Kuramea Akahotu Vaeau v Director-General, Department of Justice and Attorney-General
[2020] QCAT 244
•31 January 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kuramea Akahotu Vaeau v Director-General, Department of Justice and Attorney-General [2020] QCAT 244
PARTIES:
Kuramea Akahotu Vaeau
(applicant)v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:
CML 108 -19
MATTER TYPE:
Children’s matters
DELIVERED ON:
31 January 2020
HEARING DATE:
25 October 2019
HEARD AT:
Townsville
DECISION OF:
Member Stepniak
ORDERS:
The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
CATCHWORDS:
CHILDREN’S MATTER – BLUE CARD – where convicted of an offence other than a ‘serious offence’ – where both victim and perpetrator of domestic violence – where children not shielded from domestic violence – where seeks review of decision not to cancel a negative notice
Working with Children Act, s 221(1) (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 161, 188, 220, 222, 233, 236, 353, 360, Schedule 1,1 and 4(2)(a), Schedule 2, Schedule 7; Queensland Civil and Administrative Act 2009 (Qld) ss 19, 20, 21, 24(1).
Kent v Wilson [2000] VSC 98, Commissioner for
Children and Young People v FGC [2011] QCATA 291,
Re Imperial Chemical industries Ltd’s Patent Extension
Petitions [1983] VR 1, LCA v Director-General,
Department of Justice and Attorney-General [2017]
QCAT 244, Chief Executive Officer of Child Protection
v Scott (No2) 2008 WASCA 171, Re FAA [2006] QCST
15, Commissioner for Children and Young People and
Child Guardian v Maher & Anor [2004] QCA 492, KV
and Children’s Guardian [2015] NSWTAD 65; BXJ v
Children’s Guardian [2016] NSWCATAD 11, Bachman
v Public Safety Business Agency [2016] QCAT 104, In
GP v Commissioner for Children and Young People
[2013] QCAT 324, Re TAA [2006] QCST 11, JA v Chief
Executive Officer, Public Safety Business Agency [2015]
QCAT 251, RPG v Chief Executive Officer, Public Safety
Business Agency [2016] QCAT 331.
APPEARANCES & REPRESENTATION:
Applicant:
Kuramea Akahotu Vaeau, Self-represented
Respondent:
Interested Parties:
Witnesses:
Nilusha Rajapakse, Solicitor for Director General, Department of Justice and Attorney-General
KT, Support
RV, Applicant’s cousin
LI, Principal of Townsville Christian College
DB, Pastor Life Church Townsville and Principal of Life Leadership College, Townsville.
REASONS FOR[1] DECISION
Background
[1]Working with Children (Risk Management and Screening) Act 2000, Chapter 8, Div 7.
Kuramea Vaeay (the Applicant) is a 38-year-old woman. She has three sons, 18-year-old Z from a relationship in 2001, and R aged 13 and J aged 10 from her 9-year relationship with SD, which ended in 2014.
In 2015, the Applicant wished to undertake child related employment, classified as ‘regulated employment’ under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act).[2]
[2]Working with Children (Risk Management and Screening) Act 2000, s 221(1) and Schedule 1, ss 4 and 6;
Chapter 8 Division 3 states that a prescribed notice (positive notice/blue card) is also required for
Employment of volunteers in regulated employment.
To undertake such employment, the Working with Children Act required the Applicant to obtain a Blue Card.[3] Consequently, she lodged a Blue Card application with Blue Card Services of the Department of Justice and Attorney-General (the Respondent).
[3]Working with Children (Risk Management and Screening) Act 2000, Chapter 8, Division 3 and s193.
On receipt of such an application, the Respondent is required to either issue approval through a positive notice or refuse the application by issuing a negative notice.[4]
[4]Working with Children (Risk Management and Screening) Act 2000, s 220.
In the course of the Respondent’s assessment of the Application, a criminal history check[5] disclosed the Applicant’s conviction on 4 February 2013 for contravention of domestic violence order.
[5] Respondent’s Request for Submission, dated 11 July 2018, Attachment C.
As I will discuss at greater length below, the Applicant’s offence falls into a category of offences that still requires the Respondent to issue a positive notice, with one exception. The Respondent must issue a negative notice when satisfied that ‘an applicant’s case is an exceptional case, in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person’.[6]
[6]Working with Children (Risk Management and Screening) Act 2000, s 221(2).
The Applicant was invited to make submissions and tender supporting materials. She did not provide any written submissions or references, but she did made oral submissions in two meetings with a Blue Card Services Officer. She later stated that while she regretted not providing written submissions, she had not done so because she had been busy studying full time, had just commenced work and was dealing with a whole bunch of other things’ including Centrelink and childcare. She also advised that while she had now left the relationship the violence [with SD] was still ‘carrying on’. [7]
[7] Rod Wilson, Reasons for the decision to issue a negative notice, 8 April 2016 at 4.1
The applicant was issued a negative notice on 8 April 2016[8] together with reasons for the decision and other information as required by the Working with Children Act.[9] This decision effectively prevents the Applicant from undertaking work relating to children.[10]
[8] Rod Wilson, Acting Chief Executive Officer, Public Safety Business Agency, Reasons for the decision to
issue a negative notice, 8 April 2016.
[9]Working with Children (Risk Management and Screening) Act 2000, s 233
[10]Working with Children (Risk Management and Screening) Act 2000, s 197.
On 17 May 2018, not less than two years after the issuing of the Applicant’s negative notice,[11] the Applicant lodged an application to have her negative notice cancelled and a positive notice issued.[12] The Applicant and her prospective employer, Life Church Townsville, also lodged a Blue Card Application with Blue Card Services on 16 May 2018.
[11]As required by s 236(3) of the Working with Children (Risk Management and Screening) Act 2000.
[12] Kuranda Vaeau, Application to cancel a negative notice, 17 May 2018.
In the course of the Respondent’s assessment of the Applicant’s application to cancel the negative notice, she was invited to make submissions as to whether her case was an ‘exceptional case’.
At the conclusion of the assessment, the Respondent informed the Applicant of her 5 February 2019 decision, to not cancel the Applicant’s negative notice. This decision together with reasons and other information required by the Act was provided to the Applicant.
On 6 March 2019, the Applicant lodged an application with the Queensland Civil and Administrative Tribunal (the Tribunal) to review the decision made on behalf of the Respondent by the Director Screening Services Unit Blue Card Services, Department of Justice and Attorney-General, on 5 February 2019.
The Applicant stated the following reasons for her application:
(a)That the reasons given for the 5 February 2019 decision misrepresented her circumstances since 2016;
(b)That she had subsequently received legal advice and other assistance and was better placed to discuss options and present her case; and
(c)That the decision had been made without all the required supportive evidence
The Nature of this Review
This Tribunal has jurisdiction to review a ‘reviewable decision’,[13] defined in s 353 of the Working with Children Act as including decisions by the Respondent,
as to whether or not there is an exceptional case for the person, if because of the decision … [the Respondent] (i) issued a negative notice…, or (ii) refused to cancel a negative notice …issued to the person.
[13]Queensland Civil and Administrative Tribunal Act 2009, s.17.
As noted above, it is the Respondent’s decision to refuse to cancel a negative notice issued to her, that led the Applicant to lodge an application, pursuant to s 18 of the Queensland Civil and Administrative Act 2009 (QCAT Act). The application requires the Tribunal to review the Respondent’s decision that her case was an ‘exceptional case’ in which it would not be in the best interest of children for her to be issued with a positive notice and blue card.
The QCAT Act states that—
In exercising its review jurisdiction, the tribunal... must decide the review in accordance with this [the QCAT] Act and the enabling Act [the Working with Children Act] under which the reviewable decision being reviewed was made.[14]
[14]Queensland Civil and Administrative Tribunal Act 2009, s 19(a).
In such a review, the Tribunal ‘has all the functions of the decision-maker for the decision being reviewed’[15] and ‘must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits’.[16]
[15]Queensland Civil and Administrative Tribunal Act 2009, s 19(c).
[16]Queensland Civil and Administrative Tribunal Act 2009, s 20(2).
As the Tribunal’s review of the Respondent’s decision, is by way of a fresh hearing, the Tribunal is required to consider not only the materials before the Respondent at the time of the decision under review, but also any new materials presented by the parties at the review hearing.[17]
[17]Queensland Civil and Administrative Tribunal Act 2009, s 21(2)(b), (3).
Significant new materials were delivered to the Tribunal and made available to parties pursuant to Notices to Produce issued by the Tribunal on 18 July 2019. These materials were produced by the Department of Child Safety, Youth and Women, the Townsville Magistrates Court, and the Queensland Police Service.
Section 24(1) of the QCAT Act states that—
In a proceeding for a review of a reviewable decision, the tribunal may—
(a) confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
The QCAT Act stipulates that ‘the purpose of the review of a reviewable decision is to produce the correct and preferable decision.’[18]
[18]Queensland Civil and Administrative Tribunal Act 2009, s 20(1).
What constitutes an ‘exceptional case’
As the Working with Children Act does not define ‘exceptional case’ the meaning is to be determined by giving the words their ordinary meaning, in the context of the Act, taking into account the intention of the legislation.
In seeking to determine the ordinary meaning of ‘exceptional’ case, dictionary meanings are of assistance. According to The Macquarie Dictionary exceptional means ‘beyond what is ordinary’, while the Oxford Dictionary defines ‘exceptional’ as ‘forming an exception, unusual, or not typical’.
A key principle of statutory interpretation requires specific words and terms to be interpreted in the context of the Act as a whole. This is to ensure a meaning consistent with the express or implied intention of the legislation, including the Act’s stated intent or purpose, and of the specific provisions employing the term and particularly surrounding words and sections.
The stated object of the Working with Children Act is ‘to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring…the screening of persons employed in particular employment or carrying on particular business’.[19]
[19]Working with Children (Risk Management and Screening) Act 2000, s 5.
The principles for administering the Act state that ‘the welfare and best interests of a child are paramount’ and that ‘every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’.[20]
[20]Working with Children (Risk Management and Screening) Act 2000, s 6.
On this basis, it is clear that the Act is intended to benefit the interests of children by protecting them from harm through the screening of those who work with, or intend to work with them.
Consequently, for the decision maker to find the Applicant’s case to be an exceptional case requires a finding that even though her offence is not categorised as a ‘serious offence’, issuing a positive notice would not be in in the best interests of children.
As Justice Hedigan has held, determining the meaning of ‘exceptional case’ calls not only for a consideration of ‘the context of the legislation [but also] the intent and purpose of the legislation and the interests of the persons who it is designed to protect’.[21]
[21]Kent v Wilson [2000] VSC 98 at [22], cited with approval by the QCAT in Commissioner for Children
and Young People v FGC [2011] QCATA 291 at [31].
What makes a case exceptional will clearly vary from case to case, as different factors may lead to the conclusion that a case is or is not an ‘exceptional case’. Therefore, what constitutes an exceptional case needs to be decided on its own facts and has been described as a ‘question of fact and degree in the whole of the circumstances of each particular case.’[22] Such determinations have also been described as ‘matters of discretion’.[23]
[22]LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244 citing Re FAA
[2006] QCST 15, [22].
[23]Re Imperial Chemical industries Ltd’s patent Extension Petitions [1983] VR 1.
Ultimately, whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decisions on the balance of probabilities.
Specific Factors that a Decision Maker Must Consider in Deciding Whether a Case is an ‘Exceptional Case’
Section 226 of the Working with Children Act lists specific factors to which the decision maker must have regard when deciding whether or not the Applicant’s case is an exceptional case. The section also requires the decision maker to have regard to ‘anything else relating to the commission, or alleged commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.’[24]
[24]Working with Children (Risk Management and Screening) Act 2000, (2)(e).
I turn to consider the evidence as it relates to each of the mandatory considerations set out in s 226(2)(a), to which the Respondent, (in this review, the Tribunal), must have regard in relation to the commission of the offences by the Applicant.
First: Whether the case concerns a conviction or a charge.[25]
[25]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(i).
The Working with Children Act defines ‘conviction’ as ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.’[26]
[26] See, Working with Children (Risk Management and Screening) Act 2000, Schedule 7.
Consequently, I find that even though the Applicant pleaded guilty to the charge, and no conviction was recorded, the Applicant was ‘convicted’ of an offence,
Second: Whether the Applicant’s offence is a ‘serious offence’.[27]
[27]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii).
The Applicant has a conviction for contravention of a Domestic Violence Order. The Applicant’s offence does not qualify as a ‘serious offence’, as defined in s 167 of the Working with Children Act.
Third: When the offence was committed.[28]
[28]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iii).
The offence was committed seven years ago on 4 February 2013, and the Applicant is not known to have been charged with or convicted of any subsequent offences. Consequently, it could be said that the Applicant appears to be unlikely to reoffend and that any risks the Applicant may have posed to children, have since dissipated.
However, in this case it is not the prospect of the Applicant reoffending in a domestic violence setting that is of primary concern. Instead, it is the elements of the Applicant’s offence, and certain other factors disclosed by her offence, that appear to pose a significant risk to children in child related employment.
Perhaps the most significant change in the Applicant’s circumstances since her conviction has been the end of her nine-year long relationship with SD. In sentencing the Applicant for contravening the domestic violence order, Magistrate Wadley held that the likelihood of the Applicant reoffending, and hence the need for a Protection Order, dissipated when the parties separated.[29] Similarly, in assessing the harm and risk of harm to the children following the Applicant’s offence, Child Safety officers concluded that as reconciliation was unlikely, there was no longer a need to take ’a more intrusive approach’ to ensure the children’s safety.[30]
[29] Transcript of Proceedings, Police and Kuramea Akahotu Vaeau, Magistrate Wadley, Townsville
Magistrates Court, 8 October 2013.
[30] Materials produced by the Department of Child Safety, Youth and Women, Assessment of harm and risk
of harm, 8 May 2013, NTP-39.
As it ensued, the Applicant’s relationship with SD continued for a year beyond her offence, and in that time she narrowly avoided reoffending.
Even during her relationship risks other than that of the Applicant reoffending were identified. And, perhaps most importantly, some of the factors underlying and related to the Applicant’s behavior did not cease to pose a risk to children simply because the relationship ended.
Fourth: The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children. [31]
[31]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv).
The Nature of the offence
On 8 October 2013 the Applicant pleaded guilty to a breach of a Domestic Violence Order issued on 4 November 2011. The Order named the Applicant as the respondent, and SD, the aggrieved party.
The Domestic Violence Order stated that
The Court is satisfied that the respondent has committed an act of domestic violence against the aggrieved and that the respondent is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.
The Order contained the mandatory condition that, ‘The respondent must be of good behavior towards the aggrieved and must not commit domestic violence’, and was to remain in force for two years, until 3 November 2011.
The following events led up to the Order being made.
In their application for a Domestic Violence Order, the Queensland Police Service outline the circumstances of the offence.[32] They state that on 1 November 2011 the Applicant and her partner SD were at home and the Applicant was completing paperwork to obtain a passport for one of the children, After SD refused to sign the paperwork an argument ensued. In the course of the argument the Applicant poked a pen at SD’s arms. As the argument escalated, the Applicant took a steak knife from the kitchen and held it up towards SD in a stabbing position. In this manner the Applicant forced SD out of the house.
[32] Materials produced by Queensland Police Service, NTP 69, Protection Order Application, 4 NovemberQueensland Police Service records reveal that the Applicant had also picked up a scanner with which she struck a wall and a TV. Police in attendance recorded that the Applicant told them that she had tried to hang herself a week ago. She is reported to have also mentioned that she was feeling really depressed following her hospitalisation for a mini-stroke. She further mentioned that she had thoughts of hurting herself and wanted to speak to someone about what was going on in her head.[33]
[33] Solicitors Office Report Details Mental Health EEO, 1 November 2911, NTP-112 Emergency
examination order, Reasons, Officers report – Details of occurrence.
Convinced that there was ‘an imminent risk of significant harm being sustained by the Applicant or SD, the attending police officers made an Emergency Examination Order[34] and transported the Applicant to hospital.
[34] Solicitors Office Report 2 November 2011 and Emergency Examination Order 1 November 2011.
In their report the attending police officers recorded that the Applicant and SD had informed them of ‘multiple physical fights’ during their then six-year relationship. The couple also mentioned that a week earlier they had a physical fight in which they ended up wrestling on the ground.[35]
[35] Queensland Police Service, Solicitors Office Report Details, DV Report 2 November 2011.
On 4 February 2013, the Police records reveal that police officers attended a disturbance at the house where the Applicant, SD and the three children lived.[36] They reported finding SD in the front yard of the house and were told that the Applicant had left with her three children. SD told the police officers that he and the Applicant had been arguing over relationship issues for a number of days. He also told them that earlier that evening the Applicant had asked him to drive her and the children to a friend’s house and that he had refused telling her to walk and leave the kids at home. Subsequently, SD and the Applicant had pushed each other. According to SD the Applicant had picked up two knives and had waved them at him. He said that he tried to take the knives from her, and that in the process had sustained a minor cut to his thumb and forefinger.
[36] Queensland Police Service Court Brief Townsville Magistrates Court on 22 February 2013, regarding
Contravention of domestic violence order on 4 February 2013.
Police then located and spoke to the Applicant at her friend’s house, where she had gone with the children. The Applicant’s account of the events differed from SD’s only in that she alleged that she had picked up the knives only because she was afraid that SD would carry out his threat to take the children from her and not allow her to see them. She also advised the police that the cut to SD’s hand was caused by him attempting to take the knives away from her while she was backing away from him.
The Applicant was consequently charged with contravention of a domestic violence order.
In an interview with Child Safety Officers on 3 May 2013 the Applicant stated, ‘I could have done a case conference but the night it happened I didn’t know I had to give details of what he had done to me, twisting my arms and pushed me to the ground, I just talked about what I did.’[37]
The relevance of the offence to employment, or carrying on a business, that involves or may involve children
[37] Interview with Child Safety Officer, Interviews with parents and others , Materials produced by the
Department of Child Safety, Youth and Women, at NTP-42
Having considered the nature of the Applicant’s offence, I now turn to consider the relevance of the offence to the Applicant engaging in employment involving children.
The Respondent submits that a key relevance of the offence to working with children is that—
Children are entitled to be cared by adults who do not engage in violent behaviour. It was well documented in the original negative notice that witnessing or being exposed to domestic violence has been proven to have detrimental effect on the well being of children, including problems with aggressive and delinquent behaviours. Therefore the applicant’s offending raises serious concerns about her ability to provide a protective environment for children who may be placed in her care.[38]
[38] Michelle Miller, Reasons for Refusing to cancel a Negative Notice 5 February 2019 at p9,
Even though the harmful effect of exposing children to domestic violence is clearly established, for the purposes of this review, it is important to distinguish situations of domestic violence where the exposure of and risk to children is such that little if any inference can reasonably to be made about the parent also posing a risk to children with whom they work or may work.
On the surface, the Applicant appears to provide an example of such a case when she submits that she stayed with SD despite his abuse and manipulation because not having had the benefit of an available father she wanted to make sure her boys had access to their father, particularly as she described SD as being good with the children.[39]
[39] Kuramea Vaeau, Life Story p.2
Clearly, a consideration of all the evidence reveals a number of factors that distinguish this case from those where the relevance of the offence could arguably be said to be confined to persons directly affected by it, and not extend to children with whom an offender may come into contact in the course of her or his child related employment.
While the Applicant was the victim of domestic violence perpetrated by her partner, the evidence clearly suggests that she was also a perpetrator of domestic violence against him, who regularly resorted to verbal and physical violence in her arguments with SD, and who did so in the presence of the children, while the children were in the same house or within hearing distance.
As the Respondent’s lawyer has underlined, Police records reveal that they attended domestic violence disturbances on some 13 separate documented occasions. Police reports suggest that arguments and frequent physical fights inevitably led to police or family intervention. On this basis, the number of domestic violence disturbances requiring outside assistance would have far exceeded the recorded number of police attendances.
The November 2011 incident was not the first occasion on which police attended a domestic disturbance involving the Applicant and SD. The earliest incident recorded in documents obtained from the Queensland Police Service relates to a disturbance caused by a non physical argument on 23 July 2007.[40]
[40] Queensland Police Service, Solicitors Office Report Detail 23 July 2007, DV Report, NTP 121.
The next recorded police attendance followed a call from the Applicant on 19 December 2010, complaining about being struck in the chest by SD’s knee. By this stage in the relationship the police report of the same date mentions ‘previous incidents’. In this instance, due to the absence of injury or weapons, police did not take any further action, but did note that the Applicant and SD had told them about other unreported incidents earlier that week.[41]
[41] Queensland Police Service, Solicitors Office Report dated 19 December 2010.
The Applicant and SD told the police that on the night of 14 December 2011, a bedroom disagreement turned violent and the Applicant sustained bruises when she tried to leave the room. However the Applicant told police that she wasn’t sure ‘who made contact with who’. The following night after a verbal disagreement the Applicant attempted to leave taking the children with her. As SD would not let her go, the argument turned into a fight and SD head butted the Applicant, bruising her eye. While SD conceded that he may have grabbed the Applicant and caused some bruising, he denied head butting the Applicant and suggested instead that as she had been ‘out drinking, returned home intoxicated and was throwing up’ she probably fell and bruised her own eye. While SD’s version sounds like a denial of responsibility, the police report notes that this could be a possible occurrence as [the Applicant] had told them that ‘she had spent all her money on alcohol.’[42]
[42] Queensland Police Service, Solicitors Office 19 December 2010, General Report, NTP 115.
These incidents of domestic violence highlights some constant factors in the relationship between the Applicant and SD. In particular I note arguments and fights, followed by the Applicant’s attempts to leave, and verbal and physical violence from both parties.
As I discuss below, it could be said that the Applicant was replicating the behaviors of families that she grew up with. Alternatively, CR, the Applicant’s Psychologist, suggests that,
As is typical with someone from a severely abused and neglected childhood, Ms Vaeau fell victim to predators in romantic relationships which included severe domestic violence.[43]
[43] Cheryle Rushton , Psychologist Medico0legal Report, 22 August 2019, p 3
The Applicant has stated that her parents were in an ‘on off’ relationship for 20 years, that children were used as pawns in disputes between parents, and that she had been subject to harsh physical punishment.[44]
[44] Kuranda Vaneau, Life Story p.1
In that context, it seems that when the Applicant, described her relationship with SD as being controlling and abusive from the very beginning[45] it was little different to what she had come to accept as child.
[45] Kuranda Vaneau, Submission, 3 August 2018 at para 2.
The Applicant has conceded that her children were not only exposed to witnessing domestic violence in their home but were themselves subject to reprisals and mistreatment by their father. The Applicant’s eldest son, who is not SD’s biological son, was according to the Applicant treated badly by SD, suffering ‘as a result of her choices.[46] In 2013 she told Child Safety Officers that her eldest son, Z, ‘ really needs some help, he is angry with me for the choices I have made and he has seen the violence for a lot longer than the other kids’. Consequently, she expressed a desire to ‘work on strengthening her relationship’ with him through Relationships Australia.[47]
[46] Department of Child Safety, Youth and Women,, 8 May 2013, NTP 38; Interview with parent 3 May
2013, NTP 42-43.
[47] Department of Child Safety, Youth and Women, 8 May 2013, NTP 38.
When questioned as to why she did not stop this maltreatment of her eldest son, the Applicant mentioned having tried to leave, of feeling she had no choice, and ultimately concedes that she had made wrong choices. This raises the concern that the Applicant’s willingness to permit this to happen may translate into risks to children she may work with.
Factors that distinguish the Applicant as a parent who regrets exposing their children to domestic violence are that the Applicant herself was perpetrator of the violence and other behaviour to which children should not be exposed that the Applicant concedes, the children’s exposure to domestic disturbances was a matter of her choice to remain with SD or keep him away with the aid of a domestic violence order. It was also a reflection of the attitudes to children, violence and relationships that she grew up with and that appeared to become her reality.
Above all, the Applicant had acquired the knowledge and insight into the effect of domestic violence on children but chose to remain or return to the relationship that fueled it. Consequently, current evidence regarding the Applicant’s insight and awareness of the impact of domestic violence on her children, needs to be compared and contrast with her insight and awareness at the time she chose to stay in the abusive relationship.
As discussed below, Child Safety Officers recorded in 2013 that the Applicant and SD were able to articulate their appreciation of the harm that domestic violence can cause children.[48] The Applicant had also expressed interest in and made enquiries about providing counselling for the children.[49] They also recorded that she had made enquiries with ARDVARC[50] in order to get assistance for her and the children.[51]
[48] Department of Child Safety Youth and Women, Assessment of harm and risk of harm 8 May 2013 NTP[49] Department of Child Safety Youth and Women, Interview with CSO 3 May 2013 NTP 42-43
[50] ‘Acknowledgement and recognition of domestic violence and real change’
[51] Department of Child Safety Youth and Women,Interview with CSO 3 May 2013, NTP 42 and AssessmentThe evidence present’s the Applicant as a mother who has ensured that her children have their daily physical needs met. She became aware of the detrimental effect her volatile and violent relationship with SD was having on her children. However, even with the benefit of this insight she hesitated to accept the assistance offered to protect her children, by expressing some concern that the Department of Child Safety might be ‘keeping an eye on her’.[52] She did not follow through on her stated reassurances and intentions not to return to the relationship, to remain in counselling, and to take out a domestic violence order.[53]
[52] Department of Child Safety Youth and Women, Interview with parent 3 May 2013 NTP 43.
[53] The Applicant applied but withdrew an application for DVO in February 2013. Queensland Police
Service, Solicitors Office Report 12 November 2013, NTP 85.
The Applicant says that she regrets some of the choices she has made. One of those has to be the choice of putting other interests ahead of the best interests of her children. Much of the evidence submitted by and on behalf of the Applicant talks of her self development. Yet this review is not about the Applicant, it is about the protection and best interests of children.
The applicant has presented little evidence about her children. Z, her eldest child in particular, is rarely mentioned. How the Applicant has and is protecting the best interests of her children needs to be set out in full if the Tribunal is to be able to distinguish what the Applicant knows and does now from what she knew and didn’t do while still in a relationship with SD.
It is clear that factors related to the offence were also responsible for the Applicant’s inability or unwillingness to make changes that would benefit her children, but which did not coincide with her wishes at the time. The Applicant also needs to accept that her role in the domestic violence in her relationship was not solely that of a victim – as she tends to present - but also as the perpetrator and sometimes instigator. This has significant implications for counselling, treatment, appropriate remedies and ultimately for assessment of risk for child related employment.
Fifth, the penalty imposed by the court and reasons for not imposing an imprisonment order and reasons for its decision.[54]
[54]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(1)(v).
To determine the Court’s reason for not to imposing an imprisonment order, I turn to the transcripts of proceedings and sentencing remarks of Magistrate Wadley in the Townsville Magistrates Court on 8 October 2013.
The Applicant was charged with contravening a domestic violence order. On 8 October 2013 she pleased guilty in the Townsville magistrates Court.
The Applicant has provided an explanation for why she pleaded guilty. When interviewed by Department of Child Safety on 3 May 2013 she stated ‘I have not pleaded guilty because I want to be seen as a woman in a domestic violence relationship for 8 years. I am not crazy, I was fearful.’[55] In her ‘life story’, she explains that at the ‘last minute’ a duty lawyer advised her to plead guilty.[56]
[55] Department of Child Safety Youth and Women,Interview with CSO 3 May 2013, NTP 42.
[56] Kuramea Vaeau, Life Story, p 3.
She was sentenced to six-months probation, and no conviction was recorded. The domestic violence protection order was not extended as Magistrate Wadley noted that the Applicant had not otherwise breached the order and that she and her partner were now separated.[57]
[57] Transcript of Proceedings at 41-44.
In his sentencing remarks Magistrate Wadley stated that it was the Applicant’s picking up of the two knives that constituted the breach of the Protection order. He specifically noted—
It is not suggested that that you threatened the aggrieved with the knives or you caused the injury when he attempted to take the knives from you, and you pulled the knives away from him. I am told that you picked up the knives because of previous experiences. You have been a victim of domestic violence and it was really a stand to get the upper hand on the day when you were arguing.[58]
[58] Transcript of Proceedings at 11-16.
The Magistrate gave the Applicant credit for taking steps to address the separation and parenting. He also observed that the Applicant had expressed remorse and cooperated with police, and somewhat surprisingly in view of information now available, that the action appeared to be out of character for the Applicant.[59]
[59] Transcript of Proceedings at 22-23.
Sixth, Information about the person received by the Respondent.[60]
[60]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b),(c) and (d).
No relevant information about the person was given to the Chief Executive by the Director of Public Prosecutions or by the Corrective Services under section 318 or 319.[61] No report about the Applicant’s mental health was given to the Chief Executive under section 335.[62] And, no information about the Applicant was given to the chief executive under sections 337 or 338 by the Mental Health Court or the Mental Health Review Tribunal.[63]
Lastly, ‘Anything else relating to the commission, or alleged commission, of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.[64]
[61]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b).
[62]Working with Children (Risk Management and Screening) Act 2000 s 226(2)(c).
[63]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).
[64]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).
Section 226(2)(a) of the Working with Children Act lists six specific mandatory considerations for the determination of whether a case is an ‘exceptional case’ that I have just considered . The final mandatory consideration requires the chief executive (or in this case, the Tribunal) to have regard to anything else that both, relates to the commission of the offence, and that the chief executive reasonably considers to be relevant to the assessment of the person.
In my view the construction of this paragraph unambiguously confines the consideration to matters relating to the commission of the offence that are adjudged relevant to the assessment of the person for work with children. The assessment of the person, it must be noted is for the purpose of screening for work involving children.
When earlier addressing the nature of the offence, and elsewhere I touch on a number of such matters relating to the Applicant’s offence. Here, I only propose to briefly address such matters.
The Applicant’s Background
First I note that many aspects of the Applicant’s volatile relationship with SD appeared to mirror the experiences and role models of her childhood and adolescence.
During the Applicant’s formative years domestic violence was the norm, relationships were volatile and often estranged, and children were neglected and abused. It is therefore not surprising that these elements turned out to be the norm in the Applicants life, relationships and with respect to her children.
The Applicant ‘s account of her early years is of growing up in a dysfunctional family. She states that as a result of an argument between her parents, she, then a newborn, was taken away from her mother and adopted by her father’s sister. Her parents, she recounts, remained in a mutually physically violent, on and off relationship for some 20 years.[65]
[65] Kuramea Vaeau, Life Story, p1.
Her earliest years were spent living in an extended family household where domestic violence was a regular feature and where she was subjected to severe physical punishment. She also states that she was sexually abused when she was 6, 8 and 12 years of age.[66]
[66] Kuramea Vaeau, Life Story, p1-2.
At the age of 12 the Applicant began drinking alcohol and smoking marijuana. As a teenager she moved frequently and was in the care of many people. By 2001 she describes herself as having been ‘unemployed, an alcoholic and heavy smoker.’
The Applicant’s background clearly had a bearing on her commission of the offence and is undoubtedly relevant to her assessment.
However, while some aspects of her behaviour may be explained by reference to the Applicant’s upbringing, and may indicate how it ought to be addressed, the explanation does not in itself reduce the risks to children.
Resort to Violence
The Applicant’s reaching for a knife during an argument with SD led to a Domestic Violence Order being issued against her, and also led to her conviction for contravening that order. The Applicant’s and SD’s frequent resort to physical violence during their nine-year relationship suggests that the Applicant saw resort to violence as a means of resolving arguments.
Arguably it is the Applicant’s seemingly instinctive resort to violence that creates a major concern. It could be said that identifying such a habitual form of behaviour is of significant concern, and if found to still exist would suggest that the issuing of a positive notice would not be in the best interest of children.
Applicant’s Mental Health
On a number of occasions, Department of Child Safety officers recognised that in addition to domestic violence, the Applicant’s mental health also posed a risk to children.[67] In particular, references were regularly made to the Applicant’s Emergency Examination Order on 1 November 2011 due to ‘threats of self harm and suicidal ideation.’ [68]
[67] For example: Department of Child Safety, Youth and Women, Materials, NTP-27Additional notified
concerns, 21 February 2013, Analysis of harm; The police service also expressed concerns regarding the
mental health of the children. For example: Queensland Police Service materials, Solicitors Office
Report, 19 December 2010.
Department of Child Safety, Youth and Women Materials NTP-21, Record of concerns, Analysis of harm, 18 February 2013.
Consequently, in assessing the Applicant’s ongoing risk to children I consider it to be important to ascertain whether the Applicant’s mental illness continue to pose a risk to children.
It is of concern that the Applicant continues to understate or avoid discussion of her mental health history. This is perhaps most glaringly illustrated in her apparent failure to disclose her mental health history to her psychologist.
This history contains much more than than the use of anti-depressants. The Applicant’s threats of self harm and suicidal thoughts led police officers to make anEmergency Examination Order on 1 November 2011. Satisfied of ‘an imminent risk of significant harm being sustained by the Applicant or SD, they made an Emergency Examination Order[69] and transported the Applicant to hospital.
[69] Materials provided by the Queensland Police Service, Solicitors Office Report 2 November 2011 and
Emergency Examination Order 1 November 2011.
In one of few accounts of the Applicant’s mental health issues, in her 2019 reference the Applicant’s cousin, RV states that ‘on one occasion she [the Applicant] contacted me late at night to take her to the hospital where she was prescribed with antidepressant medicine’.[70]
[70] RV, Character reference, 4 April 2016.
Concerns that Child Safety officers may have had regarding risks to children posed by the Applicants mental health issues were largely satisfied by the Applicant’s ‘willingness and ability to seek assistance.’[71]
[71] Department of Child Safety, Youth and Women materials NTP 18, Child concern report, assessment of
concerns NTP 18.
On 12 February 2013, the Department of Child Safety received notification of concerns flowing from the Applicant being diagnosed with depression in 2012 and SD being ‘of the opinion that the medicine causes mood swings preventing the Applicant from working.[72] They noted that the Applicant had previously been diagnosed with depression and reported that the Applicant had ‘resumed her antidepressant medication to help her deal with anxiety during this difficult period.’
[72] Department of Child Safety, Youth and Women materials NTP-27, Notified stated concerns [received 12
February 2013], 21 February 2013. NTP-27.
The Applicant has recognised that stress and depression played a role in the issuing of the domestic violence order and in her contravention of the order. However, it is unclear whether she has treated her diagnosed dementia seriously enough.
The Emergency Examination Order is the only document relating to the Applicant’s mental health that has been submitted. Yet, the Applicant has been taking anti-depressant medication sporadically since 2011. While the Applicant clearly states that she has not taken anti depressants for the past four years, it is unclear whether she determines when to start and stop taking them or whether this is done on the basis of medical or psychiatric assessments.
Aside from Depression, I note that threats of self harm and suicidal ideation are serious mental health issues that need to be addressed. Whether these have been adequately addressed is unknown.
Conclusion
Consequently it is with respect to broader and related issues such as those briefly discussed above and others addressed elsewhere, which did not cease to exist when the Applicant’s relationship with SD ended, that there is a need for clear evidence that the Applicant has taken all necessary steps to ensure that these factors no longer pose a real and appreciable risk to children.
Risk and Protective factors
The Tribunal’s practice of identifying and weighing-up risk factors and protective factors when deciding whether a particular case is an exceptional case was approved by the Court of Appeal in Maher.[73]
[73]Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492.
In identifying risk factors, the Tribunal has adopted the approach of New South Wales courts in corresponding cases, by defining ‘risk’ in this context to mean ‘real and appreciable risk’.[74] In GP v Commissioner for Children and Young People[75] the Tribunal held that when identifying risks ‘as part of its consideration of whether an exceptional case exists ... the tribunal was not concerned with what may be mere possibilities but ….is looking at whether in all the circumstances there is a real and appreciable risk’[76]
[74] See for example, BKV and Children’s Guardian [2015] NSWTAD 65; BXJ v Children’s Guardian [2016] NSWCATAD 11; and Bachman v Public Safety Business Agency [2016] QCAT 104.
[75]GP v Commissioner for Children and Young People [2013] QCAT 324.
[76]GP v Commissioner for Children and Young People [2013] QCAT 324 at [14].
Regarding protective factors, Courts have held that in order for a factor to be a relevant protective factor, it must be protective of children or must lessen risks to children. Thus, in Scott[77] Buss J held that ‘The Act is only intended to benefit children insofar as it is intended to protect them.[78]
[77]Chief Executive Officer of Child Protection v Scott (No2) 2008 WASCA 171.
[78]Chief Executive Officer of Child Protection v Scott (No2) 2008 WASCA 171, [109].
The Respondent submits the following as protective factors
One: Current and Recent Studies
That the Applicant has completed a Certificate IV in Travel Sales, a Certificate III in Aged Care and Disability, and a Certificate IV in Christian and Ministry Studies and is currently studying towards a Diploma of Leadership and Management in Christian and Ministry Studies.
It should be noted that with the exception of the Applicant’s studies in Travel Sales, she has undertaken this education after her final separation from SD.
The Applicant has also taken a number of other courses at Life Leadership College, Townsville. These courses address topics such as Parenting, How to deal with Behaviours, Love and Respect and Dysfunctional Families. From the witness box the Applicant explained that what she learned was, ‘why we react to things’ and about triggers.
The Applicant’s written and oral submissions disclose that she is justifiable proud of her achievements, and enthusiastic about what she has learned, and how she may apply her knowledge in future work.
These recent studies are a clear and important protective factor. The studies have provided the Applicant with structure for personal growth and qualifications for meaningful employment. Such developments will no doubt serve to make her more confident and independent, and far less likely to once again find herself in circumstances such as those in which she put her children at risk.
Two: Current Employment
That the Applicant is currently employed by Life Church as a cleaner, and by Ozcare at Villa Aged Care Facility (as an Aged Care Assistant).
Evidence presented suggests that the Applicant’s current life and work are enabling her to spend more time with her children and ensures that more of their needs are met.
The Applicant’s work with Life Church is closely linked with her studies at Life College and with her support and counselling supports. Such employment in a supportive setting provides protection against the reemergence of factors and circumstances due to which the Applicant was considered to pose a risk to children.It is in this supportive setting that Life Church proposes to offer her more employment once she has been issued a positive notice.[79]
[79] LI, Reference dated 13 August 2019.
In her Life Story document, the Applicant states that her future work aspirations are
To work with children so that I can empower them for success. I particularly have an interest to work with children and families who have been in Domestic Violence situations.[80]
[80] Kuramea Vaeau Life Story, p.5.
In her 2014 reference for the Applicant, RV wrote that the Applicant intended to study towards a Bachelor of Nursing Science the rough James Cook University, as her dream is to become a Registered Nurse ‘so that she could provide for her family and help others in need.’[81]
[81] RV, Character Reference for Kuramea Veau 4 April 2016.
Three - Counselling
That the Applicant has engaged in some counselling by way of engaging with Relationships Australia, a psychologist, Ms Cheryle Rushton completed a 10 week course that provides women with strategies and skills to make positive and lasting changes for future relations.
I note that the Applicant has had four sessions with psychologist Ms Cheryle Rushton and participated in a 10 week Relationships Australia ‘Referral Active intervention program.’[82] She has also completed the ‘Careforce Life Keys course’ at the Life Leadership College. The Applicant describes this as ‘a program for women that provides strategies and skills to make positive and lasting changes for future relationships.[83]
[82] Participation certified by letter from Relationships Australia, dated 8 January 2016. See: BCS 40.
[83] Kuramea Vaeau, Life Story at p.5.
The Applicant states that it was a Psychologist, to whom she was referred in 2014, that helped her realise that her relationship with SD ‘was over with once and for all’.[84]
[84] Kuramea Vaeau, Submission, 3 August 2018, at para 16.
The Applicant’s engagement in such counselling appears to be an indication of her desire to address the significant issues that have had a negative impact on her life and had made her a risk to children.
Nevertheless, between 2010 and 2013, the period of most intense domestic violence, the Applicant also expressed interest in seeking counselling for herself and her children, and expressed insight and understanding of the impact of domestic violence on children. The Applicant did not persevere with counselling, nor did she make the changes required to protect her children.
As I outline below, if current and future counselling is to help the Applicant achieve what she could not in the past, it cannot be based on incomplete or censored information. To be meaningful and effective, acquired insights and understanding will need be demonstrated and not merely asserted.
Four - Separation from Long-term Partner
That the Applicant has stated that she has separated from her partner, with whom she was involved in domestic violence in September 2014.
The Applicant’s relationship with SD appears to have been the most significant trigger for the domestic violence that placed the children’s welfare at risk. Consequently, that the Applicant finally ended the relationship with SD in late 2014 and is unlikely to resume a live in relationship with him, is a major protective factor.
The Applicant’s earlier claims about no longer being with her ex-partner were also deemed a crucially important factor in the mitigation of her contravention of the domestic violence order, the non continuation of the domestic violence protection order, and stopped Child Safety Officers from taking more intrusive steps.
As noted earlier, it would seem that earlier assessments of risks to children, based on a claimed final separation, were found to be overly optimistic.
The conflict between the Applicant and SD did not end when the Applicant and SD first separated following her conviction. Police records show that police were called out to disturbances between the Applicant and SD until April 2016, when the Applicant talked about, but did not following through, on a proposal to take out a Domestic Violence Order against SD.
It could be said that claims regarding separation made in 2013 cannot be compared to the current separation since SD married in 2015 and moved to live in Darwin, However, as issues relating to his access to the younger two children remain unresolved, the Applicant is likely to have to further negotiate with SD
Even after SD’s marriage, mediation relating to the children led to threats being made. The Applicant participated in teleconference mediation with SD on 20 April 2017. The mediation ended with the couple failing to agree on access arrangements for their two sons, and SD threatening court action.
The Applicant advises that R and J have not seen their father since December 2015. It would therefore appear quite likely that even though SD is married and living in Darwin, the Applicant and SD will have reason to interact. In view of the volatile nature of their relationship, any such contact is likely to present a significant challenges for the Applicant.
My concern is not so much that the Applicant will recommence a relationship with SK but rather that she will have to step well outside of her comfort zone in dealings with her ex-partner regarding their children. The evidence presented is not clear as to how that is likely to impact on her behavior. When questioned how she would manage such interaction, the Applicant was reluctant to consider such a scenario.
The Applicant’s five year separation from SK and their violent relationship, have clearly been beneficial to her and her children. Whether all the factors that made the relationship pose such a risk to the children have been adequately addressed appears to be far less clear.
Five - The Applicant’s Support Network
The Applicant stated that she has ‘strong support from friends, is an active member of her community, church and member of women’s groups within her church community.
This claim by the Applicant was supported by her witnesses and supporting materials.
Such an involvement in community and church activities and the availability of assistance from friends and others with whom she regularly meets appears to be a significant protective measure.
However the protective benefits of the Applicant’s support network, were not effectively substantiated by evidence and supportive materials or witnesses called to give evidence.
The Applicant had previously also claimed to have a supportive network, which did not appear to protect her children. In this respect I note that following the Applicant’s breach of the protection order in May 2013 the Department of Child Safety decided that ‘a more intrusive approach’ by the Department was not warranted, expressly in part because the applicant ‘appears to have developed a robust professional support network to support her during this period of transition’. The network was seen as one that would ‘assist both her and the children’.[85]
[85] Department of Child Safety Youth and Women NTP-38 , 8 May 2013, Key Protective Factors NTP-38.
The current supportive network was not apparent in this review. Only three character-witnesses came forward to give sworn evidence and be examined, and a friend accompanied the Applicant in court as her support person.
The Applicant largely attributes the positive changes in her life to the Life Church community. Yet examination of the two witnesses from Life Church disclosed that the Applicant had been known to them and attended the church at least between the order and its breach, if not before the order itself. She clearly attended the church at a time when she was distressed because she did not know where she could take the children, when she appeared to neglect her children and almost had them taken away from her by Child Services, when she drank excessively, when she repeatedly resorted to violence, and when she attempted suicide and suffered a major mental health episode.
What distinguishes the current Life Church based support group from the earlier Life Church links needs to be further clarified and substantiated .
Such supporting evidence is also required because previous assessments have proven to be overly reliant on assurances. In 2013, the Department of Child Safety decided that ‘a more intrusive approach’ by the Department was not warranted expressly in part because the Applicant ‘appears to have developed a robust professional support network to support her during this period of transition.[86]
[86] Department of Child Safety Youth and Women 8 May 2015, Assessment of Outcome NTP-39.
In the Life Church community, the Applicant appears to have found a refuge from her previous troubles. However, as discussed below, a positive notice and blue care is transferable to other locations and other kinds of child related work. Consequently, in assessing whether the Applicant’s case is an exceptional case I must also consider whether the Applicant would cope in another child related setting or without her existing support network.
While I accept her evidence, that she is healing and that her support community are enabling her to heal, I have doubts as to her present capacity to not slip back into being the person she was without the help of significant significant supports.
Six - Supporting Statements
The Applicant has provided references from three (3) people, all of whom express some knowledge of the Applicant’s history of domestic violence and speak well of the Applicant.
The writers of three character references in support of the Applicant appeared as witnesses to give evidence and be examined at the hearing. Two of them, RV and DB updated earlier references to show that they were aware of the Applicant’s offence.
RV, the Applicant’s first cousin, testified about the assistance she had provided, and continues to provide, to the Applicant. She stated that she supported the Applicant during her domestic violence related court appearances, and assisted with the care of the Applicant’s children.
In her (undated) character reference submitted for the hearing RV states that she ‘was present during the domestic violence that Kuramea has experienced…aware that she had an Apprehended Violence Order against her, yes, I am also aware that she has breached it and went to court in regards to that matter.’
In her 15 April 2016 Character Reference, RV described the Applicant as ‘a loving, caring mother towards her three boys…who always puts her children before herself’. She also wrote that the Applicant is
a community minded individual who puts the needs of others before her own evident in the community work that she has done in volunteering at Masonic Care Nursing Home and at her children’s previous school canteen, Wilguru Park Primary School.
In addition RV observed that the Applicant had ‘seen a counsellor for 6 months due to the effects of the domestic violence’ and ‘has been to mediation for her children and her children have been to post separation programs as I have taken them to the programs on a few occasions’.
In her applications the Applicant had blamed SD for the domestic violence that had posed a risk to her children. In large measure did not acknowledge that her behaviour had contributed to the violence that led to her offence.
However, the Applicant’s most recent statements reveal at least some understanding of her contribution to the domestic violence and to the risks to which she had exposed her children. She has stated that she lacked control of her life and had permitted things to happen that she should have stopped.
Nevertheless, the Applicant continues to not be able to articulate or apparently fully comprehend how she may have minimised the risks to her children through exposure to domestic violence, as by her own attitudes and behaviours.
The Applicant’s acquisition of such partial insight has been accompanied by positive changes in her life. What is missing is clear, comprehensive and demonstrated evidence of the Applicant’s fuller insight into risks and of practical measures to address triggers. At this stage the evidence is unclear as to whether the Applicant’s progress is sufficient to ensure that she will not revert to earlier forms of behaviour that would pose a risk to children, including those with whom she may work.
I have considered evidence relating to each of the specific considerations made mandatory by the Working with Children Act, as well as other matters reasonably relevant the assessment of the Applicant, including the paramount consideration of the welfare and bests interests of children.
Weighing up Risks and Protective Factors
The above consideration of risks and protective factors reveals that some factors previously identified as risks are no longer relevant or have, through changes to the Applicant’s circumstances and understanding, become less than real and appreciable risks.
The Applicant maintains that it was her determination to hold the family together and provide her sons with a father that exposed her and the children to domestic violence. In itself such a scenario, while clearly posing a risk to the children, would in my opinion, not necessarily mean that she would pose a real and appreciable risk to children with whom she may come in contact in related employment.
However, when viewed in the light of all presented evidence, this case is substantially different.
The Applicant openly resorted to violence in a volatile relationship, even while engaged in counselling and subject to a domestic violence order. By exposing her children to violence and mistreatment by SD, and to violence between her and SD, the Applicant caused her children harm similar to that she herself suffered in growing up in a violent and dysfunctional family.
Such seemingly habitual resort to violence in spite of her conceded awareness of the impact on children suggests that until it is clearly established that the Applicant’s attitude and resort to violence and it’s impact on children has been addressed adequately, it is difficult to see why her employment in child related work should not be considered a risk such that it is not in the best interests of children that she undertake such work.
A consideration of the events and other factors relating to her offence reveal a number of other concerns, including an unknown level of risk to children flowing from her mental state and her apparently ongoing incapacity to manage without significant supports.
I accept that the Applicant has grown up withdrawn, and prefers not to elaborate on her written submissions. However, it was also made clear that she was able to clearly and in some detail outline issues that she has carefully considered and understands. With other matters, at times directly relating to the welfare of her children, her answers suggested that she has not fully processed or understands the issues. At best she offered generalisations or a little more detail when prompted.
The Applicant referred to being physically punished and mistreated as a child. She also concedes to her children and in particular Z, her eldest son, being mistreated by SD. Yet there is a lack of evidence clearly establishing that now she considers such behaviour to be totally unacceptable. Growing up with such treatment of children being the norm, and tolerating such when in her relationship with SD, it is important that her evidence and supporting evidence clearly establish that her views have changed.
The Applicant has stated that she led a lifestyle that was detrimental to her and her children, and that in doing so she had been neglectful and irresponsible as a mother. She has stated that she would go out drinking alcohol and ‘clubbing’ while her children were looked after by family members including her supportive first-cousin, RV.
The Applicant states that she stopped smoking because ‘the kids didn’t like it’. Perhaps a more appropriate reason may have been, because secondary smoke was harmful to the children or because she was setting a bad example. The Applicant also states that she stopped drinking and partying by deciding to stop and praying about it.
Seeking divine assistance to break an addiction or put an end to an inappropriate lifestyle, clearly demonstrates a desire to change and a need for assistance. However, to ensure that the Tribunal is satisfied that such change is likely to be permanent, evidence presented needs to extend beyond statements, for example, that the Applicant has been abstained from excessive consumption of alcohol. It needs to be supported by evidence of other steps taken to ensure that she does not recommence excessive consumption. Attendance at AA meetings or an equivalent Life Church program would provide significant supportive evidence that this lifestyle change is not temporary.
As already noted, there is a likelihood of court proceedings or negotiations with SD regarding his access to the two youngest boys. On the basis of past events, the impact on the Applicant may be significant and negative. For this reason alone, the Tribunal would require a much more detailed outline of steps and strategies being in place for the Applicant to be able to handle such a challenge.
The brief, generalised and unsupported assurances provided are largely insufficient. In particular, what is required is evidence from professionals assisting the Applicant to gain insight and strategies on how to deal with future contact with SD and perhaps with new partners and relationships.
The Applicant did not provide any evidence showing that that her mental illness is under control and that she understands and accepts the need for treatment and understands triggers and strategies for addressing any diagnosed condition. It would appear that the limited assistance that the Applicant has received from medical and behavioural professional was either not persevered with, or was provided without complete knowledge of the Applicant’s past history.
The Tribunal also notes that the Applicant did not provide supporting evidence of having sought formal and comprehensive treatment of her anger and resort to violence. The Applicant’s historical resort to violence is a matter of foremost concern and consequently needs to be addressed specifically.
The Applicant’s oral and written evidence continues to create the impression that her remorse still predominantly relates to the impact of her actions on her life and her relationship with SD. She continues to struggle to express remorse for the impact of her actions on her children, and not just SD’s.
Overall Findings
I have considered all the materials before the Respondent at the time the reviewable decision was made, the additional materials produced for this review, and the sworn evidence given at that hearing. I have also considered the evidence in the light of the statutory factors listed in s 226(2), to which the Tribunal, as decision maker, must have regard, the Act’s object and principles, and I have identified and weighed the risks against the protective factors.
In Maher[98] the Court of Appeal held that the tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interest of children for a positive notice to be issued’[99]
[98]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[99]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at
[30]
With that in mind, on that basis of all my findings, and recognising that the paramount consideration is the welfare and best interest children, I make the following finding and decision.
I am satisfied that the Applicant’s case is, in the terms of s 221(2), ‘an exceptional case in which it would not be in the best interest of children for the chief executive to issue a positive notice.’[100]
[100]Working with Children (Risk Management and Screening) Act 2000 s 221(2)
Decision
The decision of the Director-General, Department of Justice and Attorney-General, that the applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), is confirmed.
2011, 19, Basis of Application; Solicitors Office Report Officer’s Report 1 November 2011, NTP-112,
38, where CSOs record that ‘Both parents able to clearly articulate the possible impact on the children
and state that it is on this basis that they will not be resuming a relationship’
of harm and risk of harm 8 May 2013 NTP 38.
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