DS v Director-General, Department of Justice and Attorney-General [2023] QCAT 157

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DS v Director-General, Department of Justice and Attorney-General [2023] QCAT 157 PARTIES: DS (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML 537-20 MATTER TYPE: Childrens matters DELIVERED ON: 3 May 2023 HEARING DATE: 25 January 2023 HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is exceptional within the meaning of Section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside, and replaced with the decision that it is not an exceptional case. The publication of the contents of any document or thing filed in or produced to the Tribunal, and any evidence given to the Tribunal by any witness, other than as published in these Reasons, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – whether exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice – where applicant has a criminal history in relation to drug and property-related offences – where applicant is a transgender woman – where -- 1 of 8 -- 2 applicant expressed remorse for her offending – where the applicant has had counselling and sought medical assistance – where the applicant wishes to work as a peer support person Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 APPEARANCES & REPRESENTATION: Applicant: A Balzamo of Counsel Respondent: C Massingham (Solicitor, Blue Card Services) REASONS FOR DECISION [1] DS was issued with a Positive Notice, and a Blue Card, on 7 August 2017. On 4 March 2020, the Director-General, Department of Justice and Attorney-General (the Department), decided to cancel her positive notice and issued a negative notice. [2] On 15 December 2020, DS filed an application to review the decision of the Department made on 4 March 2020. [3] The matter was initially set for hearing on 7 June 2022, which was vacated, and it was subsequently heard by me by way of oral hearing on 25 January 2023. Reasons of the Department [4] In its reasons dated 4 March 2020 the Department noted that DS had been convicted of an offence other than a serious offence or a disqualifying offence, as defined in the Working with Children (Risk Management and Screening) Act 2000 (the Act).1 [5] It noted that section 221 of the Act provides that a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice.2 [6] DS appeared in the Brisbane Magistrate’s Court on the 14th of February 2019 in relation to 11 charges stemming from a chain of events which occurred on 9, 17 and 30 September 2018. [7] On five of the charges, no conviction was recorded, and DS was fined $500. Those charges were as follows: (a) unauthorized dealing with shop goods (maximum $150) (on 9 September 2018) (b) possessing dangerous drugs (on 17 September 2018) (c) possessing utensils or pipes et cetera that had been used (on 17 September 2018) (d) obstruct police officer (on 30 September 2018) 1 Reasons for the decision to issue a negative notice, 4 March 2020, [5]. 2 Ibid [2.3]. -- 2 of 8 -- 3 (e) unauthorised dealing with shop goods (maximum $150) (on 9 September 2018) [8] The unauthorised dealing with shop goods charges related to her having entered two retail stores, and having selected a number of clothing items which she then concealed in her backpack, and having left the stores without paying for the items. [9] DS had then posted a photograph on Instagram of the stolen items on her bed with the caption: ‘Three cheers for shoplifting!’. She posted comments in an accompanying conversation that ‘stealing from a corporation was ethically sound’, and that she was ‘an anti-capitalist anarchist’. [10] The charges for possession of dangerous drugs and utensils related to items found at her residence when police executed a search warrant and located a jar filled with cannabis in the freezer. [11] The obstructing police charge related to events on the night of 30 September 2018 when she was placed under arrest outside her house, and tried to push a police officer aside to return to her house. [12] On the six other charges, no evidence was offered. Those charges were: entering premises and commit indictable offences; permitting use of place; stealing; possess anything for use in the commission of crime defined in part 2; enter premises and commit indictable offence; stealing. [13] In the photograph which DS posted on Instagram, drug items were visible, being a ‘bong’ and what appeared to be lines of cocaine on a mirror. [14] The Department considered that her conduct was of direct relevance to her eligibility to work with children, as it raised serious concerns about her ability to act in the best interests of children, to create a safe and protective environment, and to present as an appropriate role model to them. The Department concluded that it was satisfied that continuing DS’s blue card was not in the best interests of children and young people at that time. The hearing [15] Oral evidence was given at the hearing by: (a) DS (b) Dr. Rosevear (c) LK - the partner of DS (d) Todd Milham - the Director of ‘A Better tomorrow’, a NDIS service provider (e) Andrew Tolley – the employer of DS at ‘Brook Red’ a community-based organisation (f) Kristy-Lee Horswood - a friend of DS DS [16] DS identifies as a female. She is currently 28 years old. She had been brought up as a male. She is involved in the Transgender community in Brisbane. [17] She said that she has been sober of drugs for four years, and used to have a problematic relationship with alcohol. -- 3 of 8 -- 4 [18] She said that she was still described herself today as an ‘anti-capitalist anarchist’ and explained that related to rights, and to the organising of structures of power so that people collectively make decisions. [19] She said that she would not now classify shoplifting as being justified by anarchism, as it has the capacity to harm workers and business owners. [20] She said at the time of the shoplifting the posts that it was ‘a lot about’ where she was then, and where she is now, which is quite different. [21] She said that she does not have full memory of her interaction with police in relation to their investigation into her shoplifting, as she might have been affected by cannabis at the time, and agreed that she wasn’t cooperative with police officers – but said that she does not have the same attitude now. [22] She said that she had not used cannabis since about February 2019. [23] She said that she was bullied at school and suffered a severe mental breakdown in 2016 when she ran away, and did not get any help at the time. [24] She said that she had been in a stable relationship with her partner LK for four or five years. [25] She said that she does paid work as a support worker with ‘Brook RED’, ‘A Better Tomorrow’, and as a consultant for lived experience with the Department of Health. [26] She said that she is still on medication for hormone therapy for gender transition; migraine medication; non-stimulant ADHD medication; and mood stabilisation. The ADHD and mood stabilisation was prescribed by Doctor Newman, and Doctors at ‘Stonewall Medical Centre’ prescribed hormone therapy and migraine medication. [27] She said that she had experienced suicidal thoughts in the past, and had thoughts of suicide without thinking of carrying it through, and was not at any such genuine risk now, and the last time she had such thoughts was in 2020. Dr. Rosevear [28] Dr Rosevear works at the Stonewall Medical Centre. He has had an extensive career working in the fields of alcohol and drug recovery, and working with male and female victims and perpetrators of sexual abuse. He has been recognised with numerous community awards. [29] He provided counselling to DS which he described in a report as follows:3 I have counselled (DS) on 15 occasions in relation to personal recovery and adjustment issues. The most focused counselling period was 11 sessions from 28-3-2018 to 17-9-19. (DS) identified around that time that there was a significant amount of drug use, especially amphetamines and life was often chaotic. (DS) expressed feelings of hopelessness and worthlessness around that time and we specifically addressed the past experiences and self-depreciating beliefs that were a threat. 3 Letter from Dr Rosevear, 28 July 2022, p 1 -- 4 of 8 -- 5 (DS) was very proactive in honestly dealing with multiple past issues and also Gender Affirming Treatments in Transition. We built trust, rapport and mutual respect through those times. [30] Dr Rosevear noted in the report that as well as seeing him, DS saw Doctor James Allen at the same practice, and had also sought help from psychiatrists and psychologists, and engaged with a DBT group at Belmont Hospital to gain new skills to process issues in healthy ways and change past self-sabotaging, relief-seeking behaviour, which has been helpful in moving past drug use as an old relief strategy.4 [31] He described DS in the report as having a ‘proactive recovery and current healthy approach to life and relationships’ and commented that:5 I know (DS) has a lot to offer and I hope that the past can be a source of wisdom and empathy to help others and (DS) have a better, healthier life. I note that despite the past charges, they didn’t directly involve children and my knowledge of (DS) is that (DS) would never want to abuse a child. [32] Dr Rosevear gave evidence at the hearing. He described the medication which he prescribed as being gender reaffirming medications, and was not being prescribed other mood altering drugs at present. [33] He said that his view that DS does not pose a risk to children was based upon his experience of having worked with sex offenders in prisons for 30 years. He described DS as having been very honest with him. [34] In relation to DS’s mood, he said that she was much more stable as to mood, and he saw a greater sense of maturity, wanting to help other people, and that in the five years since he had seen her, he had seen great progress in DS. His last contact with her was in December 2022, and at that time she was drug-free and coping. [35] A report was provided from Doctor James Allen dated 20 September 2021, which noted at the outset that it was a letter of support for the application by DS for a blue card. He was not available to attend and give evidence. He said that he had regularly seen DS since 2 January 2020, and that DS continued to engage positively and proactively with her health care. His view was that she had addressed her former issues as follows:6 (DS) has invested a significant amount of personal and financial resources into treating their mental health and has engage positively with this throughout. (DS) is also in a long-term stable relationship and has stable accommodation on a conventional private lease. They also have stable employment in the human services sector as a peer support worker at a community drop-in centre – Brook RED. As such (DS) has significantly addressed the root causes of their previous criminal offending behaviours. LK [36] LK said that they were employed in the information technology area, had known DS since 2018, and had been in a relationship with her since about October 2019. 4 Ibid p.2 5 Ibid p2 6 Letter Doctor James Allen, 20 September 2021, p 2 -- 5 of 8 -- 6 [37] LK had observed DS interacting with children, with his younger siblings, and described the interaction as being in a very lovely way. Todd Milham [38] Mr Milham is the director of ‘A Better Tomorrow’, an NDIS service provider which provides support recovery services. [39] He had seen DS with his own children, and described her as being very loving and caring with children. [40] He described DS as having ‘done remarkably well getting things together’ and noted that she was very strict with her medication regime. Andrew Tolley [41] Mr Tolley is a senior peer worker, and the Centre Manager, at Brook RED, and noted that DS had started work there in March 2021. He was aware of her previous drug use and criminal history. He noted that as a ‘lived-experience’ organisation, that to be a peer worker you had to be able to express yourself to others. Kristy-Lee Horswood [42] Ms Horswood said that she had known DS for three years, and that when she met her it was to assist her with her sobriety. She said that she had spent a lot of time supporting people with drug and alcohol issues [43] She described DS as a close family friend, and was comfortable with DS being with her 11-year-old special needs child. [44] She described DS as having completely turned her life around, from someone who needed help, to someone who helps others. Discussion [45] A reading of the criminal history of DS, as to events which took place in late 2018, raises significant issues as to her drug use, apparent criminal behaviour, and stability. [46] It is necessary however to place DS’s actions in the context of her past life and personal development. [47] It is clear that DS had a difficult and troubled adolescence. She was bullied at school. She struggled with her gendered identity. These led her to using alcohol and drugs inappropriately, having mental health issues, and experiencing thoughts about suicide. [48] She has made dramatic and significant changes to her life, and has sought appropriate professional assistance from qualified professionals. Significantly, she has transitioned to adopt a female identity, and has begun a new phase of her life that is stable and productive. [49] I was impressed by the evidence of DS and of her witnesses. They gave a cohesive description of DS, both as to her past and present demeanours, that was consistent and understandable. [50] Doctor Rosevear’s evidence was compelling in providing an affirmative appreciation of the development that DS had made in addressing issues as to her previous drug use and mental health. -- 6 of 8 -- 7 [51] Whilst Doctor Allen was unavailable to give evidence, and care must therefore be attached to the weight to be attached to his evidence, his letter was consistent with the views of Doctor Roseveare, and to that extent can be considered supportive. [52] DS is in a stable relationship with her partner LK, who impressed me as an intelligent and careful person who had no illusions as to the previous difficulties that DS had encountered, but was strongly supportive of her, and of the contribution she now made to helping others. [53] The persons who worked with DS gave evidence as to her valuable ability to work as a support worker due to her lived experience, and caring personality. [54] The criminal activity which was addressed by the Department in their reasons is of concern. DS stole property from a store, and then boasted of doing so on social media, justifying her action on political ideological grounds. [55] The situation that DS was in at that the time is complex however, as she was then experiencing a period of upset, and there is reference in the evidence to her having taken the clothes to have something nice to die in. She was at the time in an unsettled state. [56] The sentencing remarks of the Magistrate on 14 February 2019 recognise the circumstances of DS at the time, as follows:7 I take into consideration the circumstances in which your offending commenced, particularly unauthorised dealing with shop goods. What followed by you, even though that was – it was a lapse in judgement, was much more significant lapses in judgement in terms of advertising the fact that you’d committed those offences. I don’t know – when the facts were being read out, I just thought how stupid that was. But that may well – those decisions may well have been informed by the fact that you were suffering from depression at the time or – and had been for a very long time, and that the manner in which she dealt with those, you know, who were making comments to you and the manner in which you dealt with police in the ensuing weeks, as I said, may well have been affected by that. You’re 23 years of age. You have no criminal history. All matters in your favour. Also, to your credit, you realise that you did need to do something about those issues. You’ve been attending a general practitioner, undergoing counselling. You’re compliant with the medication – with medication and you’ve now engaged in some counselling in relation to drug use. You’ve been – held down a job the last two years, albeit just casually, and you do have some goal – some future aspirations. I do need to balance all of those things. [57] The Magistrate imposed one fine for all charges of $500, and decided that because of her young age, the circumstances of the offence and her lack of previous convictions, that no convictions were recorded. [58] DS now acknowledges that it was wrong to take the clothes, and whilst she still maintains views which she described as anarchistic, as to a preference for consensual 7 Sentencing Remarks, Brisbane Magistrates Court, 14 February 2019. -- 7 of 8 -- 8 political decision-making processes, she does not defend her former actions in shoplifting. [59] A consistent view was expressed by the witnesses that DS posed no risk to children, and that she has a very good manner with children, which I accept. [60] This is a situation of a woman who has made sweeping changes to her life, and has settled into a lifestyle in which she now feels comfortable, can live without the improper use of alcohol or the use of illegal drugs, has found a stable career in helping others, and has formed a stable personal relationship. [61] I am satisfied that this is not an exceptional case in which in which it would not be in the best interests of children for DS to be issued with a positive notice. [62] I set aside the decision of the Department, and substitute a decision that this is not an exceptional case in terms of Section 221 of the Act. [63] It was submitted for DS that a non-publication order should be made, in order to not raise any risk to her mental health, and the Department agreed that such an order was appropriate. I accept that such an order should be made, and make an order under Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) accordingly. -- 8 of 8 --