BRA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 148

CITATION: BRA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 148 PARTIES: BRA (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML196-15 MATTER TYPE: Childrens matters HEARING DATE: 19 February 2016 HEARD AT: Toowoomba DECISION OF: Member Joachim DELIVERED ON: 28 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Public Safety Business Agency to issue a negative notice to BRA is set aside and she is to be issued with a positive notice and blue card forthwith. 2. The publication of information that may identify the applicant and her children is prohibited. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – where applicant issued with negative notice after holding a positive notice – where applicant has numerous convictions over 19 year period including drug use – where applicant has mental health diagnoses – where applicant’s children were temporarily removed – where applicant has engaged with multiple services following children’s removal – where applicants psychologist and children’s case manager highly positive about applicants progress – whether case is exceptional Child Protection Act 1999 (Qld), s 9 -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6 s 221, s 226, s 360 Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 APPEARANCES: APPLICANT: BRA represented herself RESPONDENT: The Public Safety Business Agency represted by Ms Heath REASONS FOR DECISION [1] BRA is 39 years old and lives on the Darling Downs. She used to hold a positive notice and blue card. BRA was issued with a negative notice which means she cannot receive her blue card. The agency responsible for issuing Blue Cards is the Public Safety Business Agency (‘PSBA’). BRA is the sole carer for her three children and requires a blue card to resume teaching and complete her psychology studies. [2] In considering her eligibility to hold a positive notice the PSBA took into account BRA’s criminal history which includes offences from 1995 to 2014, a period of some 19 years. These will be described in more detail later. [3] None of her convictions are for a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Because of this she is entitled to receive a blue card unless her case is an exceptional one, such that it would not be in the best interests of children for her to have a positive notice and blue card.1 The PSBA found that BRA’s case was an exceptional one, following a reassessment of her eligibility after receiving police information. [4] The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.2 The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act, which outlines what I have to consider in deciding if an exceptional case exists. [5] The purpose of the review is to produce the correct and preferable decision.3 The Tribunal may: 1 Working with Children Act, s 221. 2 Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), s 20. 3 Ibid. -- 2 of 11 -- 3 a) confirm or amend the Agency’s decision; b) set it aside and substitute its own decision; or c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.4 [6] Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special. [7] 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. [8] The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act. [9] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. [10] If successful in this review, BRA could work in any area of child related employment, whether supervised or not. [11] In order to issue a positive notice to BRA I need to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case does not exist. [12] Following a hearing in Toowoomba on 19 February 2016, parties were directed to file written submissions. The PSBA filed submissions, the applicant did not. BRA’s criminal history [13] BRA’s criminal history commenced on 14 February 1995, just before her 19th birthday. The last entry on her criminal history is 21 October 2014 for an offence in July 2014. The offences occurred in Queensland. [14] The offences include stealing, fraud, possession of dangerous drugs and possession of utensils for drug usage. BRA’s offending has attracted convictions, fines, community service and drug diversion. Reasons why the Public Safety Business Agency says that BRA should be issued with a negative notice [15] The Agency considered that an exceptional case exists in which it would not be in the best interests of children for BRA’s positive notice to be continued. [16] Amongst the reasons for initially coming to this view, the Agency noted that the Applicant has had two drug related convictions recorded on her criminal history relating to cannabis, with the police information suggesting her 4 QCAT Act, s 24. -- 3 of 11 -- 4 children were directly exposed to her most recent drug related offending in 2014. The Agency considered that the police information suggests that BRA’s children were exposed to her drug use since 2010, which presents as a significant concern. [17] The Agency was also concerned about the information obtained from the Department of Communities, Child Safety and Disability Services regarding allegations between 2009 and 2014 relating to her children’s exposure to domestic violence, her mental health status, the use of alcohol and drugs whilst pregnant, a lack of food for her children, driving whilst under the influence of drugs and hygiene issues within the home. The Agency suggested the Applicant lacked the capacity to make sound judgments or to protect her children. [18] Whilst acknowledging the positive steps in addressing the child safety concerns, the Agency considered that the Applicant’s ability to engage and continue with these supports on an ongoing basis has not been sufficiently tested. The Agency considered the Departmental information, as a whole suggested the Applicant has continued to have limited regard for the potential detrimental impact of her offending behaviour and her parenting abilities have had on her children until only relatively recently. [19] The Agency was concerned that the Applicant remained in a domestic violence relationship until mid-2014 in the light of allegations of ongoing exposure of her children to incidents of domestic violence since 2009. The Agency considered that the favourable comments expressed by the referees do not outweigh the risk factors identified by the Agency. [20] In its written submissions the Agency noted that any hardship or prejudice suffered by the Application is irrelevant as to whether BRA should receive a positive notice, and that any benefit to children that may result from her having access to children is not a relevant factor in whether deciding whether an exceptional case exists. [21] The Agency’s submissions referred to a number of child related concerns as reported to the Department of Communities, Child Safety and Disability Services in relation to BRA’s mental health, alcohol and drug use, and domestic violence. The Agency noted that a substantiated outcome in relation to two children being in need of protection occurred following BRA’s attempted suicide on 24 July 2014. As a result of this self-harm attempt her two youngest children were removed from her care temporarily and she was placed under an involuntary treatment order temporarily. [22] The Agency submits that the Departmental material as a whole raises concerns regarding BRA’s history of drug and alcohol abuse, particularly in the home while caring for her children, her previous engagement with ATODS, and the exposure of her children to verbal and domestic violence between the Applicant and her former partner. Concern is also expressed regarding the Applicant’s insight into the impact of this exposure on the children, as well as her mental health issues. -- 4 of 11 -- 5 [23] The Agency listed a number of protective factors in this case, with which I agree. There are however other protective factors which I will refer to later. The Agency also refers to a number of risk factors which the Agency considers outweighs the protective factors. Some of the concerns raised as risk factors are more comments on the evidence. Nevertheless, I do agree with most of the Agency’s noted risk factors. [24] The Agency submits that given the recent expiry of the supervision order in respect of the children, the Applicant has not proven she can remain in the community unsupervised and continue to abstain from further offending, particularly when viewed in the context of a lengthy history of drug use. [25] The Agency submits that whilst the evidence of IJ was positive in terms of BRA’s work performance, her evidence should be tempered by the fact that, notwithstanding the Applicant’s positive work performance in the 10 years she worked with IJ, she was keeping and using dangerous drugs at home while her own and other children were present in the house. [26] Further concerns held by the Public Safety Business Agency are that BRA did not identify specific tangible and practical strategies that she has learned that she can put into effect should she find herself in a domestic violence situation in the future, and did not identify how she is managing her relationship with her ex-partner. The Agency submits that BRA was vague in her answers relating how she would manage the relationship with her ex- partner moving forward to ensure the children were not exposed to further incidents of verbal domestic violence. [27] The Agency submitted that the broader issues regarding transferability and the unconditional nature of a blue card cannot be disregarded as the granting of a blue card will allow the Applicant unsupervised and unfettered access to children and young people in a range of regulated activities. The Agency noted that the Tribunal must consider the Applicant’s ability to work in any child related employment or conduct a child related business regulated by the Act, irrespective of whether the Applicant intends to engage in such activities. The Agency submitted that the risk factors in the evidence raise concerns regarding the Applicant’s eligibility to demonstrate stable and appropriate role modelling for children at this time. [28] The Respondent submitted that the Applicant’s case is an exceptional one, such that it would not be in the best interests of children and young people for her to be issued with a positive notice and blue card at this time. The Agency seeks an order from the Tribunal confirming the original decision of the Agency. [29] The Agency also submitted that I should make an order under s 66 of the QCAT Act to prohibit publication of information that may enable a person affected by the proceeding to be identified. The Agency submitted that it would be appropriate for the Tribunal to make an order prohibiting the publication of the names of all children identified in the written material and any other identifying particulars that could reasonably lead to the -- 5 of 11 -- 6 identification of children, arguing that it was in the public interest for such an order to be made. Why BRA says she should have a blue card [30] BRA reports a happy childhood as an only child, apart from some disruption after her parents divorced. She reported doing well in primary school, but struggling in high school. She stated she began experimenting with drugs soon after she finished school with her drug of choice being amphetamines. She attended a number of rehabilitation centres over the course of her adult life. [31] She reported on her relationship with the father of her two daughters. Her partner was a regular marijuana user and she followed in his footsteps in this regard. She was subsequently diagnosed with bipolar disorder and borderline personality disorder which she attributes to regular and long-term use of marijuana. There had been incidents of domestic violence and her partner was removed from the house by police. [32] The next day, in July 2014, she attempted suicide whilst the girls were sleeping upstairs in the house. She considered this the turning point in her life. She was hospitalised. She reported she felt ruined by a 12 year relationship marred by marijuana use which she did not like using. She reported that she had not been properly medicated for her mental health issues and considered she would be better off dead. [33] BRA was held at the Toowoomba Base Hospital under an involuntary treatment order for three weeks and her two daughters were taken from her and put into temporary foster care. She stated that her children are the most important thing in her life. She fought hard to get them back and succeeded. She acknowledged that her life had seriously spiralled out of control. [34] She advised the Tribunal that she has been clean since that time, happily living as a single mother and engaging in regular domestic violence counselling. She has also involved with Alcohol and Drug Dependency Service, Relationships Australia, and Child Safety. She also attends sessions with her psychiatrist on a regular basis. [35] She has studied a Bachelor of Business in Public Relations, a Graduate Diploma in Early Childhood which has been used for casual work with children on an after school basis. [36] She also completed a Graduate Diploma in Human Services and is currently studying a Bachelor of Social Science and Psychology. She acknowledges her criminal history and blames no one but herself. She stated that the fraud and stealing charges and drug offences related to marijuana, with all her charges stemming from her prior drug use. [37] Her turning point came when she realised she had to make a choice between drugs and her children. She acknowledges her behaviour was totally inappropriate. She wants to return to her previous workplace where -- 6 of 11 -- 7 she worked for nine years as a teacher, and where she was respected and popular. [38] She reported that since the mental health diagnosis and consequential treatment regime from 2014, she has been extremely well. She takes medication every day, remains abstinent from drugs and alcohol and continues to maintain open and honest communication with her support services. She uses behaviour therapy skills which she has learned through her therapy. She states she focuses on mindfulness, emotional regulation, distress tolerance and interpersonal effectiveness. She reported that because of her progress she now sees her psychiatrist privately once per month, and is involved in regular domestic violence counselling sessions. The other services have closed her case. [39] She stated that the earlier rehabilitation had not been successful because she had disregarded what she had learned. She stated she had never used drugs in front of the children, although the children had been in her house when she used cannabis. She acknowledged that it was not okay to use drugs in the house. She acknowledges that the children would have smelt the odour from the marijuana but didn’t think about it at the time of using. She acknowledged that this demonstrated poor role modelling. [40] She considered her triggers for drug use were her relationship with her former partner and the arguments which occurred in her former toxic relationship. She stated that these triggers have now gone. When she had found her son using marijuana in late 2015 she disposed of it. [41] As a result of the Alcohol and Drug Dependency Service counselling she has strategies in place for relapse prevention. She understands her triggers and keeps focussed on other matters when in a crisis. She uses distractions and puts on uplifting music. She uses deep breathing to change any impulse. She has adopted a strategy called radical acceptance, in which she accepts the reality of situations, and explains what she can do rather than melting down. She reports no urge to use cannabis. She reported she no longer drinks. [42] She reported that her previous efforts to shut down arguments with her former partner had failed and the atmosphere is completely different in the house now. Although she still needs to communicate with her former partner due to the children, she has changed her reaction to him after having undertaken the domestic violence counselling. She advised the Tribunal that she can now identify what the signs are of an unhealthy relationship. She advised that her support networks include her psychiatrist that she sees each month, a friend that she sees every day, and support from her mother whom she sees monthly but talks to each week. The evidence from BRA’s witnesses [43] IJ who was BRA’s employer advised the Tribunal that the Applicant was involved in after-school tuition based early childhood education. She stated she was aware of BRA’s criminal history in relation to fraud and drug -- 7 of 11 -- 8 charges, although she was unable to recall any charges in respect of drug possession. She indicated that she was aware of BRA’s using illicit substances and was aware that her regular drug testing regime indicated that she had remained clean. [44] She gave evidence that she had never seen BRA use drugs, and she had never seen her act inappropriately with children. She noted that she deals appropriately with children’s behaviour, and she has observed her around BRA’s own children behaving as a normal caring parent. She has also been aware of BRA’s mental health challenges and the abusive relationship she was in which lead to a suicide attempt. She had read the Agency’s reasons document. She indicated that she would re-employ the Applicant if she obtained her blue card, noting that BRA had been a casual employee whose working hours varied between 4 to 15 hours per week. [45] BRA’s psychiatrist, Dr Yara Khedr, gave evidence that she had known BRA for approximately three years following a two month stay in hospital. BRA had been in the public health system but since September 2015 she has been seeing her in her private practice. Her case management ceased because she was able to manage it herself. She noted that there was a diagnosis of bipolar affective disorder and borderline personality disorder on a past history of alcohol and poly-substance abuse. [46] Dr Khedr advised that in her opinion BRA understands the effect on her if she would return to drugs, and that she had good insight into relapse issues. She gave evidence that BRA was very compliant with her treatment, there was no evidence of drug use and no evidence of any relapse since July 2014. She also advised that BRA knows when she needs to seek help. She had no concerns in relation to risk to children. [47] Ms Amanda Obst is a Child Safety Officer with the Department of Communities, Child Safety and Disability Services. She has been involved with the current protective supervision order in relation to BRA’s two young girls. She gave evidence that BRA has made significant progress in respect of the case plan and had been undergoing counselling around her domestic violence history. [48] The purpose of the current case plan was to ensure that BRA was progressing with the case plan and working with other stakeholders. The current case plan involved BRA interacting with services and assisting her children in their schooling. The Department has no safety concerns and will be closing the case next week. Ms Obst advised that she made fortnightly home visits of approximately one and half hours and that all random urine testing had been clear. The Department has no concerns regarding BRA’s ability to take care of children. The Department was aware of significant and lengthy history of drug use which did affect her ability to look after her children in the past. Ms Obst is of the view that BRA has shown insight into the impact of domestic violence on her children. -- 8 of 11 -- 9 The Tribunal’s view [49] 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 objects and intention of the Act. [50] These are to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration that the welfare and best interests are paramount. 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 is a further principle to be considered. [51] 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. [52] 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. [53] This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary. [54] I also need to take into account the various provisions of s 226 of the Working with Children Act in determining whether an exceptional case exists. This is not an exhaustive list of matters I need to consider. BRA has convictions for a number of offences relating to drugs, stealing, fraud, and unauthorised dealing with property. None of these offences are categorised as serious offences or disqualifying offences under the Act. [55] The Applicant’s offending commenced just before her 19th birthday and continued until 2014 some 19 years later, a significant period of time. I am satisfied that the nature of some of the offending had relevance to employment or carrying on a business that involves, or may involve, children. She was convicted of possessing dangerous drugs and possessing utensils for use relating to cannabis in 2009 and 2014, and she used drugs in the family home. [56] I accept that children have a right to be protected from drug exposure and to be cared for by persons who are not using drugs which have potential to impair the carer’s ability to protect the children’s best interests. There have been a range of penalties imposed on BRA including fines, to be of good behaviour, community service, probation and attendance at drug diversion. None of this criminal behaviour does her any credit. [57] The Applicant’s offending did occur during a time when she was a mature adult. I will now deal with the protective factors and risk factors as I see them. In the Commissioner for Children and Young People and Child -- 9 of 11 -- 10 Guardian v Maher & Ors,5 the Court of Appeal endorsed the approach of identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case. Protective Factors [58] Protective factors in this matter include: a) The Department of Communities, Child Safety and Disability Services have been very pleased with the progress that BRA has made in relation to all of the case plans for her children. They report significant progress and cooperation; b) BRA has strategies in place for relapse prevention; c) BRA undergoes regular counselling with her psychiatrist on a voluntary basis, a domestic violence prevention service and Drugs of Addiction service; d) Triggers for her past drug use have been removed from her life; e) She understands the effects of drugs on herself and others; f) She no longer drinks alcohol or uses drugs; g) She has positive references from her ex-employer who has never seen her act inappropriately with children; h) Her random urine tests have been clear; i) She has good social support from her mother; j) She has been compliant with her treatment; k) She is undertaking study and has future employment goals; l) She knows when to seek help; m) She has shown good insight into the impact of domestic violence on children; n) She is at low risk of relapse in relation to drug taking. Risk Factors [59] Risk factors in this case are as follows: a) A lengthy criminal history, including drug related charges; b) A child protection history which included an inability to extricate herself from a toxic relationship; c) A lengthy history of drug use, including keeping drugs in the home and using them when children were in the home, but not in their presence; d) Past relapse into drug use following rehabilitation; e) Insufficient time since last relapse; 5 [2004] QCA 492. -- 10 of 11 -- 11 f) Applicant only sought assistance for drug and mental health issues after the removal of her children. [60] Even though it is only since July 2014 that the Applicant appears to have turned her life around and has engaged appropriately with professionals and other support agencies, I do consider that the protective factors outweigh the risk factors. I note the submissions of the Agency that the Applicant’s supervision by the Department of Communities, Child Safety and Disability Services has just ended and she has not proven herself unsupervised. [61] Based on the evidence from some witnesses and the applicant, I do not accept the Agency’s submissions that BRA could not identify strategies she can put into place should she find herself in a future domestic violence situation. [62] I have come to my conclusions partly as a result of the considerable effort that BRA has gone to in ensuring the return of her children and the very supportive evidence of Ms Obst who is a frontline worker, and who has had the most contact of anyone since the return of her children. [63] Ms Obst reported that BRA was doing exceptionally well in managing her life, and providing for her children. I consider that the events of July 2014 had such an impact on the Applicant that the risk of relapse, about which the PSBA is concerned, is very low. I am also satisfied that the previous triggers for drug use, namely the abusive relationship has been removed from her life. [64] Dr Khedr’s evidence in relation to BRA’s insight, relapse prevention and treatment compliance was very compelling. This along with Ms Obst’s evidence convinced me that despite the relatively short period of time that has elapsed since the events of 2014 that BRA will continue on a positive path. [65] As a result of the above considerations, I find that BRA’s case is not an exceptional one such that it would harm the best interests of children for her to be issued with a positive notice and blue card. I therefore order that the Public Safety Business Agency issues BRA with a positive notice and blue card. I further order that this be issued to her forthwith. [66] The Agency has requested me to make an order in respect of s 66 of the QCAT Act prohibiting publication of information that may enable a person affected by the proceeding to be identified. I accept the submissions of the Agency, as it would not be in the public interest for any children associated with BRA, namely her children, to be identified. I will therefore make an order prohibiting the publication of the names of all children in the written material and all other identifying particulars that could lead to the identification of children. -- 11 of 11 --