OOC & Loh v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 79
•26 February 2014
| CITATION: | OOC & LOH v Commissioner for Children and Young People and Child Guardian [2014] QCAT 079 |
| PARTIES: | OOC and LOH (Applicants) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML072-13; CML073-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATES: | 12 and 13 September 2013 |
| HEARD AT: | Ipswich |
| DECISION OF: | Presiding Member Quinlivan Member Pendergast |
| DELIVERED ON: | 26 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue OOC with a negative notice is confirmed. 2. The decision of the Commissioner for Children and Young People and Child Guardian to issue LOH with a negative notice is confirmed 3. The Tribunal prohibits the publication of the names of the applicants, the names of the applicants’ children and the names of the witnesses. |
| CATCHWORDS: | Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – charge of assault occasioning bodily harm to daughter – whether case is “exceptional” Child Protection Act 1999 s 9 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | OOC and LOH represented themselves assisted by SO |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian was represented by Mr Craig Capper |
REASONS FOR DECISION
OOC is a 38 year old man from central Africa. LOH is a 36 year old woman from central Africa. OOC and LOH met in a refugee camp and were married in 1994. They arrived in Australia with their ten children in 2005. Seven of the children are their biological children and three children are from OOC’s prior marriage.
Initially the family settled in Toowoomba, Queensland. In December 2012 they moved to Redbank Plains.
The Commissioner for Children and Young People and Child Guardian (the Commissioner) issued OOC with a positive notice and a Blue card on 21 October 2010. The Commissioner issued LOH a positive notice and a Blue card on 30 August 2011.
The Commissioner was subsequently informed of a change in both OOC and LOH’s police information. On 20 June 2012 they had both been charged with Assault Occasioning Bodily Harm whilst armed/in company in relation to an alleged assault on their 15 year old daughter. As a result they each had their eligibility to hold a Blue card reassessed.
On 19 February 2013, the Queensland Police Service advised the Commissioner that the charges had been dealt with and that the prosecution had offered no evidence in relation to the charges.
On 3 April 2013 the Commissioner advised OOC and LOH individually that he had decided to cancel their positive notices and issue them each with negative notices.
OOC and LOH have now applied to the Tribunal to seek a review of the Commissioner’s decisions. On 13 June 2013 the Tribunal decided that their applications for review were to be heard together.
In his application dated 22 April 2013 OOC says that he has been left without a means of living as a result of this “unjust decision”. He acknowledges that he was charged with an assault on his 16 year old daughter but that the police did not proceed with this charge because the incident was regarded as cultural and domestic discipline and not consistent with the facts alleged in the original police brief.
In her application dated 24 April 2013 LOH also says that she has been left without a means of living as a result of this “unjust decision”. She says that she had validly held a Blue card and was then charged with an assault on her 16 year old daughter. Similarly she says that the charge was regarded as cultural and domestic discipline. She says that her daughter is now 17 year old and can provide a statement in support of her application.
Neither OOC or LOH has been convicted of an offence to which the relevant legislation applies. Sections 221(1)(b) and 221(2) of the CCYPCG Act provide that where the Commissioner is not aware of a conviction for any offence, but is aware that there are charges for one or more offences (other than disqualifying offences), the Commissioner and upon review the Tribunal must issue a positive notice to an applicant unless satisfied that it is an “exceptional case” where it would not be in the best interests of children to issue a positive notice.
However, if the Commissioner is satisfied it is an “exceptional case”, he must issue a negative notice to the person. This is the issue that we must address in relation to these applications by OOC and LOH.
The standard of proof for which the Tribunal must be satisfied is upon the balance of probabilities. However, there is no onus of proof on either the applicants or the respondent.[1] It is for the Tribunal to consider the evidence and determine if there is an “exceptional case”.
[1] McDonald v Director General of Social Security [1984] FCA 57.
The Tribunal is guided by the decision of Philippides J in Maher[2], which requires that the Tribunal should identify any risk factors and protective factors.
[2]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
The Tribunal also considered the judgement of Young CJ in Eq. in Commission for Children and Young People v V[3] at paragraph 42 where His Honour refers to the necessity to find a “real and appreciable risk” to the safety of children.
[3](2002) NSW SC 949.
A difficult child and a different culture…
Prior to coming to Australia, OOC worked as a teacher in a primary school in a refugee for about 10 years. Since then he has worked primarily as a translator and interpreter. He is currently undertaking a diploma in Nursing and working for Disability Services.
LOH has been working for Family Day Care and is anxious to continue her work in this area.
Both OOC and LOH responded to the Reasons provided by the Commissioner regarding the cancellation of their positive notices. They both say that their daughter is ‘a difficult child to manage and shows lack of respect towards her parents. The child often smokes and consumes alcohol without her parents’ permission’.
They say that the child requires discipline at times and perhaps it was not good judgement on their part to provide the stick or to hit her at that time. OOC admits that he was very angry and perhaps used unnecessary force. Both claim that they were attending mediation to resolve their issues and to put plans in place to deal with any future behavioural problems.
The circumstances of the alleged assault as contained in the police report, were that on 20 June 2012 OOC allegedly assaulted their daughter as a form of discipline because he was concerned about a recent incident where she had smoked cigarettes and consumed alcohol.
Before the alleged assault the daughter had been in her mother’s bedroom with her father. An argument occurred about whether the daughter had hit her mother. The daughter denied hitting her mother and said that she was defending herself.
OOC asked his wife to get a stick from outside. LOH got a stick that was about 2.5cms thick.
OOC told his daughter to lie down. She refused and he hit her a number of times with the stick causing her to fall onto a bed in pain.
During the assault the stick snapped and OOC told his wife to get another stick which she did. The second sick was about 1cm thick. OOC pulled his daughter onto the ground and hit her legs several more times causing more pain. His daughter tried to stop the assault by raising her hands.
The second stick also broke and then her father kicked her in the hip twice. He then berated her about respect for her mother and her inappropriate behaviour. OOC and LOH then left the room.
The mother tried to stop the daughter walking to school the next day but she went anyway. Apparently a doctor who later treated the child at hospital told the police that the injuries were consistent with the daughter’s statement, including that she was beaten with sticks.
As a result of the assault the child sustained bruising to her left upper thigh, left lower leg, right upper thigh and left wrist. She experienced difficulties walking due to the injury to her hip.
The Tribunal was informed that the Department of Communities, Child Safety and Disability Services had a history in relation to OOC and LOH. In addition to the incident that resulted in the charge of assault, the Department had received notifications relating to their children dated 2 December 2008, 23 July 2009 and 11 November 2010.
Following the alleged assault, the Department identified some risk factors and some protective factors regarding child protection issues in relation to both OOC and LOH.
With respect to OOC the risk factors included the following:
· He and his wife have a large family of 10 children with the youngest being under 2 year old and the eldest being an adult;
· His oldest daughter had some shown challenging behaviours;
· They had denied physically disciplining their daughter;
· He had told police that he had “gone too far” and had discussed physically disciplining the child with them;
· They had a lack of understanding about Australian laws regarding the use of force to discipline a child; and
· There had been an earlier notification of violence in the family in July 2009.
The protective factors regarding OOC were as follows:
· All the children presented as having age appropriate development;
· Their physical presentation and personal hygiene presented no concerns;
· He does not have a criminal history and there were no concerns about drug abuse or mental illness;
· He was not living in the family home. He was living and working elsewhere but he was visiting frequently and helping with the care of the children;
· Both he and his wife said they would continue to talk to their children and seek the support of their extended family, the community and the police as preventative measures;
· There was a lack of risk factors contributing to a lower risk of future harm and only one previous notification of violence in the family.
The risk factors identified regarding LOH included the following:
· She had a lack of understanding about Australian laws regarding the use of force to discipline a child;
· She told the Department that her daughter was not assaulted by her husband and that an assault did not take place;
· She was aware that their daughter was being harmed by him and she allowed the assault to continue;
· There is a child protection history in relation to her and her children.
The protective factors for LOH were as follows:
· She receives support from her extended family, friends and the community;
· There are a lack of risk factors leading to a lower risk of future harm;
· She has an increased knowledge of the laws regarding physical discipline in Australia;
· There have been no other notifications of physical abuse occurring in the family.
The overall outcome of the Department’s investigations was that in relation to the daughter who was the victim of the alleged assault, it was determined that the notification was substantiated – child not in need of protection. With respect to the other children the notification was assessed as unsubstantiated – child not in need of protection.
The Commissioner’s perspective.
The Commissioner submitted that it is not the Tribunal’s role to determine whether OOC and LOH were guilty of the alleged offence. He says that this is a secondary consideration. The issue for the Tribunal to determine what is in the best interests of children and young people. He says that this requires a careful evaluation and analysis of the risks with a view to preventing future potential harm to children.
He pointed out in his written submissions that OOC had said that ‘the details contained in the information presented to your office was true and correct, as stated by the corrective officials’. LOH in her material said ‘I regret and admit that what was written by the police officer to your office was true and correct and would like to inform your office that I will not repeat the same mistake again’.
The Commissioner referred to a report dated 8 August 2013 from JJ, psychologist, in relation to both OOC and LOH. JJ stated at the beginning of his report that ‘… as the risk, protective and preventative strategies in this matter are very much a joint concern’ he had decided to combine the reports on both parents. The Commissioner says that the details contained in JJ’s report contain some differences but in essence confirm the original allegations made to police by their daughter.
The Commissioner also points out that there is no evidence to suggest that the child was taken to a medical practitioner or received any other form of medical attention for her injuries prior to attending school the next day and being conveyed to hospital.
The Commissioner acknowledges that the charges against OOC and LOH were dealt with by the police offering no evidence but submits that the charges appear to have been withdrawn when the child became aware that her parents would be required to attend court. Further the Commissioner points out that JJ says in his report that the child ‘is very upset that her parents have lost their blue cards’.
The Commissioner submits that in reviewing whether either OOC’s case or LOH’s case is an exceptional case, it is important for the Tribunal to examine closely the circumstances of the alleged offences. In the Commissioner’s view the Tribunal can be satisfied on the balance of probabilities that the alleged events occurred.
The Commissioner concedes that LOH did not inflict the corporal violence but argues that she was equally to blame for what occurred because she provided the implements knowing what they were to be used for and she did not act protectively towards her daughter or intervene to stop her husband.
The Commissioner expresses concern that OOC has failed to reflect on his behaviours or develop serious insight into the consequences of his behaviour for his daughter or his other children who may have witnessed or been aware of his actions.
He contends that OOC appears to minimise his behaviour by suggesting that his conduct was due to a lack of knowledge about the law in Australia as compared to where he came from.
He argues that the Tribunal must consider whether OOC has moved on from the entrenched attitudes he may have been exposed to during his upbringing to a new understanding of the expectations of parents in Australia. Overall the Commissioner submits that there has not been enough time to demonstrate that OOC has successfully made that transition.
With respect to LOH the Commissioner acknowledges that she has sought assistance from her employer to develop her skills as a parent. However he submits that she has not demonstrated that she has reflected on her own or her husband’s behaviour and that she has not developed appropriate insight into the serious consequences of their behaviour upon their daughter and their other children.
The Commissioner also expresses similar concerns about whether LOH has been able to move on from the experiences of her upbringing to the expectations of being a parent in Australia. Again, the Commissioner submits that there has not been enough time to demonstrate that LOH has successfully made that transition.
The Commissioner emphasises that one of the most important considerations for the Tribunal when determining if either of these cases is an exceptional case is appropriately developed insight into the harmful behaviour that has occurred.
The Commissioner contends that while OOC may dispute aspects or elements of the allegations, he fails to acknowledge that his actions have resulted in emotional or physical harm being suffered not only by his daughter but also by his other children. He does not demonstrate any insight into the impact of his conduct on his children.
For her part LOH says in her submissions that she has demonstrated insight into the impact of her alleged conduct in that she regrets that she provided the sticks to discipline her child. She says that she will ensure that this type of discipline will not happen again. She says that she and her husband are taking part in a parenting program and she is receiving counselling.
The Commissioner asserts that the importance of appropriately developed insight into harmful behaviour has previously been stated in the decision of Re TAA[4] as follows:
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.
[4][2006] QCST 11 at [97].
The outcome…?
The task for us in this matter is to determine if each of these cases independently, is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
We accept that when considering if these are “exceptional cases” ‘(t)he proper approach is… to consider its application in each particular case, unhampered by any special meaning or interpretation’.[5]
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
In order to determine whether there is a “real and appreciable risk” to the safety of children, we have identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
OOC and LOH provided numerous statements from people who support their attempts to regain their Blue cards. A number of these people made themselves available to the Tribunal to give evidence. All of these people attest to the good character of both OOC and LOH. However when questioned about their knowledge of the specific event leading to the cancellation of the Blue cards it appeared to us that they only had limited knowledge about what was alleged to have occurred. However, there is no doubt that they are both held in high regard within their community.
OOC and LOH acknowledge that the assault on their daughter was wrong and that they are developing new strategies leading to more positive parenting.
A concern for the Tribunal that was highlighted by the Commissioner is that a person who is eligible for a Blue card may work in any child related employment or conduct any child related business regulated by the CCYPCG Act.
We accept the Commissioner’s submission that the grant of a positive notice to either OOC or LOH will allow them to engage in employment or conduct a business such as a homestay operator, foster/kinship carer or adult occupant in a home providing family day care services or foster care. In this context there is a significant concern that the conduct by both OOC and LOH that gave rise to the charge related to the use of excessive force in disciplining their own daughter. This is a highly significant and relevant consideration as to whether an exceptional case has been established in either instance.
OOC and LOH have undergone some professional counselling regarding their actions and provided the Tribunal with a report by JJ regarding any risks they may pose to the welfare of children in their care.
We are mindful of the recommendations by JJ that OOC has never been and would never be any risk whatsoever working with children in any place of employment. Further he states that LOH has never been, nor will ever be a risk to any children in her care and he highly recommends the reinstatement of her Blue card as soon as possible.
The Commissioner points out their daughter participated in the sessions with JJ. JJ described her ‘as a somewhat shy 17yo… she showed no signs or symptoms of anxiety, depression, rehearsal or intimidation’. The Commissioner points out that OOC was present during the discussion with his daughter and that at the time the consequences of the report to the authorities had become evident in that both her parents had been charged and had lost their Blue cards.
However, we are unaware of any evidence to demonstrate how either OOC or LOH would act if placed in similar stressful situations in the future. The short history of their engagement with the Department suggests that they might not always respond well to such situations.
We find that OOC and LOH have not demonstrated any real insight into their actions. They have attempted to minimize them by claiming a lack of knowledge and understanding of Australian law. They have not expressed any appreciation for the impact of their actions on their daughter or her siblings. If anything they have relied on their different cultural experience to explain and justify their actions.
We are conscious that both OOC and LOH identify the time leading up to the assault on her daughter as bringing them to their wit’s end.
We acknowledge the explanation by them that they had been having a very difficult time with their oldest daughter. They had tried a number of strategies including moving from one town to another. Things came to a head when they received a telephone call from someone asking OOC to pick up their ‘drunken daughter’. Following this event they tried to engage with their daughter and ultimately OOC decided that it was time to implement the traditional punishment of caning.
We accept that the experience of being charged and the intervention of child protection authorities have led to an acknowledgement by them that their actions were wrong. They readily acknowledge that they were not aware of the expectations of Australian law when it comes to disciplining their children.
We accept that they regret their actions and that they are keen to learn from them.
We place great weight on the Commissioner’s submissions that the Tribunal must consider the best interests of children and not any detriment that OOC and LOH may suffer if they were not to get Blue cards.
We have taken into account that they have not been convicted of any offence.
We remain concerned that the alleged assault was against their own vulnerable daughter. In this regard the alleged assault is directly relevant to child-related employment.
We are mindful that there is a history of involvement with Child Safety from December 2008, but that the Department has previously chosen not to take any formal action.
We have taken into account the positive references provided by them. As might be expected they are all very complimentary of them. The level of support that they received from these witnesses impressed us.
However we are not satisfied about either OOC or LOH’s insight into their behaviour and its impact on their children. We consider that they continue to minimize the level of the violence involved and their responsibility for the assault. They have made submissions that they now understand that what they did was wrong and inappropriate but there is only limited evidence of what they intend to do to address the problem.
There is no doubt that in recent times their eldest daughter has been difficult to manage and other family members have taken some responsibility for her care, including after the charge was laid against them. We are conscious of the cultural responsibility shared by family members. However we remain concerned with the actions taken by OOC and LOH, involving severe discipline in the management of the challenging behaviours of their daughter.
The Tribunal must also consider the fact that a Blue card is transferable. We are not satisfied that OOC or LOH have demonstrated they have addressed the concerns articulated by the Commissioner that to issue a Blue card to either of them may result in them managing children with challenging behaviours in other stressful situations.
However, the tension in this case arises because we are dealing with two people who otherwise appear to be good citizens but who have made some serious mistakes. In essence this is a case about a 16 year old young girl with a difficult behavioural background who was the victim of a serious assault perpetrated on her by her parents. The assault was the most recent in a short series of other child protection concerns.
The parents now seek to reinstate their Blue cards. We must decide whether as they present to the Tribunal this is an exceptional case. Having considered all of these matters we have come to the view that in each instance, this is an “exceptional case” where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to OOC or LOH at this point in time.
They may well benefit from seeking additional counselling regarding behaviour management of young people with challenging behaviours and the management of stress. We encourage them to reapply for a Blue card in the near future when they can demonstrate that she has addressed the issues that have been identified.
We order that the Commissioner’s decisions be confirmed.
We have determined that it is in OOC and LOH’s other children’s best interests and in the interests of justice that a confidentiality order be made in these proceedings so that the children are not able to be identified in any way.
Accordingly, pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicants, and their children, and the names of the witnesses. The reasons will be published in a de-identified format.
The orders of the Tribunal are:
1. The decision of the Commissioner for Children and Young People and Child Guardian to issue OOC with a negative notice is confirmed.
2. The decision of the Commissioner for Children and Young People and Child Guardian to issue LOH with a negative notice is confirmed.
3. The Tribunal prohibits the publication of the names of the applicants, the names of the applicants’ children and the names of the witnesses.
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