TBM v Chief Executive Officer Public Safety Business Agency - [2015] QCAT 446

CITATION:

TBM v Chief Executive Officer Public Safety Business Agency [2015] QCAT 446

PARTIES:	TBM (Applicant)
v
Chief Executive Officer Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML117-15

MATTER TYPE:

Childrens matters

HEARING DATE:

21 August 2015

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

DELIVERED ON:

15 November 2015

DELIVERED AT:

Hervey Bay

ORDERS MADE:

1. The Tribunal confirms the decision of the chief executive officer of the Public Safety Business Agency to issue TBM with a negative notice.

2. The Tribunal prohibits the publication of the names of the adult and her family in the decision relating to application number CML117-15.

CATCHWORDS:

BLUE CARD – NON-SERIOUS OFFENCE – whether case is exceptional – where the applicant’s own child is subject to a child protection order made as a result of the applicant’s actions involving her child – where the recent assault allegation involving the applicant's own child resulted in a charge made against the applicant which was withdrawn by prosecution –where the applicant has been receiving the benefit of extensive counselling and support by a psychologist – whether the protective factors outweigh the negative factors

APPEARANCES:

APPLICANT:

Self

RESPONDENT:

Public Safety Business Agency

REPRESENTATIVES:

APPLICANT:

Self

RESPONDENT:

Ms K Heath

REASONS FOR DECISION

The applicant is a single mother. She is also a qualified primary school teacher. Her son, an only child, is 11 years of age.
Police alleged that in December 2013 she did assault her son[1]. Police charged the applicant with common assault and she did appear in the Magistrates Court. Ultimately, the police withdrew the charge. According to the ‘no evidence to offer report’[2], the investigating officer was of the view that there was sufficient evidence to proceed with the charge but recommended that the prosecutor withdraw the charge because the child was reluctant to proceed to court.
[1]The details of the alleged assault are contained in paragraph 13 of this decision.
[2]This is a document, produced at the hearing of the matter, received from the Queensland Police Service on 11 August 2015.
While the criminal charge did not proceed, the allegation was of sufficient concern to the Department of Child Safety to initiate action. Ultimately, a child protection order was made about 18 months ago, which had the effect of removing the child from the care of the applicant. The child protection order is still in place.
The applicant does have criminal history. The criminal history discloses assaults, breaches of orders with no convictions and the imposition of fines. Based on that history alone, the Working with Children Act requires the PSBA to issue a positive notice unless the case is exceptional. Upon review, the tribunal must consider the matter on the same basis.
The criminal history, though a factor, is not the primary concern for the decision-maker in this matter.
One might reasonably ask the question ‘how could the PSBA, or the tribunal upon review, possibly consider allowing someone who is the subject of a current child protection order to have a blue card?’
Of course, the applicant is required to have a current blue card to work as a schoolteacher. She is now 40 years of age. She commenced her university degree in her 30s and about four years ago, she obtained registration as a schoolteacher. Since then she has worked as a schoolteacher. She initially obtained a blue card. The holder of a blue card must apply for renewal on a regular basis. It was during the renewal process that the Public Safety Business Agency (PSBA) issued a negative notice. The negative notice issued on 27 April 2015. On 14 May 2015, the applicant lodged an application to review the decision, which is now before the Queensland Civil and Administrative Tribunal by administrative review.
The applicant says she should receive her blue card because she is a good and capable teacher, has not been cited for any issue of concern involving children under her care, and she has received ongoing support and guidance.
Prior to and since the child protection order was made, the adult has received the benefit of a considerable amount of counselling and support from a psychologist.
The applicant also produced a number of favourable witness testimonies in support of her good character.
The applicant says she worked hard to obtain her degree and become qualified as a schoolteacher. She says she will need to retrain or reskill if she does not have a blue card. That issue is not of concern to the tribunal. The sole issue of concern is to do with the protection of children. One of the reasons that the adult is receiving ongoing support from a psychologist is that she has behavioural issues, which need to be addressed. The psychologist gave extensive evidence at the hearing of this matter. She spoke positively of the applicant, said that she is a suitable candidate for a blue card, and should receive a blue card. The psychologist said the applicant is a person who can work with children safely. In fact, the psychologist went so far as to say that, in her view, there are no good grounds at all to consider denying the applicant a blue card.
It is noted the same psychologist did give evidence at the child protection hearing. The applicant says that she withdrew her objection to the imposition of the child protection order when the hearing went into a second day, as she was unable to continue with the litigation due to financial reasons. However, by that time the magistrate had heard the evidence of the psychologist in support of the applicant.
The allegation of common assault involved the alleged assault of the then 10-year-old child by his mother, the applicant. Police allege the assault occurred when, on a day at the beach, the applicant tried to squeeze a stye on the child's eye. The offender allegedly grabbed the child around the throat and punched him in the face after he resisted her attempts. The mother was drinking alcohol, although she told the tribunal at the hearing that she had only had one drink. The investigation by police uncovered sufficient evidence to enable the matter to proceed and as a result the offender was charged. The child gave an interview to police that outlined the offence and other issues involving the offender. The child made disclosure of previous incidents involving the alleged offender. The child was observed to have injuries after he tried to find a place of safety on the night of the assault. The report writer refers to various matters involving the Department of Child Safety. Following the alleged assault, the mother abandoned the child at the beach. She went home and showered. She was very upset by the incident.
The PSBA, and the tribunal upon review, must consider the issue of abandonment.
The applicant says that her son was accustomed to making his own way around the neighbourhood. She says that when she left him at the beach she had no concerns about his safety. She says she was too upset to stay. She does say however, that she made some enquiries of her mother and was concerned about her son's welfare.
The psychologist, who gave evidence on behalf of the applicant during the child protection hearing, and at this hearing, has provided the tribunal with a report. In it, she said she has provided the applicant with the benefit of sessions on a regular basis since 2012. The applicant had been a client of the practice with another psychologist prior to that time. The applicant had depression and an adjustment disorder after the demands of her workload became overwhelming. The psychologist says the adult did originally present with significant anxiety and personality characteristics that can have an alienating effect under stressful situations. Currently she does not have depression and is managing her life, as difficult as it is, well enough that she does not meet criteria for any other diagnosis. The applicant no longer takes antidepressant medication.
In response to the question of the extent to which the applicant has insight into the impact that her behaviour has on children, the psychologist says that the applicant has some insights into how her behaviours affect others, not just children. The main problem lies with family relationships and relationships with the child protection department. There have been no issues in work situations, both school and sport. The psychologist proffered an opinion in relation to whether any of the risk factors, or triggers, remain present that could contribute to a risk of similar behaviour. The psychologist says that the applicant has matured over the last five years and has better control and judgment than in the past. This is a function of both therapy, and completing her degree and successfully obtaining registration to teach. The psychologist says that the applicant is better able to control her impulsivity and consider both short-term and long-term consequences. The psychologist says that there are now protective factors that include ‘having the qualifications for a career, the ability to access support outside the family – as in professional support, and a willingness to listen to suggestions and advice from a trusted adult’.
The psychologist is of the view that the adult does undertake preventative strategies to reduce the risk of repetition of behaviours. In this regard, the psychologist refers to the adult obtaining assistance from her counsellor and psychologist when under stress. She said ‘this serves as a safety valve and support’. Ultimately, the psychologist says:
‘As her long-term Psychologist and support person I have seen her transition from a very impulsive and highly anxious young woman to a more mature woman struggling to keep her career and family together. I am not blind to her personality issues and “flaws” but I am also aware of the progress she has continued to make throughout a very difficult time when it appeared to her that she could lose everything of importance to her. She gets no consistent support or validation from, her family of origin who have had similar issues throughout their lives. I have perused the documentation provided to (the applicant) with the allegations and comments by neighbours and feel the need to comment that so much of the “case” brought against her is hearsay. She has not been convicted of assault against her son. Her son is currently being assessed for Autism Spectrum Disorder after it was suggested by the school he attends’.
At the hearing of this matter, the psychologist gave valuable assistance to the tribunal. The psychologist does not believe that the applicant is a danger to children in general. She says that following the sessions they have had together she can say the adult is now aware of choices and options available to her, particularly in circumstances where she is now better able to deal with sessions and situations. They have developed behavioural techniques and strategies to assist. During the sessions, the psychologist and applicant have considered how the applicant will deal with stressful situations. She is better managing her confusion and her reaction, typically by raising her voice, if she feels ‘she is not being heard’. The psychologist identified that the adult is not known to be aggressive, however if she is confronted with an escalation by another person, then she herself will escalate. The psychologist says her extended family situation does not help her. The psychologist is of the view that the adult has gained insight. Importantly, the psychologist did say that the applicant could act in a professional manner when in a professional situation, such as a classroom setting. It is however at home where the problems lie. The psychologist states that she takes the allegations made against the applicant ‘with a grain of salt’. She believes that the department has been overly zealous in its actions by applying for the child protection order and acting upon it generally.
According to the psychologist, the adult has been impulsive in the past but is no longer impulsive and stops to reflect when necessary. The change in this regard, says the psychologist, is significant and it was when the court made a child protection order that things deteriorated badly. The adult applicant has developed strategies to sit, think, and consider her actions. She does receive other professional supports and this is important to her. She attends Richmond Fellowship PA and she receives ongoing advice to deal with stressful situations.
The psychologist is of the view that the applicant can work adequately with children by removing herself from a situation and seeking help from others. In such a professional setting, she can obtain help and act in a professional manner. The psychologist said that if the adult had the same support at home she could have done that as well.
In terms of her personality, the psychologist says the applicant is not obstructive, has tried to work with the Department of Child Safety, has had to deal with situations and has done so in a responsible manner. She does believe that the adult has embraced the recommendations made by people who are providing her with assistance. She feels that the only issues of harm involving children have been in relation to her son and a ‘tangle with a 12-year-old son does not mean that flows over to other children’. In essence, she felt that the investigations by police and the Child Safety Department have not identified some of the many factors that were built into the case. I have some difficulty in accepting that the applicant has not been obstructive or tried to work with the Department. For example, included in the applicant’s submissions is a copy of correspondence between her and the Department, which includes an e-mail from her addressed to the departmental case officer dated the 11th of December 2014 in which she says (amongst other things) "You leaving us unsupervised to get petrol is not doing your job supervising so making lies up about me being short tempered is not okay and the tolerance level of any mother is different so you are personally attacking me and my interpersonal skills and my boundaries and this is not okay grounds for you to restrict contact so absolutely disagree with your lies!”
A blue card is fully transferable. That means the holder of a blue card can work with children in a public setting, in a professional setting, or a private setting. For the most part, I accept that the applicant worked well with children in her professional setting. I do note however, that she had issues of stress that occurred when she was unable to cope with the demands of her workload. I also note the psychologist referred to the applicant being able to work in a professional setting when able to call upon assistance and effectively take time out. That might not occur in her current setting, as a single mother, where she cannot call upon others to assist her at the point of greatest stress. It is noted that she does not work well with her extended family, according to the psychologist, although the applicant did say that her mother is in support, and her mother did provide a letter of support to that effect.
I am not satisfied that the applicant is a person who should be the holder of a blue card, at least, at this time. The evidence of the psychologist, though very helpful, does not clearly identify how, and to what extent, the applicant will appropriately deal with situations that involve considerable stress in a private setting. The psychologist said that the applicant’s circumstances deteriorated when the magistrate, by court order, placed the applicant’s child into the custody of the Department of Child Safety; effectively removing the child from her day to day-care. Prior to that time, her situation must have deteriorated badly, to the point where the Department took her child from her in the first instance. The psychologist has confirmed that the adult has improved and is still improving.
To my mind an order allowing the applicant to have the benefit of a fully transferable blue card which will enable her, amongst other things, to work with children in a private setting, does not sit comfortably with the fact that there is an existing order, made by the Court specifically designed to protect the applicant’s own child.
I am not satisfied that the applicant has appropriately identified long-term and short-term risk factors involving children. I am concerned that her past behaviours may continue.
I find that this is an exceptional case. The protective factors do not outweigh the negative factors in this case. It would not be in the best interest of children for a positive notice to issue.
The tribunal confirms the decision of the chief executive officer of the Public Safety Business Agency to issue TBM with a negative notice.
I choose to de-identify this decision on the basis that identification of the applicant identifies, or is likely to lead to the identification of, a child who has been harmed by a parent[3]. The tribunal is satisfied that it is contrary to the public interest to release identifying information regarding the applicant and his family. The requirements of openness and accountability are maintained with this non-publication order. Public interest is satisfied by permitting public access to details of the decision and reasoning behind it.
[3]Child Protection Act 1999 (Qld) s 189(2)(a).