LGT v Chief Executive Officer, Public Safety Business Agency
[2014] QCAT 692
•15 September 2014
| CITATION: | LGT v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 692 |
| PARTIES: | LGT (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML128-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 21 August 2014 |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Wood |
| DELIVERED ON: | 15 September 2014 |
| DELIVERED AT: | Toowoomba |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer to issue LGT with a negative notice is confirmed. 2. That publication is prohibited of any information that would identify the applicant or her children. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD – where appellant initially issued with a Blue Card – subsequent criminal conviction involving domestic violence and alcohol related matters – significant child protection history both before the issue of the initial Blue Card and subsequently whether an exception case under s 221(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | LGT in person |
| RESPONDENT: | Ms L Keown |
REASONS FOR DECISION
Throughout her life the Applicant has faced many challenges having been born on 2 February 1965 to Sudanese parents in Kenya. Her parents had fled the Civil War in the Sudan in 1955 and resettling there. LGT was the fifth child of a family of 10 children she did well at school and enjoyed good health.
In 1972 her family returned to Sudan after the first Sudanese Civil War where she completed year 12 at secondary school and horrifically at the age of 13 years saw her father shot and killed in front of her. Her first husband to whom she was married for six years was killed during the war.
Overcoming these struggles she worked as a nurse obtaining a nursing certificate in Territ working as a registered nurse in Jubar Teaching Hospital caring for children also working as a Red Cross nurse, living in a refugee camp for six years where she worked as a kindergarten teacher which was when she met her recently estranged husband JL. JL’s first wife was killed by rebels and LGT was responsible for taking care of his three children aged 1, 4 and 8 and she has now 10 children of her own.
On 20 March 2001 she migrated with her family as refugees with 12 children to Australia having been sponsored by the reform church in Tasmania. Following the relocation to Australia her husband’s behaviours changed and he began drinking heavily, having affairs with other women and not contributing financially to the household. As a result LGT commenced working in a nursing home in Tasmania where she continued to work for 6 years. Unfortunately for her during the period of time in Tasmania she also commenced consuming alcohol to excess and committing offences. Whilst in Tasmania she had a criminal history consisting of the following:
a) 6 November 2006 learner driver driving unaccompanied by licensed driver;
b) 6 November 2006 driver holding learner licence a provisional licence or similar licence with alcohol in body (B/A reading 0.227);
c) 6 November 2006 driving motor vehicle whilst exceeding prescribed alcohol limit (B/A reading 0.227);
d) 4 March 2008 driving while disqualified.
She was sentenced for these offences.
In 2007 the Applicant’s husband left her in Tasmania and moved to Toowoomba with another girlfriend. LGT moved to Toowoomba and continues to reside in Toowoomba with three of her children, an 18 year old, a 16 year old son who is in grade 11 and a 13 year old daughter in grade 9. There was a reconciliation but the period of time that the Applicant and her husband were together whilst in the Toowoomba community was littered with domestic violence incidents involving the police and courts and the intervention of the Department of Community Services Child Safety with many reported incidents of concern.
Child Safety History
8 September 2009 – recorded argument between LGT and the child with LGT throwing her purse at the child. The police were involved who established that the Applicant had been drinking and that she had hit her son after being called a ‘slut’.
29 November 2009 – the police were called and it was established that the Applicant was intoxicated. The Applicant’s husband made allegations that she had been abusing the children. No obvious or apparent signs of psychological abuse were present.
22 October 2009 – the police were called by another person and attended the residence. On speaking with the children who were present, they were told that there was a verbal argument between the Applicant and her husband with the children saying that each of the parents were as bad as the other. The Applicant made allegations about her husband being in a relationship with another female.
26 February 2010 – incident occurring on the 4 December 2009 between 1:30am and 2:00am. Earlier on the previous evening there had been a verbal argument between the Applicant and her husband when the husband left the residence returning at 1:30am. Another argument ensued with the Applicant being pushed by her husband in to the bed and then hitting her husband with a photo frame. Police attended and noticed the Applicant’s husband was intoxicated. It was unclear who the aggressor was on this occasion.
5 January 2011 – an argument occurred between the Applicant and her husband when an argument broke out about their daughter. The Applicant’s husband grabbed her by the arm shaking her. When he let go the Applicant threw a beer bottle causing a minor injury to his left ear. A verbal argument ensued. There were no children present. Both the Applicant and her husband had been drinking. A Domestic Violence Order was taken out by the police after this incident.
3 May 2011 – incident on 1 May 2011 police attended due to a violent disturbance when their child became uncontrollable. The child had threatened the Applicant and her husband with a knife the week before making threats to kill them. They advised that the child’s behaviour was erratic.
4 July 2011 – incident occurring between 7:30pm and 7:45pm on 2November 2011 when a verbal argument occurred between the Applicant and her husband over a residential bond. This led to a physical altercation where the Applicant sprayed a cleaning product to the facial area of her husband and he defended himself by pushing her away. The children observed the altercation and the 13 year old son called the police. There were several children at the house at police arrival by which time the Applicant and her husband had both left in separate vehicles. The 13 year old child advised police both parents had been drinking most of the afternoon and were very drunk and said they were arguing and punched each other.
21 July 2011 – between 9:30pm and 9:45pm on 20 July the Applicant and her husband engaged in a verbal argument in relation to the care of a child of the husband’s who had epilepsy. No evidence of any domestic violence was found.
8 August 2011 – approximately 4:45pm on 4 August the Applicant and her husband engaged in a verbal disagreement with the Applicant’s husband calling a taxi and leaving. The children were within viewing and hearing range of the incident but no injuries reported.
6 September 2011 – an incident between 6:10pm and 7:10pm on the 31August 2011 an argument in an extremely loud and aggressive manner and the Applicant was often intoxicated during these episodes. The police attended after a child called for assistance and advised that the Applicant had been acting aggressively and verbally abusing him whilst drinking. Police spoke with both parents who advised that they had significant difficulties following their immigration from Africa due to their traditional roles not being recognised by the Australian social system. The Applicant’s son left with police to avoid further verbal or physical abuse.
23 November 2011 – on an unidentified date the Applicant drove a vehicle whilst under the influence of alcohol later testing 0.159% BAC. Whilst doing so she had her son in the car and crashed the vehicle into a tree. She left the vehicle with her son and went to a residence where she believed her husband to be in the company of his girlfriend. The Applicant threw a bottle at her ex-husband striking him in the head and then is alleged to have attacked him possibly with a screw driver inflicting scratch marks and lacerations. Police observed two other children at the offence location. In the course of evidence during the hearing the Applicant indicated that there were eight children at the residence who were all inside. She denies using a weapon and says that the scratches were from a fight between the Applicant, her husband and the girlfriend on that evening. She otherwise dismissed the allegations.
6 December 2011 – an incident occurred between 7:30pm and 8:05pm on the 4 December when a verbal altercation occurred between the Applicant and her husband at home and when the Applicant’s husband attempted to leave she walked up to him and prevented him from leaving. It is alleged that at some stage the Applicant brandished a knife and threatened children in the house. Police attended and arrested the Applicant to prevent continuation of violence.
2 March 2012 – incident between 3:00pm and 6:00pm on the 23February 2012 a disturbance occurred between the Applicant and one of the children who were heard to be yelling at each other. The subject child had called the police as the Applicant was always drunk and abusing him. Police attended the scene and observed the Applicant to be partially intoxicated. She told the police that her son was too hard for her to handle and they no longer wanted him to live at the house. The Applicant accused the child of brandishing a knife in the house which was denied and of punching her. The child advised police he could no longer handle his mother’s constant alcohol consumption.
Police History
21 July 2009 – Serious Assault – on the 21July 2009 at 9:30pm the police attended the Applicant’s residence as a result of a domestic violence incident. The Applicant continued to interfere and obstruct police by interrupting conversations between the police and her husband. The Applicant prevented the husband from re-entering the residence by preventing access through the doorway and she was then arrested by police by grabbing her left lower arm. She thrashed her arm around and pulled the police officers left hand to her mouth and bit down on it. When another police officer attempted to assist several punches were thrown to avoid being detained. The Applicant indicated that she did not bite but instead the police officer was scratched by a ring.
The Applicant pleaded guilty and was sentenced to one month’s imprisonment, suspended for three months.
21 October 2011 – breach of an order – a Domestic Violence Order was made against the Applicant on the 6January 2011 valid for two years with the mandatory conditions. At approximately 11:20pm on the 21October police were called to attend the Applicant’s residence in relation to a domestic violence incident. Again this charge arose out of an incident in which both the Applicant and the complainant had been drinking at a party and a verbal altercation had occurred. The verbal altercation escalated and on speaking with police sometime after their initial investigation on the 21 October admitted that she had thrown a glass jar causing damage to the house and had bitten the complainant, her husband, because she was intoxicated and agitated. The Applicant was convicted of this charge and placed on 15 months’ probation.
Breach of an Order 20 November 2011 – on the evening of the 20November 2011 the Applicant attended the residence following the motor vehicle accident as outlined under the Child Protection History. The facts are outlined in the Child Protection History amount to a breach of the Order.
In addition to these charges in evidence there were details given of a conviction for public disorder offence in late 2013. On this occasion the Applicant was travelling in a motor vehicle which was overloaded and driven by her daughter. They were intercepted by the police and the Applicant attempted to convince the police that they should let her daughter go and instead charge her. By reason of her behaviour she was arrested and charged with public nuisance.
The Applicant’s evidence
The Applicant acknowledges that she has had a significant drinking problem. She says that this occurred in the context of marital difficulties between herself and her husband. She commenced drinking in Tasmania but when they moved to Queensland the extent of the drinking worsened. Her evidence about her understanding of the effect of the offending behaviour and her drinking on the children varied throughout the course of her evidence. At times she did not believe that the alcohol had played any significant part in the offending behaviour nor did her consumption of alcohol and her behaviour have any affect on the children. At other times however in the course of her evidence it seemed that she did have some insight into the fact that her behaviour was inappropriate and could well have a significant lasting affect on the children.
In evidence about the offences shown in her criminal history she says that she did not commit those offences but instead the Police were called as a result of wrong doings by her husband. Having regard however to their culture she was told by her husband to take blame for them and in accordance with their cultural responsibilities she approached the police and accepted responsibility. She however admits the convictions disclosed on her criminal history and I accept that I cannot go behind those.
The Applicant and her husband separated in early 2012. As a result of that separation she became suicidal and required admission to the Adult Mental Health Unit at the Toowoomba Base Hospital. She was at that time depressed. She was prescribed anti-depressants but stopped taking them later in 2012 and now believes she does not need them. She stopped the anti-depressants in consultation with her General Practitioner.
She has also commenced an Anger Management Course with a clinical psychologist Dr John Scott commencing that in February 2014. The evidence was that she had three further sessions to go with Dr Scott at the time of the hearing.
She has acknowledged her addiction to alcohol and has participated in a referral for active intervention with Uniting Care Community. She has undertaken a 12 month course with them and a letter from that organisation was provided in the course of the hearing. She completed that in February 2014.
The Applicant believes that she would now not return to the use and consumption of alcohol at all. Her primary concern now is to obtain employment and in her evidence says that she has recently been declined a card to work in aged care due to her criminal history.
This limits her employment prospects and is part of the reason why she now seeks to have a blue card so that she can continue to work in child related employment.
She continues to have three of her children at home and support from her other children. Her 18 year old child has a drug induced psychosis and spends most of his time in his room. The other children are doing well at school.
The Pastor from her local church was aware of the police involvement but not aware of any child safety details or any details of the complaints. In his experience the applicant is an active member of the church community in Toowoomba and has a close relationship with himself, members of the congregation in particular the African members and his wife. He would have contact with her several times per week. He supports the issue of a Blue Card to the Applicant.
He was aware that the Applicant had a drinking problem and is aware that it is now in the past but believes that she is adamant that she will cease.
The Applicant and her husband separated in early 2013 and remain separated. Her husband has relocated to live in Melbourne but frequently visits as recently as the weekend before the hearing. The Applicant’s husband had been to Toowoomba to see the children. There is a congenial relationship between them. The Applicant holds out some hopes of reconciliation with her husband and he has agreed to attend counselling to see if that might be possible. In the visits which have occurred since his relocation to Melbourne there have not been any domestic violence incidents as he too has stopped consuming alcohol.
In her evidence the Applicant said that she had recently been charged with drink driving. She is to appear in the Toowoomba Magistrates Court on that charge on 2 October 2014 and has entered a plea of not guilty. The Applicant is entitled to a presumption of innocence in relation to that charge.
Statutory Framework
At the time of the granting of the Applicant’s blue card and at the time of its withdrawal the Commission for Children, Young People and Child Guardian Act 2000 (CCYPCGA) created a regime to ensure only suitable persons work with children in an employed or volunteer capacity. That legislation has now been replaced with Working with Children (Risk Management and Screening) Act 2000 (WWCRMSA) the operative provisions of which mirror the earlier legislation. The WWCRMSA commenced into operation on 1 July 2014. These proceedings were on foot prior to that date and I must apply this Act in determining these proceedings.[1]
[1]WWCRMSA s 492(2).
The Applicant in this case had a blue card issued to her on 25June 2011. As a result of police information received by the then Commissioner following her appearances before the Court the Commissioner cancelled the positive notice by letter dated 28 September 2012 and substituted it with a negative one. It was empowered to do so.[2]
[2]Ibid s 237.
In considering the information it had received the Commissioner quite rightly determined that none of the offences were ‘serious offences’ as that term is defined in the legislation and that therefore the Commissioner must issue a positive notice to the Applicant unless it was satisfied it was an exceptional case in which it would not be in the best interest of the children for the Commissioner to issue a positive notice[3]. The Commissioner took the view that it was an exceptional case and issued a negative notice.
[3]Ibid s 221(2).
The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case[4] however the Tribunal must exercise its discretion in each case within the parameters of the legislation.
[4]Ibid s 226.
There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists.[5]
[5]Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28.
In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.
Risk Assessment
There are a number of protective factors in this case:
a) Following separation from her husband the Applicant has become more actively involved in her local church and now has a support network outside of the home as a result. That support network includes the Pastor who gave evidence on her behalf of her good character. The support network includes the Pastor’s wife.
b) The Applicant has demonstrated some remorse for her actions involving her children and expressed some insight into the effect the behaviour would have had on them.
c) The Applicant has now undertaken some formal rehabilitation for drugs and alcohol by participating in the RAI course through Uniting Care.
d) The Applicant continues to engage with a private psychologist Dr John Scott to address her anger management issues and is committed to completing that course.
e) Her 18 year old son who has created problems in the past now has had some contact with the local Mental Health Service and is addressing his behaviours of concern.
There are a number of risk factors:
a) Having heard the evidence of the Applicant I find that throughout the course of that evidence she attempted to minimise her role and responsibility in the domestic violence and criminal behaviour and whilst she has developed insight I find that that insight is limited.
b) The offending behaviour for which she has been dealt with by the courts is recent and serious. The offending behaviour involves the use of weapons in the form of a screwdriver and a jar and was committed without regard to the safety of the children including a drink driving offence involving a motor vehicle accident with a child in the car.
c) The lengthy child protection history again is recent and significant. It includes allegations of the use of weapons by the children against her. Again I find that the Applicant attempted to minimise the involvement in these issues but instead blamed the children.
d) The formal rehabilitation undertaken is incomplete particularly in so far as the anger management is concerned.
e) It appears that reconciliation between the Applicant and her husband is possible and that whilst currently neither of them are consuming alcohol were they to resume a domestic situation there is a risk of a return to the consumption of alcohol and the behaviour referred to in these reasons.
Conclusion
The Applicant seeks a blue card in order that she can obtain suitable employment in the child care industry as she is now unable to work in the aged care industry because of her criminal history. The Applicant is entitled to have a blue card issued to her unless this is an exceptional case as discussed previously in these reasons.
I accept that the inability to obtain a blue card for this Applicant would cause her hardship. I accept that this will make it more difficult for her to provide for her family in the manner in which she chooses. These are irrelevant considerations for me as my emphasis must be on the safety and wellbeing of children as a paramount consideration.
The principles for administering the Act are that the welfare and best interest 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.[6]
[6]WWCRMSA s 6.
Having regard to all of the evidence which I have heard and read whether or not I have referred to it specifically in these reasons I am satisfied that an exceptional case exists in which it would not be in the best interest of children for a positive notice to be issued to the Applicant and confirm the decision to issue a negative notice to the Applicant.
Further due to the fact that this Applicant resides in a small community and a distinct portion of that community with young children I consider that publication of any information which might lead to identification of the Applicant or her children would be detritus.
In the circumstances I order that publication is prohibited of any information that would identify the Applicant or her children.
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