WJ v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 71
•5 March 2015
| CITATION: | WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 71 |
| PARTIES: | WJ (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML202-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 17 February 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 5 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Public Business Safety Agency dated 15 September 2014 to issue a negative notice to WJ is confirmed. 2. The Tribunal prohibits the publication of the names of the applicant, the applicant’s witness, WS and the applicant’s children referred to in these proceedings. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where offence of physical aggression against a child NON-PUBLICATION ORDER – where contrary to the public interest to identify names of the applicant, her witness and her children Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES:
| APPLICANT: | WJ (in person) |
| RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Ms N Taylor, Advocacy Officer (in-house) |
REASONS FOR DECISION
WJ would like to become a midwife. She requires a blue card so that she can complete her final year of nursing.
WJ presently works as an agency endorsed enrolled nurse and upon completion of her final year of ‘practicum’ in a hospital (under supervision) she will become a registered nurse. She filed her application for a blue card on 3 March 2014 with the Public Business Safety Agency.[1]
[1]WJ previously held a blue card for two years in 2005.
The relevant legislation, the Working with Children (Risk Management and Screening) Act 2000 (‘Working with Children Act’), requires any person employed or carrying on a particular business as prescribed under the Act to ‘undergo screening’. A blue card if issued is fully transferable and the applicant is able to work in any child related employment or conduct any child-related business regulated by the Act, not just the purpose for which the applicant or in this case WJ has sought the card.
The Chief Executive as part of the ‘screening’ process under the Working with Children Act may request information from police about the person applying for a blue card. In this case the Chief Executive received information from police about an incident on 18 September 2010 involving WJ and a 14 year old child and another man. WJ pleaded not guilty to two charges of common assault. On 11 May 2011, the Local Court in New South Wales dismissed one of the charges and the other charge of common assault relating to the 14 year old child was found to be proven.
WJ had an opportunity to respond to the material obtained from the police. The Chief Executive assessed WJ’s eligibility to hold a blue card and determined that a negative notice be issued. The offence of common assault is not a disqualifying or serious offence for the purposes of the Working with Children Act. WJ must be given a blue card (or positive notice issued) unless the Chief Executive or Tribunal on review is ‘satisfied it is an exceptional case in which it would not be in the best interests of children for the Chief Executive to issue a positive notice’ and a negative notice must then be issued.[2]
[2]Working with Children Act s 221(2).
WJ seeks a review of the Chief Executive Officer’s decision to issue her a negative notice. She relies on her own statements and oral evidence given at the hearing. WJ relies on the evidence of WS, her ex-husband and the father of two of her children. WJ also relies on reports prepared by a counsellor and a consultant psychiatrist in relation to counselling and treatment received by her in 2011 for anxiety and panic attacks resulting from a workplace incident during the period from 2007 to 2012. WJ has also been given an opportunity to make submissions to the Tribunal in support of her application.[3]
[3]In accordance with directions made by the Tribunal at the hearing on 17 February 2015 the parties filed and exchanged closing written submissions.
WJ is now 48 years old and her two young children (who witnessed the offending behaviour) are now aged 15 and 17 years. She has two older children aged 26 and 23 years of age. She separated from her ex-husband (WS) and father of her two youngest children approximately ten years ago.
In September 2012, WJ moved to Queensland to be close to family and friends. Prior to moving to Queensland she was living in Grafton where she worked as a nurse at the Grafton Correctional Centre from 2007 to 2012. It was during her employment as a nurse in the Correctional Centre that WJ says she was subjected to workplace bullying. WJ says that this (the workplace bullying) was the catalyst for her depression and anxiety which caused her negative reaction to the incident (the offending behaviour) on 19 September 2010.
The Tribunal on review must determine for the purposes of s 221(2) of the Working with Children Act whether this is an ‘exceptional case’ in that it would not be in the best interests of children for WJ to have a blue card.
WJ’s offending behaviour took place over four years ago and involved her ex-partner (not WS). The incident took place outside her ex-partner’s unit where he was living at the time. WJ’s two young children then aged 11 and 12 years and her ex-partner’s daughter aged 14 years witnessed the incident. One of the charges of common assault concerned WJ assaulting her ex-partner’s daughter aged 14 years. WJ entered a plea of not guilty for both charges and was found guilty of the offence of common assault with no conviction recorded. She was ordered to enter into a ‘good behaviour bond’ for six months. The other charge of common assault (relating to her ex-partner) was dismissed.
WJ does not agree with all of the circumstances of the incident as reported in the police information given to the Chief Executive. The Tribunal cannot go behind the circumstances of the offending behaviour. The police information indicates that WJ was found guilty of the offence of common assault and that injuries were sustained to the complainant child aged 14 years as being ‘swollen redness to chin area’.[4] The police information reports that there were ‘nil’ injuries reported by WJ and her ex-partner.
[4]Respondent’s material filed 24 November 2014, p PSBA-007.
The police information reports that WJ and her ex-partner were at a camping ground with three children aged 14, 12 and 11 years. WJ and her ex-partner returned (from camping) to the ex-partner’s residence and had a ‘verbal argument’ witnessed by the children. WJ sat in her vehicle and ‘pressed the horn in [an] attempt to get her [ex-partner] to move his vehicle’.[5] The police information reports that the noise of the horn ‘alerted’ the neighbours living in the complex of units to (come out and) see what was occurring. WJ’s ex-partner climbed into the vehicle to stop the horn noise. The police information reports:
Whilst climbing in from the rear of the vehicle the accused began to struggle and started punching the victim [the ex-partner] several times to which he offered no resistance. This assault was witnessed by [the ex-partner’s daughter] and as a result she has attempted to stop the assault by grabbing hold of the accused by the back of the shoulders area as the struggling pair exited the vehicle. At the time of grabbing the accused [the ex-partner’s daughter] was heard to scream “stop hitting my father”. The accused has turned and focused her attention to [the ex-partner’s daughter] and with a closed fist punched [the ex-partner’s daughter] in the underside of her chin causing her immediate pain. This incident was witnessed by neighbours also. [The ex-partner] has restrained WJ by forcing her to the ground and holding her hands [WJ’s children] observing from the unit upstairs balcony the children of WJ have become stressed yelling “don’t hurt mummy”. [WJ’s ex-partner] was heard to reply, “I’m not hurting mummy I’m just holding her stopping her from hitting anyone”.
With this [the ex-partner] has let the accused to her feet. The accused has continued to attempt to assault the victim whilst [the ex-partner] has stood in between preventing the assault.
The accused left the immediate vicinity briefly but reappeared with a broom in the driveway area directly outside the units observed by several independent witnesses and children of both parties involved.
Police were called by…and attended shortly thereafter taking report of the incident. Witness details were recorded and brief versions obtained at the scene which backed the victim’s account in detail. The accused stayed locked in the 4WD vehicle until police approached her after speaking with several persons outside…The accused was formally cautioned and spoken to in relation to the offence where she claimed it was her that was being held against her will and she [sic] had been assaulted by [sic]…The accused stated it was as a result of being held against her will and that [the ex-partner] prevented her from leaving [the residence] with her children…[6]
[5]Ibid, p PSBA-007.
[6]Ibid, p PSBA-009.
WJ gave oral evidence at the hearing about the circumstances of the offending behaviour. She said that ‘things were strained’ between her and her ex-partner the day before the incident (resulting in the offences) because she had told her ex-partner to collect his 14 year old daughter who was camping with friends. WJ talked about her concerns for her ex-partner’s 14 year old daughter who had allegedly told her mother that she was staying with her father (the ex-partner) when in fact she was staying with friends. WJ said that she and her ex-partner had been in a relationship for approximately six months at the time of the incident and described their relationship as ‘good’. WJ said she continued to see her ex-partner for approximately one month after the incident. She said they are friends but she has not heard from him for approximately eighteen months.
WJ said that the day before the incident she and her ex-partner went camping with the children and when they woke up on the morning of the incident it was raining. WJ said that she told her ex-partner she wanted to ‘go home’ but he did not want her to leave. WJ said at the hearing ‘I’m claustrophobic’. She said ‘I don’t like feeling trapped’. She also said she was ‘not happy’ and that she wanted to go home.
WJ said that her ex-partner removed the battery from her car so that she could not leave. WJ telephoned her ex-husband (WS) who spoke to her and her ex-partner. WJ’s ex-partner returned the battery to WJ’s car and they left the campsite. WJ says that when they arrived at her ex-partner’s residence she told him she was leaving. She says her ex-partner drove his vehicle in front of her car so that she could not leave the unit complex. WJ got into her vehicle and began pressing the horn of her vehicle with the intention of alerting the other residents in the complex. She said at the hearing that she beeped the horn so ‘people will come out from the units’. She said that her ex-partner climbed in the back of her vehicle and climbed over her children (seated in the back) and got into the front seat. She said that her ex-partner was ‘pushing’ her to one side trying to get her car keys. She said that she got out of the vehicle and was ‘pushing and shoving’ her ex-partner to get away from the car.
WJ did not agree (with the police information) that her ex-partner’s 14 year old daughter was also seated in the car and stated that her ex-partner’s daughter was at the steps of the unit. She said that when she was trying to get her ex-partner off her vehicle she was hit (from behind) in the back of the head. WJ said ‘I swung round and back handed whoever it was’. She said she tried to say sorry to her ex-partner’s 14 year old daughter and said she did not ‘mean to hit her the first time’. WJ said that her ex-partner slammed her into the concrete and she was screaming and crying. WJ said at the hearing when talking about the incident: ‘the whole thing was bad’.
WJ said the only physical aggression witnessed by her two children was the incident (the offending behaviour) and said that the ‘situation got out of control’. WJ said that she admitted she hit the complainant child by accident stating it was ‘not intentional’. She denies that she continued to ‘assault’ the complainant child as recorded in the police information. She also said that she did not hit her ex-partner with the broom but did ‘threaten him’. WJ also denies that there were independent witnesses and said that there was only one person who came out (referred to as the ‘old guy’). WJ also said that the witness statements were ‘false’ and there was another witness who told ‘lies’. She also said that after the incident she stayed locked in her vehicle waiting for police for approximately 45 minutes. WJ said she had a ‘massive panic attack on the floor in the rain’. She said that her children wanted to come out and help her.
At the hearing WJ talked about the impact of the incident on her children. She said that they were angry that she had to go to the police station and they were worried about her stating ‘they thought I was dying’. She said that her ex-partner would not let them out of the unit and WS (her ex-husband) took the Monday off work and drove to her ex-partner’s residence to collect her children from her ex-partner. WJ said she told her children she was ‘sorry’. She also said that her ex-partner was ‘trying to hog my kids’ and that he was trying to ‘coax’ them into staying (camping) but it was a ‘washout’. She said that she saw her children the following morning after the incident but did not see them again after that until approximately three weeks later. WJ said that what her ex-partner did ‘was wrong’ and that she has a lot of ‘remorse’. She stated that she ‘wishes it didn’t happen’. WJ said at the hearing, ‘I never wanted my kids to see that’.
WJ when questioned at the hearing about how with the benefit of hindsight she would behave in the same situation said that she would have called the police instead of beeping the horn because her ex-partner was blocking her from leaving. She also said that she should have talked to her ex-partner. WJ said at the hearing that her mental health played a part in the incident because at the time (in 2010) she was managing her anxiety and depression that was diagnosed in 2009 resulting from a workplace incident. WJ says in her written statement that the workplace incident was the ‘catalyst for [her] depression and anxiety which caused [her] negative reaction to the event that resulted in [her] common assault charge in 2010’.[7] WJ said at the hearing that since she has moved away from New South Wales to live in Queensland she is now surrounded by her family and friends. She said she is also in a relationship with her current partner (since 2012). She said she works in a different setting now stating that she is ‘finally free of the bullying’ and that she works with ‘helpful and kind nurses’. She described her working environment as ‘pleasant and happy’. WJ also said that she has addressed her mental health issues stating that she has had counselling (in the past) and was prescribed medication that she no longer takes. She said she has developed an interest in spiritual development, will go for walks and stated there are ‘no issues anywhere’.
[7]Exhibit 1.
WJ says in her written statement that in September 2012 she leased out her property (in New South Wales) and returned to Queensland where all of her ‘family and close friends live’. WJ says she is attending university full-time and working as an agency nurse part-time. She also says that for the past two years and two months she has ‘maintained a healthy relationship with [her] partner’ and they have plans to travel overseas in 2016. WJ says:
I do not feel I suffer any life stressors and I am happy and content where I am in my life right now. The incident that occurred was an unfortunate one off event in my life which I am truly sorry for. This is the only police event that has ever occurred in my 48 years of life. But I do believe it was a situational/domestic violence event and certainly was not a rational response.[8]
[8]Ibid.
What is an exceptional case?
The Working with Children Act does not define the meaning of an ‘exceptional case’. There are certain factors that must be considered in determining whether this is an exceptional case as required under s 226 of the Act. The factors to be considered include, amongst others, when the offence was committed, the nature of the offending behaviour and anything else that the Chief Executive or Tribunal on review reasonably considers to be relevant to the assessment of the person.
The objects of the Working with Children Act are to ‘promote and protect rights, interests and wellbeing of children and young people in Queensland’.[9] The paramount consideration in administering the Act is as set out under s 6 that the ‘welfare and best interests of a child are paramount’.[10]
[9]Working with Children Act s 6.
[10]Ibid, s 6.
In Commissioner for Children and Young People and Child Guardian v FGC[11] the Appeal Tribunal said that the meaning of an exceptional case is a matter of discretion and should not be confined to ‘any general rule’.[12] The Appeal Tribunal considered the Court of Appeal decision in the Commissioner for Children and Young People and Child Guardian v Maher[13] and said that each case should be considered ‘unhampered by any special meaning or interpretation’.[14] The Appeal Tribunal said:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[15]
[11][2011] QCATA 291.
[12]Ibid.
[13][2004] QCA 492.
[14]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].
[15]Ibid.
The Chief Executive has identified issues of concern or risks in relation to the offending behaviour, that is, acts of violence directly against a child and in the presence of other children including WJ’s own children. The Chief Executive says that WJ’s behaviour raises concerns about her ability to manage anger and exercise proper restraint when faced with personal conflict. This is relevant to WJ’s eligibility to work with children in that she may not be an appropriate role model for children and may not be an appropriate person to be trusted to care for the wellbeing and safety of children.
WJ has identified in giving her evidence that there is a reason why she reacted the way she did on the day of the offending behaviour. WJ says her diagnosed depression and anxiety from a workplace incident (in the years 2007 to 2012) caused her to have a negative response to the event in 2010. WJ says in her written statement that her ex-partner was ‘blocking [her] exit from his property with his car’ and that the police said if she called the police first ‘the tables would have been turned around’. WJ says she did not think the police would come to ‘something trivial’ and she was not to know the next ‘sequel of events and how quickly the situation would escalate’.[16] WJ says she has moved away from New South Wales to live in Queensland and is supported by family and close friends. She is also in a healthy relationship with her partner of two years and two months.[17]
[16]Respondent’s material, p PSBA-019.
[17]Exhibit 1.
In determining whether an exceptional case exists the Tribunal on review must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
In the event that the Tribunal confirms the decision made by the Chief Executive to issue a negative notice, WJ is not prevented from applying to the Chief Executive, at some future time, for a blue card to enable her to work with children.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
I accept WJ’s evidence that she is remorseful for her actions resulting in the offending behaviour involving her ex-partner’s 14 year old daughter. I also accept WJ’s evidence that she received counselling and treatment in 2011 for anxiety and panic attacks.
The reports prepared by Mardi Dunbar (counsellor) relied upon by WJ refer to a history of workplace bullying and reports that WJ was (in 2011) ‘exhibiting symptoms of Post-Traumatic Stress Disorder, generalised anxiety and a lability of mood which would suggest Bipolar Disorder’.[18] In the report dated 14 November 2011 Ms Dunbar refers to ‘Adverse Childhood Experience Syndrome’ and states that WJ grew up in extreme poverty with a violent and abusive father and that the current incident in the workplace ‘triggers anxiety and panic’.[19] Ms Dunbar recommends regular, structured social interaction. Ms Dunbar states:
I believe [WJ] would benefit from regular, structured social interaction. She needs strategies to counter her anxious reactions and the ability to develop insight into her thoughts and perceptions and to manage these effectively.[20]
[18]Exhibit 4, p 2.
[19]Ibid.
[20]Exhibit 4, p 3.
The report of Dr Christopher Danesi, Consultant Psychiatrist dated 13 July 2012 refers to the history of workplace bullying. Dr Danesi refers to a diagnosis in the report as: ‘In August 2011 [WJ] developed a Major Depressive Disorder single episode, moderate severity which led to her being off work until February 2012’.[21] Dr Danesi says that predating the Major Depressive Disorder WJ ‘suffered from an adjustment disorder with anxious mood and occasional panic attacks associated with conflict at work’.[22] WJ’s condition is reported to be ‘stable and stationary’ and she is reported to be able to continue with full time work as an Enrolled Nurse. Dr Danesi says:
Work stressors were instrumental, the substantive substantial cause for developing the psychiatric illness of adjustment disorder and later a major depressive episode. The adjustment disorder was caused by ongoing work conflict. Panic attacks in particular were precipitated by work conflict.
The development of a major depressive disorder was triggered after being held in the work space when she wanted to leave work and that hours of duty had been completed.[23]
[21]Exhibit 5.
[22]Ibid, p 6.
[23]Ibid, p 7.
I accept WJ’s evidence that she received treatment in 2011. There is however no independent evidence before me to support WJ’s evidence about her present ability to manage ‘stressors’ in her life and any ‘triggers’ in relation to her panic attacks that WJ received treatment for in 2011. WJ said at the hearing that she has not had counselling since July 2012. She said that she manages any stress in her life by going for walks in the fresh air stating that she will try to ‘get out and about’.
The evidence about WJ’s ability to manage stressors in her life is important given the history of panic attacks referred to in the reports prepared by Mardi Dunbar and Dr Danesi. WJ also says that on the day of the incident (in 2010) she had a panic attack and the workplace bullying was the catalyst for the incident. WJ gave evidence at the hearing in relation to the incident (in 2010) about ‘feeling trapped’ and being claustrophobic. There is no evidence before me to support WJ’s evidence that she no longer requires treatment for her diagnosed anxiety.
WS’s evidence is relevant to the circumstances of the offending behaviour and supports WJ’s evidence given about the workplace bullying. WS does not however support WJ’s evidence about her ability to manage stressors in her life and if placed in a situation of ‘feeling trapped’ what strategies she would now put in place to manage the situation. When questioned at the hearing about WJ’s mental health WS said that she ‘seems fine’ and stated that she is ‘happy at the moment’. WS also said that WJ is a good person and would do anything for anybody. WS also gave evidence about WJ’s private life stating that she met a fellow eighteen months (or two years) ago who turned out to be a drunk and (that) got her ‘distressed’. He said that the man was ‘violent and (was) threatening her’. He said he did not know if she was presently in a relationship and said that she does horse riding and is working.
WJ had an opportunity to respond to WS’s evidence in relation to her previous relationship. She said that WS does not know (presently) about her relationships. She said she was involved with a man who was an ‘alcoholic and (was) controlling and abusive’ and that she got out of the relationship stating that she ‘moved on’. She said at the hearing that she is presently in a relationship with a man she met on a dating website and he is also part of her support network. When questioned at the hearing about whether WJ had any witnesses who could support her evidence about having a support network of ‘close friends’ said that she lives with her 26 year old daughter and has friends she will go horse riding with. WJ also said she has her Facebook friends.
The Tribunal has carefully considered all of the circumstances in this matter and the submissions made by WJ including her evidence. The Tribunal has concerns about WJ’s evidence that would make this matter an exceptional case in that it would not be in the best interests for children to issue a positive notice.
The exceptional circumstances include the nature of the offending behaviour as being serious in that it involved a physical assault on a 14 year old girl resulting in injuries to the complainant child. The offending behaviour took place in the presence of WJ’s two young children. There is no independent evidence before me to support WJ’s evidence that she has strategies in place to manage her pre-existing anxiety and panic attacks relating to a workplace incident that she says was the catalyst for the incident in 2010 (offending behaviour). WS says the last time she attended counselling sessions was in 2012 and she no longer receives treatment for her anxiety.
The Tribunal also has concerns about the support network that WJ says she now has in place in Queensland particularly in light of the evidence before me including WS’s evidence about an earlier relationship WJ had with a man that caused her distress and the report of Mardi Dunbar that recommends ‘regular, structured social interaction’. There is no independent evidence before me to support WJ’s evidence that she has a support network and she is presently in a ‘healthy’ relationship of two years. There is no independent evidence before me about WJ’s workplace interactions and how she manages any stress in the workplace. This is also important given the history of workplace bullying that WJ says was the catalyst for the incident in 2010. The Tribunal cannot be satisfied that if WJ was again faced with a stressful workplace situation that she has strategies in place to manage her anxiety and panic attacks and if placed in a situation of ‘feeling trapped’ she will therefore not reoffend.
The Tribunal accepts that WJ is remorseful and has expressed her regret for the incident that resulted in the offending behaviour. The Tribunal must however make the correct and preferable decision and in determining whether this is an exceptional case for the purposes of s 221 of the Working with Children Act I must consider the welfare and best interests of children as being the Tribunal’s paramount consideration. The Tribunal determines that the correct and preferable decision is that the decision made by the Chief Executive Officer on 15 September 2014 to issue WJ a negative notice is confirmed.
Non-publication order
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as WJ’s children to be identified in circumstances where it would not be in the interests of justice to identify their names.
The offending behaviour concerned an incident that took place in the presence of WJ’s children. The Tribunal is satisfied that there is no public interest served by disclosing WJ’s name in circumstances where disclosure of her and her ex-husband’s name would identify her children. The Tribunal therefore prohibits the publication of the names of WJ, WS and WJ’s children.
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