Lister v Commission for Children and Young People and Child Guardian

[2010] QCAT 473

CITATION: Lister v Commission For Children and Young People and Child Guardian [2010] QCAT 473

PARTIES:	Ms Susan Beryl Lister
v
Commission For Children and Young People and Child Guardian

APPLICATION NUMBER:   CSR002-06  

MATTER TYPE: Childrens matters

HEARING DATE:     23 August 2010

HEARD AT:  Level 10
BOQ Centre
259 Queen Street
BRISBANE  QLD  4000

DECISION OF: Mr Paul McGrath

DELIVERED ON: 23 August 2010

CATCH WORDS:                Blue Card; S.37 of the Children’s Services Act 2000; S.19 of the Queensland Civil and Administrative Tribunal Act 2009; where applicant does not pose an unacceptable risk to children and young people; where positive notice issued

ORDERS MADE:

1.    That the decision of the Commissioner for Children and Young People and Child Guardian, of 6 November 2006, to issue the applicant Susan Beryl Lister with a Negative Notice prohibiting her from working in any category of employment or business regulated by the Commission for Children and Young People and Child Guardian Act 2000 be set aside and that a Positive Notice be issued to the applicant.

2. That pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 the publication of the names of any children contained in any documents before the Tribunal and in any evidence given before the Tribunal in this matter is prohibited.

3. That pursuant to Section 123 of the Queensland Civil and Administrative Tribunal Act 2009 a written transcript of the reasons be given to the parties.

APPEARANCES and REPRESENTATION:

APPLICANT:	Susan Beryl Lister
RESPONDENT:	Commission For Children and Young People and Child Guardian represented by Karyn Alton and  Susan Neudegg

REASONS FOR DECISION:

This is the hearing related to the Applicant Susan Beryl Lister in respect of a decision of the Commissioner for Children and Young People and Child Guardian to refuse her a Blue Card and to issue a Negative Notice in November of 2006.

Present at the hearing were Ms Lister and her support person Robert Gow. On behalf of the Commission were Karyn Alton and Susan Neudegg. The history of the matter is that Ms Lister received a Blue Card originally in or about January 2003 and in or about April 2005 applied for its renewal. The Commissioner sent a decision letter together with reasons on the second of November 2006. Ms Lister was subsequently charged with a number of offences in respect of deprivation of liberty and assault and was convicted after a jury trial in the District Court on the 4^th of September 2009. She subsequently appealed against the conviction - I’m sorry, against the sentence, and that appeal was dismissed on the third of December 2009.

The Commission rightly submitted that the…pursuant to Section 19 of the Queensland Civil and Administrative Tribunal Act 2009, that Section 19 of that Act requires me to decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made. That Act was the Commissioner for Children and Young People and Child Guardian Act 2000 which in the particular version of that Act that was in place in 2006. That Act was amended subsequently and accordingly I rely upon that particular Act, the 2006 version, for the purposes of this hearing, and indeed in respect of the Children Services Tribunal Act. I must have regard to that Act as it was in place at the time of the decision of the Commissioner.

The application for a Positive Notice was made by the… well, the application to review the decision was made pursuant to Section 100 of the Act, the CCYP and CG Act, and the Commissioner, after investigations, became aware of the charges levelled against the Applicant. The Section 102(3), subsection C of the Act, provides that subject to subsection 4 the Commissioner must issue a Positive Notice to the relevant person if the Commissioner is aware of a conviction of the relevant person for an offence other than for a serious offence. Section 102(4) of the Act provides that the Commissioner was required to issue a Positive Notice under subsection 3(c) unless the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a Positive Notice. Section 102A(2) of the Act provides that where the Commissioner is aware that a person has been convicted of or charged with an offence, the Commissioner must have regard to the following factors:

(a)In relation to the commission, or alleged commission, of the offence by the person:

(i)   whether it is a conviction or charge; and
(ii)  whether the offence is a serious offence, and if it is, whether it is an excluding offence; and
(iii) whether the offence was committed or is alleged to have been committed; and
(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)  In the case of a conviction, - the penalty imposed by the court, and if it decided not to impose an imprisonment order for the offence, or decided not to make any disqualification order under Section 126C, the court’s reasons for it’s decision; and

(b)Anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.

Section 37 of the Children’s Services Act 2000 provided that when reviewing a reviewable decision, the Tribunal is to decide afresh the matter to which the reviewable decision relates, unaffected by the reviewable decision, and to take all reasonable steps to ensure that it has all relevant material before it. The Tribunal may also have regard to relevant material that was not available to the decision maker. Section 38 of the CST Act empowers the Tribunal after reviewing the reviewable decision, to:

(a)Confirm, set aside or vary the decision; or

(b)Set aside the decision and substitute its own decision; or

(c)Set aside the decision and return it to the decision maker for reconsideration in accordance with directions given by the Tribunal

The Tribunal has all the functions and powers of the Decision Maker and must have regard to the matters the Decision Maker was required to have regard to under the Act under which the Decision was made. Part 6 of the Act details the ledged provisions dealing with screening for regulated employment and regulated business. And Section 95 of the Act provides that the purpose of Part 6 is to ensure that only suitable persons are employed in certain child-related employment or carry on certain child-related business. Section 1…sorry, Section 6, subsection 1 of the Act provides that the Act is to be administered under the principle that the welfare and best interests of the child are paramount, and Section... subsection 2 of Section 6 sets out other principles under which the Act is to be administered.

Section 96 of the Act provides that without limiting Section 6, the paramount consideration in making a decision under this Part is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being. The reference to the term “Exceptional Case” in subsection 102, subsection 4 of the Act is not defined in the Act and there has been no judicial authority to provide a definition. It is a matter of both fact and degree the circumstances of each particular case as to what constitutes an exceptional case. In the decision of Kenton v Wilson 2000, Justice Heading of the Supreme Court of Victoria considered the term “Exceptional Circumstances” in the context of a breach of community correction orders, and whether the Magistrate was able to conclude that the circumstances before him were exceptional. His Honour stated at paragraph 22 of his judgement,

“Exceptional is defined contextually in the Oxford English Dictionary, 2^nd Edition, Volume 5, as meaning ‘unusual, special, out-of-the-ordinary course’. This does not mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, the interest of the prosecuting authority, the defendant and the victims. It may be that circumstances amounting to ‘exceptional’ may be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.”

In The Commissioner for Children and Young People and Child Guardian v Marin and Other, 2004, QCA492, the Queensland Court of Appeal per Justice of Appeal MacPherson confirmed that the welfare and best interests of a child was the paramount consideration to which all others yield. His Honour was there referring to the basis upon which the Act was to be enshrined in Section 6, subsection 1 and Section 96.

In this particular case, the Applicant is aged sixty-one years. She has, I think, seven children and a number of grandchildren and great-grandchildren. She has been involved in community care work for a number of years and was employed at the relevant time by the Care Independent Living Organisation, which provided assistance to children with a disability who were in residential care in the facility. The allegations were that in or about 2000 to 2003, a number of children were abused in… by way of assault and other means of discipline by a number of staff members at the facility. In this particular case, the Applicant was charged with and convicted of one offence of deprivation of liberty of a child approximately seven years of age who was tied to a toilet seat whilst the Applicant was attempting to get him to defecate. There was some indication that there was a photograph taken of the incident, but I am not necessarily satisfied that such occurred. There were two other counts in relation to assault, one involving the same child, one another child, who was… the first child was struck with a fly-swat a number of occasions, and the other child apparently was held down by the Applicant whilst another carer rubbed chilli into his mouth or onto his mouth.

There is no dispute that the convictions were issued from the District Court in relation to these three offences and it’s not for me to go behind the convictions and to proffer what may or may not have occurred. I am bound by the convictions and the subsequent penalty that was imposed. The Applicant has worked in care in respective respite services with an organisation called Community Access Respite Services, or CARS, from approximately 2005 to 2009, when the… when her employer was informed by Disability Services Queensland that she was not to be employed because of the fact that there were impending charges against her. Evidence was given by a number of witnesses on behalf of the Applicant, all of whom spoke as to her special caring nature and her ability to interact with… interact with peo- with children and adults, especially those with a disability. Ms Smith, the director of CARS, indicated that the Applicant had worked with over thirty families during the period of time that she worked with her, and they were all very supportive of the applicant. The applicant had a large number of references from various families and people testifying as to her exceptional work with people with a disability and… since the… since these alleged offences and prior thereto.

I am satisfied that in relation to the references, that they are accurate and that the witnesses and referees were honest and truthful in their assessment of the Applicant. It was submitted by Ms Alton on behalf of the Commission that because the… some of the witnesses indicated that they did not believe that the Applicant was guilty of the offences with which she was charged, and that was not… that should lessen the amount of weight that should be given to their evidence and to their references. I do not consider that that is appropriate; they are… they were saying it as they saw it, and they were aware of the convictions and still thought that the Applicant was a caring person who was well able to minister to children with a disability.

The Tribunal, as did the Commissioner, is required to consider the matters referred to in Section 102A, subsection 2 of the Act, and… and in this regard the Tribunal finds that the offence committed by the Applicant resulted in a conviction, that the offence is not regarded or not categorised as a serious offence under the Act, though certainly offences of concern, and being a child-related offence it is directly relevant to the Applicant’s ability to work in child-related employment area. The offences were committed apparently between the year 2000 and 2003, but there is no specific evidence as to the actual dates of the commission of the offence… offences. The nature of the offence and its relevant to employment as indicated the offence related to disciplining children with a disability, and hence it was directly related to the Applicant’s then-employment as a child-care worker. The…in relation to the conviction, the penalty imposed by the Court, by the District Court, which was subsequently confirmed on appeal, was that the Applicant be sentenced to a period of community service, I think a hundred and fifty hours of community service, and which she indicated she had performed prior to the appeal being heard. In relation to subsection 2(b) of Section 102A, in relation to anything else relating to the commission or alleged commission of the offence that the Commissioner reasonably considers to be relevant in the assessment of the person, in the reasons the Commissioner referred to the age of the Applicant to the effect that her behaviour could not be mitigated by youth or lack of emotional maturity. She also referred to a number of references, and as I’ve indicated the referees have and had a high opinion of the Applicant and her faith… and their faith in her ability to work with children and young people.

I have considered that those references are relevant in determining whether or not this review should be successful or otherwise. It was submitted by the Commission that the Applicant’s behaviour in relation to the convictions was inappropriate and that she should have been aware, having regard to her background as to what was appropriate in dealing with children with challenging behaviour. There was also an issue of whether or not the Applicant had shown any remorse or admission that what she had done was wrong. The fact that the Judge in the District Court trial referred to the fact that the Applicant did not express remorse, to my mind, is not necessarily indicative of the fact that what the Applicant did and what she believed she was doing was right or at least the general tenor of discipline that was required at the premises at which she was employed. There is evidence that the Applicant has worked with people with a disability and indeed children with a disability between the date of the… her leaving the care facility and today, in the respite area, and that there have been no complaints by anyone against the Applicant in relation to her role as a carer.

The issue of unacceptable risk or acceptable risk has been dealt with in a number of decisions, and I propose to read some of the material in relation to those. There was a Family Court decision of the marriage of MMS 1995, 19 Family Law Reports 837, where Justice Fogarty dealt with the issue of whether an acceptable risk is present in any one case, and commented on the matters to be reached in reaching such an… commented on the matters to be considered in reaching such a conclusion. His Honour said one of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of unacceptable risk. Though the purpose behind the notion is to assist a Court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to Courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgements which involve questions of sexual abuse, but give it no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse and so to be seen to be applying the correct legal test these words…those words seem to sometimes to be used without an appropriate degree of consideration. Because it may be seen that in every case there is at least in theory a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. In S&S 1993 New Zealand Family Law Report 657 Justice Thomasen lists the difficulty involved here. At page 670 His Honour said,

“The qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely words of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of a child.”

In the Court of Appeal 1994… in the same case… 1994 New Zealand Family Law Reports, at page 26, Justices Gallen, President Cook and Justice Hardy-Boys said, at page 33 and 34,

“It’s in the assessment of the risk that the difficulties arise. The cases all indicate that it is not any… , quote, it is not “any degree of risk” which is sufficient, and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the Courts.”

The foremost usually… sorry, the foremost commonly used adjectives are ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’. None are particularly helpful, and discussion of them tends to degenerate into a matter of semantics. The Judge in this case indicated that they were methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of a child. Whilst at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary, and what kind of risk can be said to be incompatible with the welfare of a child. In the end, I doubt whether a Court can go beyond saying that there must be actual evidence, which at the very least gives rise to the conclusion that behaviour may have occurred or may occur, which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture, and need not go as far as the proof that, which would justify a conviction.

From that it will be seen that there are two emphasis to be kept in mind. The first is that the foundation from which the conclusion may be drawn, and the second, and by far the more important, is the effect which can rationally be predicted of a child. In considering the whole matter, as the Judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area. Thus the important… sorry, thus the essential importance of the ‘unacceptable risk’ question, as I see it, and if direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or not, those facts could be said to raise an unacceptable risk of harm to the child. Thus the value of the expression does not, in the magical provision of an appropriate standing, but in its direction to Judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.

In asking whether or not the facts of a case do establish the unacceptable risk, the Court will often be required to ask such questions as:

• “What is the nature of the events alleged to have taken place?”
• “Who has made the allegations?”
• “To whom have the allegations been made?”
• “What level of detail do they involve?”
• “Over what period of time are the events alleged to have occurred?”
• “What are the effects exhibited by the child?”
• “What is the basis of the allegation(s)?”
• “Are the allegations reasonably based?”
• “Are they… are the allegations genuinely believed by the person making them?”
• “What expert evidence has been proved?”
• “Are there any satisfactory explanations of the allegations?”
• “What are the future likely effects on the child?”

In answering the ‘unacceptable risk’ question, the Court must undertake a qualitative analysis. For instance, that determination cannot be appropriately…cannot appropriately be made through a process which counts the number of considerations which favour access and those which militate against access and then asks which side the balance falls. Rather the essential weight must be attached to the magnitude of the harm to which the risk results. The notion of ‘unacceptable risk’ must be assessed in the light of the grave consequences of sexual abuse to a child’s development as well as to the effects of future contact with the party. This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not itself answer the question whether an unacceptable risk can be said to exist. There is no finding… sorry, there is no requirement to ask whether the evidence satisfies a balance of probabilities, finding in favour of abuse, although that nevertheless may be useful. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.

In this particular case, the events occurred some, at least, seven years ago and probably longer. There has been… there is no indication as to what effect these events had on the children, the subject of the offences, or on any other children in the facility. Indeed, the evidence was from the Applicant that the, at least one child was able to appropriately eat his food following the abuse with the fly-swatter. The Applicant has demonstrated by her work both prior and since the incidents referred to, which resulted in convictions, that she is well able to care for both children and adults with a disability, and it is a credit to her that she wishes to consider- sorry, wishes to continue performing that role. The Tribunal therefore considers that the Applicant does not pose an unacceptable risk to children and young people, and therefore that the decision of the Commissioner to issue her with a Negative Notice prohibiting her from working in any category of employment or business regulated by the Commission for Children and Young People and Child Guardian Act 2000 be set aside, and that a Positive Notice issue to the Applicant.

That will be the order, as well as the order pursuant to Section 66 of the QCAT Act, and the Tribunal makes an order prohibiting the publication of any of the names of any children contained in the material either tended to or delivered to the Tribunal for the purposes of these proceedings.