Brown v Director-General, Department of Justice and Attorney-General [2018] QCAT 223

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brown v Director-General, Department of Justice and Attorney-General [2018] QCAT 223 PARTIES: LISSA BRENDA BROWN (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML213-16 MATTER TYPE: Childrens matters DELIVERED ON: 18 July 2018 HEARING DATE: 12 June 2018 HEARD AT: Brisbane DECISION OF: Member Joachim ORDERS: The decision of the Director-General, Department of Justice and Attorney-General to issue a negative notice to Lissa Brenda Brown is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – where applicant has conviction for a serious offence – where applicant had an unremarkable childhood – where applicant had a range of protective factors – where applicant leading a law abiding life – whether her case is exceptional Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 6, s 226, s 360 Chief Executive Officer, Department of Child Protection v Scott (No 2) [2008] WASCA 171 Commens v Director-General, Department of Justice and Attorney-General [2017] QCAT 002 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 -- 1 of 11 -- 2 Franklin-Bull v Commissioner for Children and Young People and Child Guardian [2010] QCAT 632 Humphreys v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 342 Murray v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 552 Reardon v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 061 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr I McCowie REASONS FOR DECISION [1] Ms Lissa Brown is 54 years of age and lives near Laidley in South East Queensland. [2] Ms Brown sought a blue card so that she could be involved with child and young people in the mobile library work as a coordinator in the Lockyer Valley Regiona l Council. The Director-General, Department of Justice and Attorney-Genera l (Director-General) issued her with a negative notice on 12 August 2016. That means she cannot hold a blue card to work with children. Ms Brown is seeking a review of that decision in the Queensland Civil and Administrative Tribunal’s (QCAT) review jurisdiction. [3] On 8 March 2018, Ms Brown was convicted in the District Court of Queensland of ‘enter dwelling with intent by break uses/ threatens violence’ which is a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act). She was also convicted of other charges of serious assault. Ms Brown was sentenced to 12 months imprisonment for the burglary offence and 4 months imprisonment for each of the assault charges. She was released immediate ly on parole until March 2019. [4] As Ms Brown has a conviction for a serious offence, the presumption under the WWC Act is that she must be issued with a negative notice unless her case is an exceptiona l case such that it would not harm the best interests of children for her to have a positive notice and a blue card. [5] The Tribunal is conducting a review of the merits of the Director-General’s decision by way of a fresh hearing.1 The Tribunal needs to apply the same law as the Director- General. The Tribunal has to take into account s 226 of the WWC Act. This outline s what I have to consider in deciding if an exceptional case exists. [6] The purpose of the review is to produce the correct and preferable decision.2 The Tribunal may: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20. 2 Ibid. -- 2 of 11 -- 3 (a) Confirm or amend the Director-General’s decision; (b) Set it aside and substitute its own decision; or (c) Set it aside and return it to the Director-General for reconsideration.3 [7] ‘Exceptional case’ is not defined in the WWC Act. To be exceptional the case needs to be out of the ordinary, unusual or special. [8] I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances. [9] The Act’s objects include promoting and protecting the rights, interests and wellbe ing of children in Queensland. I also have regard to s 5, s 6 and s 360 of the WWC Act. [10] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. [11] Blue cards are given without condition to the applicant and, if successful in this review, she could work in any area of child-related employment, whether supervised or not. [12] Therefore, in order to issue a positive notice to Ms Brown I need to be satisfied, on the balance of probabilities, bearing in the mind the gravity of the consequences involved, that an exceptional case exists. The circumstances of the convictions [13] On 8 March 2018, Ms Brown was convicted of one charge of entering a dwelling with intent to commit an indictable offence by means of a break and using actual violenc e and four charges of serious assault. In relation to the ‘enter dwelling’ conviction, His Honour made these remarks at sentencing: Ms Brown, you are criminally responsible for the offence of aggravated burglary under section 8 of the Criminal Code, because the jury found it was a probable consequence of you sharing a common intention to assault a person in the process of gaining access to [the child]. [14] The facts of these offences are that on 8 July 2015, Ms Brown, along with her daughter and her former partner, went to the home of the complainants in Bundaberg. The complainants were the parents of Ms Brown’s former son-in-law and daughter’s partner. [15] Ms Brown and her daughter were in dispute with the complainant’s son about contact with Ms Brown’s young grandson. Whilst Ms Brown waited outside, her partner entered the home and is said to have pushed past a seven year old child residing in the home, collected the Ms Brown’s grandson and took him outside. Her partner is then said to have pushed one of the complainants who landed heavily. [16] Ms Brown and her daughter came towards the house and her daughter pushed one of the complainants in the chest whilst grabbing her child to run away. The complaina nt 3 QCAT Act, s 24. -- 3 of 11 -- 4 grandparents attempted to follow the child’s mother to take down the details of the car she was driving. During this attempt, Ms Brown’s partner is said to have pushed the grandfather over and Ms Brown grabbed the other grandmother’s arms. [17] Following a jury trial, Ms Brown was convicted on all five charges. The Court recorded convictions, ordered that Ms Brown’s sentences be served concurrently and fixed her parole release date at 8 March 2018, the day of sentencing. [18] Ms Brown advised the Tribunal that she did not give evidence at the trial, despite wanting to do so. Her lawyer did not put her on the stand. She says the paternal grandparents over-exaggerated what happened and lied during the trial. Ms Brown has a different version of events which still involve her holding onto and blocking the other grandmother. She was convicted on her presence for three of the assault charges. That is, she was found criminally responsible for three assaults by her partner because she aided him by encouraging him with her presence. In relation to the fourth assault charge she was the actual perpetrator. I note at this point it is not for the Tribunal to go behind the Court’s findings and reconsider the incident. [19] Ms Brown has submitted that despite seeking assistance from the Federal and State Police to gain access to her grandson which had been granted by the Family Court, no assistance was able to be provided. She gave evidence to the Tribunal that she was entitled under the Family Court decision to have contact rights to see her grandchild and have his care once every three weeks from Monday to Sunday. She stated that her former son-in-law would not facilitate the contact, and as a result she was unable to see her grandson. Ms Brown also gave evidence that when the child was three months old she would look after him every second weekend up until he was two and a half years of age. It was the frustration of not seeing her grandson that led to the incident on 8 July 2015. Why the Director-General says Ms Brown should not receive a positive notice and blue card [20] The Director-General submits that Ms Brown’s offending raises concerns about her ability to exercise judgment and restraint, respond appropriately to conflict and to make decisions in the best interests of children. The Director-General notes that the offending occurred in the presence of the applicant’s grandson and another young child who were directly affected by her offending. [21] The Director-General argues that children have a right to be cared for by adults who exhibit protective and nurturing behaviours, and that positive role models are particularly important for children as they are entirely dependent on the adults around them to exercise proper judgment and restraint. The Director-General submits that the applicant’s offending behaviours reflect adversely on her ability to safeguard the best interests of children and young people in her care. [22] The Director-General was satisfied that an exceptional case did not exist due to: (a) The recency of the offending; (b) The applicant being a mature adult at the time of her offending and should have been of sufficient maturity in order to resolve the situation in a more appropriate manner; -- 4 of 11 -- 5 (c) The offending occurring in the presence of a child; and (d) The applicant being prepared to place the safety of children at risk by taking matters into her own hands and attending at a house to seize a child from a person who was lawfully caring for the child. [23] Whilst noting that there was a range of protective factors in favour of the applicant, the Director-General noted that in Commissioner for Children and Young People and Child Guardian v Ram,4 the Appeal Tribunal confirmed that changes in a person’s circumstances which simply amount to them living in a law abiding manner as society expects, and functioning at a level expected of a person at their stage and age in life are generally considered to be the ordinary course and not exceptional. [24] The Director-General also noted a Western Australian case in Chief Executive Officer, Department of Child Protection v Scott (No 2) [2008] WASCA 171 in which Buss J observed (with reference to comparable legislation): The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. [25] The Director-General raised a number of risk factors in addition to those which I have mentioned in paragraph [22] above. These include that: (a) Ms Brown’s submissions demonstrate no insight or remorse into the impact of exposing her grandson and another child to acts of violence; (b) Despite the applicant’s age, lack of offending and otherwise good character and the Court’s acknowledgement of the difficult circumstances the applicant was in, the Court imposed a sentence of imprisonment upon the applicant, reflecting the seriousness with which the Court viewed the applicant’s offending; (c) Even though the Court sentenced Ms Brown and her partner on the basis that his culpability for the offences was greater, the applicant indicated she was acting on her partner’s advice in the lead up to the offences and it seems she took no steps to restrain him or stop him engaging in an assault against the paternal grandmother; (d) The Director-General submits that the applicant and her partner lived in separate houses on the same property and maintained a friendship at the time of the offending. It would appear that when her partner is released from custody he will return to the property and the Director-General submits that given Ms Brown’s past involvement with him that she will continue to be influenced by him in the future; and 4 [2014] QCATA 27. -- 5 of 11 -- 6 (e) The applicant continued to maintain that she had done nothing illegal on that day, demonstrating a clear lack of insight into the wrongfulness of the conduct and the impact on others. [26] The Director-General submits that whilst Ms Brown will remain subject to the supervision of the Department of Corrective Services until March 2019, insufficie nt time has passed since she was found guilty of the offences for the Tribunal to be now satisfied that she is able to regulate her behaviour in the absence of the threat of further penalty under the supervision to which she is currently subjected. Why Ms Brown says she should receive a positive notice and blue card, including evidence from witnesses [27] Ms Brown submits that she does not wish to pay forever for her mistake. She acknowledges she made the wrong choice and made a bad mistake. She submits that she would not put herself in that situation again. [28] Ms Brown’s personal circumstances are these: (a) She lives on a property which is owned by her former partner; (b) She lost her job of 11 years as a mobile library coordinator with the Lockyer Shire as a result of the offences, and has not worked there since she lost her positive notice; (c) She currently has a three month contract with the University of Queensland Library, having been out of work for the past 12 months; (d) She has two brothers, one who lives interstate, and a mother who lives in Laidley; (e) She has a supportive family network and wants her grandson to be part of this. He is now eight years of age. She currently gets to see her grandson, supervised, at a contact centre on a monthly basis. She would like to see him at her home and have him stay on overnight visits; (f) She has been seeing a psychologist for the past two years and has been on anti- depressants. She describes herself as a lot calmer now and has managed to get rid of bad thoughts. Her psychologist has taught her relaxation technique s, meditation and breathing techniques. In addition to this, she also goes to pilates to assist with her focusing and breathing; and (g) Since her second visit to the parole officer, she does not have to see the parole officer personally. [29] Ms Brown had two witnesses appear for her at the hearing, Gillian Gould who is a friend of hers and Juliann Backman who was a work colleague. [30] Ms Gould has known Ms Brown through recreational horse riding. She believes that Ms Brown would never be a danger to any of her clients, saying she is friendly and helpful with children and others. She is aware of the incident which involved the applicant going to the Court and receiving a suspended sentence. She had some knowledge of the circumstances involved. She expressed surprise that Ms Brown -- 6 of 11 -- 7 would get to that point and had concerns for her and her grandchild. She is aware that Ms Brown regrets the matter having escalated and the negative effect that it had on her grandson. [31] Ms Gould reported that Ms Brown was more subdued and depressed following the incident but now seems happier. She was aware that Ms Brown had started counselling, did riding and had regular contact with family and friends. She reported that she has never seen her unable to function. She regards herself as being part of Ms Brown’s support network and reports that Ms Brown has friends within the horse- riding community. [32] Ms Backman was of the view that Ms Brown would not bring harm to children. She reported Ms Brown had always acted in a professional and caring manner in the library service that she provided and that the schools are missing her. [33] Ms Backman says she sees Ms Brown every two to four weeks face to face and has regular phone calls with her. She indicated that she has been a support for Ms Brown. Like Ms Gould, Ms Backman was aware of the background to the incident that occurred in Bundaberg, noting that it was completely out of character and that Ms Brown had been trying to do the best for her grandson. [34] Ms Backman reported that Ms Brown has shown regret about the incident but thought that she had been doing the right thing. She was aware Ms Brown was seeing a counsellor and that she had been on medication to help handle stress. She reported she is proud of how Ms Brown is now getting on top of things, and like Ms Gould, Ms Backman sees herself as part of Ms Brown’s support network. The Tribunal’s view [35] What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the object and intention of the WWC Act. That is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests. As well, the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing must also be taken into account. [36] There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are. [37] Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon. [38] This is consistent with the Macquarie Dictionary definition of ‘exceptional’ which is said to mean ‘forming an exception or unusual instance, unusual, extraordinary’. In other words, there needs to be a real difference from the usual type of cases. It cannot be one which is regularly encountered. Above all, however, the term ‘exceptional case’ must be considered in the context of the legislation. [39] I accept the Director-General’s view that ‘changes in a person’s circumstances that simply amount to them living in a law abiding manner as society expects and -- 7 of 11 -- 8 functioning at a level expected of a person at their stage and age in life’ are not exceptional and are part of the ordinary course of life. [40] I do however also have to consider the exceptionality of this case in relation to harming the best interests of children. [41] For the most part Ms Brown’s life circumstances are not exceptional. The charges and convictions outlined earlier are the only charges and convictions on Ms Brown’s criminal history. She led a law abiding life up until then, and is now leading an essentially normal, law abiding life. She has not offended since the Bundaberg incident. [42] In Commissioner for Children and Young People and Child Guardian v Maher & Anor,5 the approach of examining relevant risk and protective factors was endorsed. There are a range of protective factors in this matter. Importantly: (a) Ms Brown is now going through the correct channels in relation to contact with her grandson. As a result, she is less likely to offend in the way she did in the past in the future; (b) She is seeking treatment with a psychologist and has learned a number of strategies to assist; (c) Ms Brown’s referees spoke positively about her, and her regret was reflected in her referees comments; (d) It is a protective factor that Ms Brown acknowledged that she had done the wrong thing and acknowledged the impact her behaviours had on children, and as a result of these observations I am satisfied that she has some insight into her offending, which is a further protective factor. I am not satisfied that she has complete insight; and (e) She has a good network of supports. [43] In relation to risk factors, I have noted the submissions of the Director-General and agree with the risk factors that the Director-General outlined in submissions, namely: (a) Ms Brown has a recent conviction for a serious offence and that the proper inference to draw from the WWC Act must be that it would harm the best interests of children for persons with convictions for a serious offence to work with children, unless it is an exceptional case;6 (b) Further risk factors are that the offences occurred in the presence of two young children and committed within the home environment of two elderly complainants; (c) The submissions to the Director-General and the material provided to the Tribunal from Ms Brown suggests her insight is only limited and that she had a tendency to minimise her actions and blame the complainants for what occurred. It was not the complainants who arrived at the applicant’s house to remove the child, it was the applicant, her daughter and her partner. They bear the 5 [2004] QCA 492. 6 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027. -- 8 of 11 -- 9 responsibility for the incident. It would not have occurred had they not gone to the premises; (d) Ms Brown was 52 years of age at the time of the offence and of sufficient age and maturity to understand the consequences of her actions and to have exercised better judgment at the time of the incident. It is my view that some work needs to be done with respect to her insight in relation to the impact of her actions and the actions of the others that day on the other grandparents; (e) The applicant, Ms Brown, remains subject to the supervision of the Department of Corrective Services and will remain so until March 2019. The Director- General submitted that too little time has passed since the applicant was found guilty for the Tribunal to be now satisfied she is able to regulate her behaviour in the absence of a threat of further penalty; and [44] A further risk factor in my view is that the applicant will continue to reside in property owned by her former partner, who is currently serving a term of imprisonment for his involvement in the incident. Ms Brown has indicated that she remains in contact, and will stay in contact with him on his release. There is a risk that she will continue to be influenced by him in the future. [45] I have also taken into account s 226 of the WWC Act. I note Ms Brown’s crimina l history, which includes offences as well as the serious offence. It does her no credit. I accept that the nature of the offences do not constitute behaviour of an appropriate role model for children. [46] There has been no particular changes in Ms Brown’s lifestyle, apart from her employment which has been irregular. She has also undertaken some counselling which is to her credit. I accept that Ms Brown’s involvement in the riding activities is a protective factor and that she has a good network of family and friends. I consider her risk of reoffending to be low. I also accept that there are a number of protective factors in Ms Brown’s favour. [47] I have reviewed a number of QCAT cases where a person has a conviction for a serious offence. In Humphreys v Chief Executive Office, Public Safety Business Agency,7 the Tribunal confirmed the decision of the Chief Executive to issue a negative notice finding Mr Humphreys’ case was not exceptional. Mr Humphreys had a conviction for drug trafficking between July 2009 and September 2010, was sentenced to three years imprisonment and released on parole immediately. He had other convictions. He undertook drug rehabilitation and had a significant number of protective factors including studying, a supportive partner and a strong social network. [48] In the matter of Commens v Director-General, Department of Justice and Attorney- General,8 Mr Commens had a significant number of protective factors, was involved in his community, regularly helping others in the surf club, and regularly assisting friends. Despite having a long period of non-offending and considering that his risk of reoffending was low and his being in a stable relationship, the Tribunal found that his case was not an exceptional case. He did not have any particular exceptional skills, he was not engaged in any professional counselling or rehabilitation, he had an unremarkable childhood, he was living a life absent of crime and offending behaviour, 7 [2016] QCAT 342. 8 [2017] QCAT 002. -- 9 of 11 -- 10 living a normal family life and wanting to participate in regularly activities. It was found that there was nothing exceptional about this. [49] Ms Brown’s case, whilst the level of offending is less, had some similarities in that her childhood was unremarkable, she showed remorse but without full insight. She was leading a law abiding life, her risk of reoffending is low and she, like Mr Commens, showed remorse. Mr Commens’ case was found not to be exceptional. [50] In Franklin-Bull v Commissioner for Children and Young People and Child Guardian,9 the Tribunal found an exceptional case did exist. He had drug traffick ing offences and a criminal history of 13 years duration. He had not offended for 14 years and had undertaken a range of rehabilitation programs and counselling. He had many protective factors and a Judge had considered his rehabilitation exceptional. [51] In Reardon v Chief Executive Officer, Public Safety Business Agency,10 the Tribuna l confirmed the decision of the Agency that an exceptional case did not exist. In this matter, Ms Reardon had supplied drugs to a person in a correctional facility. She had a very disruptive childhood. She had other offences including property and drug related matters for a 10 year period. The Tribunal noted profound remorse, insight into her behaviours, extensive rehabilitation and a commitment to change. She had many protective factors, but her case was not considered exceptional because only a short period of having a functional lifestyle and having only had a two year period since her last relapse. [52] In Murray v Chief Executive Officer, Public Safety Business Agency,11 the Tribuna l found an exceptional case existed, principally because of the special skills Mr Murray had in working with people with disabilities who exhibited very challenging behaviours. He also had a range of protective factors and evidence was provided in his favour from a former police officer. [53] There are a range of other QCAT matters where a serious offence had been committed and significant protective factors were said to have existed, but which have not been regarded as exceptional. I refer to: (a) Khattab v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 274; (b) Kutekute v Commission for Children and Young People and Child Guardian [2012] QCAT 355; and (c) Waldon v Commission for Children and Young People and Child Guardian [2010] QCAT 291. [54] The test that I have to apply is whether this is an exceptional case such that it would not harm the best interests of children for Ms Brown to have a blue card. The test is not simply whether Ms Brown poses a threat to children or not. [55] Whilst there are a number of protective factors in this case and Ms Brown is unlike ly to pose any risk to children, I cannot be satisfied that Ms Brown’s case is an 9 [2010] QCAT 632. 10 [2016] QCAT 061. 11 [2015] QCAT 552. -- 10 of 11 -- 11 exceptional one in which it would not harm the best interests of children for a positive notice to be issued. Whilst Ms Brown does have excellent skills in her library work as reported by her referees and demonstrated by various commendations, she does not have any particularly exceptional skills. She is now, to her credit, living a life absent of crime and offending behaviour. She is leading a normal life and wanting to participate in regular activities. There is nothing exceptional about this. As a result I find that her case is not an exceptional one and will confirm the decision of the Director-General that the applicant’s case is not an exceptional one in which it would not harm the best interests of children for a positive notice to issue. -- 11 of 11 --