DW v Director-General, Department of Justice and Attorney-General [2017] QCAT 411

CITATION: DW v Director-General, Department of Justice and Attorney-General [2017] QCAT 411 PARTIES: DW (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML014-17 MATTER TYPE: Childrens matters HEARING DATE: 13 November 2017 HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 27 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General made on 4 January 2017 that there is an exceptional case for DW under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), and refusing the application to cancel the negative notice for DW, is set aside. 2. A new decision is substituted that: a) There is not an exceptional case for DW. b) The application of DW, made on 1 December 2015, to cancel the negative notice issued to her, is allowed. 3. Publication, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) of: a) The names of the applicant or any children associated with this proceeding. -- 1 of 14 -- 2 b) Any information likely to identify the applicant or any children associated with this proceeding. c) All evidence, oral and written, provided to the Tribunal (including exhibits) of the Crime and Misconduct Commission material, to protect the Crime and Misconduct Commission material in its entirety, save to the extent it is referred to in these reasons. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where applicant issued with negative notice – whether exceptional case – where applicant was fined with no conviction recorded for an offence of publishing documents and answers under the Crime and Misconduct Act 2001 (Qld) – where similar circumstances were extremely unlikely to ever arise again – whether applicant shows insight into and remorse for her offending – whether applicant would put protection of children before interests of her family in the future Crime and Misconduct Act 2001 (Qld), s 202(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5 REPRESENTATIVES: APPLICANT: Mr R Kurz of Robertson O’Gorman Solicitors RESPONDENT: Ms A Skipper of the Department of Justice and Attorney-General -- 2 of 14 -- 3 REASONS FOR DECISION [1] This application concerns the suitability of a mature woman who is a disability worker (DW) to be issued with a Blue Card. The matter has a very sad and traumatic background. [2] DW was charged on 21 June 2013 with an offence under section 202(1)(a) of the Crime and Misconduct Act 2001 (Qld) of publishing documents and answers without the consent of the Crime and Misconduct Commissioner. She appeared in the Magistrates Court in Brisbane on 21 August 2013, when a Duty Solicitor entered a plea of Guilty to the offence on her behalf, and she was fined $2,000.00, with no conviction recorded. [3] She applied on 22 July 2013 to the Commissioner for Children and Young People and Child Guardian (the Commissioner) for a positive notice and Blue Card to be issued to her under section 199 of the Commission for Children and Young People and Child Guardian Act 2000 (Qld). At the time, she was employed in the disability services sector by the Department of Communities, Child Safety and Disability Services. [4] A negative notice was issued by the Commissioner on 25 October 2013. [5] She then applied to the Tribunal on 25 November 2013 to review that decision of the Commissioner under section 220 of the Commissioner for Children and Young People and Child Guardian Act 2000 (Qld), and represented herself. [6] In a decision delivered on 4 June 2014, the Tribunal confirmed the decision of the Commissioner to issue a negative notice.1 [7] She filed a fresh application on 1 December 2015 to cancel the negative notice with Blue Card Services (Public Safety Business Agency) under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). [8] The Director of the Screening Services Unit, Blue Card Services, Department of Justice and Attorney-General, made a decision on 4 January 2017 as follows: I am satisfied that the applicant’s case is an exceptional case in which it would not be in the best interests of children for her to hold a positive notice. I refuse the application to cancel the applicant’s negative notice. [9] DW filed the current Application to Review the decision of 4 January 2017 in the Tribunal on 17 January 2017. [10] These are the Reasons for the decision of that application. 1 Tribunal Reasons CML 216-13, 4 June 2014. -- 3 of 14 -- 4 The hearing [11] DW was represented at the hearing of this Application by a solicitor. [12] Six witnesses were called to give evidence by DW in addition to herself, and were cross-examined on their written statements of evidence:  DW herself  Ms J R (Director Clinical Practice, Department of Communities, Child Safety and Disability Services, Disability and Community Services Brisbane Region) (By telephone)  Ms G R (Team Leader, Clinical Services, Brisbane Region)  Mr R K (Manager of a Not for Profit Disability Organisation)  Mr A (Partner of DW)  Ms A Hefez ( Psychologist)  Dr M Beech (Forensic Psychiatrist) [13] The Director-General filed a bundle of 241 pages under section 21(2) of the QCAT Act on 16 February 2017, which contained the reasons for the decision, and all other documents and things in the possession of Blue Card Services which were relevant to the review of the decision. No cross- examination was required as to any of that material. The Offence [14] The offence dealt with on 21 August 2013 is the only offence on DW’s criminal record. The charge was that without the consent of the Crime and Misconduct Commissioner she published documents and answers. [15] The charge arose from actions of DW in relation to her participation in a coercive hearing conducted by the Crime and Misconduct Commission in late 2012 as to the suspicious death of her seven-week-old granddaughter. [16] The deceased infant was the child of DW’s son. The infant was living with DW’s son and his then partner. DW gave evidence in this hearing that she had been estranged from her son for about a year at the time, and had not ever seen her granddaughter. [17] The evidence discloses that DW’s son has a history of addiction to drugs and alcohol, and substance abuse. [18] DW was summonsed to participate in the coercive hearing and attended on three days in November and December 2012. She was made aware at the outset of her attendance that the hearing was secret, and that she was not allowed to pass on to any other person what had occurred during her examination. -- 4 of 14 -- 5 [19] Following her initial examination, DW did make disclosures to another person about matters relating to the hearing. The disclosures were recorded on covert listening devices installed for the purposes of an ongoing investigation into the death of the infant. [20] DW was recalled to the hearing in early December 2012. Over the course of two days she admitted that she had told a person about a disclosure that was made during the hearing, had discussed the hearing with a person, and admitted to lying under oath. [21] It is submitted by the Director-General, in this application, that the information disclosed was information relating directly to the police investigation, and the case being built against a person, and that in providing this information DW had directly compromised the ongoing investigation.2 Findings of the previous Tribunal [22] The previous Tribunal Review decision was delivered about a year and a half after the offending. The Tribunal at the time accepted the submissions of the Commissioner that statements by DW ‘demonstrate a clear lack of insight to her role in the hearing and the consequences that might flow from her actions’,3 and was not satisfied that ‘(DW) has demonstrated any insight into her actions or behaviour’.4 [23] The previous Tribunal noted that ‘the offence was committed recently’5 and that the material provided at that time was very limited:6 [47] However, the evidence presented by her is very limited and consists primarily of her own assertions that she has learned a lesson and is unlikely to make a similar error of judgment in the future. She seeks to explain her behaviour and conduct as having been caused by the stress and pressure that she had been experiencing and her failure to properly present her case to the Magistrates Court at the time it dealt with her offence. … [52] (DW) did not provide an up-to-date report from her counsellor or an independent psychologist as to her insight into her offence or her suitability for child employment. The Tribunal accepts that neither party bears an onus of proof in this application. However, if a party wants to be successful it does have a responsibility to provide evidence that assists the Tribunal to arrive at a decision. 2 Respondents Outline of Submissions dated 13 November 2017, [30]. 3 Tribunal Reasons CML 216-13, 4 June 2014, [15]. 4 Ibid, [46]. 5 Ibid, [29]. 6 Ibid, [47], [52]. -- 5 of 14 -- 6 [24] The previous Tribunal also expressed concerns as to how DW would handle future choices between her family and the protection of children in the future:7 [54] Further the concerns of the Commissioner that (DW) placed her loyalty toward her son over the investigation into the death of her infant granddaughter remain apparent and unresolved. The Tribunal does not have confidence that she would choose the safety of a child over a family member in another setting in the future, be it in a work or family environment. [25] Those issues which concerned the previous Tribunal have been addressed in the material provided in the current review. The evidence of DW [26] DW gave evidence that she at first had heard that the death of her grand- daughter was an accident, and was told that her son had rolled onto the baby while he was asleep. [27] However, by the time of the CMC hearing, she was aware of serious injuries sustained by the infant, which included bruises and fractured ribs, and a spiral fracture of the infants arm. It was clear that her son was a person of interest in the inquiry. [28] She said that she was ‘really confused’ and was under extreme stress at the time of the offence. She said that she knows that she did wrong, and apologises for that. She acknowledged that she had put her son’s needs ahead of protection of children at that time, and is sorry for that. She said that she is aware that due to her actions ‘the perpetrators could have got away with it’ and harmed other children. She said that she appreciates the gravity of her offending, and has since had appropriate counselling. [29] She said that both parents of the infant had pleaded guilty to manslaughter. Her son’s ex-partner has been sentenced. Her son has a sentencing hearing in the near future. She said that she now accepts that her son is guilty of the offence, and that it will be a relief for her and her family for the proceedings to be finalised. [30] She has had further major stresses in her life since the offence, with the passing of her father in 2013, the death of her infant daughter of 10 weeks in 2005 due to a medical condition, then the recent passing of her mother after a long illness. [31] She said that she has been seeing a counsellor, Amanda Hefez, since 2014, and now has the tools to manage stress, and has learnt how to take care of herself, to take time off work, and the importance of a strong social network. 7 Ibid, [54]. -- 6 of 14 -- 7 [32] She said that she has managed to still go to work throughout these stressful times, and her supervisor, Ms G R, has been very understanding and has been really good to talk to. [33] She is facing further stress as her employment with the Department is about to cease due to the introduction of the National Disability Insurance Scheme (NDIS). [34] She described herself as a ‘totally different person’ now than she was at the time of the offending, and is much more resilient. [35] She has three sons aged 29, 25 and 9, and her grandson. [36] She and her partner qualified as kinship carers for her grandson in June 2012, and cared for him full time for almost two years. She stated that her grandson has a very close bond with herself, her partner and children, and that they were all absolutely devastated when they stopped formally caring for her grandson, as her kinship carer status was suspended due to the Blue Card negative notice, and she ‘felt so horrible for causing this’.8 [37] Since the issue of the negative notice she has worked closely with a Child Safety Officer from the Department of Children’s Services in relation to her grandson. Her grandson lives with his mother who has been released from detention. [38] She says that she has a good relationship with the Department, and has care of her grandson each alternate weekend from Friday night to Sunday night. She takes him to the prison each Sunday when he is with her, to visit his father. [39] She said that her relationship with her son is getting better, and they get on reasonably well, but there is still a lot he is struggling with. [40] She said that if she were to see anything now that places a child at risk, she would report it. She gave three examples, which have arisen since the offence, when she had placed the safety of a child as primary by her actions: a) On one occasion she was talking to her son on Skype, who had a lot to drink and was intoxicated, and who wanted to come over and see her grandson, but she considered that to be inappropriate and refused, and said that if he came over she would call the police. Her son then did not come over. b) At the prison, she stops the visit immediately if her son says anything that crosses boundaries, such as swearing, as she does not like exposing her grandson to that. 8 Life Story DW, filed 20 March 2017, [18]. -- 7 of 14 -- 8 c) She reported her grandson’s mother and partner to the Department for unsafe practices in transporting her grandson in a car. [41] She said that she did not have insight at the time of the previous Tribunal hearing, but now understood the situation with her offending. Ms J R [42] Ms J R stated that she is the Director Clinical Practice Department of Communities Child Safety and Disability Services (DCCSDS) and has auspice over clinical services based at service centres within the Brisbane region. DW is based at one of these centres, and is employed as a case manager in the clinical stream. [43] She noted that DW had worked for DCCSDS since November 2006, and she had known her since 2009. [44] She described DW as being of high integrity, having a high appreciation of human rights, talented and trust-worthy. She said that DW deals with complex situations, recognises risks, and assists very capably; was a wonderful team member and was well respected by her peers and team management. [45] She noted that the NDIS will roll out in the Brisbane region from 1 July 2018, and that meant that DW would require a Blue Card in order to support the anticipated increase in volume of clients and families who will be made eligible for services. Ms G R [46] Ms G R is the Team Leader, Clinical Services, Brisbane Region, for the Disability Service Centre where DW works. She is a Social Worker, and is DW’s immediate supervisor. She has known DW since early 2014. [47] She said that DW had been very open about the offence, and has expressed regret for her actions, and takes full responsibility for what she did. She said that she believes that DW has learned from the incident [48] She said that she has witnessed the ability of DW to cope in a very complex work environment, and she is incredibly good at managing stress. [49] She said that DW’s current work only involves dealing with people over 18, as she does not have a Blue Card, but that she would no reservations about DW working with children. Amanda Hefez [50] Ms Hefez is the treating psychologist for DW. She has been counselling DW regularly since 9 January 2014, and has had 32 sessions with her. She initially saw DW every 2 to 3 weeks, but that has now spread out to every 5 to 6 weeks, of one-hour sessions. -- 8 of 14 -- 9 [51] She stated that DW was referred to counselling for severe anxiety and depressed mood by her doctor. She said that DW said that at the time of the offence, she did not feel in control, was reactive, and felt ‘very foggy and confused’. [52] She said that, in the course of the counselling, DW described the lifting of the fog or numb state she had previously experienced, which was a sign she was making progress. [53] In her statement of 5 June 20179 she noted that: (DW) has worked through many significant issues related to grief, trauma, anxiety and depression. She is stable and functions well. Her anxiety and depressed mood are managed and she shows no significant symptoms of distress. She is better able to manage the pressures of her daily life such as work demands and family demands. (DW) is able to apply relaxation strategies and mindfulness to help her manage the stressors in her life. She is no longer reactive. She also has the ability to challenge unhelpful thinking, which assists her in making better choices. She consistently demonstrates good decision-making when under pressure. During counselling (DW) demonstrates appropriate emotional responses when discussing her own behaviour. She shows genuine remorse and insight into her offending behaviour. She can outline very clearly how her behaviour impacts on the victim, society and any other children associated with her. She can explain in detail how her actions could have placed the investigation in jeopardy. She can also explain in detail how she will put the needs of children first. [54] She said that she was very confident that DW would not put a child at risk, and would put the child’s needs ahead of anything else. [55] She was also very confident that if another stressful situation arose, DW would now deal with it differently, and that DW was more resilient now than in 2014. She gave as an example the loss of DW’s mother which very stressful, but which did not affect DW’s mental health, and DW’s grief was appropriate. Mr R K [56] Mr R K is the Manager of a large not-for-profit disability organisation in South-East Queensland, which has 140 staff and cares for 2,000 families. 9 Statement Amanda Hefez, 5 June 2017, 2. -- 9 of 14 -- 10 [57] He has known DW and her family for 27 years. He described DW as his closest friend and confidant, and as a well-known and highly respected professional within the disability sector.10 [58] He said that he met DW at university where they studied together. He said he was very conscious of the path that ‘DW and her poor family’ have been through, and has watched her go through the process. [59] He said that she has ‘come through the other side’ with huge insight, and he has huge respect for how she has come through. [60] He stated that he has seen DW interact with her children, grandson, and his own family in a very consistent, caring and loving way. He said that he holds no reservations about DW dealing with children. Dr Michael Beech [61] Dr Beech is a psychiatrist who had seen DW in October 2015 and November 2016 for the purposes of preparing medico-legal reports about her. He regularly deals with dangerous offenders, and is regularly called upon to give expert psychiatric evidence. [62] He said that DW’s conduct in relation to the offence was not child-related, and occurred at a time of great personal stress for her. He said that she had received misleading advice as to what had happened to her granddaughter, and was concerned as to her son’s well-being as he had a history of substance abuse. [63] He described her as having suffered from an ‘adjustment disorder’ at the time of the offence, as she was trying to protect everyone, and to protect her son, and felt isolated. He said that she had thought she was not hindering the investigation, and had not thought she was putting a child at risk, as the child had died. He thought that if her granddaughter had been alive and at risk, she would not have acted that way at all. [64] He said that he thought she found the CMC proceedings were disorienting. [65] He said that by the time DW saw the Magistrate she was displaying regret, but by the time she saw him it was remorse. He said that he had seen her show insight and remorse. [66] He said that she will be in a stressful situation with the forthcoming sentencing of her son, but that she would be in a better position to handle that. He thought it would be worthwhile her having ongoing psychological care, but that it would be hard to imagine the circumstances recurring. 10 Statement of RK, 16 May 2017, 1. -- 10 of 14 -- 11 [67] In his most recent report Dr Beech concluded that:11 This occurred four years ago. At the time (DW) was upset and distressed, there were many issues confronting her. She was worried about her son, and I think that there are indications that she found it very difficult to accept the possibility that he or his partner had killed their child. However, since that time, (DW) has reflected on her behaviour, and her offence. She has sought and received treatment, and she has sought and received support from friends and from her supervisor. I think that she has a greater understanding and awareness of the wrongfulness of her behaviour, and at interviews she expresses, in what I believe is a genuine manner, significant regret and remorse. This is not only on how her behaviour may have adversely affected the investigation, but also the wider impact it has on her and her family, and the way it has affected her work and her access to her grandson, and how it has prevented her from being a kinship carer to her grandson. There is nothing that I can see at the recent interview that indicates that she condones what she has done. It is my opinion, consistent with my earlier opinion, (DW) has with the passage of time, treatment, and support come to understand the nature and seriousness of her behaviour. I think that what she did jeopardised or risked jeopardising the investigation, but I do not think that she intentionally sought to put any child at harm. She understands now though that it was a ‘child- related’ offence. In my opinion, there is no ongoing indication that she would put a priority on the protection of a family member above that of a vulnerable child. Mr X [68] Mr X is the partner of DW. They have been together for 19 years, and have a 9-year-old son together. [69] He said that DW was very stressed at the time of the CMC investigations, and that she was not like that at other times. He said it was ‘way out of character’ for her [70] He said that she now handles stress better by taking time for herself, going out with friends, and spending quality time with him and her family. [71] In his statement he concluded that:12 In addition, (DW) has always gone out of her way in helping others, particularly her elderly parents, grandchild and people in need. (DW) is extremely passionate and dedicated to her work and loves her grandson dearly and has on many occasions expressed that she will never do anything again to jeopardise these very important relationships that she values dearly. 11 Report Dr Michel Beech, 4 December 2016. 12 Letter Mr X dated 17 May 2017. -- 11 of 14 -- 12 In short, (DW) is a good person, a dedicated and loving mother and grandmother. She has always been very caring and trustworthy and very much loved by her family and friends and is not a risk to children. Discussion [72] The Blue Card scheme operates under the Act. The object of the Act is as follows:13 5 Object of Act The object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring – (a) The development and implementation of risk management strategies; and (b) The screening of persons employed in particular employment or carrying on particular businesses. [73] The Chief Executive must issue a positive notice to a person applying under the Act, unless the Chief Executive is satisfied that ‘it is an exceptional case in which it would not be in the best interests of children for the Chief Executive to issue a positive notice’, in which case a negative notice must be issued. [74] The issue in this matter is whether this is ‘an exceptional case’. [75] The only matters that give rise to consideration of the suitability of DW to be issued a positive notice are DW’s actions in committing the offence relating to the CMC proceedings, and her responses, insight and remorse thereafter. [76] DW has no other criminal record. She has been involved in the challenging field of disability services for about 30 years, and has been in her current employment since 2006. [77] She has the support of her superiors at work, her friends and her partner. [78] She cares for her own 9-year-old child, and assists in the care of her young grandson. [79] I was impressed by the evidence of Dr Beech. He was very clear and strong in his views in relation to DW’s situation. He did not consider that DW would put a priority on the protection of a family member above that of a vulnerable child. [80] The enormity of the stress that was thrust onto DW by the events leading to the offence can hardly be overstated. To be confronted firstly with the 13 The Act, s 5. -- 12 of 14 -- 13 news that her granddaughter had died suddenly, then to learn that the death was suspicious, and then that her own son was a suspect, would be a nightmare to any parent and grandparent. [81] She described herself as being under great stress, and finding herself in a fog at the time of the inquiry. That response is entirely imaginable and understandable. [82] DW acted wrongly in disclosing information from the enquiry. She was clearly told not to do so. The result of her doing so may have been that an important enquiry was interfered with, and may have been harmed. [83] DW described herself as being in a state of confusion. She said that she found the enquiry disorienting. Dr Beech described her behaviour as an adjustment disorder arising from trying to protect everyone. [84] DW suffered anxiety and depression in the aftermath of the offence. Again that is a completely imaginable and understandable response to the horrific situation she found herself embroiled in. [85] She sought counselling, and has regularly worked with her psychologist to develop strategies to cope with stress. Subsequent to the tragic events concerning her granddaughter, she suffered further great stress with the loss of two parents and a daughter. Through all this time she continued to work and function effectively. [86] It is a tribute to her coping mechanisms that she was able to handle all these stressors over a relatively short period of time. Throughout it all she has retained the respect, love and friendship of colleagues and friends, and the unfailing support of her partner of 19 years who has stood by her, and with her, through enormously trying times. [87] The evidence of Mr R K was compelling in his obvious sincerity and conviction. He holds a senior position with a large organisation in the disability field, and is obviously a man of significant capacity, experience and compassion. He was unequivocal in his unfettered support for DW, and unhesitant in publicly speaking up for her. [88] Her ordeal is not over as she still has the sentencing of her son for manslaughter to deal with. However, the evidence of the witnesses called on her behalf gives rise to confidence that she will handle this also. In the background is the added anxiety about the future of her job due to changes in the disability sector, and the need to have a Blue Card for her to obtain ongoing employment in the sector under the NDIS arrangements. [89] At the time of the previous Tribunal hearing, DW was still close in time to the offence. The Tribunal was not then satisfied that she displayed remorse and insight. Dr Beech expressed that DW now displays both remorse and insight. I accept the evidence of Dr Beech without reservation. -- 13 of 14 -- 14 [90] DW has displayed by her actions in relation to jail visits to her son with her grandson that she would now place the interests of a child ahead of allegiance to her son. [91] DW has experienced enormous hardship and pressure over the past 6 years. In that time she has continued to have counselling, has recognised her offending, and has strengthened her ability to cope with stress. In all the circumstances, taking into account the stresses upon her at the time of offending, and since, it is remarkable that she is as well as she is now. [92] Having regard to the evidence of DW, and to the evidence presented on her behalf, with particular regard to the evidence of Dr Beech, I do not consider that there is any foreseeable risk in DW working with children, and do not consider that there is an exceptional case. [93] I set aside the decision of the Director-General, Department of Justice and Attorney-General that there is an exceptional case for DW, and refusing the application to cancel the negative notice for DW; and substitute a decision that no exceptional case exists, and that the application of DW to cancel the negative notice is allowed. [94] The matter will now revert to the Director-General who will further process the application of DW in the light of there being no negative notice, which hopefully will lead to the issue of a Blue Card to DW as soon as practicable. -- 14 of 14 --