MAS v Director-General, Department of Justice and Attorney-General
[2018] QCAT 9
•5 January 2018
CITATION: | MAS v Director-General, Department of Justice and Attorney-General [2018] QCAT 9 |
PARTIES: | MAS |
| v | |
| Director-General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML117-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 14 November 2017 15 December 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 5 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision dated 27 April 2015 that an exceptional case exists is confirmed. 2. It is prohibited to publish any part of this decision that may lead to the identification of a child. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where cancellation of positive notice – where allegation of violence against child denied – where child removed from care of parent – whether not in the best interests of children for a positive notice to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s66 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 |
APPEARANCES: | |
APPLICANT: | MAS |
RESPONDENT: | Director-General, Department of Justice and Attorney-General |
REPRESENTATIVES: | |
APPLICANT: | In person |
RESPONDENT: | represented by Mr McCowie, an Officer of the Department |
REASONS FOR DECISION
MAS has worked with children for much of her working life. She was a relief high school art teacher for four and a half years and worked as a coach at swimming and tennis clubs. She is the mother of a teenage child who was removed from her care in 2014 as a result of allegations against her that she continues to deny.
She applied to be issued with a blue card in April 2014 and this application was refused on 27 April 2015. She applied to this Tribunal for a review of that decision.
A previous decision of the Tribunal was successfully appealed and the application has been listed for rehearing.
Relevant Legislation
Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). The principles for administering the Act are 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.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6. Also see s 360, which states ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.’
Where an applicant has been charged but not convicted of a disqualifying offence, or where the applicant has a conviction for an offence that is not serious or disqualifying, a positive notice and blue card must issue. The only exception to this requirement is where it is found, on a balance of probabilities, that it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.[2] This means MAS must be given a positive notice unless there is a finding that an exceptional case exists.
[2] Ibid, s 221 (2).
The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[3] The circumstances of each individual case must be explored within the framework imposed by the principles of the Act to determine whether an exceptional case exists.
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34].
The Act sets out the factors that must be considered when making the determination but does not confine consideration to those matters.[4] The factors include the commission, or alleged commission, of an offence, whether it is a serious offence and if so whether it is a disqualifying offence, and the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.[5]
[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.
[5]Ibid, s 221.
Any hardship or prejudice is suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[6]
[6]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171, 23.
The purpose of a review is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[7]
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
It is not necessary to show a mistake of fact or law on the part of the original decision maker when bringing an application for review. Once an application is before the Tribunal the reviewable decision carries no evidentiary or legal weight. Neither party bears an onus of proof. However, each party has an evidentiary responsibility to put before the Tribunal the evidence they want considered.
MAS’s history and personal circumstances
When MAS was two years old her father was tragically killed in a plane accident. She was quickly removed from her home into the care of her grandparents and this was a traumatic time for her.
She was then raised by her mother who was a nurse. She describes ‘extensive physical emotional and psychological abuse by my parent which caused me anxiety and disturbing memories and affected my learning and brain functioning and delayed development.’
She describes difficulties at school and being tested for a mental impairment in Grade 4. This was ruled out by the test.
MAS states ‘my mum kicked me out of home at age 15.’ After that she lived in a community share house and completed grade 11 and 12. It was at this time she learnt functioning skills such as budgeting, cooking, making lists, getting her licence and becoming self-reliant. After school she worked and travelled, first in hospitality then later as a beauty therapist.
In her late 20s MAS came into an inheritance and put a deposit on a house. She had a child in 2003 when she was 27 years of age. She states “I chose to be a single mum and although it has been difficult at times it has also been rewarding and I love being a mother and wouldn’t change this for the world.’ She says when her child was small they did a lot of things together. They spent time engaged in activities, at sport and at the beach and went for an overseas holiday together. She volunteered at a local charity and would take her child with her.
She entered a difficult relationship with a man in about 2006-7 that lasted for four years that was ‘good at times but toxic too’ and it was during this period she was convicted of breach of domestic violence orders. While in this relationship she did an anger management course, attended counselling and took medication prescribed by her doctor. She says she has left this relationship and no longer sees this person.
She went to university and qualified as a high school art teacher in 2010. She then obtained some work as a relief teacher and worked in many schools where she states ‘I have only done a couple or a handful of days in each place’. Although she later refers to a three month contract at a school.’[8] She continued to work as a relief teacher through 2014 without incident until the decision to issue a negative notice in April 2015.
[8] Submission to Blue Card Services dated 21 February 2014.
A number of concerns were reported to the Department of Child Safety about her care of her child, some of which were substantiated and others not. MAS attributes this child safety history to her relationship with her mother, who constantly accused her of failing to be a good mother and reported her to the authorities.
In 2014 MAS’s child was removed from her care and placed in the care of her mother. Since 2016 the child’s father has been caring for the child. The child, now a teenager, is able to initiate contact with MAS but it is some time since they have spoken.
MAS sold her house and has now moved to Brisbane. She went to a doctor and was given medication for anxiety and depression, which she no longer needs. She is attending counselling which she has found extremely beneficial. When her blue card was removed she could no longer work a teacher or coach with children and she has tried a lot of ways to maintain employment. She is a very creative person and has received acclaim as a photographer. She has been able to sell some of her work at the markets,
MAS says she is not the same person she was, she has had extensive therapy, is able to understand her condition and has good support networks and strong interests. She has never harmed children in her care and worked successfully as a relief teacher without incident. She continues to deny she assaulted her child, saying the circumstances in the police brief were based on the evidence of her child, who tells lies.
MAS says she is a good person and is not a risk to children and she is positive she is able to move forward and always see hope and persevere.
Circumstances leading to the negative notice
MAS’s adult criminal history is as follows:
2007 Breach of Order - No conviction recorded. Fined $300
2008 Breach of Order - No conviction recorded. Fined $500
2009 Wilful damage - Charge discontinued
2010 Breach of Order - No conviction recorded. Recognisance $250. Good behaviour period 12 months
2014 Common Assault occurring 20 December 2013 - No evidence to offer and charge dismissed.
On request from Blue Card Services, information was provided by the Department of Child Safety. This showed concerns raised in 2008 and 2010 about a child witnessing domestic violence. No action was taken. In 2013 there were five notifications between June and December. In June and July there was a referral to a support organisation for parenting support, in September there was comment that mother was getting better at parenting and in October a concern notification was found to be ‘substantiated – child in need of protection’. In this case the child was found to have injuries and there was comment the mother refused to acknowledge there are any issues with parenting ability.
In December 2013, a further incident occurred and on 23 January 2014 a child protection order was made granting custody to the Chief Executive for 2 years.
There is evidence a further incident occurred in 2016 when the child was having contact with MAS.
An application has been made for a further order and this will be heard in January 2018 unless an assessment, currently underway, identifies the child’s father to be a person willing and able to care for the child. It is MAS’s evidence she has been told by the Child Safety Officer the Department believes her child, they don’t believe her and they will resist the child being returned to her.
Evidence at hearing
MAS’s psychologist was the first person to give evidence so she could spend the remainder of the hearing as MAS’s support person. She also provided written reports on 23 September 2016 and 24 July 2017. This witness is a neuropsychologist who offers neurofeedback simultaneously with trauma and emotion-focused therapies. She has had over 50 hours of intensive contact with MAS. She unreservedly supports MAS Blue Card reinstatement.
The psychologist has identified the following descriptors for factors affecting MAS’s functioning; communication disorder, disorganised (disrupted) attachment, attention deficit disorder, sensory processing disorder, pyroluria and abnormal DNA methylation factors and reactivity limited to attachments and not transferable. These factors have resulted from a combination of inherited and environmental inputs.
She is of the view the sudden death of MAS’s father and her subsequent removal from her mother at a critical point in her brain development disrupted the particular skills, namely coherent verbal communication, forming at that time. Other difficulties are inherited and, based on MAS’s reporting of her family, she opines these are shared by MAS’s mother and child.
She states MAS:
had the typical childhood outcomes of Disrupted Attachment, including attention and learning difficulties, confusion, emotion dysregulation within interpersonal exchange, powerlessness, tangential verbal communications, frustration in being heard and understood, rejection and lack of effective parental support.
She believes MAS has improved remarkably with treatment so she is not the person she was at the time her child was removed. Her treatment allows her to make better decisions. In this case past behaviour does not predict her future functioning. She believes the ‘old documents are not this woman today.’ She is now much better, she is renting a house on her own and has supportive friendships. She aware of when she is not doing well and is able to seek appropriate counselling assistance. She has learnt to be careful about her interactions with her mother and the move to Brisbane has helped with this. While she is disappointed with the influence the Department has had on her child’s view of her, she is now comfortable with where the child is living. She would like more contact and is experiencing grief and loss at the lack of contact. She better understands her conditions and can see their impact on herself and others. She has reached a functioning level of emotion regulation and that is why she does not need to continue frequent treatment sessions.
Communicating will continue to be difficult with her, especially if people are not aware of her condition. She will probably have that for the rest of her life. Her heightened sense of justice will remain. She is not experiencing depression and anxiety at this time and when it arises she can control it by her learnt strategies and medication if necessary.
MAS has developed effective preventative strategies. She avoids noisy situations, has modified her diet to manage her pyroluria, has a strong personal and professional network, is prepared to take medication if it is necessary, enjoys time with her dogs and actively pursues her many interests and community work.
The psychologist stated she believes there are no concerns with MAS working with children and that she is ‘not a person bringing any danger to any person in any context’. She believes Departmental assessments have failed to treat her with respect. MAS’s:
communication difficulties have resulted in her being misunderstood in such contexts as legal situations, with neighbours who barely know her and in shared housing, resulting in assessments of her that may not have represented the truth of her function or actions.
Further, as demonstrated by her ability to teach without incident, people not in an attachment relationship with her do not trigger her lack of trust and need for self-protection:
…the relevance to Blue Card decisions is that her reactivity towards lies, aggression, rejection, inaccurate judgements of her – only applies to attachment relationships or associated agencies (Child Safety) treating her unjustly – due to the self- protective vigilance wired in from her original attachment trauma.
She further opines ‘A substantial injustice is evident as this woman has been deprived of earing her livelihood’.
I had the opportunity to hear from five other witnesses who have known MAS for extended periods. The first two were her Aunts. They confirmed there was a difficult relationship between MAS and her mother and MAS’s sister was favoured over her. They agreed MAS’s child was very strong willed and became harder to control after turning 8 years of age. MAS was described as ‘a good little mum’. They confirmed she has become calmer following treatment from her psychologist.
The other three witnesses were all long term friends. They have known her in work and social contexts and have seen her at her worst emotionally. They spoke of her relationship with her family as dysfunctional. They confirmed she is not a big drinker and doesn’t take drugs. They each expressed their admiration for her determination to continue to live an active and engaged life notwithstanding the difficulties she has faced and the ‘constant flow of hurdles’. She is not perceived as a violent person and is believed to be a safe person with children. One witness described her as a ‘model mum’ in their friendship group in 2008 and the one the other mothers gravitated towards.
In addition to the witnesses there was a large volume of evidence. This included medical reports, further references, the police brief, information from the Department of Child Safety and lengthy statements from MAS.
Risk and protective factors
When determining whether there is an exceptional case it is common practice to identify and consider protective and risk factors.
Risk factors
a) Criminal and child protection incidents that involve violence
b) Alleged assault against a child of 11 years
c) A tendency to minimise conduct demonstrating a lack of insight
d) Incidents of violence occurring at a mature age which therefore can’t be dismissed as immaturity
e) Failure to act protectively towards a child in her care
f) Effective treatment has been recent and sufficient time has not passed to assess the long term benefits
g) Limited evidence of insight into the causes and consequences of behaviours
Protective factors
a) The treating psychologist has given extensive evidence that present treatment is resulting in positive outcomes
b) Better understanding of behaviour has led to strategies to avoid dangerous situations or modify behaviour when confronted by them
c) Attendance at numerous parenting and other courses
e) Involvement in regulated employment without incident
f) Relocation to Brisbane away from family influences
g) Strong therapeutic relationships
h) Supportive friendship group
i) Involvement in the community and activities
Consideration and decision
MAS is entitled to be given a positive notice unless I find there is an exceptional case such that it is not in the best interests of children for a positive notice to issue. Arriving at this finding requires me to consider the evidence and exercise discretion while being careful to ensure the interests of children remain paramount. I do not need to be satisfied to an unrealistic standard of no risk to children, however I do need to consider their best interests.
This means my consideration is not limited to the physical or emotional safety of a child but extends to ensuring they are cared for in an environment that promotes their well being. Adults responsible for the care of children must be able to identify and give priority to the needs of children, even if this means subjugating their own interests. They must be able to effectively advocate for the needs of children and negotiate with others, often people in authority, to achieve good outcomes.
For reasons I will now explain I have decided this is an exceptional case such that a positive notice should not issue.
I acknowledge this decision will have a detrimental effect on MAS’s career and community prospects and her admirable efforts to come to terms with her functioning disabilities by contributing to her community in the best way she can. However it is accepted law that I can not give weight to this consequence because to do so would be contrary to the paramount principle.
I have given little weight to MAS’s criminal record with the exception of the 2013 assault charge, to which I will refer later. The record does show a tendency to resort to violence however I accept MAS’s evidence these breaches occurred in the environment of an abusive relationship. These circumstances can result in poor decision making and emotional control and I am not satisfied behaviours in this environment indicate a risk of future violent conduct.
I have given weight to the Child Protection Order made in 2014 and to the evidence of MAS that she has been told by officers of the Department they will submit at the Child Protection hearing in 2018 that her child should not be returned to her care. MAS argues decisions made by the Department are based on false information given by her child and other family members, however that fails to explain the complete picture. I must give weight to the fact that the evidence relied on to form a finding of substantiated harm was, in 2014, accepted by a Magistrate who decided to remove the child from her care. That decision is not made lightly and is rarely based on concern reports alone. There is material from the Department before the Tribunal that presents a complex factual scenario.
It is in this context that I am not satisfied MAS’s explanation that her child was removed because her mother did not agree with her parenting style and was trying to make things difficult for her and that her son told lies adequately explains the decision of the court and the position that is still held by officers of the Department. I find that MAS has not recognised or accepted the impact of her behaviour on her child and she has deflected responsibility for the decision to remove the child away from her own behaviours and onto other family members.
The incident at the beach, which resulted in the assault charge, was discussed in detail at the hearing. This charge was not proceeded with, which has resulted in MAS feeling aggrieved because even though she did not have the chance to establish her child was lying she has continued to be affected by the charges being brought in the first place.
Even if I were to accept MAS’s evidence of what occurred I would still be concerned by her explanation. She states they were on the beach, she noticed the child’s eye was swollen and the child would not allow her to inspect the eye to see if it was a sty or something else that required treatment. She admits there was some physical contact, albeit initiated by the child, but denies assaulting or harming the child. She later accepted she may have scratched the child’s arm during the struggle. The child then ran off.
She stated this incident occurred a few days before Christmas and she was feeling alone. She had been having a struggle with her child who wanted to go to Nana’s. She had spoken to her ex-partner and he had hung up on her. She tried to connect with another friend who was not available. When her child ran off after their physical contact she sat on the beach and cried. She then went home and had a shower before contacting her mother to check if her child had arrived.
If the Child Safety material is accurate it was about 5 kms from the beach to Nana’s house and it would be reasonable to assume it would take a child an hour to walk this distance. MAS was comfortable that her child could walk this distance because it was a country town and the child would be safe. She did not comment on whether her child was upset when leaving her.
On questioning, she admitted that if she was put in that place again she should have ensured her child reached home safely.
MAS was focussed on her own needs and mental state. She did not appear to fully appreciate that in a parent/child relationship the responsibility is on the parent to ensure the safety of the child.
I have given weight to the Departmental material identifying a further incident during contact between the child and mother in 2016. Again, MAS states her child lied about this incident and her truthful version of events was ignored. In her statement filed 15 December 2017 she states ‘He is a known liar and exaggerator and has his own agenda and will do what he wants to get what he wants with no social or emotional contious (sic) and understanding of consequences.’
It is in MAS’s favour that her involvement as a school teacher was without incident and I note the reference from a school attesting to her satisfactory performance. However, she did not work in a school for an extended period and the role of a relief teacher, while difficult, often does not involve managing the ongoing relationships and conflicts with other staff members and those in authority that can arise in the workplace.
I find MAS has benefitted by relocating to Brisbane. She has a group of supportive relative and friends and has developed interests and activities necessary to support a healthy lifestyle.
I have carefully considered the written and oral evidence from MAS’s psychologist. In particular I have considered the comprehensive list of descriptors and the effect of these conditions on MAS’s ability to function. The reports and evidence provide a detailed picture of the way MAS views the world and what is important to her. The material goes a long way to explain the difficulties MAS has encountered, especially when dealing with her family and the Department. It also suggests strategies other people can use to make a reasonable accommodation of her communication disability.
It is MAS’s evidence she does not have a difficulty in communicating with children. The evidence does not restrict her communication disorder to communication with adults and it therefore raises the question why it would not impact on her interactions with children. Indeed, the disorder does appear to have had an impact on her communication with her child because she describes any version of events that differs from her own as ‘lying’. It would not be reasonable to expect children, especially children with their own special needs to accommodate her identified disability. I have not made any findings on this question because it was not raised directly with the psychologist.
The Director-General submits that the psychologist has taken on both roles of Expert and support person and this should be taken into account when considering the weight to be given to her report because it impacts on her independence. I have accepted her evidence as it relates to the medical or functional impairment issues and I find it is unlikely that MAS would intentionally harm children. I do not accept her opinion that MAS should be given a Blue Card because I find her opinion has been influenced by the detriment that MAS will suffer and that is not factor to which weight can be given when arriving at this decision.
I have also considered the other medical reports from medical practitioners and counsellors. These reports rely heavily on MAS’s self reporting and are restricted to her health issues. They indicate she does not have a current psychiatric condition although she has, in the past, experienced depression and anxiety and that she is currently doing very well and is stable. They comment on her improving self control and judgement.
I accept the evidence that; MAS has benefitted from the treatment she has received, the neurofeedback has improved her emotional regulation, therapy has contributed to her increased knowledge of her conditions and she is committed to developing protective strategies.
Considering the evidence as a whole I find MAS does not demonstrate an understanding of child development or an awareness of the needs of children sufficiently to promote their well being. Further, based on her relationship with her child, I find she has not demonstrated the capacity to adequately manage the complexities of power and responsibilities in an adult child relationship.
For these reasons, I order this is an exceptional case in which it is not in the best interests of children for a positive notice to issue and confirm the reviewable decision made 27 April 2015.
Publication of MAS’s name would lead to the identification of her child. For this reason, I also make a non-publication order under s 66 of the QCAT Act to ensure the identity of a child in care is protected.
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