DD v Chief Executive, Public Safety Business Agency [2015] QCAT 349

CITATION: DD v Chief Executive, Public Safety Business Agency [2015] QCAT 349 PARTIES: DD (Applicant) v Chief Executive, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML232-14 MATTER TYPE: Childrens matters HEARING DATE: 9 June 2015 HEARD AT: Brisbane DECISION OF: Member Quinlivan DELIVERED ON: 31 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive to refuse the applicant a positive notice and a Blue card is set aside. 2. The Chief Executive is to issue a positive notice and Blue Card to DD. 3. The Tribunal prohibits the publication of the names of the adult, her referees and of the organisations in the decision relating to application number. CATCHWORDS: Childrens matters - exceptional case - blue card, - no serious offences - history of child protection issues APPEARANCES: APPLICANT: Ms B. O’Brien represented the Applicant RESPONDENT: Ms N. Taylor represented the Chief Executive, Public Safety Business Agency -- 1 of 10 -- 2 REASONS FOR DECISION [1] DD is a 39-year-old woman who wants to be a teacher’s aide because she really wants to help children and young people achieve. She would like to offer children the sort of encouragement and support that she wished she had received as a child. She also wants to work hours that will allow her to continue to be a parent for her boys without sending them to vacation care or using childcare or babysitters. [2] Her boys are currently aged 19, 16 and 8 years. Her oldest son lives with his father. He has done so since he was 8 years old. Her second son attends TAFE where he studies IT, networking and programming. He was diagnosed with ADHD and posttraumatic stress disorder in 2010 and has been on medication since that time. He does not see his father. Her youngest son is in grade 3 and is doing well at school. He also does not see his father at present. [3] As a family, the applicant and her 2 sons have lived in stable accommodation in a Department of Housing property since 2010. [4] In her own words, DD says that “being a child was not all fun and games for (her) and neither were some of the decisions (she) made throughout (her) adult life.” She states that, as a child, she was sexually abused by her stepfather but was not believed by her mother. She had her first consensual sexual partner in 1993 as a 17-year-old and then followed a series of highly abusive violent controlling relationships. [5] She claims that she has not had a relationship since 2013. She has decided that “single” is the best option for her. [6] DD has a limited criminal history consisting of an offence for possessing a weapon whilst not licensed (28/01/1997), an assault occasioning bodily harm (29/03/2004) and a charge of obstruct police officer (27//01/2008). No convictions were recorded in relation to the first and third offences and no evidence was offered in relation to the second offence. [7] During the period from February 2005 until April 2012 there were 11 notifications to the Department of Communities, Child Safety and Disability Services regarding the applicant’s care of her children. [8] I accept the Respondent’s submission that the material relates to concerns about her children’s exposure to domestic violence, DD’s substance abuse including alcohol and drugs, the children’s poor behaviour and the applicant’s aggression towards the children. I also note that Counsel for DD pointed out that there are a number of references in the Child Safety material to the fact that DD had adequately protected her children from domestic family violence and had demonstrated a sound understanding of the impact this had on her children. [9] Comment was also made that DD was a parent able and willing to meet the children’s care and protective needs. There were also some -- 2 of 10 -- 3 statements that no information was available to suggest that the children had been significantly harmed or were at an unacceptable risk of future harm as defined by the Child Protection Act 1999. [10] In support of her application, DD provided a number of personal references and a number of these people attended at the hearing to give evidence on her behalf. The applicant also provided an expert report from Dr. PO, Clinical and Forensic Psychologist. Dr. PO gave evidence at the hearing. What is the legal position? [11] The issue to be determined is whether the Applicant's case is an “exceptional” one in which it would not be the best interests of children for her to be issued with a positive notice and a Blue card. [12] The relevant laws are the Working with Children (Risk Management and Screening) Act 2000 (the Act)” and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). The paramount consideration in this case is the welfare and best interests of children. In that context, a child is entitled to be cared for in a way that protects the child from harm and promotes the child's well-being. [13] Section 221 of the Act states that the Chief Executive must issue a positive notice to the Applicant if the Chief Executive is aware of a conviction of the applicant for an offence other than a serious offence, unless the Chief Executive is satisfied that it is an exceptional case in which it would not be in the best interests of children to issue a positive notice. In that case the Chief Executive must issue a negative notice to the applicant. [14] In deciding whether the case is an exceptional one, the Chief Executive and consequently the Tribunal, must have regard to the matters set out in section 226(2) of the Act. [15] The section provides that if the Chief Executive is aware that the person has been convicted of or charged with and offence then they must have regard to the following—  whether it is a conviction or a charge; and  whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and  when the offence was committed or is alleged to have been committed; and  the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and  in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the -- 3 of 10 -- 4 offence or not to make a disqualification order under section 357, the court’s reasons for its decision; [16] The Tribunal must issue a positive notice to the applicant if it is satisfied on the balance of probabilities that an “exceptional case” does not exist. Neither party bears an onus to prove that an “exceptional case” exists1. [17] The Chief Executive pointed out that the Tribunal in it’s appeal jurisdiction has stated that “phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the person whom it is here, quite obviously designed to protect: children2”. Further the Appeal Tribunal has observed that “the proper approach to it is that… adopted by Philippides J3…to consider its application in each particular case, unhampered by any special meaning or interpretation”. [18] The Chief Executive also noted out that any hardship or prejudice suffered by the Applicant is irrelevant to determining the issue, as is any benefit to children that may result from the Applicant having access to children.4 The Chief Executive also submitted that relevant Tribunals have indicated that the passage of time alone is not determinative of whether or not a case is an exceptional one. [19] The applicant has not committed a serious offence. The Chief Executive decided that this was an “exceptional” case and that the Applicant should not get a Blue card. What are the risk and protective factors? [20] In Maher’s5 case, 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. [21] In this case, the Respondent submits that the Tribunal must consider the following risk factors:  DD had a charge for “assault occasioning bodily harm” and a conviction for “obstruct police officer”. This raises concerns about DD’s ability to respond appropriately and in a non-violent manner to situations of stress and conflict and also reflects poorly on her ability to be an appropriate role model for children and young people;  The material from Child Safety raises significant concerns about the welfare of children DD’s care specifically relating to exposure of 1 CCYPCG v. Storrs [2011] QCATA 28 2 CCYPCG v. FGC [2011] QCATA 291 @ 31 3 Philippides J. in Commissioner for Children and Young People and Child Guardian v Maher and anor [2004] QCA 492 4 AX v. CCYPCG (No 2) [2012] QCATA 248; and Grindrod v. CEO, Dept. of Community Development [2008] WASAT 289 5 Ibid. -- 4 of 10 -- 5 children to domestic violence. The records reveal that in 2008 DD’s children were removed from her care after a substantiated risk of physical and emotional harm was recorded.  The evidence indicates that DD has previously engaged in significant alcohol abuse. There is a concern that she continues to consume alcohol. There is a positive in that she has modified her alcohol consumption in recent times.  There is a concern based on the expert report from Dr. PO that “the vulnerabilities the applicant has experienced in the past remain to an extent unresolved”.  Dr. PO also identified a number of risk factors, which continue to be present in the Applicant’s life. These include continuing unresolved relationship issues with parents and siblings, her likely exposure to abusive parenting styles, her history of self-medication using alcohol and cannabis and the possibility that she might engage in a primary relationship pre-emptively.  Dr. PO says that the Applicant “demonstrates minimisation of her former propensity for violence and acting out” and “continues to have unresolved personal and relationship issues, that may over time limit optimum functioning, capacity and discernment”.  Dr PO indicates that the Applicant “requires further and specific psycho-educational assistance to effectively improve individual maturation and emotional processing capacities”. He concludes that on balance the applicant’s application would be better “delayed and/or contingent on appropriate therapeutic intervention”. [22] On this basis, the Respondent argues that Dr PO’s inability to offer his unequivocal support for the Applicant engaging in regulated employment should be afforded significant weight. [23] The Respondent also points out that there is an issue about whether the applicant has appropriate insight into the consequences of her behaviour on children and young people where a history of negative behaviour exists. The Respondent contends that the Applicant has not reflected on what impact her alcohol abuse has had on her children or how it impacted on her ability to meet their physical and emotional needs. [24] On the other hand, Dr. PO said that the Applicant “clearly demonstrates a range of insights concerning the impact of her past victimization”. He concludes that the Applicant’s insight into the short and long-term impacts on children “could reasonably be assessed as incomplete although remaining a positive work in progress”. [25] The Respondent also points out that there are broader issues regarding transferability and the unconditional nature of a Blue card that must be considered by the Tribunal, particularly as a Blue card will allow the -- 5 of 10 -- 6 Applicant unsupervised and unfettered access to children and young people in a range of regulated activities. [26] The Respondent acknowledged that the written material before the Tribunal suggested that there were a number of protective factors to be considered:  The Applicant acknowledges that in the past she has not handled situations appropriately and she has expressed remorse for her behaviour;  The Applicant says that she has made positive changes in her life since 2009 and she expresses a desire to continue living a changed life;  The Applicant has engaged in counselling, rehabilitation programs and various self-development courses and has provided evidence of her attendance. She says that she is continuing to seek professional help from a counsellor on an ongoing basis;  The material from the Department indicates that the applicant has willingly engaged with it in recent years and she has taken steps to improve her parenting skills. She has also arranged for her children to receive counselling;  The Applicant says that she has reduced her consumption of alcohol and no longer abuses alcohol;  The Applicant’s written material demonstrates a level of insight into the underlying causal factors leading to her alcohol addiction. She acknowledges the impact that domestic violence has had on her children and this reflects a level of insight.  The Applicant reports that she has a support network in the form of her friendship with the mothers of children at the school where her children attend;  In his report, Dr. PO concludes that the Applicant displays no definitive features of pathological functioning and “appears to have improved in terms of self-awareness and with utilizing more considered and prosocial decision-making with life choices”;  The Applicant’s witnesses attest to her good character and her positive interaction with children that she has contact with. [27] In her response to the Chief Executive’s Statement of Reasons dated 24 September 2014, DD acknowledged the following risk factors:  Her history as a victim of domestic violence and sexual abuse; -- 6 of 10 -- 7  Her past criminal charges and convictions;  Her past involvement with Child Safety  Her past addiction to alcohol. [28] DD also submitted that a number of protective factors that should be considered:  The length of time which has passed since her offending and direct involvement with Child Safety;  Her commitment to self-improvement through counselling and education;  Her wide network of social support through her youngest child’s school and community involvement;  Her choice to remain single and the length of time since she has been in a relationship where domestic violence occurs;  Her insight into her past behaviour and experience as evidenced in her Life Story and her commitment to improve through voluntary counselling and courses;  Her role as a protective and loving parent to her two younger sons;  Her appropriate conduct with other children through volunteering at her youngest son’s school;  Her rehabilitation from her addiction to alcohol;  Her demonstrated commitment to helping others through her voluntary involvement with the NIF since 2010 (including speaking at forums on domestic violence and working with members of P, PM, AM and her own Community Association). Is this an exceptional case? [29] The applicant has had a troubled past and a difficult upbringing. In recent years she has made positive changes in her life. It was submitted on her behalf that “she has escaped the cycle of domestic violence that had exposed her and her children to significant trauma”. [30] She has attended various courses and counselling and has become an active participant in her community through volunteering at her son’s school and becoming involved with organisations such as a local Community Association. She appears to have a strong supportive social network through her son’s school and the Association. -- 7 of 10 -- 8 [31] In particular, the written evidence from Ms. TJ who is a Co-ordinator in the Families and Children team at the Association, detailed the long and committed engagement by DD with the NIF since 2009. In her role the Applicant assists agencies, peak bodies and community members in their interactions with the Department of Child Safety. [32] Ms TJ described the Applicant as being diligent, organized and demonstrating care, concern and empathy for keeping all children safe. Ms. TJ says that the applicant has “lived experience of the difficulties which many women face in domestic violence situations” and uses this experience empathetically and proactively to increase better practices for parents and the community to keep parents and children engaged and safe. [33] In her oral evidence, Ms. TJ said that the Applicant demonstrates resilience in learning and taking on new ways. She knows what her strengths and weaknesses are and is reflective. The applicant struggles sometimes but she is able to move through it. [34] DD’s Life Story details a number of counselling opportunities that the applicant has taken advantage of both for herself and her children since 2008. There is considerable variety in her attempts to seek help for herself and her children. She demonstrated some insight by saying that “I have understood and acknowledged my issues and I knew I had to access some assistance through courses, counselling and self reflection”. [35] In relation to her alcohol abuse the applicant says that in 2011 she self- referred to Amend, a program which addresses substance misuse. She admitted that she was an alcoholic. She completed the rehabilitation program. [36] She admits to smoking marijuana during her past but denies that this ever occurred in her home or in the presence of her children. [37] The applicant has continued to seek to improve herself, having commenced a Certificate IV in Youth work at TAFE in 2009/2010 but realized that she needed to heal herself, before she would be able to empathize with young people and counsel them properly. She then sought to enrol in a Certificate III in Education Support to become a teacher’s side. She has had to defer that course because she was unable to complete her vocational placement without a Blue card. [38] It is now a number of years since DD began to turn her life around. She has demonstrated a determination to make a better life for her and her sons. [39] In my view, the applicant struggled to give convincing evidence and at times even under gentle questioning she appeared to be nervous, defensive and non-responsive. However, when seen in the context of her Life Story this is understandable given the substantial challenges she has -- 8 of 10 -- 9 had to face and overcome. She is not a sophisticated woman and it is clear that her efforts remain a work in progress as discussed by Dr. PO. [40] At times she struggled to provide a satisfactory explanation for some of her previous behaviour. She readily admitted that her children should not have been exposed to domestic violence but found it difficult to articulate what the impact on them would have been. [41] The applicant impressed me as a woman who is committed to changing her life and that she understands the critical importance of ensuring that if she were granted a Blue card that she would always have to act in the best interests of children. [42] While Dr. PO has raised some concerns, particularly around the ongoing challenges that DD faces, I am satisfied that she has organised good support arrangements to ensure that she can now live in the community as would normally be expected. She has the ongoing incentive of providing her sons with the opportunities they need to succeed. [43] I have formed the view that the protective factors outweigh the negative factors in this case. I am not satisfied on the balance of probabilities that this is an ‘exceptional case’. I have therefore determined that the decision all the Chief Executive to refuse the Applicant’s application for a positive notice and a Blue card should be set aside and the Chief Executive should issue a positive notice and Blue card to the applicant. Should this decision be published in de-identified format? [44] The Respondent has submitted that the Tribunal has the power under section 66 of the QCAT Act to prohibit publication of information that may enable a person affected by a proceeding to be identified. [45] The Respondent submitted that it would be appropriate for the Tribunal to make an order prohibiting the publication of the names of all the children identified in the material and all other identifying particulars which could reasonably lead to the identification of the children. [46] The applicant also submitted that the decision should be published in a de-identified manner. [47] I am satisfied that it would not be in the public interest to release identifying information regarding the applicant, her family, her witnesses or the organizations with which she is involved. I am satisfied that the principles of openness and accountability can still be achieved and maintained in the public interest by permitting the public access to the details of this decision and the reasons behind it in a de-identified format. The orders are: 1. The decision of the Chief Executive to refuse the applicant a positive notice and a Blue card is set aside. -- 9 of 10 -- 10 2. The Chief Executive is to issue a positive notice and Blue Card to DD. 3. The Tribunal prohibits the publication of the names of the adult, her referees and of the organisations in the decision relating to application number -- 10 of 10 --