BAN v The Director-General, Department of Justice and Attorney-General [2018] QCAT 124

CITATION: BAN v The Director-General, Department of Justice and Attorney-General [2018] QCAT 124 PARTIES: Ban (Applicant) v The Director General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML291-16 MATTER TYPE: Childrens matters HEARING DATE: 1 November 2017 & 16 February 2018 HEARD AT: Toowoomba DECISION OF: Member Wood DELIVERED ON: 03 May 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. That 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(2) of the Working With Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case. 2. The Tribunal prohibits the publication of any information that would identify the Applicant or her associates in this Decision. CATCHWORDS: Application for Removal of Negative Notice – Applicant has lengthy criminal history – none of the offences “serious offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors -- 1 of 11 -- 2 Working With Children (Risk Management & Screen Act) 2009 (Qld) (WWCRMSA), s 5, s 6, s 221, s 226, s 360 TAA [2006] QCST 11 Queensland Civil and Administration Tribunal Act (2009), s 28, s 66 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492 APPEARANCES: APPLICANT: The Applicant on her own behalf RESPONDENT: Mr Iain McCowie - Government Legal Officer REASONS FOR DECISION [1] The Applicant was born on 6 July 1977 and brought up in Country E. She had a normal upbringing by her own account, with normal development and was a shy timid girl but academically successful at school. Having completed High School in Country E, she completed a four year Bachelor Degree, double major in Biology and Psychology. She had a number of longer-term relationships that were not successful. She did not cope well with relationship break ups becoming depressed and started to develop the symptoms of bipolar disorder. In her early twenties, she travelled to Country A to assist in a rural medical clinic that she found very stressful. She later travelled to Country B and Country C where she taught English. During this time, the symptoms of her Bipolar Disorder developed creating a lot of interpersonal conflict including with her then boyfriend. She was treated for depression in Country C and at that stage, had no insight into the illness or how to regulate her symptoms. Whilst in Country C she applied for and was successful in obtaining a placement in Medical School in Australia, first coming to Australia in 2002. [2] In 2003 during her second year of living in Australia, she returned to Country E and whilst landing she made a “scene” causing conflict with a flight attendant because of which she was hospitalised and diagnosed with Bipolar Disorder and treated for it. She was then medicated and returned to Australia where she continued treatment with a mood stabiliser and anti- depressant. Because of the Bipolar Disorder, she was unable to continue her studies and during her second year of studies, she discontinued. [3] On leaving Medical School, the Applicant also commenced using alcohol and broke up with her Husband commencing a relationship with another man who she met in 2008 and with whom she has one child, a son born on 5 April 2010. -- 2 of 11 -- 3 [4] Having left University she worked as a Nanny and studied Arts. Once she became pregnant, she then moved to Queensland where the Mother of her Partner lives. She separated from the Father of her son during the 2010/2011 floods after an extremely violent incident following gambling by the Father. Initially the Applicant lived in shelters and share-houses and due to her lack of medical insurance in Australia had limited access to medical care as her student coverage had expired. [5] The Applicant and the Father then went through lengthy Family Court proceedings that were acrimonious and stressful for the Applicant. The Applicant was subject to a Domestic Violence Order and was convicted of contravening a Domestic Violence Order on four occasions between 6 March 2012 and 3 June 2014. In addition, she was charged and convicted of Common Assault and Contravening a Direction or Requirement. [6] The Domestic Violence Order against the Applicant was made in September 2011. The breaches relate to allegations that the aggrieved was phoned on many occasions by the Applicant raising matters relating to the breakdown of the relationship including matters relating to custody of their son and financial matters. [7] The Common Assault on 21 February 2012 relates to an incident where it is alleged that an argument commenced between the Applicant and the occupier of the premises where she was staying after the woman had threatened to evict the Applicant from the house. The argument commenced because the other occupant’s boyfriend had made an advance to the Applicant and what could best be described as a scuffle then broke out. The Applicant was charged with assault but in her evidence before the Tribunal outlined that she was assaulted first. She denies various allegations in the Police material including that she did not abuse the Defendant for calling the Police. She pleaded guilty to this charge and I must accept that her conduct was unlawful. [8] In relation to the allegations of breaching the Domestic Violence, the Applicant denies making a threat that she was going to cut the throat of her former partner and denies spitting in his face. In reflecting upon the Domestic Violence, she did observe, “in hindsight I regret I didn’t find another way to communicate with the Father”. [9] Since 2012 SDN, a Clinical Psychologist, has treated the Applicant. She commenced seeing her immediately after the last incident of Domestic Violence. As a result, she has now put in place strategies to communicate with the Father and has continued to engage in treatment for her mental illness. She now describes the relationship with the Father as being stable and that they have an ability to communicate about their son and his needs. [10] Her son continues to live with her and since moving to the same town as the Applicant the Father sees him every second weekend. The Father did live interstate for a significant period. -- 3 of 11 -- 4 [11] The Family Court made final Orders in 2013 in relation to the arrangements following a contested Hearing. The Applicant’s criminal history formed part of the evidence in those proceedings and Child Safety decided not to take any further action investigated her. The Court made final Orders that the child the subject of those proceedings should reside with the Applicant. [12] Since 2012, the Applicant has not only continued to engage in the treatment with the Clinical Psychologist but has also become engaged in other community organisations including attending Church, Prayer Groups and Bible Studies regularly. She has not consumed alcohol for 4 years. [13] The Applicant is actively involved in an organisation known as Grow that is a community mental health organisation supporting resilience and personal growth through mutual self-help groups for people with a mental illness. [14] The Applicant is now the Leader of her local group commencing the volunteer position in late 2016. This means that she is involved in a social network including regular meetings with other mental health consumers who provide support to each other. [15] The Applicant also engages with the Mental Illness Fellowship Queensland where she has access to a Support Worker that she sees fortnightly. The Grow program is a 12-step mental health program, which has assisted the Applicant greatly. [16] In 2013, the Applicant undertook post-separation Parenting Courses at Catholic Care and has attended training for Pyjama Angels in order that she could assist children living in foster homes to develop literacy and numeracy. She further completed a Triple P Parenting Course and has completed a number of other courses involved in her recovery from her mental illness. [17] The Applicant wished to commence working with foster children as a Pyjama Angel and as a result applied for a Blue Card on 3 February 2016. A Negative Notice was issued to her on 15 November 2016. [18] In the period between 1 November 2017 and 16 February 2018 when the final evidence in this matter was taken, the Applicant was charged with a further offence. This offence is an offence of committing Public Nuisance alleged to have occurred on 1 December 2017. The QP9 in relation to the matter outlined allegations that on the morning of 1 December 2017 there was an altercation between the Applicant and another person in relation to the Applicant parking at a business workplace impeding customer access. The allegation is that this is not the first occasion that this has happened and that upon arriving at work on this particular morning the owner of the business parked behind the Applicant’s vehicle and opened the business. The allegation is that the Applicant then drove her vehicle in reverse into the front of the other person’s car that then lead to a verbal altercation. The complainant did not wish to make a complaint of wilful damage and the charges have not been finalised. The Applicant is entitled to a presumption of innocence in relation to these charges. -- 4 of 11 -- 5 [19] In addition to the criminal history that I have referred to above, the Applicant has two other previous convictions of committing the equivalent of a Common Assault and Disorderly Behaviour in Adelaide in 2008 and a Common Assault in 2006. Each of those were dealt with by the imposition of a Good Behaviour Bond. She has not been convicted since June 2014 when she pleaded guilty to contravening a Domestic Violence Order which offence is alleged to have occurred on 27 December 2013. This was an offence in the context of the breakdown of the relationship with her son’s Father. [20] In terms of her mental health treatment, she acknowledged that her mental health was stable and that the condition that she has is a lifelong condition that needs to be managed. She will continue to engage with Counsellors and currently she is seeing the Clinical Psychologist monthly. In addition, she has been seeing her GP once every two months for the last 5 years in relation to mental health issues. [21] The Applicant was questioned in relation to her contact with Blue Card Services and in particular, her complaints about the manner in which she was dealt with by them. She explained that she felt that she had been dealt with in a discriminatory way and that a complaint to the Police by Blue Card services that she had continued to provide care services without a Blue Card was an unnecessary referral to the Queensland Police Service. I do not have any sufficient information about the allegations against the Applicant in relation to whether or not she was providing services improperly and of course these are matters that will be investigated elsewhere. It is also the case that without further evidence I am unable to make any findings about whether or not the Applicant’s behaviour towards the staff of Blue Card Services was appropriate. [22] The Applicant was clear in her evidence about what she had learnt in terms of dealing with her aggression over the years. She has now learnt to calm down and to take a break and understands the need to remain calm. In terms of her current circumstances, she instructs that she is living in a rented house with her son who is currently in Grade 2. She is doing some casual house cleaning. In terms of her weekly community involvement, her son plays Softball on a Saturday morning and training on a Thursday and she engages with the other parents whilst he is training and playing. She attends Church on Sunday while her son attends youth group for a few hours. Some of the friends that she socialises with are aware of her Bipolar. [23] In terms of relapses, she recognises when she is becoming unwell and self- refers for treatment. She recognises that alcohol was a trigger for her relapses in the past but in terms of a risk of relapse in the future, she considers that it is low because she now has a good understanding of her illness. [24] A number of other witnesses gave evidence on behalf of the Applicant. Dr TP is a Consultant Psychiatrist. He provided a brief Letter confirming that he had seen the Applicant on two occasions in June 2017 following a referral by her General Practitioner for medication review. At the time of his -- 5 of 11 -- 6 review, he considered her condition as being in remission and she was discharged back to her General Practitioner. Dr TP gave evidence by phone and confirmed that the two occasions in June were the only contact that he has had with the Applicant. He recalls that there were some mood swings evident on 6 June 2017 and he reviewed her 2 weeks later to ensure that there was improvement. The new medication that she started on 6 June he felt had helped. In terms of her insight, he outlined that BAN had engaged with the Mental Health service in 2016 and had engaged well. He felt that she understood her illness and the need for treatment and that she recognised her symptoms and sought appropriate assistance. [25] The Applicant’s Partner, KPR, gave evidence primarily in the form of a short statement confirming that they had been in a relationship since 2016. The relationship was one where they did not live together but spent a significant amount of their time together. He confirmed that he had read the Reasons documents issued by the Respondent and that he had had a discussion with the Applicant concerning her criminal history. He indicated that the Applicant felt that there had been an injustice done to her because of charges coming out of a domestic situation that was brought about by circumstances and she felt that she was a victim who had become the offender. She however strongly regrets that those actions had occurred. [26] He has since seen the Applicant’s interaction with her ex-partner and whilst there is some antagonism, there is now a level of cooperation. There are limited dealings between the Applicant and her ex-partner and he assists in facilitating discussions between them. [27] In terms of the treatment for her Bipolar, he confirmed that the Applicant was very compliant and understood the role of medication. In terms of changes that he has seen, he noticed that her Bipolar was vastly better and that there had been no outbursts or disturbances recently whereas in the past there had been some irritability. He acknowledge that they do have some conflict in their relationship but it has not escalated beyond what he would consider normal relationship conflict. He outlined that the Applicant had developed strategies for dealing with a situation that might escalate by stopping and thinking. [28] In terms of the interactions with children, he has seen her interact with her son and with other children. He has never seen anything of any concern and whilst she does at times raise her voice with her son there is no physical discipline. She has a very good support network including the psychologist and her involvement with community groups including Groups where KPR is a member. [29] MAC is a Support Worker for the Personal Helpers and Mentors Program employed by the Mental Illness Fellowship of Queensland. She provided a Letter of support for the Applicant confirming that the Applicant had been linked with the Personal Helpers and Mentors Program since February 2015. MAC goes on to make observations in her Letter of support about the positive development and improvement in the Applicant’s mental health including the improvement in her insight. In giving evidence before the -- 6 of 11 -- 7 Tribunal, she confirmed that she continues to see the Applicant once a fortnight for an hour or more depending on requirements and other chance meetings when she might see her as she might be attending for a Grow Meeting but this is more as social contacts than as a case manager. [30] Her observations are that the Applicant has a better understanding of her illness, the Triggers for her illness and the techniques to remain well. She identified conflict with her ex-partner, as being a trigger and that when she is unwell, will seek help. She was able to identify the Applicant’s support network as being her partner, her Psychologist and the other Church members. She had seen the Reasons document issued by the Respondent and explained the criminal history related to the unhealthy relationship with the Partner. She has seen her in stressful situations including the Tribunal process in relation to her Blue Card. [31] The Applicant has now developed insight into her symptoms and is now able to recognise when she is becoming irritable. The witness has seen her interacting with her son who, as he says, is well adjusted and it appears to be a strong relationship. [32] MOW has known the Applicant since 2012. He provided a Letter of support and identified himself as being a support for the Applicant if she were becoming unwell. He knew the Applicant as a Disability Support Worker and is completing his Nursing Degree. He identified that there have been a number of very positive changes and that she was now more self-aware about her illness and more able to deal with stressful situations. He feels that she has a good support network in place. [33] Reverend ZPT was the Applicants Pastor until June 2015. He provided a Letter of support and gave evidence that in his view it reflects well on the Applicant that she was able to pull out of the “downwards slide” that she was on in 2014. He feels that she grew and changed her attitude and expressed concern to him about the effect of the offending behaviour on her son and the custody dispute. He felt that her remorse over her actions leading to the criminal convictions was quite sincere and that she did not try to excuse her behaviour. [34] KJA has known the Applicant since 2012. She also has children playing Softball and interacts with the Applicant regularly. Her observation about the Applicant’s improvement over the years is that she has lacked confidence in the past but is now much happier about herself. [35] LPT is a friend who has known the Applicant for about 6 years. She has small children and knows the Applicant both through attending Church and Softball. She has always found her to be friendly and felt that she coped well in parenting. [36] CJI is the Queensland State Manager of the Grow organisation in which the Applicant is involved. She explained that the organisation had been running for over 60 years and was a recovery-based program throughout Queensland including in the Applicants local area. The organiser of any -- 7 of 11 -- 8 regional group is responsible for mentoring others and is only selected if they have contributed considerably to the group. She has met the Applicant and is comfortable that she had performed very well and the feedback she has had about the Applicant’s performance is very good. She confirmed that she had seen her in stressful situations and she has coped well. [37] The Clinical Psychologist SDN gave evidence and was cross-examined about the Applicant’s ability to self-regulate her behaviour in stressful situations. The Psychologist’s evidence was that in a conflictual situation with adults, her ability to self-regulate her anger is reduced if she feels that the situation is not fair. With children, however she has the same ability as any other adult person. This was clarified later in the evidence and summarised in that if there is adult conflict over something that she values there is a greater risk of escalation of her behaviour. Again, in evidence it was confirmed by the psychologist that there was nothing in her behaviour to suggest that she was a risk to children. [38] The Psychologist indicated that this escalation of behaviour is neither a personality disorder nor related to her bipolar effective disorder but was a personality trait that she holds. The Psychologist identified many protective factors for the Applicant including a stable relationship, the proper development of strategies to manage stress and insight into the difficulties that she faces. She is committed to continuing with care and not withstanding that this witness was on bereavement leave she had arranged to see a different counsellor. The Psychologist in summary said that notwithstanding this personality trait the Applicant would prioritise the care of any children in her care in front of any anger trigger. STATUTORY FRAMEWORK [39] The Applicant applied for a Blue Card by Application dated 3 February 2016. That was refused with a Negative Notice issued on 15 November 2016. [40] None of the offences with which the Applicant has been convicted are “serious offences” as that term is defined. In the circumstances, a Positive Notice must issue unless I am satisfied, that this 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 Notice1. The Respondent was of the view that it was an exceptional case and issued the negative notice. [41] The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria that must be considered when determining when there is an exceptional case2 however, the Tribunal must exercise its discretion in each case within the parameters of the legislation3. 1 Section 221 (2). 2 Section 226 WWCRMSA. 3 Commissioner for Young People and Child Guardian v FGC [2011] QCATA 291. -- 8 of 11 -- 9 [42] The Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that, an exceptional case exists4. [43] In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card. [44] The principles for administering the Act are that the welfare and best interest 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.5 [45] In making my Decision I need to take into account the protective and risk factors6. [46] In making, my Decision I need to make the correct and preferable decision7 and proceed by way of a fresh hearing on the merits. RISK ASSESSMENT [47] There are a number of protective factors in this case:- a) The Applicant has not had any convictions for any offences since June 2014 for an offence committed in December 2013. The Applicant has recently been charged with offences, which are yet to be determined by the Court. These do not relate to children. b) The breaches of the Domestic Violence Order did not involve actual violence but more in the nature of intimidating and harassing behaviour. The behaviour stemmed from an acrimonious breakup with the Father of her son. c) The Applicant has developed insight into her Bipolar Disorder and has sought treatment for both the Bipolar Affective Disorder and anger management. d) The Applicant continues to seek treatment for both anger management and Bipolar by attending on a Clinical Psychologist and a General Practitioner on a regular basis. e) The stress relating to matrimonial proceedings between the Applicant and the Father of her son have been resolved by means of final Orders made following a contested Hearing. 4 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28. 5 Section 6 WWCRMSA. 6 Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCATA 492. 7 S20 QCAT Act. -- 9 of 11 -- 10 f) The Applicant has involved herself in community organisations involved in the maintenance and support of persons with a mental illness. g) The Applicant has not consumed alcohol for in excess of 4 years. h) The Family Court Order made in relation to the dispute between herself and the Father of her child requires her to participate in counselling. i) The Applicant is in a stable relationship and is actively involved in the community. [48] There are risk factors:- a) The Applicant has a serious mental illness, which is lifelong. b) The Applicant has convictions for violent offences which have occurred on the information available to me, more in the context of anti-social type behaviour occurring when matters have escalated beyond what ought to have occurred. c) The Applicant has convictions for breaches of a Domestic Violence Order. d) The relationship in which the Applicant is currently involved is of a short duration and should that relationship breakdown this may cause stress and the prospect of a relapse of her illness, which has occurred in the past. e) There is an ever present risk of a relapse to alcohol use. f) The Applicant has a personality trait, which at times allows situations to escalate. APPLICANT’S SUBMISSIONS [49] The Applicant submits that she should be issued a Blue Card. She admits the offending behaviour in relation to the most recent charge but says that her lawyers are in discussions with Police Prosecutions to request that the charge be dismissed. RESPONDENT’S SUBMISSIONS [50] The Respondent submits that notwithstanding that none of the offending behaviour before the Tribunal relates to children, the offending raises concerns about her ability to exercise judgement and restraint and to make appropriate behavioural decisions. In relation to her recent offending, they say that her actions were disproportionate to the situation and when viewed in the context of earlier offending suggests that she has not yet developed the skills or strategies to respond to difficult situations. -- 10 of 11 -- 11 CONCLUSION [51] The Applicant undoubtedly went through a tumultuous period in her younger years moving countries and then in the context of failed relationship and stresses with study including an unhappy relationship with the Father of her child. She was convicted of a number of offences as outlined in the reasons. She was diagnosed with bipolar disorder and has been seeking counselling for anger management and bipolar disorder since 2012. [52] The Applicant has been receiving counselling for a significant period of time and although she is currently charged with an offence of disorderly conduct She has generally lead a normal life attending to her needs and the needs of her son. [53] Overall, however, none of the offending behaviour is alleged to be against children. It must be remembered that the Applicant in this case is entitled to a Blue Card unless it is an exceptional case. Whilst the Applicant certainly does not have an unblemished, record either personally or in the context of her criminal history. She does not have any serious offence on her criminal record. [54] Overall I am not satisfied that this is an exceptional case and set aside the Respondent’s decision and replace it with the Tribunal’s decision that there is no exceptional case. NON-PUBLICATION ORDER [55] The Respondent submits that I should make an Order prohibiting publication of information relating to the Applicant and her family. The Applicant and her family and support network reside in a small regional community such that publication of identifying material could well be prejudicial to herself or her family. In the circumstances, I consider it to be appropriate and Order accordingly. [56] Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal prohibits the publication of any information that would identify the Applicant or her relatives in this decision. -- 11 of 11 --