SFV v Director-General, Department of Justice and Attorney-General
[2021] QCAT 223
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
SFV v Director-General, Department of Justice and Attorney-General [2021] QCAT 223
PARTIES: SFV (applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:
CML145-20
MATTER TYPE:
Childrens matters
DELIVERED ON:
21 June 2021
HEARING DATE:
11 March 2021
HEARD AT:
Brisbane
DECISION OF:
Member McDonnell
ORDERS:
1. The decision of the Director-General, Department of Justice and Attorney-General made on 6 April 2020 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
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 WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has convictions which are not for serious or disqualifying offences – where accepted convictions do not warrant finding of an exceptional case – where applicant has a change in disciplinary information – where applicant’s joint foster carer’s certificate cancelled – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 and
s 228 of the Working with Children (Risk Management and Screening) Act 2000 (Qld)Human Rights Act 2019 (Qld), s 13, s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 360
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
Re TAA [2006] QCST 11APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
G Carrington, Legal Officer
REASONS FOR DECISION
Background
SFV has been a foster carer for many years. He has been issued with positive notices and blue cards between 2005 and 2014 and was most recently issued a blue card on 31 October 2017. After receiving notice of a change in SFV’s disciplinary information the respondent undertook a review, then cancelled SFV’s positive notice and issued a negative notice on 6 April 2020.
SFV seeks a review of the decision that his is an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). He is not a disqualified person and sought review of the decision within the prescribed period.
SFV and his wife were foster carers. In 2018 while the review was being undertaken, the children in their care were removed. Later the joint carer’s certificate was cancelled. SFV said he no longer wishes to be a foster carer but seeks a working with children clearance to enable him and his wife to provide homestay facilities to international students, which he considers less stressful than caring for foster children. Conditions cannot be imposed on a working with children clearance and regard must be had to all areas of regulated employment in undertaking this review.
The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.[1] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[2] on the evidence before it and according to law. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[3]
[1]QCAT Act, s 19(a).
[2]Ibid, s 20.
[3]WWC Act, s 360.
The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[4] The principles under which the WWC Act is to be administered are:
(a) the welfare and best interests of a child are paramount;
(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[5]
[4]Ibid, s 5.
[5]Ibid, s 6.
It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[6]
[6]As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).
For the present purposes, a working with children clearance must be issued unless the Tribunal is satisfied SFV’s is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued.[7]
[7]WWC Act, s 221(2).
The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:
…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[8]
[8]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31], (citing Kent v Wilson [2000] VSC 98, [22]).
In determining whether there is an exceptional case when a person has been convicted of an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[9]
[9]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42].
Further, in determining whether there is an exceptional case when aware of disciplinary information about the person, the Tribunal must have regard to the matters set out in s 228(2) of the WWC Act.
The Tribunal has a broad discretion to exercise when considering the merits on a review. Neither party bears an onus in determining whether an exceptional case exists.[10]
[10]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
SFV alleged that the respondent made errors in its decision under review. This is a merits review. The Tribunal stands in the shoes of the decision maker and makes the correct and preferable decision by way of a fresh hearing on the merits of the evidence presented. It does not focus on any errors made by the original decision maker. Nor is it necessary to identify an error in that decision for the purposes of this review.
As these proceedings were commenced in the Tribunal after the commencement of the Human Rights Act 2019 (Qld) (‘HRA’) the provisions of that legislation are relevant to this review.
The Tribunal previously made an order prohibiting the publication of information that may enable the applicant and nominated others to be identified.[11] This decision is to be published only in a de-identified format.
[11]Directions 29 October 2020.
Consideration of s 226(2) of the WWC Act
The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.
Whether the offence is a conviction or a charge
SFV has one conviction for higher PCA (.100) and one conviction for stealing.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
Neither of these offences are serious offences[12] or disqualifying offences[13] under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.
[12]WWC Act, Schedule 2.
[13]Ibid, Schedule 4.
When the offence was committed or is alleged to have been committed
The applicant’s offending occurred between 1977 and 1982.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
The details of the offending were not provided to the Tribunal.
The respondent submitted that due to the time since the offending occurred it does not substantially contribute to the assessment. Rather, it took the position that the focus for the Tribunal in making its decision on review should be on the disciplinary information.
I find that SFV’s criminal history is not such that it would warrant a determination that SFV’s case is exceptional.
In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision
SFV was placed on a 12-month probation order for the stealing offence and fined $500 with a three month disqualification from driving in the higher PCA matter. The courts’ reasons for imposing these penalties are not known to the Tribunal.
Any information about the person given to the chief executive under section 318, 319, 335, 337 or 338 of the WWC Act or under s 138ZG of the Disability Services Act 2006
No information was given under these provisions.
Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person
Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.
Consideration of s 228(2) WWC Act
In relation to the disciplinary information the Tribunal must have regard to the mandatory considerations contained in s 228(2) of the WWC Act. These matters are addressed below.
The decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order.
On 2 January 2019, the then Department of Child Safety, Youth and Women cancelled SFV’s certificate of approval as a foster carer (held jointly with his wife) on the grounds that the carers had not met the standards of care required, used inappropriate discipline techniques and demonstrated an inability to work as a member of a team to implement case plan goals and achieve outcomes for children in care.[14] The children in their care had been removed during the review.
Any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order
[14]Ex 9, BCS66.
The material indicates that SFV applied to the Tribunal for a review of the Department’s decision, but subsequently withdrew the application for review.[15] SFV explained to the Tribunal that he did not pursue that review as he decided he no longer wished to be a foster carer. I accept his explanation.
The relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children
[15]Ex 10, NTP182.
The nature of the concerns which formed the grounds for the disciplinary action against SFV were that he:
(a)Used physical discipline on the children including grabbing their arms, pulling and pushing them;
(b)Called the children derogatory names and spoke negatively about the children resulting in them being emotionally harmed;
(c)Interviewed the children following discussions with their child safety officers;
(d)Blamed the children for actions taken by the Department;
(e)Spoke negatively about the children’s family members in front of the children;
(f)Refused to support the children having family contact;
(g)Argued with the other carer, which the children witnessed; and
(h)Lacked insight, understanding and denied issues in the carer household which prevented appropriate training and support being provided to the carers.[16]
[16]Ex 9, BCS66-67. While this letter is dated 2 January 2018, I accept it should be dated 2 January 2019.
The Department conducted a Standards of Care Review and as a result recorded a Harm Report with the outcome being ‘substantiated – standards not met’. The Department determined that SFV was responsible for emotional harm to four children in his care and that he had breached the Standards of Care in relation to children in his care.
The disciplinary information contains serious allegations and findings regarding SFV’s conduct as a foster carer. He was in a formal position of trust, responsibility and authority for vulnerable children with traumatic backgrounds. He held a blue card for this employment purpose.
Children in foster care rely upon adult carers to recognise risk and to act in an appropriate and protective manner. The allegations in relation to SFV raise concerns about his ability to provide a safe and protective environment to children in his care.
Anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person
Other relevant factors are considered below.
Material received from the Department under a notice to produce[17] reveals a number of standards of care reviews have been undertaken in relation to care provided by SFV and his wife.
[17]Ex 10.
It is not the role of the Tribunal to determine whether the allegations are substantiated. SFV disputes some of the claims. He said that some conduct is attributed to his wife, which I accept is indicated in the material itself. In undertaking this review I have had regard only to SFV’s conduct. He acknowledged that he:
(a)Had five children aged 11 to 13 placed with him and his wife at the relevant time, although they were approved to care for two children, which caused tension in the house. These children came from different family groups with troubling and diverse backgrounds. While there were squabbles between the children, he said generally it was a happy household;
(b)Physically grabbed a child to direct him back to his room. He said he should not have used a physical approach;
(c)Used his hand to hold a child’s chin to seek to establish eye contact with the child. He described this as a calming technique. He said his conduct was unacceptable but denied ever using excessive force to hurt a child;[18]
(d)Referred to one or more of the children as ‘little shits’ or told them not to be ‘stupid’ or act ‘like a dill’. While he intended this to be jovial, he accepted that it could be harmful to a child if they believed he was being serious or intended the comments maliciously. He told the Tribunal that this is just the way he is. Knowing the concerns raised about this behaviour he said he would do it again but would endeavour to ensure the child understood it was in jest;
(e)Supported family contact for the children but resisted providing transport to family contact, particularly on the weekend, considering it should have been facilitated by the Department as it impacted on normal family life. Further, he said that at previous family contact handovers family members had been aggressive, physically threatening and verbally abusive towards his wife. He acknowledged that it was possible the children may have become aware of his opinions about transport to family contact which may have caused them unintended emotional harm. He remains of the view that it is not his role to provide transport for family contact[19] but would keep this opinion to himself in the future;
(f)With the agreement of the family member, cancelled a family contact session to discipline a child caught stealing. The Department did not agree with the decision. He said he would not again prevent family contact;[20]
(g)Punished a child caught watching porn and behaving inappropriately with peers by preventing the child’s access to the internet. He said that when advised of the behaviour the Department took the position that the child was experimenting;
(h)Due to pressure SFV and his wife experienced due to the standards of care review they argued and sometimes these arguments took place in front of the children. The material provided by the Department indicates that the children reported being scared by the noise of SFV and his wife arguing and caused the children to become concerned that the couple would separate, putting their security at risk.[21] He acknowledged that these arguments should not have occurred in the presence of the children. He also acknowledged that these arguments may have caused the children to feel scared, particularly given their backgrounds, and may have caused the children to become concerned about the stability of their home; and
(i)Acknowledged that in 2018 he experienced stress which may have impacted on the care they provided to the children in their care.
[18]Ex 10, NTP212.
[19]Ex 2, p6.
[20]Ex 10, NTP207.
[21]Ex 10, NTP147.
He accepted that concerns had been raised about children in his care in his roles as father, a kinship carer and a foster carer over the period 1998 to 2018. The material indicates that concerns included:
(a)there were Child Safety concerns related to SFV and his wife struggling to manage challenging behaviours by their teenage children;
(b)in 1998 and 1999 the Department reported having concerns for the emotional and physical wellbeing of a child in SFV’s care. A substantiated risk of physical harm was determined in 1998. SFV reportedly hit a child in his care when he was drunk and angry.[22] Harm was found to be unsubstantiated in 1999.[23] No further information was provided in relation to these concerns;
(c)in 1999, the Department reported having concerns for a child in SFV’s care in relation to sexual abuse.[24] There was no outcome reported for this concern. There is an allegation that SFV sexually abused a student who was staying with them.[25] It is unclear if these relate to the same allegation. A notifier believed SFV had interfered with his step-daughter and there were allegations he had rubbed a girl’s chest and touched her breasts;[26]
(d)there has been domestic violence in the relationship between SFV and his wife some time prior to 2005 and that while it was unclear whether their grandchildren witnessed it, they were impacted by it.[27] SFV said that the violence occurred due to stress in the household. Substantiated risk of physical and emotional harm was found but the children remained in SFV’s care;[28]
(e)in about 2017 concerns were raised that the other carer was intoxicated while caring for the children and that SFV did not recognise that the other carer was intoxicated and that he should have taken charge.[29]
[22]Ex 10, NTP109.
[23]Ex 10, NTP8.
[24]Ex 10, NTP8 and NTP15.
[25]Ex 10, NTP109.
[26]Ex 10, NTP18 and NTP109.
[27]Ex 10, NTP10 and NTP109.
[28]Ex 10, NTP11 and NTP12.
[29]Ex 10, NTP238.
SFV was reported to have been surprised by the 1999 allegations. He told the Tribunal that the claims were baseless. He said he touched the girl’s breasts when rubbing medication on her chest when she was unwell. With the benefit of hindsight, he acknowledged to the Tribunal that because of her age at the time he should not have applied the medication himself.
As to the domestic violence within the household, SFV said he was the aggrieved and his wife the respondent. In times of household stress SFV and his wife argued, and this has resulted in arguments in the presence of children and domestic violence. SFV said that he and his wife have worked a lot on their relationship, including attending counselling, and he described strategies he now uses to avoid arguments. There was no independent evidence to support this. He acknowledged that they should not have argued in the presence of the children as this would have caused them to feel scared and be concerned about their own personal stability in the home.
His wife drank alcohol which he did not perceive as a concern as she was able to perform daily tasks, the household was running effectively, and he held no concerns for the children in her care. He did not believe there was a risk until she was charged with drink driving in 2016. She has now undertaken a program and is sober.
What has changed for the applicant?
SFV presented as a calm witness who answered questions openly and honestly. He gave the impression he had genuinely considered the allegations by the Department and tried to understand the basis for each and took them seriously.
SFV urges that his case is not exceptional. He acknowledged his poor decisions in the past but explained them as isolated incidents, none of which were life threatening. This minimisation of his conduct is of concern.
The children were removed from a joint care arrangement as a result of concerns raised about the conduct of both carers. While some of the concerns raised relate to conduct by the joint carer, SFV admits to some conduct. In undertaking this review I have considered only those concerns attributed to SFV’s conduct. The extended period of time over which concerns were expressed and that a number of children expressed concern is a risk factor.
As a foster carer SFV was required to provide a protective environment for vulnerable children. The cancellation of SFV’s foster care certificate is a risk factor in my assessment.
There is a history of aggression in response to stress in SFV’s personal relationship, and on the material it is not an isolated incident. SFV said he has taken steps to address his relationship issues. There was no independent evidence of these steps nor of any changes in the management or resolution of stress in the relationship or by SFV. This is a risk factor in my assessment.
SFV said he would now seek to handle unacceptable behaviour by a child by talking with them, including explaining why the conduct is unacceptable. He went on to say that in his experience such an approach would not be successful but that putting his fingers under the child’s chin would not be his first option.
SFV said he recognised he needed to be more mindful of the personal circumstances and history of a child in his care in choosing his language when talking with children. However, his statements to the Tribunal that he would use language of this nature with children again is of concern.
SFV’s responses to the concerns about the manner in which he spoke to and interacted physically with the children in his care demonstrates a lack of insight into the effect his conduct may have upon vulnerable children.
Considered together, the material raises concerns about SFV’s ability to manage situations of conflict and to provide a protective environment to children, including in the course of regulated employment. It suggests a pattern of behaviour inconsistent with community expectations of an adult’s responsibility to provide a protective environment to children.
Statements of friends of SFV were provided[30] but they were not available for cross examination. He did not ask his witnesses to give oral evidence as he considered it a significant imposition on them as they had provided statements. They spoke of the positive interactions they had observed between SFV and their foster children, grandchildren and homestay children and spoke highly of the care and home environment provided by SFV to the children. Their level of awareness of the child protection history was varied but was unable to be explored in evidence. The extent to which these friends provide a support network to SFV and his family was not apparent and was unable to be explored.
[30]Ex 5, Ex 6, Ex 7 and Ex 9, BCS39.
A letter from SFV’s GP[31] was provided which largely addressed issues relating to SFV’s wife but observed that during consultations with the foster children they were observed to be well cared for and nurtured and that SFV is an exemplary role model for his foster children.
[31]Ex 4.
As these witnesses were not available for cross examination, I afford this evidence limited weight.
Is this an exceptional case?
In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.[32] The question to be determined is whether, exercising its discretion, the Tribunal considers it is an exceptional case in which it would not be in the best interests of children to issue a working with children clearance.
[32]WWC Act, s 360.
A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.
The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:
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 on the adults around them having insight into their actions and the likely effect on children.[33]
[33][2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
While I accept that SFV is remorseful for his conduct, I am not satisfied that he has developed the skills necessary to avoid such conduct in the future. It is not apparent to me that SFV has developed genuine insight about the impact of his acknowledged behaviour on the children in his care. Similarly, while SFV acknowledged that the conduct was wrong his insight did not extend to his agreeing that he would not behave in the same way in the future. I am not able to reach a finding that he has insight into the impact that such behaviour would have on vulnerable persons in need of protection.
In undertaking this review I am acting in an administrative capacity and consequently the Tribunal is a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld) (‘HR Act’). Thus, pursuant to s 48 of the HR Act, I must interpret statutory provisions in a way that is compatible with human rights, and in undertaking this review the Tribunal is required to conduct itself in accordance with s 58 of the HR Act.
As observed above, it is not the purpose of this review and decision to impose additional punishment on SFV for past conduct, but rather to protect children.
As required by s 361(1) WWC Act, the hearing was held in private, which I consider compatible with the human rights set out in s 31 of the HR Act.
SFV’s human rights, in particular, his rights to a fair hearing[34] were considered. I also considered the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[35] I am satisfied that this decision is compatible with human rights and that to the extent that there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of the HR Act.
[34]HR Act, s 31.
[35]HR Act, s 26(2).
After consideration of all of the evidence, the findings of fact, the risk and protective factors, and the relevant matters in the WWC Act, including s 226(2) and s 228, in exercising my discretion, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. I am satisfied that the correct and preferable decision is that SFV’s case is an exceptional case under s 221(2) of the WWC Act.
Orders
The decision of the Director-General, Department of Justice and Attorney-General made on 6 April 2020 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
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