BAS v Director-General, Department of Justice & Attorney-General [2018] QCAT 306

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BAS v Director-General, Department of Justice & Attorney-General [2018] QCAT 306 PARTIES: BAS (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE & ATTORNEY (respondent) APPLICATION NO: CML075-18 MATTER TYPE: Children’s matters DELIVERED ON: 7 September 2018 HEARING DATE: 24 August 2018 HEARD AT: Caloundra DECISION OF: Member Clifford ORDERS: 1. That the decision of the Director-General, Department of Justice & Attorney-General that there is an exceptional case for BAS under section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and a new decision is substituted that there is not an exceptional case for BAS. 2. Publication, other than to parties to this proceeding, of the applicant’s name and name of her child, is prohibited under s66 of the Queensland Civil and Administrative Act 2009 (Qld). 3. Publication of the documents obtained from the Director-General, Department of Child Safety is prohibited save as was and is necessary for the parties to engage in and progress these proceedings. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for review of decision – where respondent cancelled a positive notice and issued a negative notice for a blue card – where non-serious offence – whether an exceptional case FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER -- 1 of 7 -- 2 MATTERS – application for review of decision – where respondent cancelled a positive notice and issued a negative notice for a blue card – where non-serious offence – whether an exceptional case Queensland Civil and Administrative Tribunal Act 2009 Qld Working with Children (Risk Management and Screening) Act 2000 Qld Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. APPEARANCES & REPRESENTATION: Applicant: BAS, Self- represented Respondent: Mr I. McCowie, Legal Officer REASONS FOR DECISION [1] BAS is a 21 year-old woman with a 2 year-old child. They live in private rental accommodation. BAS works part-time and is currently studying a Bachelor of Nursing at University. BAS had a disrupted and difficult childhood but performed well at school and finished Year 12. It was in Year 12 BAS entered a relationship with a man to whom she became pregnant and with whom she alleges was abusive during the relationship and during the times he had access with his daughter after the relationship had been terminated. BAS enrolled in a program for young mothers (STEMM) when in the 16th week of her pregnancy. Within that program BAS commenced a Certificate III in Early Childhood Education and Care and BAS was issued a Blue Card on 16 October 2016. However in May 2017 BAS was charged with the offence of Dangerous Operation of a vehicle, an incident during which her child and another were in the vehicle. BAS was convicted of the offence in August 2017 and the respondent consequently cancelled her Blue Card on 27 February 2018. BAS seeks review of that decision with the Tribunal. Legal framework [2] The Working with Children (Risk Management and Screening) Act (Working with Children Act) prescribes reviewable decisions, outlines whom may apply for review and what the Tribunal may or may not do in relation to the review.1 The Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that the Tribunal may either confirm the decision or set it aside. 2 1 Working with Children (Risk Management and Screening) Act 2000, sections 352 and 354. 2 Queensland Civil and Administrative Act 2009, sections 17 - 24. -- 2 of 7 -- 3 [3] When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.3 The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non- serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. If a negative notice is issued, the applicant cannot apply to have the notice cancelled for a period of two years. [4] The Working with Children Act does not define exceptional case, however, the Queensland Court of Appeal in the matter of Maher & Anor,4 provided guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case. The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations. 5 [5] BAS was issued a Blue Card in October 2016 and the respondent cancelled that positive notice on 26 February 2018 following BAS’s conviction for a non-serious offence. The respondent was of the view that BAS’s case was an exceptional case in that it would not be in the best interest of children for her to hold a positive notice and a negative notice was issued. The issue for the Tribunal therefore is to decide whether BAS’s case is an exceptional case. Material and evidence considered [6] BAS provided the Tribunal with her application and relevant attachments and life story with relevant attachments and references. Three referees appeared as witnesses at the hearing. BAS was given an opportunity to ask questions and to make oral submissions. [7] The respondent provided the Tribunal with its Reasons for Decision and relevant attachments, referred to as BCS 1 – 43 and documents obtained under a Notice to Produce from the Department of Child Safety, referred to as NTP 1 -75, along with a CD recording of the sentencing remarks of the sentencing Magistrate on 23 August 2018. The respondent had the opportunity to cross-examine BAS and the witnesses. The respondent made oral final submissions along with handing up written submissions. [8] It was uncontested BAS was charged with the non-serious offence of Dangerous Operation of Vehicle following the attendance of daredevil/stunt riders event in May 2017 with her friend and their respective child. Whilst the Police brief and BAS’s 3 Op.cit, Working with Children Act, sections 6 and 360. 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 5 Op.cit, Working with Children Act, section 226 (2). -- 3 of 7 -- 4 statements make different emphasis to particulars of the charge, BAS pleaded guilty to the charge and was convicted of the offence. BAS was fined $1,000, ordered to be of good behaviour for 12 months, expiring at the day of this proceeding. BAS’s driver’s licence was suspended for a period of 6 months. A conviction was not recorded. [9] In summary the respondent’s main concern with BAS’s case, and in its decision to find that her case was an exceptional case in that it would not be in the best interest of children for her to be issued with a positive notice, rested in the main on the fact that BAS’s young daughter and her friend’s daughter were passengers in the car when both BAS and her friend took turns driving the car in a dangerous manner, sitting on the outside of the car and recording this incident on their mobile telephones. These circumstances, along with the recent timing of the conviction and that a good behaviour bond still in place at the time of the respondent’s decision, posed an unacceptable risks to BAS’s ability to properly protect children. The respondent also raised other potential risk factors in that BAS’s relationship with the child’s father was subject to Domestic Violence Orders and that there had been Child Safety notifications in relation to some issues arising from that relationship and the dangerous driving offence. The respondent also referred to the sentencing remarks of the Magistrate in that the actions were ‘unsafe and risky’ and ‘completely inappropriate’. [10] Whilst the respondent noted the existence of protective factors, such as positive referees and the sentencing Magistrate’s remarks that she accepted the offending was a ‘one-off incident and that [BAS] was going to be a model citizen’, and that BAS was subject to particular pressures in her life prior to the offending, on balance the respondent submitted that the risks factors outweighed the protective factors and that BAS’s case was exceptional in that it would not be in the interest of children to issue a positive notice. [11] BAS’s life circumstances were outlined in the documents and the testimonies provided by BAS and three witnesses. Further details were highlighted in Child Safety documents. BAS’s personal circumstances are generally uncontested. In summary, BAS had a disrupted and traumatic early childhood, but performed as an average secondary school student engaging in a variety of school activities. In 2014 when in Year 12 BAS formed a relationship with a man with whom she became pregnant in 2015. BAS describes the relationship as violent and claims violence escalated during the pregnancy. BAS was living with her mother during this period and seeing her then boyfriend a few times each week. BAS enrolled in the STEMM course in October 2015 after hearing about the course through her doctor. BAS’s daughter was born in April 2016. BAS testified she only lived with her daughter’s father for around one month in mid- 2016. BAS testified she left the relationship because of violence and currently has a no contact DV Order in place. BAS testified her former boyfriend left the country in February 2017 and returned around December 2017. BAS testified her former boyfriend then commenced child custody proceedings and he currently has 2 hours of supervised contact each week and both have agreed to be subject to drug testing and to undertake a 6-week parenting program. [12] BAS testified that the circumstances of the offence in May 2017 was a ‘stupid decision’, she testified she does not hide from it, but contextualised the incident as feeling free and taking advantage of that freedom fresh out of a violent relationship. BAS claims she has grown from the incident acknowledging and with a deeper -- 4 of 7 -- 5 understanding that there are consequences for everything. BAS testified she accepts that there were risks for the children involved and that the incident is the biggest regret of her life. BAS confidently opined that such an incident would never happen again. [13] Ms Carolyn Twiggs, STEMM course Counsellor, described the course as a holistic service providing education, support, counselling and parenting skills to young women. Ms Twiggs testified BAS engaged in counselling and was supported through domestic violence issues. Ms Twiggs confirmed BAS also undertook study through the program, and graduated with a Certificate III in Early Childhood Education and Care. Ms Twiggs described the program framework as ‘attachment’ focussed between mother and baby. Ms Twiggs testified that during the Certificate III course BAS concurrently commenced and then completed the Tertiary Preparation Program and BAS graduated from the STEMM program at the end of 2017. Ms Twiggs testified BAS was a ‘wonderful mother’ who had good attachment with her daughter. She testified BAS recognised an unhealthy relationship and took steps to move away. Ms Twiggs testified BAS has learned to put her hand up for support and described BAS’s growth and emotional maturity during the program and testified BAS was ‘absolutely’ a success of the program. Ms Twiggs opined BAS does not pose any risk at all to the best interest of children and described the driving offence as a lapse of judgement for which BAS appears genuinely remorseful. [14] Ms Sue Mander, a trainer in the STEMM program and who holds a Diploma in Early Childhood Education, testified BAS was a ‘wonderful young mum’ and a diligent student. Ms Mander testified during the STEMM program BAS grew from a shy and reserved person to a committed and dedicated person wishing to achieve educational goals for herself and her daughter. Ms Mander testified BAS was quickly remorseful following the driving incident and offence, and recognised the incident as a ‘moment of madness’. Ms Mander testified BAS has an inquiring mind and wants to improve, and shows a willingness to seek help. Ms Mander testified BAS is very capable to work in any child related activity and she held no concerns to risk or harm to children. [15] Ms Emma Kill, an associate Lecturer at the University BAS attends and who holds a Masters in Social Work, testified that she met BAS when BAS was undertaking the Tertiary Preparation Pathway course. Ms Kill confirmed BAS completed the course and got a direct entry into a Bachelor of Nursing Science at University. Ms Kill confirmed she was aware of the offence for which BAS was convicted. Ms Kill testified that since the incident BAS has a more mature understanding of the consequences of actions and what could have happened to her and her daughter. Ms Kill testified to the apparent genuineness of BAS’s remorse and improved insight. Ms Kill described BAS as having ‘amazing resilience’ and has shown ‘grace and maturity’ whereby she is a ‘leading example of young women’ in DV circumstances. Ms Kill testified BAS seeks support from her mother, lecturers, University counselling/welfare officers and past STEMM students. Ms Kill testified BAS has a clear understanding of the effects of DV on children and has fought to have the best protection her child. Ms Kill testified she has observed BAS interacting with her daughter and other children at field trips, University and STEMM, and described her as a ‘wonderful mother,’ caring towards other children and she testified that she never observed BAS raise her voice or put them in any harm. Ms Kill testified she had ‘no concerns whatsoever’ about BAS’s potential risk to children. [16] Whilst the Tribunal acknowledges the non-serious offence for which BAS was convicted directly involved children and is fairly recent, the Tribunal concurs with the -- 5 of 7 -- 6 comments of the sentencing Magistrate that whilst the act was unsafe and risky and completely inappropriate, accepts that it is a one-off incident against a background of personal relationship pressures and allegations of violence. There is no evidence from the Police records that BAS was under the influence of alcohol or drugs and there is record of her cooperating with Police. BAS pleaded guilty to the charge. The car was not found to be unsafe and the children were unharmed. BAS has no other criminal record. [17] BAS has set herself upon a course of self-improvement. She has extricated herself and her child from an allegedly violent relationship with support from STEMM staff and her mother. This action appears to have been executed in a short and determined manner, unlike many other cases where it can sometimes take many years to do so. This swift action indicates a protective response. BAS enrolled in a parenting course on the recommendation of her doctor early in her pregnancy. BAS graduated with a qualification in Early Childhood Education and Care, completed the Tertiary Preparation Pathway and gained direct entry into University to study Nursing Science. This success indicates BAS has completed the requisite components of early childhood education and care and has consequently acquired knowledge and skills concerning children. This knowledge adds to the protective factors in BAS’s life. BAS’s witnesses describe her as a ‘wonderful mother’ and a model to other young woman in domestically violent situations. [18] All of BAS’s witnesses are experienced and professionally involved in child and maternal support at various levels. They all strongly testified to BAS’s protective factors and her ability to seek support. All opined BAS posed no risk to the interest of children. The Tribunal accords significant weight to the testimony of these professionals and to the on-going learning and education of BAS who is still only a young woman. [19] The Tribunal was persuaded that, notwithstanding the direct involvement of children in the circumstances of the offence, in light of the highly protective factors of ongoing education, ongoing support, employment and absence of evidence that BAS is involved with drug or alcohol misuse, notwithstanding an unsubstantiated Child Safety notification of such, BAS’s case is not an exceptional case in that it would not be in the best interest of children for BAS to be issued a positive notice. Decisions [20] In the circumstances the Tribunal sets aside the decision of the respondent and finds BAS’s case is not an exceptional case and orders accordingly. [21] Furthermore, in light of the confidential and sensitive material provided by Department of Child Safety under a Notice to Produce, and the material relating to domestic violence, the Tribunal proposed that pursuant to section 66 of QCAT Act, a non-publication order be considered. The respondent did not oppose such an order and agreed it would be appropriate. [22] In the circumstances the Tribunal prohibits the publication, other than to parties to this proceeding, of the applicant’s name and name of her child and orders accordingly. -- 6 of 7 -- 7 [23] The Tribunal also prohibits the publication of the documents obtained from the Director-General, Department of Child Safety save as was and is necessary for the parties to engage in and progress these proceedings and orders accordingly -- 7 of 7 --