De Jong v Commissioner for Children and Young People and Child Guardian [2014] QCAT 428

CITATION: De Jong v Commissioner for Children and Young People and Child Guardian [2014] QCAT 428 PARTIES: Charmaine Patricia De Jong (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML 175 -13 MATTER TYPE: Childrens matters HEARING DATE: 3 June 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 29 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian dated 5 August 2013 to issue a negative notice to Ms De Jong is confirmed. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where drug offences Commission for Children and Young People and Child Guardian Act 2000 (Qld) ss 226, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited FGC v Commissioner for Children and Young People and Child Guardian [2011] QCATA 291, -- 1 of 9 -- 2 cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms Louise Robert Solicitor for Queensland Indigenous Family Violence Legal Service RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Mr Craig Capper, Solicitor (in-house) REASONS FOR DECISION [1] Ms De Jong applied for a blue card to undertake volunteer work with the Cairns Regional Council at Hambledon House Community Service. [2] Ms De Jong and her partner have been interested in helping disadvantaged children. Mr De Jong was in a foster care as a child. They had decided to become foster carers and have completed modules in Quality Care with the Department of Communities, Children Safety and Disability Services. [3] The Commissioner is concerned that Ms De Jong has convictions for five drug offences on three occasions between 2006 and 2012 and has admitted to have been addicted to amphetamines and cannabis. [4] The Commissioner is rightly concerned that these substances can cause behavioural and psychological changes that impact on the ability of an adult to properly care for children, especially young children. [5] The Commissioner is of the view that Ms De Jong’s drug offending adversely reflects on her eligibility to work with or interact with children in activities regulated under the Act. [6] The issue for the Tribunal standing in the shoes of the Commissioner is whether any exceptional circumstances exist that it would not in the best interests of children for Ms De Jong to be issued with a blue card. [7] The focus of the Tribunal is on the best interests of children and not on what might be in the best interests of the Applicant. Ms Charmaine De Jong [8] She acknowledged that her drug addiction had commenced shortly after she had her baby daughter in 1991 to help her with the pain that she was experiencing as a result of a motorcycle accident. She became addicted to using the drugs known as “amphetamine” and “cannabis”. She stated that she continued those addictions for a couple of years. Her partner continued to use drugs and she found it hard to “sober up”. [9] She reached a point where she accepted that she needed to stop and went “cold turkey” without professional support, counselling or rehabilitation. She says on page 3 of her Life Story: -- 2 of 9 -- 3 I acknowledge, however, that it was my choice to take drugs, and I have made that choice knowing that there is a risk that I would be addicted. I did, despite my thoughts otherwise, become addicted to drugs, particularly amphetamines and cannabis, and, after about two years of this lifestyle, I realised that I did not want to live that addiction lifestyle any longer and I had to get off the drugs. I tried to speak with my first husband about us both getting of drugs, as I found it very difficult to sober up by myself, especially with my husband still using drugs. My husband would not stop using drugs, and I made a decision, therefore, to leave my first husband, and also to break off any mutual friendships that we had that involved people who also took drugs. In or around mid -1997, I took my children and I to live with my parents. While I was living with my parents during this time, my parents helped me to rehabilitate myself, where I refocused on my children, and my commitments and responsibilities, and got off the drugs. I did not go to rehabilitation or counselling, but my doctor prescribed me sleeping tablets to help me sleep and I went “cold turkey” to get off the drugs. [10] Ms De Jong continued to use cannabis socially after ceasing taking amphetamines. She stated that she had never used drugs in front of the children. Her evidence is that she is no longer using any illicit drugs. She told the Tribunal that she had been undertaking random drug tests between the period of 2 November 2012 and 25 September 2013 in connection with an application in the Family Court. [11] Ms De Jong told to the Tribunal that all the tests were negative except two tests that indicated traces of opiates. The two positive tests were apparently attributed to having used cold and flu medication which contained codeine. [12] She acknowledged that she had made many mistakes in the past and was sorry for doing so. She believes that she has accepted responsibility for her past behaviour and has demonstrated a degree of remorse and insight into her offending. She believes that she has an understanding of the seriousness of the offences. She acknowledged that she had hurt other people and was very sorry for that happening. [13] Ms De Jong talked about the changes in her attitude. She and her partner would not accept any drug use in their house. She told her daughter that she was not welcome to stay with them when she came home inebriated. [14] She acknowledged how harmful it was for children to grow up with a parent with a drug addiction. She was able to give several examples of the issues. One example was that she would be grumpy and irritable at times. It was a very selfish lifestyle and an abdication of her role as a parent. She has seen the damage done to children and still feels guilty about that. She told the Tribunal that she was now much more child focused and could work very well children. [15] She described herself as having the following protective factors: she was hard-working; family-oriented; a sound thinker; was good with challenges; and able to handle problems. -- 3 of 9 -- 4 Mr Sipke De Jong - Partner [16] Mr De Jong is Charmaine De Jong’s partner. He had not known of his partner’s previous drug addiction. He will not accept drugs within his house. She supports this position. [17] He has been helping street kids for 20 years and knows the impact that drugs can have on children. They would like to take on foster caring. She has grown as a person becoming: more self-aware; better at judging other people; and understands the need for her to be stronger looking after herself. He believes that she is great with children. She has acknowledged the seriousness of her past drug addiction. She is a devoted, trustworthy and honest woman who is protective of her family. Aileen Murat - mother [18] She confirmed that her daughter had been involved in a serious motorbike accident and this had put her daughter's life in turmoil. Charmaine had spent a lot of time away from her children recovering in hospital and when she returned home, she was not the same mother, for example she could not do the same activities or household chores while she was recovering. She believed that it was the combination of these factors that led to her daughter turning to drug use. She admitted that she did not know about her daughter's drug use until a couple of years after the accident when her daughter asked her for help to separate from her then husband. Charmaine moved in with them for a period of time before finding a house for her and the children. [19] She told the Tribunal that neither she nor her husband tolerated the use of illegal drugs in their home. Charmaine stopped using amphetamines when she was living with them. She believes Charmaine has never touched them again. She believes that Charmaine would have handled things a lot differently and her daughter also understands that. She has seen her daughter acknowledge having made mistakes and believes that she has learnt from them. She has seen her daughter working positively with her own children and other children. [20] She believes that her daughter has always been a good provider for her family and hard worker. Her daughter is very family-oriented; always there for her children and grandchildren. Her daughter takes her role as mother and grandmother seriously. Rick De Jong - stepson [21] He has known Ms De Jong for a period of five years. He found her to be kind, caring and supportive of all his dreams and goals regardless of not being her own child. He describes the Ms De Jong as an individual with clear and morally sound judgement, she is intelligent and shows a lot of common sense; is kind, loving and selfless as a person who has not only been a great influence on her own children and grandchildren, but himself, his friends and other families. She does not drink alcohol or partake in recreational drug use and is generally an excellent role model all round for children and adults of all ages and walks of life. -- 4 of 9 -- 5 [22] He would highly recommend her to undertake work with young children as he has seen the good that she does for them. Children with her are always happy and full of laughter joy and curiosity. Mr Ian Ritchie - forensic psychologist [23] He confirmed that he had administered the Personality Assessment Inventory test which suggested that Ms De Jong sought to convey an overly positive impression suggesting some deliberate defensiveness. [24] He was also of the view that she was unlikely to seek therapy on her own initiative and would likely to be resistant if she did begin treatment. [25] Her past history of reflects a naivety of character. He talked about a number of examples in the background when Ms De Jong had exercised poor judgement and this was especially apparent in drug possession offending where she claimed she had taken the rap for one person and had sought to dispose of illicit drug herself without community involvement. [26] He talked about an “epiphany” whereby Ms De Jong had decided her own interests must come first and not to accommodate others so much. He did not know whether her character and recent insights were sufficient to overcome the history of poor judgement. This is why he had not made a recommendation in his report. He would like to see Ms De Jong to continue to improve her level of insight over the next 6 to 12 months. He was not able form a conclusion at this time. He accepts that she is now more cautious in dealing with other people. He has also seen growth in her maturity accepting that she can't accommodate the needs of others at her own expense. [27] He was of the view that she was a work in progress which was a critical issue and agreed with the Tribunal that the “jury was still out”. Her track record is not ideal but she was not an evil person, not psychopathic or antisocial, he needs to see more growth. [28] He saw as protective factors: reasonable and ordered upbringing and education until she became pregnant; reasonable employment adjustment; being able to handle some difficulties in relationships; displayed an element of resilience; and demonstrated some stability in relation to her character. [29] He saw as risk factors: her naivety in making some silly decisions; and a lack of insight into consequences of actions in particular ways in the past. [30] She is on the road to improvement and uses her positive character to make better decisions. He told the Tribunal that the way in which she dealt with her amphetamine addiction was the hard way but was nonetheless a significant positive step. He was concerned with her managing foster children because she needed to show her ability when stressed to exercise good judgement under pressure. He does not know whether she has sufficient maturity to do that at this point in time. [31] He is also concerned that Ms De Jong will not seek professional help or support to help here her when placed in stressful situations. He noted that -- 5 of 9 -- 6 when people become foster carers they need to be easily able to access supports. [32] He is satisfied that she has expressed remorse for her actions. She was ashamed of her behaviour. Debra Mendez - daughter in law [33] She is aware of Charmaine's history of drug use. She is personally against the use of drugs having seen the devastation destruction drugs cause to people and their families. Charmaine has discussed her past and she has been grateful for Charmaine’s honesty. Charmaine has never disguised the seriousness of her drug addiction and, certainly regrets that time of her life. She has never witnessed Charmaine or anyone in her home use illegal drugs. She is confident that Charmaine has learnt from her mistakes and wishes to make a better future with her husband. Submissions [34] The Tribunal accepts the following submissions that have been made by the Applicant: that Ms De Jong no longer uses drugs and that her drug use is historical; that she accepts responsibility for her behaviour; has some remorse of the past drug offences and poor choices; she acknowledged that she had caused harm to her own children; that she is ashamed of the criminal history; acknowledged the offending was serious; her criminal history is not extensive involves drug-related offences and one assault occasioning bodily harm; the penalties for these offences were fines only with convictions recorded; the fact that she stopped firstly in amphetamines and then cannabis is a positive factor; she has developed personal insights and this will assist her in making better decisions; she is a supportive partner who does not tolerate illicit drugs; she has a support network and her communication skills have significantly improved so she can share the burden and seek assistance; and that she has had an “epiphany” in the one in the regarding the need to make significant changes in her life. [35] The Tribunal accepts the following submissions made by the Commissioner: the applicant's history is relatively recent with the last convictions arising from conduct occurring within the last two years; the applicant admitted to police that the drugs were hers on each occasion; the search by police revealed drugs in numerous locations throughout the applicant's home; the drugs appear to have been in locations readily accessible to any person within the premises which raises serious concerns about the safety of the home for children; the applicant's explanation for how the drugs came to be located through her house lacked credibility and were not corroborated by any other witness or evidence; and whilst the applicant has developed some insight the applicant’s psychologist was unable to confirm that the applicant had fully resolved the issues that led to previous offending and accepted that the “jury is still out”; [36] The Tribunal cannot go behind the convictions but agrees with the Commissioner that the applicant's explanation for how the drugs came to be located through her house lacked credibility. -- 6 of 9 -- 7 [37] The Commissioner also notes that the applicant's personality profile was of a person who was responding defensively and who wished to put herself order in the best light possible. The Commissioner refers to paragraph 35 of Mr Ritchie's material where the applicant “indicated she was admitting to few difficulties and was likely to resist efforts of changing the status quo. She was unlikely to seek therapy on her own initiative and would be likely to be resisted if she did begin treatment”. This is reflected in the applicant's inability to identify any weaknesses, other than “chocolate”, when specifically questioned about this issue by the Tribunal. Accordingly while the applicant suggested she has a stable and significant support network that she can rely on is necessary, her reluctance to engage the supports diminishes the protective value. [38] The Tribunal believes that Ms De Jong is learning to trust other people and to accept support but these need to grow to show Mr Ritchie that she has changed and is now fully accepting of support. The Tribunal would expect to see the documentation of a functional network at any subsequent hearing. [39] The Commissioner also submits that it is a significant concern given the psychologist’s evidence at the hearing that he was not prepared to make a final conclusion as to the applicant’s insight and the risk of harm she might those children, and would welcome the ability to review the matter in 6 to 12 months as occurs in family law proceedings. In this regard the psychologist accepted that proposition recited by the member that: “the jury is still out” in this regard. When specifically asked to identify risks, the applicant’s psychologist identified the primary risk for the applicant was whether she could exercise appropriate judgement when placed under stress. This was identified by the psychologist as being a particular risk given that the applicant was wishing to engage in foster care. This would require her to deal with children in foster care that have demonstrated difficult behaviours, and also required to traverse the child protection system including engaging with the Department and the families of these children in situations such as contact visits. [40] The Tribunal cannot take into account the importance to Ms De Jong of obtaining a blue card so that she and her partner could become foster carers. The Tribunal cannot take into account the benefit such training could benefit children. What is an “exceptional case”? [41] The Commission for Children and Young People and Child Guardian Act 2000 (Qld) (the Commission Act) does not define the meaning of an “exceptional case”. Section 226 of the Commission Act refers to certain factors that the Commissioner must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Commissioner reasonably considers to be relevant to the assessment of the person. [42] The object of the Commission Act is to ‘promote and protect rights, interests and wellbeing of children in Queensland’. The Tribunal must, in -- 7 of 9 -- 8 exercising its review function under the Queensland Civil and Administrative Act 2009 (Qld), in determining whether an exceptional case exists, ensure that the safety and wellbeing of children is its “paramount consideration”.1 [43] It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.2 The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher 3 stated: The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.4 [44] The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued. [45] In the event that the Tribunal confirms the decision made by the Commissioner to issue a negative notice, Ms De Jong is not prevented from applying to the Commission, at some future time, for a blue card to enable her to work with children. Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists? [46] The Tribunal notes that the applicant’s psychologist is a well-known and highly experienced forensic psychologist. The Tribunal agrees with the Commissioner that while Mr Ritchie could point to Ms De Jong’s: growth insight; growth in maturity; and epiphany he still was not at point to be able to put a conclusion to his report. He wants to see the applicant to continue to grow over the next 6 to 12 months and that in the meantime he remains concerned about her previous poor judgement. [47] The Tribunal also notes that the last offences were only dealt with in late 2012 by the Court less than 6 months before the Application was filed with the Commission and less than a year from the commission of the offences. [48] The Tribunal can only infer that the Family Court insisted on drug testing because this had been raised as an issue and the Court was satisfied that there was a need for random drug testing has been undertaken. [49] The Tribunal agrees with Mr Ritchie that Ms De Jong is by no means a bad person and there is a lot of evidence presented to show that she has 1 Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) s 155. 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. 3 [2004] QCA 492 at [28]. 4 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33]. -- 8 of 9 -- 9 made changes and has developed insight. She has clearly shown remorse. The Tribunal however must place a significant weight of Mr Ritchie and this is a significant factor in the Tribunal is thinking. [50] The Tribunal in weighing up the protective factors in risk factors agrees with Ms De Jong that there are lots of positive protective factors however accept that the Respondent’s submission that this is not the right time. The Tribunal cannot see any reason not to accept Mr Ritchie’s evidence. [51] The Tribunal is of the view that exceptional circumstances do exist. These circumstances turn around the concerns that the applicant's psychologist has about Ms De Jong’s ability to exercise good judgement. For Mr Ritchie to say that he could not reach a conclusion and would like to see the applicant continued to grow over the next 6 to 12 months this is an indication that it is an exceptional circumstance. The relatively currency of the offences and the serious nature of the offences are also significant factors. [52] The Tribunal accordingly dismisses the Application and upholds the Commissioner's decision. [53] The Tribunal is of the view that Mr Ritchie has set out what is required of the applicant in order to be successful in applying for a blue card. If Ms De Jong: can continue without any further charges over the next two years; continue her otherwise good role in the community; continue to grow and mature as a person this who should address the concerns of Mr Ritchie and should go a long way to convince Commissioner that an application for a blue card should be given. [54] The Tribunal is of the view that this is an exceptional case were it would not be in the best interests of children for Ms De Jong to have a blue card at this point in time. [55] The safety and wellbeing of children is the Tribunal’s paramount consideration in determining whether an exceptional case exists for the purposes of the Commission Act. For the reasons referred to, the Tribunal determines that the appropriate order is that the decision made by the Commissioner to issue a negative notice be confirmed and a negative notice issued. [56] The Tribunal repeats that this decision for Ms De Jong does not prevent her from applying to the Commission, at some future time, for a blue card to enable her to work with children. -- 9 of 9 --