Robertson v Commissioner for Children and Young People and Child Guardian
[2012] QCAT 527
•30 August 2012
| CITATION: | Robertson v Commissioner for Children and Young People and Child Guardian [2012] QCAT 527 |
| PARTIES: | Bernice Sue Robertson (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML208-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 1 June 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | Joanne Browne, Presiding Member Katherine Lindsay, Member |
| DELIVERED ON: | 30 August 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice be set aside and a positive notice and blue card be issued to Ms Bernice Sue Robertson. 2. The Applicant and Respondent to provide any submissions in writing to the Tribunal within 21 days in relation to a non-publication order to de-identify the names of the Applicant, any witnesses in these proceedings and the organisations referred to in the decision relating to application CML208-11. |
| CATCHWORDS: | Review jurisdiction – suitability for blue card – where criminal history – suitability to work with children – whether exceptional circumstances exist Queensland Civil and Administrative Tribunal Act 2009, s 20 Briginshaw v Briginshaw (1938) 60 CLR 336, cited Chief Executive Officer, Department for Child Protection v Scott (No. 2) [2008] WASCA 171, cited Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Bernice Robertson, self-represented |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian (CCYPCG) represented by Ms Karyn Alton, Senior Legal Officer |
REASONS FOR DECISION
Ms Robertson requires a Blue Card to enable her to work as a House Carer at the Palm Island Residential Service (Safe House). Ms Robertson’s employment at the Safe House would involve working with children and young people (aged from 0 to 17 years of age) who are in the care of the Department of Child Safety.
Ms Robertson was working at the Safe House at the time an application was made by her to be granted a positive notice (blue card) to work with children – Ms Robertson’s application was made on 21 October 2010. The Respondent, the Commissioner for Children and Young People and Child Guardian (the Commissioner), conducted a criminal history check and a number of criminal offences were identified.
The criminal offences were not categorised as serious offences for the purposes of the Commission for Children and Young People and Child Guardian Act 2000 (the Act). The Commissioner was therefore required to issue a positive notice unless 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”.[1]
[1]Commission for Children and Young People and Child Guardian Act 2000, s 221(2).
Ms Robertson’s criminal history includes the period from 30 August 2000 to 17 July 2007 (inclusive) – there were 5 offences in 2001, an offence on 20 March 2002 and then further offences in 2006 and 2007 involving common assault. Ms Robertson also has an offence for possession of liquor in a restricted area in 2006 and on a later date on 16 Sepember 2010.
Ms Robertson’s criminal history concerned conduct (and charges) involving behaving in a disorderly manner (in 2000) resulting in no conviction and penalty being recorded, assault occasionaing bodily harm (2 charges in 2001) resulting in no conviction being recorded and a period of probation for 12 months, obstructing a police officer (in 2001) resulting in a fine and conviction recorded, wounding and similar acts (in 2001) resulting in no action being taken but in 2001 there was a further incident resulting in no conviction being recorded and community service (with a period of 18 months probation), assault occassioning bodily harm while armed (in 2002) resulting in a conviction being recorded and a period of 12 months probation; and common assault (in 2006 and 2007) resulting in convictions being recorded and a fine for both incidents – in 2006 and 2007.
Of particular concern was that the circumstances of two (2) of the offences involved children – in 2001 Ms Robertson (then aged 22 years) struck the complainant, aged 15 years at the time (Ms Robertson knew the complainant) across the face with a piece of chain she had been holding in her hand. The complainant received medical treatment at the Palm Island Hospital for abrasions and bruising to the face. Ms Robertson voluntarily attended the Palm Island police station in relation to the offences and was convicted, fined and placed on probation for 12 months (no conviction recorded).
In 2001 Ms Robertson (then aged 22 years) was charged with assault occasioning bodily harm following an incident involving Ms Robertson walking up to a vehicle in which the complainant was seated (inside the vehicle) nursing a small child. Ms Robertson punched the complainant (through the window) in the left side of her head, opened the door to the car and punched the complainant in the stomach. The complainant received treatment for her injuries in the Palm Island Hospital. Ms Robertson voluntarily attended the police station in relation to the matter and was convicted and placed on probation for 12 months (no conviction recorded) but was later convicted of breaching the probation order and was convicted and fined.
The incident giving rise to criminal convictions in 2001 (there were two offences) concerned the use of a weapon (a machete). The sentencing Judge, of the District Court at Townsville, stated (in relation to the 2001 offence) that Ms Robertson was under the influence of liquor at the time of the offence and that she should give “consideration to not drinking or of limiting [her] alcohol intake”.[2] The Judge also referred to the seriousness of the offence stating:[3]
This offence could have turned out much more seriously than it seems it did. Hitting another person to the back with a machete might have done very, very serious harm indeed, and if that had occurred you might find yourself here charged with an offence that might see you put into [jail] for a very long time.
[2]Transcript of Proceedings dated 1 November 2001, District Court at Townsville, section 21 material filed by the Respondent (CCYPCG), p 22.
[3]Transcript of Proceedings dated 1 November 2001, District Court at Townsville, section 21 material filed by the Respondent (CCYPCG), p 22.
In 2001 Ms Robertson (then aged 22 years) was in the company of others and struck the complainant with a machete. Ms Robertson continued to punch the complainant whilst she lay on the ground. The complainant attended hospital for treatment – she had a punctured lung and her injuries required stitches. Ms Robertson voluntarily attended the police station in relation to the offence. The sentencing Judge (in respect of this 2001 offence) referred to Ms Robertson having been dealt with in relation to a number of offences of “violence” and that these offences “occurred as a series at around the same period of time”.[4]
[4]Transcript of Proceedings dated 20 March 2002, District Court at Townsville, section 21 material filed by the Respondent (CCYPCG), p 28.
The incident giving rise to criminal convictions in 2006 concerned Ms Robertson (in company with others) punching the complainant and pulling her hair in the presence of police on Palm Island. The complainant did not receive any injuries. Ms Robertson was taken into custody by police and charged with common assault and convicted and fined for the offences.
The Commissioner determined that Ms Robetson’s criminal offences were serious and that an exceptional case exists in that it would not be in the best interests of children for a positive notice to be issued to the applicant and a negative notice was issued to Ms Robertson on 7 Ocotber 2011.
Ms Roberston seeks a review of the Commissioner’s decision having filed an application for review of the decision in the Queensland Civil and Administrative Tribunal.
The relevant law in considering the application to review
The Tribunal has power to review the Commissioner’s decision under the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal in conducting a review must arrive at the correct and preferable decision and the hearing is to proceed as a fresh hearing on the merits.[5] That means that the Tribunal must have regard to all of the relevant material which was before the Commissioner at the time it made its decision and any new material before the Tribunal in conducting the review – the Tribunal may consider relevant material not previously available to the Commissioner.[6] For example, the Tribunal has an opportunity to consider Ms Robertson’s evidence including the evidence of her supporting witnesses in relation to her character and her remorse and insight into the offences. This evidence and more importantly the opportunity to consider Ms Robinson’s and her supporting witnesses’ evidence (at the hearing) may not have been available to the Commissioner at the time of considering whether they should issue a positive notice.
[5]Queensland Civil and Administrative Tribunal Act 2009, s 20.
[6]Queensland Civil and Administrative Tribunal Act 2009, s 28(3).
Ms Robertson gave evidence at the hearing and evidence was also given (by telephone) by Ms Robertson’s supporting witnesses. Ms Robertson had provided to the Tribunal and the Commissioner various written statements from her supporting witnesses and leave was granted by the Tribunal to allow Ms Robertson’s witnesses to give evidence by telephone at the hearing. The representative for the Commissioner (Ms Alton) had an opportunity to ask Ms Robertson questions at the hearing and Ms Alton was also given an opportunity to ask Ms Robertson’s witnesses questions (by telephone) at the hearing.
The Tribunal, in exercising its review jurisdiction, has the same powers as the original decision maker (the Commissioner) and must have regard to the objects of the conferring Act – “to promote and protect the rights, interests and wellbeing of children in Queensland”.[7] The Tribunal must in determining the review consider the principles under Chapter 8 of the Act that in making a decision the safety and wellbeing of children is to be its paramount consideration.[8]
[7]Commission for Children and Young People and Child Guardian Act 2000, s 5.
[8]Commission for Children and Young People and Child Guardian Act 2000, s 155.
The decision of the Commissioner not to issue a positive notice involves the exercise of a discretion under s 226(2) of the Act in that the Commissioner was required to issue a positive notice unless satisfied that the case is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued (to Ms Robertson). The Commissioner in exercising their discretion may consider any matter which is relevant to the offending behaviour and the application made for a blue card.[9]
[9]Commission for Children and Young People and Child Guardian Act 2000, s 226.
Meaning of “exceptional case”
The Act does not define an “exceptional case” and the Commissioner and the Tribunal (in exercising its review power) must consider the circumstances of each case in the context of the principles contained in the Act – (and) that the welfare and best interests of children are paramount.[10]
[10]Commission for Children and Young People and Child Guardian Act 2000, ss 5, 6, 155, 360.
The Tribunal in reviewing the material including any evidence given by Ms Robertson and her supporting witnesses must be satisfied that an exceptional case exists to the appropriate standard that is on the balance of probabilities also known as the Briginshaw test.[11]It was determined by the Court of Appeal in Maher's case that :[12]
The Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.
[11]Briginshaw v Briginshaw (1938) 60 CLR 336.
[12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30].
It was determined in Maher’s case that the Tribunal must balance any potential risk factors and potential protective factors when considering the circumstances of a particular applicant (such as Ms Robertson) which may amount to an exceptional case for the purposes of s 226 of the Act.
In considering the circumstances of the case the Tribunal may consider evidence of remorse and insight into the offending behaviour.[13] The role or extent to which “insight” into the offending behaviour is relevant to the exercise of a discretion under s 221 of the Act, is that a person “aware of the consequences of their actions on others is less likely to re-offend than a person who has no insight into the effect of [his or her] actions on others”.[14]
[13]Re TAA [2006] QCST 11, [97]. See Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
[14]Re TAA [2006] QCST 11, [97]. See Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
The Tribunal must in conducting a review consider in all of the circumstances whether this is an exceptional case in which it would not be in the best interests of children to issue a positive notice.[15] It was previously determined by the Appeal Tribunal that the Tribunal must “balance the risk factors against the protective factors”.[16]
[15]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [34].
[16]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [41].
Ms Robertson’s personal profile and circumstances
Ms Robertson is 33 years of age and is an Aboriginal lady who was born on Palm Island – she has lived there most of her life. Ms Robertson spent a period of time away from Palm Island during her school years when she attended school in Charters Towers and then Cairns before returning to Palm Island. Ms Robertson worked in a day care centre on Palm Island when she was 17 (or 18) years of age for 1 year and then worked with the Community Development Employment Program doing art, gardening and cleaning.
Ms Robertson was involved in what she describes as “bad relationships” during the period of offending behaviour and she states that she was drinking alcohol. She referred to being in bad relationships for a period of 3 years in 1996, 2 years from 1998 and 4 years from the year 2000. Ms Robertson when questioned by Ms Alton at the hearing confirmed that she had not been in a relationship for the period from 2004 to 2007. When asked about what has happened since the period of offences, Ms Robertson referred to talking to her father who would “make [her] think”. She also states that she “put [her] mind into boxing”; and when speaking about what has “changed” since the offences she states that she is “more into church”, has children to care for, “[she] looks forward to things” and is not in bad relationships. Ms Robertson states that since she got into trouble she took up boxing and when she got into trouble she would “stop and think” and go to church. Ms Robertson also states that she stopped drinking in 2010. She refers to the circumstances of the offences as involving alcohol and she states that she used to drink “a lot”.
Ms Robertson states that she enrolled herself in a 3-day domestic violence program in 2007 but was unable to recall who had organised the course and was unable to produce any documentation in relation to the course. She also stated that she was not able to obtain a report from a psychologist to support her application (for a blue card) because there was “no one there” – referring to an absence of a suitably qualified specialist (psychologist) on Palm Island to provide a report. In the application to review (the decision), Ms Robertson refers to bad relationships, drinking and taking her anger out on other people (in the past) resulting in the offending behaviour. Ms Robertson states that she “take[s] full responsibility for her actions and acknowledge[s] that [her] behaviour in the past was wrong”.
Ms Robertson commenced a relationship with her current partner (Chris Evers) in 2007. She states that he is “different compared to her [previous] boyfriends” – they “don’t argue”, they look after the children and her partner (Chris Evers) does not drink alcohol.
Ms Robertson moved away from Palm Island in 2007 to live in Brisbane with her current partner (Chris Evers) and his young children (aged 2 and 5 years). In 2008 Ms Robertson’s nephew (aged 2 years) also came to live with her and her extended family in Brisbane. She gave evidence at the hearing that the reason for moving away was to “get out of trouble”. Ms Robertson worked in Brisbane as a cleaner at St Lucia University and was living with her partner (in Brisbane) when her father became unwell.
Ms Robertson returned to Palm Island in 2009 to spend time with her father. In 2009 when she returned to Palm Island Ms Robertson worked for the night patrol and did some paid work (art program) until late 2009 when she starting working at the Safe House. Ms Robertson states that when the Safe House opened she spent time feeding the children (maximum of 6 children) and keeping the centre clean. Ms Robertson states that the children she worked with at the Safe House were very attached to her and would follow her home. She stated that she would “talk to them”, make craft with them and take them to the beach. Ms Robertson states that she also undertook training as part of her employment at the Safe House. Ms Robertson also commenced caring for her niece (shared care) in 2011.
Since Ms Robertson’s employment came to an end in October 2011, following her application for a blue card being rejected, she has continued doing art (at home) and has been caring for her children. Ms Robertson talked about the impact the decision to refuse her blue card has had on her family financially because she is unable to work at the Safe House – she said it has been difficult to pay registration on the car and boat.
Has Ms Robertson demonstrated remorse and insight into the offending behaviour?
Ms Robertson’s evidence that she has changed since she moved away from Palm Island (in 2007) to live in Brisbane is consistent with the criminal history which shows a period of offending behaviour from 2000 to 2007 (inclusive). There are no further offences after 2007 except for the offence of possessing liquor in a restricted area (Palm Island) in 2009 – Ms Robertson returned (to Palm Island) in 2009.
The Tribunal accepts the evidence of Ms Robertson in relation to how she has changed since the period of offending behaviour – Ms Robertson was able to discuss her personal circumstances at the time of the offending behaviour and what she did to “change”. She stopped drinking in 2010 stating that she “just stopped, didn’t want to look back” – she saw how alcohol can affect you; and she would “think back” to what she did before and “it wasn’t good”. She was able to provide an example (to the Tribunal) of how she has changed from her past behaviour (to present) by referring to a recent incident (a few months ago) involving her niece where she did not “punch anyone” and went to police. She described this (going to police) as doing the “right thing” and that it “felt good”.
The Tribunal finds that Ms Robertson was consistent in her evidence about how she has changed and was able to demonstrate insight into her offending behaviour – for example, she talked about the offence (in 2001) involving the incident where the complainant was seated in a car holding a small child. Ms Robertson stated that she “went [into the car] and just punched” and she described what she did as “bad” and that she has changed since then because she is older now, has raised (and cared for) 5 children – her partner’s children and her brother’s children; and she has stopped drinking. Ms Robertson could not (however) recall the offence in 2001 (involving the 15 year old complainant). Ms Robertson also referred to taking up boxing and enrolling in a domestic violence program that she arranged (herself) and completed at the station on Palm Island in 2007; and training she completed as part of her employment with the Safe House. The Tribunal finds that this (taking up boxing and enrolling in the program) is another example of insight into the offending behaviour in that Ms Robertson took steps to change her past behaviour and manage her anger.
The Tribunal is satisfied that Ms Robertson has demonstrated remorse for her actions – she told the Tribunal that what she did was not good and that she was “sorry” stating that she was “stupid and young”. Ms Robertson also stated that she now follows the church and that God has given her a gift and she “thinks back [and] do say sorry for what [she] did to those people”.
The Tribunal finds that Ms Robertson has demonstrated insight into the recent offence (in 2009) involving bringing alcohol into a restricted area. She stated (at the hearing) that she did it herself and had purchased the alcohol to sell it to make “quick easy cash” and (she) got caught. She said that it (the selling of alcohol) was not good because “[it could lead to] violence”.
Supported evidence of Chris Evers
Ms Robertson’s evidence that she is no longer drinking, is active in the Palm Island community and is still supported (in a relationship) by her current partner is supported by the evidence given at the hearing by Chris Evers. Mr Evers gave evidence (by telephone) that he is employed as a teacher on Palm Island and that he has known Ms Robertson since 2007. The Tribunal found Mr Evers to be a credible witness – he was able to discuss the nature of the criminal offences and describe how Ms Robertson has changed since the offending behaviour. He stated that Ms Robertson is older now, regularly helps out in the community, is more involved in the church and does not drink “anymore”. He states that Ms Robertson told him about the offences when they first got into a relationship (in 2007) and that Ms Robertson has accepted responsibility for what she did.
Mr Evers also talked about Ms Robertson’s involvement in the community (on Palm Island) and that she does cooking, cleaning, decorating crosses on the graves when someone in the community passes away and generally supports people within the community. He also stated that Ms Robertson cares for his children and stated that “she is like their mother”.
Mr Evers also talked about the more recent offence (in 2009) involving bringing alcohol into Palm Island and stated that Ms Robertson was picked up by police for brining bottles of rum into Palm Island and that he was not there at the time of the offence but understands that Ms Robertson “did it to make money”.
Supported evidence of Narelle Gleeson-Henaway
Ms Robertson’s evidence that she has changed since the offending behaviour, is active in the community and has undergone training as part of her employment is also supported by the evidence of Ms Gleeson-Henaway. Ms Gleeson-Henaway was Ms Robertson’s manager at the Safe House (Palm Island Residential Service) and is supporting Ms Robertson in her application for a blue card. She told the Tribunal that the Safe House provides short-term emergency care for children and there are a maximum of 6 children to 2 staff members.
The Tribunal found Ms Gleeson-Henaway to be a credible witness – she has a background in Aboriginal health and community development and post graduate study in public policy. She is a support worker in youth services and womens’ shelter and has worked as a counsellor. Ms Gleeson-Henaway was able to explain the reasons why she thinks Ms Robertson has changed since the offending behaviour and she also talked about the training Ms Robertson has completed as part of her employment at the Safe House.
Ms Henaway stated that the incidents concerning Ms Robertson are “serious” but Ms Robertson is “[a] different person today and [the incidents] happened years ago”. She stated that the criminal history does not match the person who she knows but was not surprised about the criminal history because she knows that “people can change their lives”. She stated that she would trust Ms Robertson with her own children and she trusts the skills and values she brings to her work. She gave examples of how Ms Robertson has changed – she has support of family and other people around her.
Ms Gleeson-Henaway gave evidence about Ms Robertson’s involvement in the Palm Island community outside a working environment (the Safe House) – she states that she has observed Ms Robertson interacting positively with children in the Palm Island community. Ms Gleeson-Henaway stated that “children flock to [Ms Robertson]”. In relation to training, Ms Robertson has completed training on harm and abuse (physical, emotional and sexual) and trauma and how it impacts on behaviour. Ms Gleeson-Henaway stated that there is also monthly training involving working with children “in care”, trauma and attachment of children.
Ms Gleeson-Henaway also gave evidence about Ms Robertson’s work with the children at the Safe House stating that they have “challenging behaviour” and have been traumatised. Ms Robertson was able to meet the childrens’ immediate needs in a non-judgemental way and make them feel comfortable and relaxed. Ms Gleeson-Henaway also stated that during the time Ms Robertson was employed at the Safe House there were no complaints received about her.
Supported evidence of Iris White
Ms Robertson’s evidence that she has changed since the offending behaviour in that she no longer drinks alcohol, attends church and is in a supportive relationship with her partner and children is supported by the evidence of Iris White. Ms White is an Elder of the Palm Island Community Elders and works as a cleaner at the police station on Palm Island. She has known Ms Robertson since she was a child.
Ms White told the Tribunal that she did not know about the criminal offences but stated that since Ms Robertson has been working she has not been in trouble. Ms White confirmed that Ms Robertson lives with her partner (a teacher) and looks after his children, that Ms Robertson goes to church every Sunday, she does not drink alcohol and is always with the children (she cares for).
Supported evidence by Elsa Morton
Ms Robertson’s evidence that she has changed since the offending behaviour in that she is older (in maturity) since the offences and living in a supportive relationship is supported by the evidence of Elsa Morton. Ms Morton works at the Safe House and has known Ms Robertson since she was a baby. Ms Morton told the Tribunal that she knew about the offences because Ms Robertson had shown her (after she received the paperwork from the Commissioner). Ms Morton stated that Ms Robertson was upset and referred to her (Ms Robertson) knowing what she did was wrong and that she wanted to stay working; and she has grown “older and wiser; and [is] living with someone” since the offences took place.
Supported evidence by Ray Dennis
Ms Robertson’s evidence that she has changed since the offending behaviour in that she is actively involved in the community on Palm Island is supported by the evidence of Ray Dennis.
Mr Dennis is retired and has lived on Palm Island his entire life. He used to train (in boxing) with Ms Robertson and has known her for approximately 13 years. Mr Dennis stated that Ms Robertson helps families in the Palm Island community by helping them with their children.
Supported evidence by Alfred Lacey
Ms Robertson’s evidence that she has changed since the offending behaviour in that she is actively involved in the community on Palm Island is supported by the evidence of Alfred Lacey. Mr Lacey is the Mayor on Palm Island (Aboriginal Shire Council) and has known Ms Robertson “all his life”.
The Tribunal found Mr Lacey to be a credible witness as he was able to discuss the offences relating to Ms Robertson’s past behaviour and how she has changed. Mr Lacey stated that Ms Robertson has been dealt with by the law and has worked in the Safe House without any problems and this shows that she has learnt her “lesson in life” and the opportunity to “give back to community in working with young people and give young people [an] opportunity”. Mr Lacey was able to explain how Ms Robertson has become “more responsible” since the offending behaviour and referred to her working and helping out in the Palm Island community and that this was important because unemployment can “drive you to the social scrap heap”. He also referred to Ms Robertson’s life experience (the offending behaviour) as making her “older and wiser” and someone that he would be able to take to “focus groups”.
Potential risk factors and potential protective factors
The Tribunal has identified potential risk factors as Ms Robertson’s history of serious offences, some involving the use of weapons, some offences were committed in the community (with others) and two of the offences involved children – a complainant aged 15 years and in respect of the other offence the complainant was seated in a car nursing a small child. Ms Robertson has also given evidence about a history of alcohol abuse and being in “bad” personal relationships.
Although Ms Robertson has given evidence about attending a domestic violence program (on Palm Island) in 2007 no evidence was presented to the Tribunal to support this and Ms Robertson was not able to indicate the name of the relevant agency that provided the training. Another potential risk is that given there was a history of offending behaviour during a period of time on Palm Island and now that Ms Robertson has returned to live on Palm Island there may be a risk that she will engage in behaviour involving serious assault and violence, particularly in the event that Ms Robertson is presented with a situation of conflict. These are factors that must be considered against identified potential positive factors.
The positive factors identified by the Tribunal are that Ms Robertson is a highly valued and well-respected member of the Palm Island community and this is supported by her witnesses – the witnesses refer to Ms Robertson as being valued by other members of the community particularly in relation to supporting and caring for families and their children. The evidence and support for Ms Robertson as being a valued member of the community did not change when witnesses were questioned about their understanding of Ms Robertson’s previous offending behaviour. Ms Robertson is also living in a supportive relationship and has been (and continues) to care for 5 children (her partner’s children and her brother’s children).
All of Ms Robertson’s witnesses support Ms Robertson’s evidence that she is in a supportive relationship and cares for her partner’s and her family’s children. Ms Robertson has also shown insight into her offending behaviour – she referred to her past behaviours as “bad” and that she has stopped drinking (also supported by witnesses), attends church (again supported by witnesses) and gave an example of how she dealt with a difficult situation which in the past she would have resorted to violent behaviour. In relation to this recent example, Ms Robertson went to police and stated that it “felt good”. Ms Robertson has demonstrated remorse for her offending behaviour – she referred to her behaviour as being “bad”, she is older now and has stopped drinking.
Any other matters – potential risk and protective factors
There have been no offences recorded since Ms Robertson’s return to Palm Island from Brisbane in 2009 except for the offence in 2009 concerning possession of alcohol in a restricted area. This (the criminal history) is consistent with Ms Robertson’s evidence that she left Palm Island to live in Brisbane “to get away from trouble”. Ms Robertson, at the time of leaving Palm Island, had commenced a relationship with her current partner and again this is supported by the evidence of Mr Evers and this was also identified by Ms Robertson as relevant because when she commenced her relationship with Mr Evers she has been (and continues) to care for his children and her brother’s children. This is also relevant in terms of Ms Robertson’s submission that she is in a relationship which is supportive and positive when compared to her evidence that at the time of the offending behaviour, particularly from 2000 to 2004 (inclusive) she was in “bad relationships” and was drinking alcohol. Ms Robertson’s move away from Palm Island resulting in her “change” in behaviour is also relevant when looking at the period of offending behaviour. Ms Robertson has not reoffended in any violent behaviour since this “change” – the move away from Palm Island and the commencement of a positive relationship (in 2007).
This “change” in terms of Ms Robertson’s personal circumstances and history of offending behaviour must be considered in relation to the recent incident concerning possession of alcohol in a restricted area (in 2009) in that although the incident did not concern an element of violence in terms of behaviour, it is an offence. The Tribunal is satisfied based on the evidence presented by Ms Robertson that she was able to demonstrate insight into the recent offence, again this evidence was supported by her partner (Mr Evers) – Ms Robertson stated that what she did was “not good” and it (alcohol) can lead to violence; and she did it to make “quick easy cash”.
The Tribunal’s findings – balancing risk and protective factors
The offending behaviour concerning Ms Robertson is very serious and two of the incidents involved children – a complainant aged 15 years of age and another incident where a small child was present when Ms Robertson struck the complainant. Two of the other offences involved Ms Robertson using a weapon (a machete) to strike the complainant resulting in injuries.
The Tribunal is satisfied that Ms Robertson has demonstrated remorse for her actions and accepts her evidence that she is sorry for what she has done and has taken positive steps to change her behaviour by becoming an active and valued member of the Palm Island community, attending church, not drinking alcohol and caring for her family. Ms Robertson’s evidence was supported by her witnesses – the witnesses confirmed that Ms Robertson is a valued member of the Palm Island community, does not drink, attends church, is in a supportive relationship with her current partner caring for his children and is older in maturity since the offending behaviour.
The best interests of children principle is the Tribunal’s paramount consideration in determining whether exceptional circumstances exist in exercising its discretion under the Act. The Tribunal has considered these principles. The Tribunal has also considered the submissions made by the Commissioner that any prejudice to Ms Robertson being the financial detriment arising from the application (for a blue card) being refused is not a relevant consideration that the Tribunal should take into account in exercising its discretion. The Tribunal accepts this submission and finds that the relevant issue to be considered is whether the best interests (safety and wellbeing) of children being the overriding principle under the Act would not be met should a positive notice (blue card) be issued.[17]
[17]Commission for Children and Young People and Child Guardian Act 2000, s 155 and see Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.
The Tribunal has also considered the Commissioner’s submissions in relation to the seriousness of the offending behaviour and that the references are essentially at odds with the circumstances of Ms Robertson’s criminal history. This submission is important because (as submitted by the Commissioner) consideration needs to be given as to how Ms Robertson would manage her anger in a conflict situation and in the context of a relationship breakdown – the Commissioner submits that Ms Robertson has failed to demonstrate how she would mange her anger. Furthermore, the Commissioner submits that the evidence given by the witnesses supporting Ms Robertson is inconsistent with the criminal history.
The Tribunal is not satisfied based on the evidence presented by Ms Robertson and her supporting witnesses that the risk factors demonstrated by Ms Robertson’s past conduct and personal profile outweigh the positive factors. It is not disputed by Ms Robertson and her supporting witnesses that the offending behaviour is serious and notwithstanding the seriousness of the offences the witnesses continued to support Ms Robertson when questioned (at the hearing) about the offending behaviour. The Tribunal is satisfied on the evidence provided by the witnesses that Ms Robertson is also supported by other external factors (other than her current partner) – the witnesses support Ms Robertson’s evidence that she attends church and is an active and valued member of the Palm Island community.
Ms Robinson’s witnesses were also able to explain how Ms Robertson has changed since the offending behaviour referring to Ms Robertson being “older and wiser” and playing an important part in the care and support of other families and their children in the Palm Island community. This is consistent with Ms Robertson’s submission that she left Palm Island in 2007 to live with her partner in Brisbane and to change her behaviour. The move away in 2007 resulting (effectively) in the change in behaviour (as submitted) is consistent with Ms Robertson’s period of offending behaviour. Ms Robertson was able to demonstrate insight into the offending behaviour by providing examples of how she has managed a situation of conflict (recently) – she referred to the incident (some months ago) involving her niece and that she went to the police station.
The Tribunal agrees with the Commissioner’s submission that there is no evidence to support Ms Robertson’s evidence that she attended a domestic violence program, but there is evidence from Ms Robertson’s manager (at the Safe House) about training undertaken as part of her employment. Ms Gleeson-Henaway confirmed that Ms Robertson has attended training as part of her employment with the Safe House.
The Tribunal is satisfied that this is not an exceptional case in which it would not be in the best interests of children to issue a positive notice. The appropriate order is that the Commissioner’s decision to issue a negative notice be set aside and a positive notice be issued to Ms Robertson.
Application for non-publication order
The Tribunal has the power under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 to make a non-publication order if it is satisfied that the publication (of names and organisations) is contrary to the public interest. The non-publication of Ms Robertson’s name, the names of Ms Robertson’s supporting witnesses and the organisation (Palm Island Safe House) referred to in this decision must be considered in the context of the principles of openness and accountability. The Tribunal directs that the parties provide any submissions (in writing) to the Tribunal within 21 days time in relation to the non-publication of the name of the Applicant, supporting witnesses and the organisation referred to in the decision.
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