidence from her by telephone on 12 February 2013 in relation to her criminal history but also states that ‘I have now had time to think about my past in a way that accurately explains my past offences’. At paragraph 8 and 9 of the same document JAJ provides a response to the Commissioner’s Reasons paragraph 2.2.7, which is a summary from the Police Brief in relation to this matter. JAJ makes no mention of her meeting with the Director on 17 October 2008, which in her oral evidence to the Tribunal is the trigger for the police visiting her home and subsequently charging her and issuing her with an AVO, not the engagement with staff at the child care centre one month prior on the day of the funeral. The Tribunal agrees with the Commissioner’s assessment that the veracity of applicant’s version of events in relation to this offence is questionable.
We place significant weight on the Commissioner’s submissions that the Tribunal must consider the best interests of children and not any detriment that JAJ may suffer if she is not granted a blue card.
Having considered all of these matters, the Tribunal is unable to conclude that the applicant has developed sufficient protective factors and does not present an unacceptable risk to the safety and wellbeing of children if she is given unfettered access to working with children through the issue of a positive notice and blue card. We have therefore come to the conclusion that this is an exceptional case where on the balance of probabilities it would not be in the best interests of children for a positive notice to be issued to JAJ at this point in time.
We encourage JAJ to reapply for a blue card in the future when she can demonstrate significant insight and remorse for the harm she has caused to others in the past and is able to identify that she does not present an unacceptable risk to the safety and welfare of children in stressful circumstances where she may feel aggravated or aggrieved.
The orders of the Tribunal are:
a) The decision of the Commissioner for Children and Young People and Child Guardian to issue JAJ with a negative notice is confirmed.
3
0