Storrs v Commission for Children and Young People and Child Guardian - [2010] QCAT 290

CITATION:

Storrs v Commission for Children and Young People and Child Guardian [2010] QCAT 290

PARTIES:	John Storrs
v
Commission for Children and Young People and Child Guardian

APPLICATION NUMBER:

CSR143-09

MATTER TYPE:

Children’s matters

HEARING DATE:

05 March 2010

HEARD AT:

Gympie

DECISION OF:

Ronald Joachim, Presiding Member and Shirley Watters, Member – Joint majority reasons for decision

Tammy Williams, Member – Dissenting reasons

DELIVERED ON:

05 March 2010

DELIVERED AT:

Gympie

ORDERS MADE:

A positive notice and blue card be issued forthwith by the Commissioner to John Storrs.

CATCHWORDS :

Blue card, applicant does not pose an unacceptable risk to children, protective factors outweigh the risk factors

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

RESPONDENT:

John Storr, Applicant
Maree Storr
Rebecca Kemp
Gary McClintock
Leanne McClintock
Dr Bryan Brink
Darren Boardman

REASONS FOR DECISION

MAJORITY REASONS FOR DECISION

Background to the Application

[1] The applicant in these proceedings was Mr John Storrs. He will be referred to as John.

He was born on 6 September 1965 and was 45 years old at the time of the hearing.

[2] On 14 April 2008 an application for a blue card was lodged by Gympie Wesleyan Methodist Church of Australia on behalf of John with the Commission for Children and Young People and Child Guardian (The Commission), pursuant to section 100 of the Commission for Children and Young People and Child Guardian Act 2000 (the Act).

[3] On 22 May 2008, the Queensland Police Service notified the Commission of John’s criminal history which included a conviction for common assault for which John had been placed on a $500 recognisance to be of good behaviour for a period of 6 months. Charges of assault occasioning bodily harm had been withdrawn. No conviction was recorded.

[4] After John had been given opportunities to provide submissions to the Commission in relation to his application, he was issued with a negative notice on 12 June 2009 and refused a blue card.

[5] John submitted an application to the then Children Services Tribunal to have this decision reviewed. His application was received on 2 July 2009. He seeks a blue card for volunteer activities with children at his church.

Hearings

[6] The Tribunal held a preliminary conference on 11 August 2009 and made the following orders:

The hearing of this matter is scheduled to take place at Gympie on a date and time to be fixed.
A Notice to Produce in the form that has been submitted to the Tribunal by the Commissioner issue forthwith to (s75 CST Act):
a)Queensland Police Service
b)Department of Communities (Child Safety Services)

At least ten (10) days prior to the hearing date, each party shall supply to the Tribunal a list of witnesses, witness statement and all other documentation to be relied on at the hearing.

[7] The hearing of the application took place in Gympie on 14 and 15 December 2009. At the end of the hearing, the Tribunal reserved its decision and directed the parties to provide written submissions.

What is the relevant legislation that applies in this matter?

[8] This application was made to the former Children Services Tribunal. This Tribunal ceased to exist on 1 December 2009 being replaced by the newly formed Queensland Civil and Administrative Tribunal (QCAT).

[9] Under the transitional provisions, where no evidence in an application has yet to be heard, QCAT hears matters according to its procedures, but has the same powers and functions of the former Tribunal and QCAT appeal rights apply. This is the situation in this matter.

An adult who wishes to be a volunteer to coach or work with children requires a positive notice and blue card under Section 100 of the Act in most instances.
In determining a person’s suitability the Commissioner must have regard to Section 102 of the Act. This outlines the circumstances under which the Commissioner must issue a positive notice as well as outlining circumstances when the Commissioner issues a negative notice.
Where a negative notice is issued, a person may under certain circumstances apply to the former Children Services Tribunal and now QCAT for a review of the Commissioner’s decision. In this regard Sections 102 B and 121 of the Act are relevant.

Section 37 of the repealed Children Services Tribunal Act (2000) provided as follows:-
37 Tribunal to decide matters afresh

(1) For reviewing a reviewable decision, the tribunal is to –
(a)decide afresh the matter to which the reviewable decision relates, unaffected by the reviewable decision; and

(b) take all reasonable steps to ensure it has all relevant material before it.

(2) Without limiting subsection (1), the tribunal may have regard to relevant material that was not available to the decision maker.

Section 38 (1) of the repealed Act gives the Tribunal three options after conducting the review. The Tribunal may:
(a) confirm, set aside or vary the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return it to the decision maker for reconsideration in accordance with directions given by the tribunal.
The Tribunal is required to make its determination as if it were the Commissioner and is therefore obliged to take into account the same legislative requirements that bind the Commissioner.

In this case John has an offence for which he was convicted which is characterized under the Act as an offence other than a serious offence.
He was charged with two counts of assault occasioning bodily harm which were withdrawn. John was subsequently charged and convicted of common assault.
Under Section 102 of the Act the Commissioner is required to issue a positive notice in John’s case unless the Commissioner is satisfied that his is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.

In deciding whether an exceptional case exists, the Commissioner and now the Tribunal must take the following into account as outlined in Section 102 A (2) of the Act:

(a) in relation to the commission, or alleged commission, of an offence by the person-
(i)whether it is a conviction or a charge; and

(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and

(iii)when the offence was committed or is alleged to have been committed; and

(iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)in the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 126C, the court’s reasons for its decision;

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

The Act in Section 6 outlines principles for administering the Act. The Act is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that both the Commissioner and now the Tribunal must apply. Section 96 further provides that the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.

In John’s case the Commissioner found that an exceptional case did exist and therefore issued him with a negative notice.

The Act does not define what constitutes an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated

“Exceptional is defined, contextually in the Oxford English Dictionary (2^nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”

The focus of the Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm.

The Children Services Tribunal has previously endorsed principles from the Family Law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards.

In the Tribunal matter of OAA re (2006) QCST 142 the Tribunal stated at paragraph 41 of its Reasons:
“The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunals’ answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.”

In effect as part of its review of the Commissioner’s decision, the Tribunal needs to consider whether John represents an unacceptable risk of harm to children, in determining whether his is an exceptional case.

It is for the Commission to convince the Tribunal that on the balance of probabilities John’s is an exceptional case such that it would harm the best interests of children for him to have a blue card.

Why was John charged?

John and his wife Maree Storrs were foster carers to 3 children of John’s foster sister. The children were X, Y and Z aged 8, 6 and 3 respectively when John was charged.
The charges arose as a result of an investigation by the then Department of Child Safety (the Department) following bruising being found on X.
John did not deny using a belt and thong to administer corporal punishment to the girls and accepted this caused bruising to X because she moved when being hit in August 2004.
The Department referred the matter to the police and John was charged with 2 counts of assault occasioning bodily harm, one charge in relation to each girl. The charge relating to Y was withdrawn whilst the charge relating to X was reduced to common assault.
John was dealt with as per paragraph 4 above.

What evidence was given to the Tribunal?

The Tribunal received extensive written material from John as well as the Commission. Oral evidence was given by John, his wife Maree, family friends Rebecca Kemp, Gary and Leanne McClintock, John’s general practitioner and friend Dr Bryan Brink, and Darren Boardman, psychologist.
This evidence, where relied upon, will be specifically mentioned in these reasons.

Maree Storrs’ evidence

Maree Storrs gave lengthy oral evidence concerning John and the children.
She advised the Tribunal that she and John were attempting to make the children as self reliant as possible given the poor parenting skills of the children’s mother.
She advised the Tribunal that the 3 children had been living with her and John for 14 months.
Maree advised the Tribunal that John was the main disciplinarian for the children, especially when corporal punishment was used. They had made a conscious decision not to discipline using their hands to avoid any suggestion of sexual abuse. Instead they had decided to use a belt or a padded thong.
Maree informed the Tribunal that the general approach to discipline was initially to ignore inappropriate behaviour, use rewards for good behaviour, take away privileges or treats and then use physical discipline as a last resort.
She described the events of the morning of 19 August 2009 in which John hit X with a belt which resulted in bruising on her thigh after she moved when being hit. This discipline was used because, despite being told not to make noise that might wake her younger brother, she continued to do so. Along the way she had been warned and had lost a number of privileges.
Physical discipline, she advised, was commenced to be used some 4 to 6 months after the children arrived and was used up to 3 times in some weeks, but in other weeks not used at all.
Maree advised the Tribunal that she had been told by Departmental officers that the Department did not approve of smacking.
Maree acknowledged that the general community would be upset knowing children were hit by a strap or a thong.
Maree further advised the Tribunal of the following:
a)Smacking was solely dependent on the behaviour and was used as a last resort;
b)She never saw John enraged when using physical discipline;
c)John is a fair person who tries to bring out the best in children;
d)The children were encouraged to sit and talk after being disciplined;
e)She and John had no training to assist them in managing the children;
f)The children were initially very unsociable and displayed very difficult and inappropriate behaviours;
g)X was responding well in their care but regressed in her behaviour when told she would be having overnight stays with her mother;
h)She was not aware of the Department’s standards of care;
i)She was sometimes present when physical discipline was applied primarily in a bedroom.

Shelley Davies’ evidence

Shelley Davies is a friend of the Storrs family and has known John and Maree for 2 years. They see each other socially a few hours per week.
Shelley advised the Tribunal that John looks after her 15 year old son several times a year. She spoke of a close bond between her son and John.
She stated she was unaware of how John smacked the child but noted that at times smacking a child is appropriate.
She opined that John would not do this in an undisciplined manner and stated she had never seen him lose his temper.
She advised the Tribunal that it is not appropriate to bruise a child through hitting.

Rebecca Kemp’s evidence

Rebecca Kemp gave oral evidence to the Tribunal. She has known John since childhood.
Rebecca advised the Tribunal of the following:
a)She observed John to be always strict when he supervised children but didn’t lose his temper;
b)Her young child was happy to see John;
c)A smack not in anger is acceptable in her opinion.

Gary Mc Clintock’s evidence

Gary Mc Clintock is a reverend at the Church that John Storrs attends. He has known the family for 8 years.
He advised the Tribunal he was aware of the bruising on X and knows of the charge of common assault. He thought the bruising was caused by a hand.
He told the Tribunal he would have no hesitation in having his children looked after by John. He saw John interacting with the 3 children in his care and they seemed happy with him.
He further advised the Tribunal he had never seen John use corporal punishment.
He advised that John had engaged with other parents about managing the 3 children, noting that they needed more control at times than did other children.

Leanne Mc Clintock’s evidence

Gary’s wife Leanne Mc Clintock, was X’s teacher for a period. She told the Tribunal that X settled into the class routine after a couple of weeks although it took longer for Y.
Leanne advised the Tribunal that she noted the children always had everything they needed at school.
She further advised that no corporal punishment had been used with the girls at school, nor had there been any used for any child at the school for at least 2 years.
She stated she had spoken to John about general discipline issues and the importance of routine, noting that the girl’s behaviour was more stabilized over time.
She also advised that X’s behaviours regressed to how they previously were when she left John’s care.

Dr Brink’s evidence

Dr Bryan Brink is a friend of John’s and his general practitioner. He has known the family since 2003. He sees John and his wife socially now on a monthly basis.
He advised the Tribunal that he had never seen John lose his temper.
He treated John for depression and anxiety as a result of the children leaving his care. John also uses him as a sounding board to talk about emotions.
He advised he also treated the children occasionally whilst in John’s care and they presented clean and well dressed. He had not noticed bruising.

Darren Boardman’s evidence

Mr Darren Boardman, psychologist, gave evidence to the Tribunal in relation to an assessment he conducted on John Storrs. Mr Boardman advised he commenced private practice in October 2004 after completing his formal qualifications in 2003.
He told the Tribunal that the bulk of his work is in psychological counselling and report writing associated with Family Law and Juvenile Justice. The Tribunal also had a copy of Mr Boardman’s report of the assessment.
In his preamble to his report, Mr Boardman advised that his assessment was conducted in line with the implied brief that an opinion was sought regarding John’s potential risk to children.
Following his assessment of mental status, personal and medical history, criminal history, personality assessment, Mr Storrs version’s of events and analysis of the Commissions reasons, Mr Boardman found no evidence to suggest John “possesses psychological characteristics that predisposed him to being an unacceptable risk to children”.
Mr Boardman advised the Tribunal that his reference to John having insight related to John’s being aware of why he was seeing Mr Boardman and the purpose of the interview and not to his offending or the impact on the child.
Mr Boardman advised that his risk assessment was based on John’s psychological profile and that Mr Boardman did not examine any protective factors because he did not think it likely John would be fostering again.
He further advised he focused on any psychological problems or personal issues that may mean a risk to children but did not “drill down” into John’s offending behaviour which came from a belief he was providing proper discipline.
Mr Boardman stated he didn’t find anything in John’s psychological profile to suggest he would repeat the offending behaviour.
Mr Boardman further advised there was no suggestion that John was hiding anything in his answers and that Mr Boardman was satisfied as to the accuracy of the personality testing.
Mr Boardman confirmed he had met John in 2004 when introduced by Cathy Cleary from whom he took over the practice. He stated he had a brief discussion with John who had been receiving counselling from Cathy. John did not commence counselling with Mr Boardman.

John Storrs’ evidence

John Storrs gave extensive oral and written evidence to the Tribunal. This is summarized below:
He advised as follows:-
a)He had been working at Aldi from May 2007 until October 2009 and was studying full time doing a diploma course of 2 years duration hoping to pursue youth work or work as a pastor;
b)He reported a very stable childhood and marriage, involvement in the SES in high school, being active in the church’s soccer association, in a squash club in the Northern Territory, a Pony Club and the horse industry generally;
c)He reported good extended family relationships and friendships in the horse industry and in his church;
d)He had commenced a parenting course a week prior to the hearing, partly because of what the Commissioner, Elizabeth Fraser had said, and to show he had a teachable spirit.

In relation to fostering the children, he advised he and his wife were prepared to take the children on with specific training which he claimed was never forthcoming. He understood in doing so, they were the children’s guardians.
He further advised the he and his wife were doing the best they could with the children but felt very frustrated with the Department.
In relation to the incident which gave rise to the charge he stated:
a)He was frustrated with himself;
b)He thought he was doing the right thing;
c)He was at his wits end.

In relation to a question about why he wouldn’t do it again (that is, hit a child in that way to cause bruising) he stated:
a)Partly because of the loss of the children;
b)Partly because of this process;
c)Because of being misunderstood;
d)Because accidents could happen again.
He advised he received counselling from Gary McClintock, Darren Boardman and Catherine Cleary, psychologist, focusing on the grief of the children going.
Clarifying some matters further he advised:
a)He remained consistent with the children;
b)It was not the children’s fault that the incident occurred;
c)He was not at his wits end with the children;
d)He made allowances for X when she was going through difficult times;
e)He doesn’t recall reading the Department’s standards of care document;
f)It is completely inappropriate to physically discipline other people’s children and he sees any further role in the church with young people as completely different from foster care;
g)He had discussions with Leanne McClintock regarding discipline;
h)Whilst he agreed with the Magistrate’s comments about assault (STO 072) John did not consider he assaulted X, sincerely believed he was doing the right thing in hitting her and never had any intention of bruising her, noting that it is not illegal in Queensland to smack a child;
i)He has a strong sense of right and wrong and has never taken anger out on anyone;
j)He abides by the principles of the Bible which includes the use of corporal punishment although in hindsight he would be far less inclined to use it;
k)He very much doubts he and his wife would be applying again to be foster carers but considered he would be better equipped following the parenting course and this process. He would abide by Departmental rules regarding not smacking a child;
l)He facilitated contact between the children and their mother at Church and by taking the children to contact;
m)Whilst the children sometimes had to bare their buttocks he didn’t consider this humiliating because of the relationship he had with the children;
n)X understood discipline in all its aspects was to make her a better person;
o)He was not happy about having to give the children a smack, and felt sad about it but not remorseful;
p)Smacking was used as a last resort following removal of a treat or privilege, following a verbal reprimand.

Submissions

At the conclusion of the evidence the Tribunal made orders such that the Commission was to provide written submissions by 23 December 2009, such submissions to be received by John who was to provide his submissions to the Tribunal by 8 January 2010. John subsequently requested and was granted an extension of time until 22 January.

Commission’s submissions

The Tribunal received detailed submissions from the Commission.
In relation to Maree Storrs, the Commission submits that she “could be considered to be the person best placed to evidence, and moreover influence, the applicant’s opinions, attitudes, insight and remorse”.
The Commission essentially had this to say about her evidence:
a)There is no evidence of insight into the offending behaviour by herself or the applicant;
b)There is a significant lack of remorse for her involvement;
c)John’s mistake was in failing to stop the child from moving rather than the use of corporal punishment which caused bruising;
d)The evidence of regular corporal punishment is demonstrative of a pattern of behaviour rather than an isolated event;
e)There is no acknowledgement or consideration of the impact of corporal punishment upon the children;
f)She was complicit with actions of her husband John in condoning his inappropriate behaviour and has failed to demonstrate any remorse or appropriate insight and the absence of these protective influences lessens the effect of the relationship as a protective factor;
g)Her demonstrated failure to provide any proper moderating influence on John might properly be viewed as a risk factor.
In relation to Shelley Davies evidence the Commission argues that little weight should be afforded to it because:
a)She is sympathetic to a family friend;
b)Her observations of John are restricted;
c)She was unaware of the details of the incident;
d)She has caused a similar injury to a child in the course of discipline.
Of Reverend Gary Mc Clintock’s evidence the Commission submits that it fails to assert the children had “any particularly remarkable behavioural challenges”.
Regarding Leanne Mc Clintock’s evidence the Commission notes that her evidence “fails to support the applicant’s contention concerning the challenging behaviours and the necessity or justification for his actions”.
The Commission also submits that her evidence “demonstrates a lack of knowledge of the incident in question”.
The Commission contrasts her evidence with Maree Storrs in that Maree advises that corporal punishment was necessary because of behaviour and commenced 4-6 months after the children came into care, which was at a time when Leanne reports their behaviour had settled at school.
In relation to Darren Boardman’s evidence, the Commission submits that his observations “fail to have regard to the ongoing behaviours of the applicant in administering corporal punishment to the children over an 8-10 month period”.
The Commission submits Mr Boardman failed to conduct an assessment of protective or risk factors and “conclusions were solely limited to the presence of psychological/psychiatric conditions”.
As a result the Commission argues that no weight should be given to any of his findings other than “that Mr Storrs possesses no psychological characteristics that predispose him to being an unacceptable risk to children”.
Of Dr Brink’s evidence the Commission noted that he, like other witnesses, could not recall “any particularly extraordinary behaviour of the children”, noting X had stayed once with his family overnight.
The Commission asserts in relation to John’s evidence that it needs to be assessed and considered in the light of his having witnessed the questioning of the witnesses and “being enlivened to the issues arising during the questioning of these witnesses, prior to giving evidence and undergoing questioning”.
Of the various elements of his evidence the Commission had this to say:
a)    His undertaking of a parenting course is a “tactical decision to bolster his likelihood of a favourable decision”;
b)    He attempted to avoid answering questions, reiterated his own evidence or commenced making submissions;
c)    “The applicant would hesitate for lengthy periods prior to answering and often remarked on what he anticipated was being sought by the questions being asked”;
d)    The overall tenor of both written and oral evidence portrays John and his wife as the victims with little regard to the effect of his actions on the children;
e)    Neither Dr Brink nor Mr Boardman presented “any evidence of any efforts by the applicant to empathise, discuss or consider the effect of the applicant’s conduct on the children”;
f)     The Tribunal should give little weight to the applicant’s “cleansed versions” and must accept the facts on which the decisions for the conviction were based as being conclusive;
g)    John’s evidence was internally inconsistent with examples being:
i.The children’s challenging behaviours, not evidenced by others;
ii.The discipline regime being structured and planned, yet the applicant describes himself as being at the end of his tether which he subsequently backtracked upon;
iii.John’s evidence of not using a hand being inconsistent with the police interview;
iv.Evidence that, the children knowing once a matter had been dealt with it was finished with, being inconsistent with evidence about an escalating level of punishment.
h) Neither the applicant nor Maree complied with the Statement of Standards as set out in Section 122 of the Child Protection Act 1999, which prohibits corporal punishment in foster care. The Commission argues that Mrs Storrs was aware that “smacking was strongly discouraged”;
i)     The applicant’s suggestion that the children had no problem with corporal punishment should be given little weight simply because they continued to interact positively with him;
j)     The applicant failed to express any insight or appreciation of the impact of his conduct upon the children;
k)    Minimizing his behaviour is further evidenced by his not fully disclosing details of the actions involved in the incident to his friends;
l)     John’s not accepting that his interaction at a shopping centre with X 12 months after their removal was inappropriate given he asked her if her mother’s new defacto was “doing the right thing by her”, meaning is she being sexually abused.
The Commission argues that John’s lack of insight into his offending should be considered a risk factor. In summary the Commission relies on its reasons for decision (CCYPCG 122-142) as well as its written submission and issues raised at the hearing.
The Commission argues that the offence was not an isolated incident and that the use of corporal punishment was systematic and ongoing.
The Commission submits that the applicant continues to “refuse to accept his actions constituted an assault on the child” and that he “has failed to demonstrate appropriate insight into the effect of his offending behaviour on the children and remains committed to the principle of corporal punishment”.
The Commission further argues that the applicant has demonstrated he is unable or unwilling to accept and implement Departmental decisions.
Whilst acknowledging what would otherwise be protective factors for example social network, stable relationship, these factors were in place when the offending behaviour took place and “therefore cannot be relied upon as overwhelming protective factors in light of his lack of remorse or insight”.
The Commission submits that the evidence put forward does not dispel the initial concerns of the Commissioner when issuing a negative notice and submits “that the Tribunal can be satisfied that the applicant’s case is an exceptional one such that it would not be in the best interests of children for him to be issued with a positive notice and blue card, and on the basis of the written material before the Tribunal and the evidence elicited during proceedings, the original decision by the Commissioner to issue a negative notice to the applicant ought to be confirmed”.
Applicant’s Submissions
John’s submissions were extensive and in the main provided an alternative explanation of the evidence to that provided by the Commission. He did so by responding to the Commission’s submissions.
John submits that the Department failed to provide the promised support and assistance and failed to stress to them the “statement of standards” and what this meant. Indeed he says neither he nor his wife were aware of it.
He continues to assert he did not assault X, and that it is not illegal for a parent or someone in the parental role to use physical discipline on a child.
He argues he is not a risk to children citing his psychological profile and his long involvement with community groups involving children without any history of smacking a child.
He acknowledges that he and his wife understood the Department preferred that corporal punishment not be used rather than it was not to be used.
John submits that the use of corporal punishment was a disciplinary action and not abuse. He attributes his wife’s absence of acknowledgement of the impact of the corporal punishment on the children to “the way the children were loved through the whole process, because of the way the smack was given”.
John rejects the Commission’s submissions regarding the weight to be given to the evidence of his witnesses, Shelley Davies, Rebecca Kemp, and Reverend Mc Clintock.
As to the Commission’s submissions that others had found little in the way of challenging behaviours with the children, John submits Rev. Mc Clintock spoke of X’s lies and Mrs Mc Clintock referred to her having a few problems when she arrived. He submits that Mrs Mc Clintock did not teach X until about 6 months after she began living with John and his wife. John further submits that Mrs Mc Clintock refers to an improvement in behaviour whilst in John and Maree’s care.
John also refers to the written evidence of Dianne Muir, a volunteer at the childrens’ school and Nicki Hutley, teacher and Board Director at the childrens’ school. This evidence, he says, outlines the behaviours that the girls were exhibiting at school.
In relation to the criticism by the Commission of Mr Boardman’s evidence, John argues that “given the offence was not abuse there was no need for Mr Boardman to “drill down””.
In response to the Commission’s submissions that John did not consider the impact and effect of assaulting the child, John submits that he did not assault the child and that he empathized greatly with her.
John submits that his evidence about a disciplinary matter being finished referred to when the child’s behaviour had corrected within “the same time frame” as opposed to bringing it up later.
In response to the Commission’s submission about the inappropriateness of John’s interaction with X at a shopping centre, John argues it was a protective act done out of concern for the child.
John submits that discipline has to be consistent for a child to know boundaries and was not metered out on a whim or emotion.
In relation to the Commission’s criticism of John not accepting or implementing Departmental decisions about re-integration of the children with their mother, he submits that they were working towards this but were rarely consulted and had concerns for the children’s emotional needs. He points to his written evidence in this regard.
The Tribunal’s view
The Tribunal has considered the evidence and the submissions very carefully. The Tribunal has also carefully considered the Commissioner’s reasons for decision of 10 June 2009. In doing so the Tribunal identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Potential protective factors are:
a)    John has had a long involvement in community organisations with no known adverse events;
b)    He had a very stable upbringing;
c)    He has a long and stable marriage;
d)    He and his wife have a network of supportive friends with whom they meet regularly;
e)    John is studying and undertakes part time work;
f)     He does not have a history of alcohol consumption;
g)    He has no psychological predisposition to harm children;
h)    He has no apparent anger control issues;
i)     There has been no offending behaviour before or since August 2004;
j)     He has strong support from his Church community.
The Tribunal accepts the Commission’s submissions that a number of these protective factors were in place at the time the offence was committed and should therefore be weighted appropriately.
Potential risk factors are:
a)    He continues to believe corporal punishment has a role in raising children although acknowledges it is not permissible for children in care;
b)    He has demonstrated little insight into the effect of corporal punishment on the children;
c)    He is not remorseful for what he did.

Section 102A (2) of the Act

The Tribunal must take into account matters listed in this section of the Act in deciding whether or not there is an exceptional case.
The Tribunal notes that John has been convicted of the offence of common assault and charged with the offence of assault causing bodily harm.
The offences are offences other than serious offences. The common assault offence was committed in August 2004.
The offence is relevant to employment, or carrying on a business that involve or may involve children.
John smacked a child with a rubber thong and a belt after she had misbehaved. This resulted in bruising. In evidence before the Tribunal John acknowledged that this type of smacking occurred with both X (8 years old) and Y (6 years old) sometimes up to a few times a week and had been occurring for several months.
Whilst John’s behaviour was in the context of parental discipline, his conviction indicates, in the Commission’s submissions, that “his actions were not reasonable under the circumstances”. The Tribunal agrees.
The Magistrate did not record a conviction and the Tribunal notes the sentencing magistrate’s remarks about his extreme remorse and his being placed on a good behaviour bond. The Tribunal also notes the Magistrate’s words - - -“and it is a very serious offence when you discipline the child to the extent that it becomes an assault”.
The Tribunal notes an earlier decision TAA, Re (2006) QCST 11, in which it is stated at paragraph 97:
“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.”
The Tribunal accepts the Commission’s submission that John is lacking insight into the impacts of smacking the children.
The Tribunal accepts good insight is a protective factor.
The Tribunal accepts that the behaviour of the children was quite challenging. It does so on the basis of the Storrs’ oral and written evidence as well as the written evidence of Mrs Muir and Ms Hutley.
Whilst the Commission submits the evidence of other witnesses did not describe difficult behaviours, apart from Leanne Mc Clintock, they were not excessively exposed to the children. Moreover, Ms Mc Clintock’s evidence has to be seen in the context of a very structured school environment and of her having X commence in her class some months after being with the Storrs.
The Tribunal also accepts the Storrs’ evidence that the then Department of Child Safety did not explain the Statement of Standards to John and that he and his wife did not receive the support they needed and requested.
However, despite this, they were aware, at least, that the Department frowned on the use of corporal punishment.
The Tribunal accepts the Storrs honestly believed that their discipline regime was appropriate and in the childrens’ interests. The Tribunal accepts that it was administered to attempt to correct the children’s behaviour and not on a whim. Their belief about this found endorsement in both the Bible and perhaps after the event by John’s discovering that it is not illegal for a parent or someone acting in the parental role to use physical discipline on a child.
The Tribunal does not consider that the regime of corporal punishment, described by the Storrs, was appropriate.
It clearly was not, despite their explanations about how discipline was used in their home, starting with minor actions such as loss of privileges and treats and moving to corporal punishment. The Tribunal takes a dim view of this and it does not reflect well on John or his wife. The Tribunal is mindful of the previous history of abuse of the three children prior to their entering John and Maree’s care and the likelihood that they had specific needs and vulnerabilities in regard to boundary setting and behaviour management strategies as a result of their trauma.

The Tribunal was impressed by the level of support for John and his wife as seen through the eyes of various witnesses. Whilst they may not have had precise knowledge of the incident giving rise to the charge, they knew John had struck the child and he was before the Court.
The Tribunal accepts the submission of the Commission that John shows little remorse. He genuinely believes he did the right thing using corporal punishment. In the Tribunal’s view he now understands it is not acceptable given that the Standards of Care have been explained to him.
The Tribunal accepts the submissions of the Commission that Darren Boardman’s evidence can only be accepted to the extent that John possesses no psychological characteristics that predispose him to an unacceptable risk to children.
The Tribunal does not accept the Commission’s submission regarding John’s evidence relating to his avoidance of questions and the inferences from his mode of answering. Reasons for this non acceptance include the Commission’s representative, Mr Capper’s particularly aggressive questioning of John, the Tribunal’s view of John as a person who normally would give a considered response to questions, and the considerable stress he exhibited during the hearing. The Tribunal was disappointed with Mr Capper’s approach, and with his particularly strong adversarial manner towards John and his wife.
As to the Commission’s view that John’s evidence was internally inconsistent, the Tribunal has already addressed the issue of the existence of challenging behaviour and accepts John’s submission regarding a series of disciplinary steps for a particular event not meaning that he was reopening discipline. In addition, the Tribunal did not conclude that being at his wits end, meant he was uncontrolled or acting in anger.
The Tribunal accepts the evidence from John that he was not obstructive of the Department wishing to reintegrate the children with their mother. The Tribunal accepts that he and his wife had strong reservations about the process and were concerned for the children’s safety. This is understandable.
The Tribunal is of the view that John and his wife Maree genuinely cared for the children and on the evidence the children were more settled and manageable in a number of environments as a result.
On John’s evidence, it is highly unlikely the Storrs will ever again care for children in their home.
If John has a blue card it is more than likely that he will engage with children in group activities as he has in the past where there have been no issues with his handling of children.
Whilst the Tribunal recognizes the transferability of a blue card, to foster a child requires a further approval process through the now Department of Communities (Child Safety Services).
The distinction being made here is that despite his beliefs about discipline in a parental context, John has stated, that it is completely inappropriate to physically discipline other people’s children.
The Tribunal accepts this and notes again there is no evidence that concerns have ever been expressed by parents of children under his supervision in community, sports, or church based activities in the past.
The Tribunal also accepts that John has learnt his lesson in relation to the non-acceptability of physical discipline in a substituted parenting role. The Tribunal considers that he would not physically discipline a child again if in that position.
John has some strong protective factors. Whilst some of these were in place at the time of his offence and should be given less weight than usual, the Tribunal does not discount them completely. The Tribunal must also take into account others such as no offending before or since 2004, the assessment that he has no psychological predisposition to harm children, and his studying.

Conclusion

The Tribunal has concluded that John does not pose an unacceptable risk to children and that the protective factors do outweigh the risk factors.
The Tribunal has concluded that John’s is not an exceptional case such that it would not be in the best interests of children for the Commissioner to issue a positive notice and blue card.

DISSENTING REASONS

I have had the advantage of reading the reasons for decision by the majority of the members of the Tribunal in this review.
I adopt the reasons of my colleagues apart from the matters below. It is because of these matters I disagree with my colleagues and find that the decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice to the applicant should be confirmed.
The law which applies in this matter is discussed in paragraphs eight to twenty-eight of the majority reasons. I differ from my colleagues in the application of this law to the facts. My reasons follow.

An Unacceptable Risk of Harm to Children

I disagree with my colleagues who say Mr Storrs is not an unacceptable risk of harm to children.

Risk of Harm

Harm is defined in the Act to have the same meaning given to the Child Protection Act 1999. Section 9 provides:
(1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2)It is immaterial how the harm is caused.
(3)Harm can be caused by-
a.Physical, psychological or emotional abuse or neglect; or
b.Sexual abuse or exploitation.
There is evidence before the Tribunal of the foster children being harmed, or had a likelihood of being harmed, while in Mr Storrs’ care.
The Tribunal heard evidence of the applicant using corporal punishment to discipline the foster children in his care. Mr Storrs sought to justify his actions on the basis of domestic discipline, in that a parent, a person in the place of a parent or a teacher may use reasonable correctional force towards a child in the person’s charge pursuant to section 81 of the Queensland Criminal Code. However the applicant was charged with assault. When placing the applicant on a Good Behaviour Bond, Magistrate Callaghan stated:
“Children are difficult, and I know that. Children can try the patience of Joe, really. They are exasperating. The most wonderful, stable, settled children can be the most exasperating little devils at times. I accept all of that. However, one has to be very careful when one is dealing with a child, and it is a very serious offence when you discipline the child to the extent that it becomes an assault.”
Therefore Mr Storrs’ use of corporal punishment went over and beyond the reasonable correctional force that is legally permitted to parents and care givers, to the extent that he was charged with assault and the child sustained a bruise. Furthermore pursuant to section 9(2) of the Child Protection Act 1999, it is immaterial how the harm is caused – in this case by way of the applicant disciplining the child.
Around the same time as the applicant was interviewed and charged with assault by the police, the children were removed by the Department and placed in alternative care. On the evidence before the Tribunal, had the children not been removed they would have been at a continued risk of being harmed by the applicant. When questioned about the administration of corporal punishment in the future if a similar set of circumstances were to arise, the applicant identified he would be “more equipped from this process.” However in both his oral and written evidence, Mr Storrs repeatedly maintained he “doesn’t feel he did anything wrong”.

Who is at an Unacceptable Risk of Harm?

I disagree with my colleagues’ application of the facts in determining whether Mr Storrs is an unacceptable risk of harm to children. They argue at paragraph 153 of their reasons that “despite his beliefs about discipline in a parental context, John has stated it was completely inappropriate to physically discipline other people’s children”.
In OAA re (2006) QCST 142 the former Children Services Tribunal endorsed principles from the Family Law jurisdiction and transported this approach to the relevant passages of the Act when the Commissioner is assessing applications for blue cards. This was cited by my colleagues in their reasons. I draw particular attention to the following paragraph (at paragraph 41 of OAA re (2006) QCST 142):
“The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children?” (Emphasis added)
In the Commission for Children and Young People and Child Guardian v Brittain [2009] QDC 112 at page 5, the District Court of Queensland recently affirmed the Tribunal’s approach of “in determining what amounts to an ‘exceptional case’, the Tribunal is to consider among other things whether the applicant presents an unacceptable risk of harm to the children of Queensland.” (Emphasis added)

Therefore in considering whether the applicant is an unacceptable risk to children, it is immaterial the applicant maintains he would never apply to be a foster carer again. The test is whether there is an unacceptable risk of harm to the children of Queensland; and on the evidence Mr Storrs is a risk to children irrespective of whether he is their foster carer or holds some other supervisory role over children.
‘Exceptional Case’

At paragraphs 21 and 22 of their reasons, my colleagues referred to the matters outlined in section 102A of the Act and rightfully stated that the Act does not define what constitutes an exceptional case – it is a question of fact and degree. I accept the presence of both protective and risk factors in this matter. However my colleagues failed to have regard to particular facts and placed insufficient weight on relevant evidence when considering the factors outlined in section 102A (2) of the Act.

Section 102A (2)(a)(iii) – When the offence was committed or is alleged to have been committed

The offence arose as a result of the applicant, in his role as foster carer, failing to provide a legally required standard of care to the children in his care. When asked specifically whether she had read the Statement of Standard’s document published by the Department, Mrs Storrs’ oral evidence was that she “didn’t get a chance because [we were] so busy with the kids“. Nonetheless Mrs Storrs did admit in her evidence that the Department had told them that “they didn’t want us to smack the children and discouraged smacking.”

This evidence conflicts with Mr Storrs’ responses to the Commission’s questioning during the hearing. His evidence was that he “not aware of the Department’s zero tolerance on corporal punishment. I am not someone who seeks to break the law knowingly.” Furthermore in the applicant’s final submission to the Tribunal, he asserts that he and his wife were not aware of the Statement of Standards - “[t]here is a continued presumption that we had read or seen or were aware or remembered the Statement of Standards’... this is not the case.” The applicant also stated that the Department “failed to stress to us the Statement of Standards and what it meant.”

If the Tribunal were to accept this evidence, low weighting should be given to it because:
a)The Statement of Standard is a legislative requirement for providing foster care (as set out in s122 of the Child Protection Act) and requires the provision of care to children to be consistent with this legal standard;
b)A single page version of the Statement of Standards is written in plain English; and
c)It is doubtful the Storrs would not have been given a copy of the document or not made aware by the Department’s of those standards. Nor is it likely the Department would merely “discourage smacking” (as suggested by Mrs Storrs) - as this would be contrary to Departmental guidelines and the law. The legislation and the plain English guide clearly state that the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour; and the techniques for managing the child’s behaviour must not include corporal punishment.
Even if it were the case the Storrs had no knowledge of the Statement of Standards, both Mr and Mrs Storrs continued to administer corporal punishment for some months after they were allegedly told by the Department that “they didn’t want us to smack the children and discouraged smacking” (as was Mrs Storrs’ evidence). Furthermore the use of corporal punishment by the applicant was not uncommon. Mrs Storrs’ evidence was that the regularity of the corporal punishment “would be dependent on their behaviour” and “could be a few weeks between occasions or may be a smack or two over a few days.”

In the report of Psychologist, Darren Boardman, he was of the view “the sense of moral justification underlying Mr Storrs’ approach to discipline may have contributed to a lack of flexibility in seeking alternative parenting strategies when faced with a situation that many experienced parents would have found difficult.”

The evidence shows that on a number of occasions throughout the fourteen months in which he cared for the children, the applicant was inflexible in his approach to disciplining them; and reluctant to seek and apply alternative parenting, care giving and behavioural management strategies. This was despite:
a)Openly acknowledging that he and his wife had limited skills and experience to provide for the specific needs of the children;
b)Being offered (but choosing to reject) professional assistance offered to them by the Department;
c)Not actively seeking the advice of friends who Mr Storrs knew had some professional knowledge (for example Dr Brink), or failed to consistently apply that advice (such as the strategies told to him by Leanne McClintock who successfully managed X’s behaviour in the classroom); and
d)Most importantly, the applicant failed to read and implement the Standards of Care and/or cease administering corporal punishment to the children once he and his wife had the telephone conversation with the Department.

Both the applicant and his wife were aware of the children’s difficult backgrounds. In his final submissions to the Tribunal the applicant states “we agreed to take on the foster children with no parenting experience, and additionally the children were not from a sound stable background but from a highly unstable background and a history of sexual abuse by the father and the mother’s next boyfriend.” There was significant written evidence provided by the Storrs to the Tribunal relating to the youngest female child’s sexualised and challenging behaviours. This included wetting herself and defecating in the bathtub. Despite the difference in age (eight and six years old) and the extreme behaviours by the youngest female child, Mr Storrs’ oral evidence was that there was no differentiation in the corporal punishment given to both girls.

The Tribunal also heard evidence the youngest girl (aged six) was sometimes made to clean up after herself if she urinated in her clothes, and on one occasion while “out in the paddock” she was made to stay in those clothes for approximately one hour until they returned to the house (which Mrs Storrs indicated would have taken 10 minutes to walk). This is evidence of the how the applicant failed to provide a legally required standard of care to this child which was age appropriate, did not humiliate or likely to cause emotional harm.

Section 102A(2)(a)(iv) – The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.

Since 31 May 2006, the Act has categorised foster care as regulated employment and therefore requires foster carers, kinship carers and adult members of a foster or kinship carer’s house to hold a blue card (see section 99BA and Schedule One, clause 6G of the Act).
Mr Storrs was granted a blue card in May 2003 to work as volunteer under the category ‘churches, clubs and associations’ pursuant to section 100 of the Commission for Children and Young People and Child Guardian Act 2000. Also in 2003, he and his wife were approved foster kinship carers for the three children.
It is accepted that at the time of his approval for foster carer status, it was not a requirement to hold a blue card. However the fact that the offence was committed while the applicant cared for vulnerable children on behalf of the Department and ‘foster care’ is now deemed a regulated employment for which a blue card is required - is a relevant consideration.
Section 102A(2)(b) – Anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
In TAA, Re [2006] QCSAT 11, the Tribunal stated at paragraph 97 of its Reasons:
“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.”
From the evidence I am not satisfied the applicant is remorseful or has any insight into the harm that has been caused by his failure to provide the legally required standard of care to the children that were in his care.

In response to the specific question as to the cancellation of the carer approval by the Department, Mr Storrs’ states: “I would not have appeal (sic) this anyway as I/we did not pursue to seek the return of the children for several reasons.... D. We also firmly believe that the children had just been taught a lesson that if they want to, they could recreate the same situation in the future.” During the hearing when asked about how he felt after being charged, he failed to answer after a long pause. Then when asked by the Tribunal whether he was angry or upset with anyone including himself, X, Mrs Storrs or the Department, the applicant responded, “No ... not upset with X. Frustrated that she moved (sic).” This evidence is consistent with the evidence of Mrs Storrs where she maintained the view that “he [John] made a mistake in not keeping her still” and that it was an “accident that she had moved.”

The Tribunal also heard that the applicant commenced a parenting course within a few weeks prior to the hearing. Mr Storrs explained the reason why he failed to undertake the parenting course in the five years since the incident or even since first learning of the issue of a negative notice, was because he was not a parent. The applicant later admitted that the reason he now commenced the course was as a consequence of the Commissioner’s written reasons which highlighted his lack of insight. I therefore accept the Commission’s submission that the applicant undertook the course as a tactical decision to bolster his likelihood of the review decision being made in his favour.

In light of the abovementioned matters, I am of the view that on the balance of probabilities the matter involving Mr Storrs is an exceptional case and it would not be in the best interests of children for him to be issued with a positive notice and a blue card. Therefore the decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice to the applicant should be confirmed.