W v Commission for Children and Young People and Child Guardian

CITATION:

W v Commission for Children and Young People and Child Guardian [2011] QCAT 431

PARTIES:	Ms W
v
Commissioner for Children and Young People and Child Guardian

APPLICATION NUMBER:

CML160-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

6 June 2011 and 16 August 2011

HEARD AT:

Ipswich Court House and Brisbane

DECISION OF:

Ms Gwenn Murray, Presiding Member
Mr Nathan Jarro, Member

DELIVERED ON:

24 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commissioner for Children and Young People and Child Guardian made on 8 September 2010 to cancel Ms W’s positive notice and blue card is set aside;

2. A positive notice be issued forthwith to Ms W.

3. A non-publication order be made with respect to the Reasons for the decision.

CATCHWORDS:

Suitability for blue card – assault and wilful damage convictions – whether an exceptional case exists – whether unacceptable risk exists – non-publication order

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms W (“the applicant”)

Mr Atul Dara, barrister for the applicant

RESPONDENT:

Mr Geoff Woodberry, Commission for Children and Young People and Child Guardian for the respondent

REASONS FOR DECISION

History of the application to QCAT

The applicant, Ms W was issued with a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”) on 30 September 2008.
On 6 April 2010 the Commission for Children and Young People and Child Guardian (“the respondent” or “the Commissioner”) was notified by the Queensland Police Service that the applicant’s police information had changed.
On 23 June 2010 the applicant was invited to provide submissions in response to the change in police information concerning her.
The applicant did not provide any submissions.
The applicant’s eligibility to hold a positive notice was reassessed and she was informed by the respondent on 8 September 2010 that her positive notice and blue card was cancelled and she was issued with a negative notice.
On 4 October 2010 the applicant filed an application for review of the decision in the Queensland Civil and Administrative Tribunal (“QCAT” or “the Tribunal”).
On 14 October 2010 the respondent filed with QCAT the reasons for the decision and other related documents.
On 6 December 2010 the Tribunal conducted a Compulsory Conference in the matter.
A Directions Hearing was held on 28 February 2011.
On 6 June 2011 a Hearing was held in Ipswich. On 16 August 2011 the Tribunal received and considered final submissions from the parties.

Decision under review

The applicant seeks to review a decision of the Commissioner dated 8 September 2010 to cancel her positive notice and blue card under s 237 of the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”).
The parties sought a non-publication order from the Tribunal as the applicant lives in a small community and the kinship care of her granddaughter was a feature of her application for the review of the Commissioner’s decision. The parties expressed concern that the child could be identified and the issues surrounding the need for child protection orders to be made with respect to the child could be made known. As such, a non-publication order is made.

Background

The applicant was the holder of a blue card from 30 September 2008 until 8 September 2010. The applicant’s first application for a blue card was granted by the respondent on 30 September 2008 for a period of two years. At the time the respondent was aware of the applicant’s criminal history up until that time.
Pursuant to s 312 of the Act, on 6 April 2010 the respondent was notified by Queensland Police Service that the applicant’s police information had changed. The applicant had been charged on 23 March 2010 with common assault. These charges were subsequently withdrawn on 18 August 2010.
Because of this information, the respondent on 23 June 2010 duly afforded the applicant the opportunity to make submissions about the change in the police information concerning her and why the respondent should not cancel the positive notice and blue card previously issued to her. The applicant did not avail herself of the opportunity to respond. As a consequence, the applicant’s eligibility to hold a positive notice and blue card was subsequently reassessed and by letter dated 8 September 2010 the respondent notified the applicant that her positive notice and blue card had been cancelled and she had been issued with a negative notice.
Accordingly the applicant has sought redress through the Queensland Civil and Administrative Tribunal.

The Law to be Applied

Under s 312 of the Act the Queensland Police Service will provide information at the Commissioner’s request which may include a change in police information.
Section 220 of the Act deals with the decision of the Commissioner on an application for a positive notice, namely that it must decide the application by either approving the application (a positive notice) or by refusing it (negative notice). The purpose is to ensure that persons employed in particular employment, or carrying on particular businesses relating to children, as prescribed under the Act, undergoes screening (see s 154). By virtue of s 155 of the Act, the paramount consideration in making a decision under Part 8 of the Act is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
Relevantly s 221(1)(c) of the Act provides that the Commissioner must issue a positive notice to the person if the respondent is aware the person has been convicted of an offence other than a “serious offence”.
Section 221(2) of the Act provides that:
“If subsection (1)(b) or (c) applies to the person and the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person”.
The Commissioner must issue a positive notice unless satisfied it is an “exceptional case” in which it would not be in the best interests of children to issue a positive notice. Insofar as “exceptional case” is concerned, the Act does not provide for a specific definition.
In making a determination whether or not there is an exceptional case, the Commissioner must have regard to the paramount consideration and the criteria set out in s 226 of the Act.
A discretion is conferred by s 226(2)(e) of the Act for the decision maker to take into account anything else the decision maker reasonably considers to be relevant to the assessment of an applicant.
The role of this Tribunal is to decide the matter afresh and take all reasonable steps to ensure that it has all relevant material before it. The Tribunal may have regard to relevant material that was not available to the Commissioner at the time her decision was made. For example, the Tribunal can consider evidence of remorse and insight into the offending behaviour that which was otherwise deprived of the Commissioner at the time of considering her decision.
As stated earlier, the paramount consideration in making a decision is the child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. The Tribunal, and the Commissioner, must consider the concept of “exceptional” case. What constitutes an “exceptional case” is a matter of fact and degree in the whole of the circumstances in each particular case. A body of case law has evolved regarding “exceptional case” and the Commissioner and the Tribunal have relied on the following:
(a)In Re Imperial Chemical Industries Ltd Patent Extinction Petitions [1983] VR 1, Fullager J stated:
Perhaps the best known and most frequently cited judicial statement of the indicia of ‘exceptional cases’ is in the judgement of Luxmoore J in Perry v Brown’s Patents (1930) 48 RPC 200, and in view of the arguments before me I draw particular attention to his warning that ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case . . . All these matters are matters of discretion’.
(b)In Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, McPherson JA confirmed the principle that the welfare and best interests of a child were the paramount consideration “to which all others yield”.
(c)What amounts to an “exceptional case” must be such as to “…take it out and beyond the ordinary circumstances reasonably expected to occur” as in The Marriage of Sandrk (1991) 104 FLR 394 at 399-400.
(d)The term “exceptional” was considered in Schwerin v Equal Opportunity Board [1994] 2 VR 279 at 287-288 must be “...of the nature of or forming an exception; out of the enduring cause, unusual, special”.
Further and for present purposes, in assessing whether a case is “exceptional”, regard must be had to the matters outlined in s 226 of the Act.
It was stated recently by the Tribunal in Anderson v Commission for Children and Young People and Child Guardian [2010] QCAT 671 at [14]-[19] (footnotes omitted) as follows:

[14] Further, the (former) Queensland Children Services Tribunal held, in its decision of OAA Re [2006] QCST 14, that in determining whether an exceptional case exists, the principles considered in the Family Law jurisdiction can be transferred to the child protection jurisdiction, and consideration is to be given as to whether the Applicant presents an ‘unacceptable risk of harm to the children of Queensland’.
[15] Harm is defined in the Act to ‘have the same meaning given in the Child Protection Act 1999, section 9, namely:

(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.

[16] The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Maher’s case, the Queensland Court of Appeal, at paragraph 30, adopted the submission that:
“... the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.”

[17] However, the Respondent submitted that while a standard of proof is to be satisfied, there is no ‘onus’ of proof on either the Applicant or the Respondent. There is a wealth of case law that supports this proposition with the leading authority being McDonald v Director General of Social Security.

[18] Importantly, the Tribunal is bound by section 360 of the Act to make a determination on review upon the principle that the welfare and best interests of children are paramount. This paramount principle is also encompassed and reinforced under sections 5; 6; and 155 of the Act, that also bind the Tribunal in its decision making, and it is to this consideration that all others must yield.

[19] Any hardship or prejudice suffered by the Applicant is irrelevant to this paramount principle. Further, “…any benefit which might be thought to flow to children by having access to the Applicant’s knowledge, experience and flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued”.

The Evidence

Background information about the applicant

It should be highlighted that unlike the respondent, the Tribunal has had the benefit of hearing evidence and submissions by and on behalf of the applicant in support of her application. The applicant did not provide written submissions to the respondent as she has difficulties reading and writing and therefore could not submit material. Her legal representative provided written material to the Tribunal.
The applicant stated in her Affidavit material that she also did not provide further information to the Commission in relation to the common assault charges made against her because at that time the matter was still being investigated by the police. The charges were subsequently withdrawn.
In her Affidavit material and at the Hearing, the applicant gave evidence that she is 48 years of age. She is of Aboriginal descent and considered as a respected Aboriginal person in the local community.
The applicant has lived most of her life in Ipswich since she was a teenager. She is one of a number of siblings most of whom also live in the same town.
The applicant was part of the stolen generation and she resided at an Aboriginal Mission as a foster child from when she was 10 years of age.
The applicant gave evidence that she was abused in this centre in many ways and suffered enormous mental stress and emotional negligence. Her mother was not able to care for the applicant and her siblings so she remained in the Centre until her older sister was able to remove her from the Centre. This evidence was confirmed by an Aboriginal Corporation in its letter to the Department of Communities in 2009 and provided to the Tribunal.
The applicant had four children who now range in age from their mid 20s to early 30s. Her two sons reside together and one daughter lives with her partner and mother-in-law. Her second daughter is a drug user who has spent periods of time incarcerated and her whereabouts at other times has been mostly unknown. The applicant’s relationship with this daughter has been difficult.
The applicant stated that she went through enormous hardship as a child and in raising her four children on her own as a single mother. However she said she has always had support from her extended family as is her traditional way.
She said she does not drink alcohol or smoke. She has worked throughout her life.
The applicant had been in a relationship with a man (Mr A) but they have never lived together. She said he would only come to the house to visit. She said when he was sober “you couldn’t ask for a nicer person”. However, when he was drunk he was violent and had bashed her and dragged her by her hair. She had taken out a Domestic Violence Order against him in 2008 with special conditions. She said he was a violent man and had been jailed for breaches of the Order. The applicant said she had foolishly removed the special conditions of the Order. They had reconciled briefly but she has not seen him for some time and does not intend having any further contact with him again. She has moved house and changed her phone number.
The material provided to the Tribunal by the applicant sets out a difficult relationship with one of her daughters due to the daughter’s long term drug addiction and how the applicant has cared for her daughter’s daughter (her granddaughter) since her birth. The daughter and her child lived with the applicant after the birth of the child so that the applicant could care for both of them. At this time one of the applicant’s sons and her first daughter also lived with the applicant and the extended family cared for the child and her mother. For a period she did not use drugs.
Shortly after the death of the daughter’s father, she started using drugs again as she was very close to her father.
When the child was six months old the mother left the applicant’s home with the child for a period of six months. The applicant tried to locate her daughter as she was very worried about the care of the baby. Eventually she found them and she took the baby back to live with her again.
Throughout the child’s life, the mother has continued to take the child for short periods and then return her to the applicant as she has not been able to care for her. On other occasions the applicant has found her daughter living in very poor conditions with the child and has removed the child. There were periods when both the mother and child would live with the applicant with the mother then disappearing for days or weeks at a time only returning after she was without the affects of drugs. Child Safety material provided to the Tribunal verifies this.
At the end of 2006 when the child was two years of age, the applicant sought legal aid as she was worried about the welfare and safety of the child. Child Safety was notified of the concerns as the mother was living with the applicant at the time, the child was removed from the home of the applicant.
The child remained in the care of Child Safety for about two years. During this period the applicant visited the child once each week, first with supervision from the Department. This moved to unsupervised visits then day outings.
In 2007 the applicant received legal advice that she could apply to become a kinship carer of the child. She said she underwent a very thorough assessment process with Child Safety and did everything necessary so she could become the carer of the child. She obtained a Housing Commission house and any training that was necessary.
Eventually in 2008 the applicant was approved as a kinship carer and the child has lived with the applicant since this time. They moved to a larger Housing Commission house with a garden and a better location that was conducive to raising a child.
The child’s mother has recently been incarcerated and was due for release in July 2011. The applicant’s submissions to the Tribunal are that she has remained constantly worried about the mother and her actions towards the child and concerned that she would kidnap the child from her. She said that her actions concerning some of her criminal history have been in trying to protect the child through removing her from poor conditions and unsafe environments. She said she would do whatever it took to remove the child from these situations.
The applicant told the Tribunal that her granddaughter is the focus of her life. The applicant said her reason for needing a blue card is to be a kinship carer for her granddaughter. Child Safety Services is currently seeking a long term guardianship order for the child and the applicant is making application to be her guardian.
Child Safety Services’ material confirms the applicant’s intentions and that the Recognised Entity, an Aboriginal Corporation has been consulted in relation to the case plan and orders for the child and has acknowledged that it would be in the child’s best interests to be placed with the applicant.

Criminal history

The applicant’s offending history was provided to the Tribunal, as follows:
§1980-1984 – Stealing, forgery, uttering, receiving and false pretences – conviction and fine on each charge;
§1990 – Assault occasioning bodily harm – conviction and good behaviour bond;
§1998 – Assault occasioning bodily harm whilst in company – conviction recorded and community service;
§1999 – Breach of community service order imposed in 1998 – conviction and fine;
§2005 – Public nuisance and wilful damage to property without consent – one penalty imposed convicted and fined;
§2006 – Common assault – no evidence to offer. Wilful damage – convicted and fined;
§2009 – Assault or obstruct police and wilful damage – conviction and fine on both charges;
§2010 – Common assault (two charges) – charges withdrawn.
Mr Dara submitted that none of the offences of which the applicant was convicted are defined as a serious offence under the Act. The offences committed between 1981 and 1984 were when the applicant was in her early 20s and she was convicted of minor offences.
The applicant says of the offences between 1981 and 1984 was when she was young and immature and resulted from her troubled childhood and the affects of being part of the stolen generation and being raised in a Mission where she was abused.

There were no offences committed between 1984 and 1990.
In 1990 the applicant was convicted of assault occasioning bodily harm and fined $400, she was 28 years of age at the time. The circumstances stated by the complainant were that upon leaving a hotel she saw the applicant drinking in a park. The applicant and the complainant were to have had long term animosity between them. The applicant was alleged to have asked the complainant to drink with her and she refused. An argument ensued and the applicant was alleged to have assaulted the complainant.
There were no offences committed between 1990 and 1998. The applicant stated that this goes to show that she is not an aggressive or violent person by nature.
In 1998 the applicant was convicted of assault occasioning bodily harm and received 140 hours community service. The applicant’s evidence was that her actions were a reaction to protecting her 14 year old daughter whom she found naked with an 18 year old young man. She pleaded guilty to the offence which her barrister told the Tribunal she should have contested. The applicant said she had four children and a foster child in her care at the time and she believed the court system was not sympathetic to Aboriginal women in her situation. She therefore did not contest the charge in an effort to have the matter dealt with quickly and without conflict.
There was a recorded breach of the original order in 1999. The applicant denied that she breached this order, she stated that she did complete the 140 hours sorting clothes at Lifeline and believed that there was uncompleted paper work.
There were no offences committed between 1999 and 2005.
The applicant was convicted of public nuisance and wilful damage in 2005. The circumstances of these offences were that the applicant attended a unit in an attempt to retrieve her granddaughter. She was said to be outside the unit shouting abuse, kicking at the door and swearing at the occupants to open the door to let her have the baby. The police returned to the unit to search for the baby and were told the mother and baby had left the premises. The applicant stated that she was extremely worried about the baby living in the unit with the occupants and the child was sick at the time. She said she put the safety of the baby first and was prepared to do whatever it took to remove her from the unit.
In 2005 the applicant was charged with one count of common assault and one count of wilful damage. It would seem that an argument occurred between the applicant and the complainant at the applicant’s house and there are allegations the applicant hit the complainant in the face and head. In 2006 the charge of common assault was withdrawn. She was convicted and fined on the wilful damage charge. This was a result of altercation between the applicant and the complainant when the applicant damaged the complainant’s vehicle with a small hammer.
In 2009 the applicant was convicted of one count of wilful damage and one count of assault or obstructing police. The applicant threw a brick at the complainant’s car while the complainant was driving past her. She was fined for both offences.
Police attended at the applicant’s home in April 2009 and when she was arrested by police it was alleged the applicant refused to walk to the police vehicle and gripped a nearby fences to prevent the arrest. The applicant’s evidence to the Tribunal was that her partner at the time had reported she had stolen his car. She said she had not stolen the car and thought the arrest was unfair. She said that the police officer was rough with her and unnecessarily twisted her arms around her back. She believes the circumstances were exaggerated.
On 20 March 2010 the applicant was charged with two counts of common assault. The facts alleged were that the applicant’s previous partner Mr A telephoned her and told her his car had run out of petrol. He told her to bring a can of petrol to his car.
The applicant stated that one of her daughter’s drove her to the car and when she arrived at the scene with the petrol her ex-partner and a woman were in attendance and they were very drunk. The woman’s 14 year old son had apparently driven the car as the two adults were too intoxicated to drive.
The applicant said she was upset to see the woman with her ex-partner and began to verbally abuse the applicant. The applicant said she told her ex-partner he should not have called her if he had his girlfriend with him. The ex-partner verbally abused the applicant and he slapped her very hard across her face. The applicant stated that she then threw some of the petrol at him to stop him from further assaulting her. She told the Tribunal that he is a violent man and she has been afraid of him in the past when he has chocked her and dragged her by her hair. The applicant said she also threw some petrol at his girlfriend as she was verbally abusing her and she thought she would hit her as well. The ex-partner was alleged to have grabbed the applicant by her hair and threw her on the ground and was hitting her. The applicant’s daughter is alleged to have come to her mother’s aid, pulled her away from the ex-partner and drove her home.
The applicant told the Tribunal that she thought her ex-partner was likely to report her to police so she went to the police station and reported the incident with her version of the events. After police officers interviewed the ex-partner and his girlfriend they charged the applicant with two counts of assault on 20 March 2010.
It was these charges that prompted the Commissioner to give notice to the applicant that she would be issued with a negative notice and her blue card could be removed.
The applicant reported the events and the Commissioner’s notices to Child Safety Services. This is evident in the documents subpoenaed from the Department.
The assault charges were subsequently withdrawn on 18 August 2010. Mr Dara submitted to the Tribunal that this date is crucial as the charges that triggered the negative notice were withdrawn before the negative notice was issued.
On 8 September 2010 the negative notice was issued and the positive notice was cancelled.

Exceptional case

It was submitted by Mr Dara that the applicant has undergone a kinship carer assessment. Child Safety Services were aware of her criminal history at this time. The Central Screening Unit favourably noted the facts of her entire child protection history which was limited to one ‘at risk’ matter which occurred over 21 years ago. It was taken into account that the applicant had not been charged with a violent offence or any other matter of a concerning nature for over ten years. The Central Screening Unit determined on 29 July 2008 that she was suitable to be a kinship carer and she was provisionally approved on the basis that she acquires a blue card.
The Commission subsequently issued the applicant with a Blue Card.
Mr Woodberry submitted that the fact that the Child Safety Services investigated and assessed that the applicant was an appropriate person to care for her granddaughter is not determinative of the question of whether the applicant’s case is an exceptional case in the blue card framework. The respondent considered this is not evidence that the applicant is a person who is not likely to pose a risk to other children in Queensland.
Further to this, the object of the Act is to promote and protect the rights, interests and wellbeing of all children in Queensland. The fact that the applicant is suitable to care for one child does not mean there are no risks to all children.
The respondent was also concerned that the applicant showed disregard to the 14 year old boy at the scene when the applicant was alleged to have thrown petrol at her ex-partner and his girlfriend, who was the boy’s mother. This would have been quite distressing for the boy.
There was no material submitted to the Tribunal in relation to the boy’s presence at the scene, whether he witnessed the petrol throwing event and if he did, what impact it had on him.
Mr Dara submitted to the Tribunal that the Commission was not concerned with the applicant’s criminal history until the charges of common assault. Therefore, this would seem to be “the straw that broke the camel’s back” as she was issued with a negative notice. Mr Dara asserted that the psychological reports set out that the applicant’s criminal history was understandable given her childhood and experience of abuse and domestic violence. He stated that none of the entries in her criminal history spanning 31 years suggests that it was “out of the ordinary” or exceptional.
Mr Dara said that these later charges were in fact withdrawn and should not constitute a reason for issuing the negative notice and would put her back in the position prior to charges being laid when she was deemed to be suitable to hold a blue card.
He said that the circumstances of the charges do not make it an exceptional case in view of the whole of the evidence presented and admissions made by the applicant to the police. Mr Martin, the applicant’s counsellor in fact views the applicant as herself quite exceptional as she has cared so well for her own children as a single mother and then her granddaughter and has put their safety over everything else (which is discussed further on in these Reasons).
Mr Woodberry submitted to the Tribunal that in accordance with s 226(2) of the Act, the Tribunal must have regard to certain factors where it is aware that a person has been charged or convicted of an offence such as police information and the totality of the offences.
It was further submitted that if for example a person who may have appeared to have rehabilitated, and been given the benefit of any doubt, must be reassessed where the person reoffended or is alleged to have reoffended.
The respondent’s submissions were that s 237 of the Act requires the respondent to consider all the circumstances of the applicant’s criminal history, including conduct giving rise to charges. Accordingly the respondent is required to make a decision cancelling a person’s positive notice “as if it were a decision about a prescribed notice application”.
The Commissioner was not satisfied that the applicant has demonstrated she possesses insight into the consequences of her violent offending or the triggers which have previously led to her offending. The respondent considered that the applicant is not capable of exercising proper judgement and restraint when faced with conflict in the future.
The respondent submitted that there are risk factors concerning the applicant and that her case is an exceptional one in that it would not be in the best interests of children for her to be issued with a positive notice and blue card.

Psychological Reports and Social Assessment Report

Mr Warren Martin has been providing psychological counselling to the applicant since November 2009. Three reports of Mr Martin were provided to the Tribunal: 8 April 2010, 15 December 2010 and 26 January 2011 to show the progress of the applicant over this time. Mr Martin also provided oral evidence by telephone at the hearing.
Mr Martin said that the applicant has attended 15 counselling sessions with him at one and a half hours in duration for each session. He said the applicant attends her sessions on time with him, that he bulk bills her and she is entitled to six further sessions per year through Medicare if she wishes.
The purpose of the counselling is to assist the applicant with her post traumatic stress disorder where the contributing factors have been domestic violence and abuse. In his reports, Mr Martin stated that the applicant has been subjected to significant physical, emotional and mental abuse over many years. The abuse extends over the time of her two significant relationships; her first marriage of 12 years and her five year defacto relationship with Mr A. There have been significant medical interventions to assist her recovery as well as psychological referral under a Mental Health Care Plan.
Mr Martin told the Tribunal about the applicant’s background and how she was part of the stolen generation. He discussed the issues they cover during counselling and said that the applicant is very committed to being well and happy and living a peaceful life. He said her care and love for her granddaughter is an important motivating force. She has asked to be referred to a Triple P Parenting program as she is committed to being a good and effective carer for the child.
Mr Martin said that the applicant is not a violent or aggressive person and that her criminal behaviour can be explained through a troubled childhood, growing up in a Mission with no parents and missing some vital life lessons and receiving a poor education. He thought that it was a “normal reaction considering what she has gone through in her child hood, the stress of living in domestic violence and a determination to protect her children then her grand child”. For example, Mr Martin said, her reactions to finding her naked 14 year old daughter with a young man was a protective reaction “and not out of the ordinary”. So too, was her behaviour understandable when she was trying to rescue her sick granddaughter from a harmful environment.
Mr Martin said that the applicant has come a long way since he began counselling her. He said she does not show any aggression, she copes better now than she did. He said she has developed some self confidence and has learned strategies for dealing with stress and is aware of her options. Mr Martin said she understands the triggers for stress and has made some good lifestyle choices in recent years and demonstrated how she manages life and stress much better.
The Tribunal asked Mr Martin if he considered the applicant was a suitable person to work with children and young people and if there were any risks. Mr Martin said it would be quite the opposite; that is she is much more likely to be protective and caring towards children and there is no history of her harming any child.
Mr Martin said the applicant is truthful with him. She has good insight into her past and is able to make good plans for her future. He said if a person has good insight into their transgressions they are less likely to offend. He said her offending has primarily been out of protection for her children and grand child and in self defence. She sought a Domestic Violence Order at her own volition and is showing positive signs of removing stress and aggression from her life. Mr Martin could see no risk to children and young people at all. He thought that the applicant’s progress and insight is quite remarkable considering what she has been through in her life.
Ms Bronwen Black prepared a social assessment report dated 20 December 2010 at the request of the separate representative, Mr Malcolm Kennedy in the children’s court matter concerning the long term guardianship of the applicant’s granddaughter. This report was of assistance to the Tribunal and contained current and relevant information about the applicant and her care of the child.
The report stated that the applicant has looked after and cared for many children in addition to her own, including her sister’s eight children and some foster children, both Indigenous and non-Indigenous.
The applicant told Ms Black that she was proud of the fact that she has never abused alcohol, never used drugs or smoked cigarettes. She has not consumed alcohol since her granddaughter has been in her care. The applicant confirmed this evidence to her psychologist and to the Tribunal.
The applicant was open and truthful with Ms Black and talked about her criminal history and the domestic violence that she has endured in two relationships.
Child Safety Services had a goal of reunification of the child with her mother however due to her mother’s ongoing drug use, periods of incarceration and excessive discipline the Department is seeking a long term guardianship order. It was Ms Black’s recommendation that custody of the child should be with the applicant. This was reinforced by the Recognised Entity. Ms Black found the “contact observed between the child and her grandmother was positive in nature, and a strong emotional attachment between them was evident. This strong positive attachment appears to be assisting the child with emotional regulation”.

Discussion of the evidence

The applicant’s criminal history commenced in 1981 with minor offences. There were significant gaps in the applicant’s offending over the 30 years. The Tribunal was mindful of the obligations of s 226(2) of the Act. In having regard to the following matters:
(a)In relation to the commission, or alleged commission, of the offences by the applicant -
§The offences were convictions as defined in the Act;
§None of the offences is defined as a serious offence;
§None of the offences were relevant to employment, or carrying on a business, that involves or may involve children, apart from the charges that were consequently withdrawn in 2010 when it was alleged a 14 year old boy was present. This matter is discussed further on.
The applicant’s psychologist considered her criminal behaviour was “understandable” given her history as a stolen generation child, living in a Mission with abuse and no parents to raise her. She was deprived a loving family and an education. She was a single mother. Despite the lack of parental role models and the adversity she faced, there is no child protection history recorded by the Department of Communities Child Safety Service in relation to her parenting of her children. There was one incident recorded in 1987 that was substantiated in relation to the applicant’s disciplining of her children. There have been two matters of concern that were both unsubstantiated in relation to the applicant and her grand child.
The applicant has attended 15 counselling sessions with an option to continue these sessions. The applicant told the Tribunal that she initiated the counselling as she wanted to heal her post-traumatic stress disorder and to be well and happy in her life so that she could better care for her granddaughter.

[100]Departmental material also confirms this and shows the very traumatic early years of the applicant’s granddaughter with her mother’s drug use and lifestyle. The applicant has continued to try to assist her daughter and to care for and protect her granddaughter.
[101]The respondent outlined what it saw were risk factors. These included an absence of independent expert evidence that the applicant has developed adequate and effective anger management techniques, any insight into the consequences of her offending or that she had addressed the triggers which led of her offending.
[102]However, Mr Martin’s evidence and the material from Ms Black and Child Safety Services satisfied the Tribunal of these concerns.
[103]Child Safety material states that the applicant is insightful of the needs of her granddaughter, the affects of the mother’s drug use on the child and the child’s therapeutic and health needs. The Department is also well aware of the applicant’s criminal history and had regard to the nature of the offences and sentences for each of them when the decision was made to approve her as a kinship carer.
[104]The applicant did not provide submissions to the Commissioner when invited to do so. This was because she can not read or write and could not prepare submissions herself. The police were also continuing their investigations at this time and the applicant did not have an outcome to provide to the Commission.
[105]Mr Martin said the applicant does show insight in her offending, has learned strategies to deal with stress and volatile situations and has progressed considerably in her effort to deal with her post traumatic stress disorder and stressful situations should they arise in the future.

[106]The applicant told the Tribunal that she has learnt through her counselling with Mr Martin to make better choices and decisions. Now if there are stressful or harmful situations she does not get involved, walks away from the scene and would seek help. She said she has been afraid to seek help in the past, her self esteem was low and she did not expect anyone would assist her. She said she works well with Child Safety Services and knows of people she can approach if need be.
[107]The applicant said “Warren has helped me and he has shown me different ways to cope”. Mr Martin told the Tribunal that “(the applicant) is now aware of the things that trigger stress in her and she has insight into her actions. “I can’t see (the applicant) acting detrimentally to children at all”.
[108]Child Safety Services considered the applicant to be a suitable kinship carer for her granddaughter even after the more recent withdrawn charges were apparent.
[109]The Tribunal accepts that Child Safety Services’ assessment of the applicant as a kinship carer for her granddaughter is not the same test used by the Commission to determine the suitability of a person to hold a blue card. The blue card is also transferable across child related employment so that it can not be limited for the purpose of one particular aspect, such as kinship care.
[110]The Act stipulates the promotion and protection of rights, interests and wellbeing of all children (emphasis added) in Queensland, not just one child. However it is a protective factor or an indication that the applicant is considered to be appropriate to be a carer for a vulnerable child and that she does not present an unacceptable risk to this child. Ms Black’s report also indicates this.
[111]The respondent was concerned that a 14 year old boy was present when the applicant was alleged to have thrown petrol at her ex-partner and his girlfriend, and that perhaps this is an indication of the applicant’s lack of insight into the safety of children and young people. The Tribunal also shared this concern as it would have been quite traumatic for the boy to witness this if he realised it was petrol and did not know the intentions of the applicant. The Tribunal considered this fact very carefully.
[112]This boy was also alleged to have witnessed his mother and her partner assaulting the applicant and verbally abusing her. No evidence was available to the Tribunal about the boy, if he was in fact at the scene at the time the petrol was thrown, if he witnessed the petrol throwing and assault or the impact of any of this on him. The charges were withdrawn and there is no police material available, only inferences could be drawn.

Findings

[113]The Tribunal, unlike the Commissioner, has had the benefit of receiving evidence from the applicant in support of the review of the Commissioner’s decision to cancel her blue card. This is an important consideration because of the discretion conferred by s 226(2) for the decision maker to take into account anything else the decision maker reasonably considers to be relevant to the assessment of an applicant.
[114]The benefit of the evidence presented to the Tribunal demonstrates a number of protective factors in the applicant’s favour, including:
§her truthfulness and candour about her criminal history and her insight of her past actions in stressful or harmful environments. It has also been the applicant who has at times reported her own wrongdoing to police and to Child Safety Services. She expressed remorse for her actions and could explain that at times these had been out of protection for her children and granddaughter;
§no subsequent convictions since 2009;
§her love and care for her granddaughter and her desire to be her long term guardian as evidenced by the social assessor;
§her attendance in counselling and the evidence from her psychologist about her significant progress in dealing with triggers to stress and in her journey to heal herself;
§she has taken out a Domestic Violence Order against her former partner and has not reconciled with him;
§her commitment to her culture, the embracing of her identity and seeking this for her granddaughter as evidence by the Recognised Entity;
§she has made a significant contribution in her adult life with very little support, in looking after a number of children in the extended family, including her sister’s eight children and foster children.

[115]The applicant’s criminal history relates to offences that are not serious offences as described within the Act.
[116]There was no other evidence presented to the Tribunal that would show the applicant to be an unacceptable risk to children.
[117]Pursuant to s 221(1)(c) of the Act, the Commissioner must issue a positive notice unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice to the applicant. The Tribunal has had the advantage of receiving more evidence than was before the Commissioner and is of the view that the applicant’s circumstances do not demonstrate that she is an unacceptable risk, having regard to the protective factors as identified above.
[118]The issue of risk comes back to the applicant’s convictions as there is nothing outside that which raises any specific concerns.
[119]In taking into consideration all of the relevant evidence, the Tribunal is not satisfied that this is an exceptional case in which it would not be in the bests interests of children to issue a positive notice. The Tribunal is satisfied that the applicant does not present as an unacceptable risk to children.
[120]The parties requested a non-publication order to protect the identity of the child as she is from a small community and could be identified through the facts of the case.
[121]Accordingly the orders will be as follows:
i)     that the decision of the Commissioner for Children and Young People and Child Guardian made on 8 September 2010 to issue a negative notice to the applicant and cancel her blue card, is set aside;
ii)    that a positive notice be issued forthwith to the applicant;
iii)   by consent of the parties, a non-publication order be made.

[2011] QCAT 431

24 August 2011

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Proportionality

Specific Performance