DAC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 193

CITATION: DAC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 193 PARTIES: DAC (Applicant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML133-12 MATTER TYPE: Childrens matters HEARING DATE: 10 December 2012 25 January 2013 Final submissions 18 February 2013 HEARD AT: Brisbane DECISION OF: Julie Ford, Presiding Member Ron Joachim, Member DELIVERED ON: 16 April 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice is set aside and a positive notice is to be issued forthwith to DAC. 2. The Tribunal prohibits the publication of the names of the children, the applicant, the referees and the organisations in this decision. CATCHWORDS: CHILDREN – BLUE CARD – EXCEPTIONAL CASE - where applicant has conviction for a serious offence – where applicant‟s children are subject to Child Protection order – where applicant has history of drug offending – where applicant has undergone extensive rehabilitation – where children are being reunified – where drug offending has ceased – whether case is exceptional – whether confidentiality order should be made -- 1 of 8 -- 2 Commission for Children and Young People and Child Guardian Act 2000, s 5, s 226, Chapter 8 Queensland Civil and Administrative Tribunal Act 2009, s 66 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; cited Commission for Children and Young People v V [2002] NSWSC 949; cited APPEARANCES and REPRESENTATION (if any): APPLICANT: DAC RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms G Thomas REASONS FOR DECISION [1] DAC wanted a blue card to volunteer in a school environment with children. In her own words she had „gone off the rails‟ after her own children were removed from her and placed into care. She had been using illicit drugs before this time. [2] The Commissioner had undertaken a criminal history check. She found that DAC had a criminal history showing convictions for numerous drug offences, including a conviction for supplying dangerous drugs within correctional facility in 2007 and other drug related property/dishonesty offences from 2007-2010. She had also experienced severe domestic violence. [3] Supplying drugs in a prison is categorised as a serious offence. Under these circumstances, the Commissioner must issue a negative notice so DAC is not granted a blue card. Only if DAC‟s case is exceptional can a blue card be granted. The Commissioner formed the view that this was not the case. [4] The evidence of DAC‟s lifestyle involving these offences is very unsettling. The welfare and best interests of a child are paramount in this jurisdiction. The question for the Tribunal to answer is whether DAC‟s lifestyle and personal circumstances in 2013 are now exceptional against the background of such offending? [5] The Tribunal considered DAC‟s case is exceptional. The Tribunal was presented with compelling evidence from DAC and her witnesses. She was considered to have turned her life around. She was at the end stages of reunification with her children; she had been drug free since early 2011 after a relapse. -- 2 of 8 -- 3 [6] Justifiably the Commissioner had significant cause for concern regarding DAC‟s suitability to hold a blue card. The written material she relied upon was damning. However, the Tribunal has the benefit of conducting oral hearings. It was through this process that the Tribunal was able to review both written and oral evidence and to use its inquisitorial powers to hear of DAC‟s progress and the immense support she has garnered since becoming drug free. [7] The Tribunal has overturned the Commissioner‟s decision. The Tribunal is satisfied that DAC has turned her life around. She has much to offer society, to her own children and to children in general. She has the upmost respect now from many people, including the representatives of the Department who took her children into care. [8] DAC‟s changed circumstances, the law to be relied upon and the numerous positive gains made, as well as the Commissioner‟s submissions, are outlined below. What did DAC have to say? [9] DAC was a serious drug user and had tried and failed at rehabilitation a number of times. She had been a „bare essentials mum rather than a really good mum‟. When the children were removed from her care she lost control, was shoplifting which led to multiple charges, homelessness, desperation to get money to feed her addiction. [10] Her relationship with her current partner, R, had been one of co- dependency. It had been stressful because of their living circumstances and drug use. She acknowledged they both relapsed in the first half of 2011. She can now survive without him and no longer sees him as a lifeline. She would always choose the children over him. She would remove herself from him if he returned to drugs. Their urine tests have been negative. She will not throw away what she has worked so hard to achieve. [11] The turning point was when she hit bottom, and she got into share accommodation. She had been unreliable with contact visits with her children and in conflict with her mother. She was able to gradually work with her mother and the contact centre, becoming a real help to her mother in the care of the children. [12] DAC had no desire to associate with past drug acquaintances. She admitted to fleeting thoughts about drugs but had not acted on those thoughts. She no longer has a desire to use drugs; they are not her coping mechanism anymore. She was confident a relapse would not occur. She had Drug Arm staff for support and her parents to turn to. She had completed the ATODs program Back in Control. [13] DAC takes Subcutex daily which is a receptor blocker. -- 3 of 8 -- 4 [14] The focus of her work with her counsellor has been on relapse prevention, with her now knowing the risk triggers and the protective factors that are available. She and her partner will continue to see her counsellor. What did DAC’s mother have to say? [15] DS had contacted the Department herself regarding concerns for her daughter and the children. She was the biggest crusader for her grandchildren. In the last two years there has been a mindset change by her daughter, there has been no sign of relapse, and they now have a relationship again. Things are totally different now, her daughter coming to the decision herself to rehabilitate rather than it being imposed on her. Before her rehabilitation, DAC had lost her children, been estranged from her parents, had no job, no money or car, she had nothing left. DAC‟s partner is employed, there is no evidence of drug taking, and his rehabilitation is “like a miracle”. [16] The children are DAC‟s first priority. Her mind is clear now without the influence of drugs. Both parents have completed parenting courses and DAC has worked towards becoming a teacher‟s aide. [17] DAC has a lot of support around her to manage the completed reunification. There has been no evidence of a relapse into drug taking in the past 18 months. The devastation of losing her boys was the turning point for DAC. She has kept working at improving her life. What did the Commissioner have to say about the evidence? [18] The Commissioner acknowledged that DAC‟s witnesses gave evidence of the significant progress she has made in ceasing her drug use and towards achieving her goal of having her children returned to her full-time. [19] This evidence included DAC being drug free for a considerable period; not being the same person and no longer involved in the drug culture; the reunification in place with her children; the support available to DAC from her parents (who are the kinship carers), her treating psychologist and community organisations [20] However the Commissioner remains unconvinced. In her submission, limited weight should be placed on the evidence of the independent clinical psychologist who has limited experience in completing psychological assessments re people who have had drug addictions. He had not explored the relapse in 2011 of DAC and her partner. He had relied on „intuition‟ to determine her suitability to hold a blue card, against a background of taking into account all of the information, including the programs DAC completed, the changes she had made and the negative urine screening. [21] The psychologist‟s report did not mention risk factors. While struggling to think of what those risk factors may be, he conceded that there is some -- 4 of 8 -- 5 level of risk, but it is hard to quantify. DAC did not acknowledge relapse was a possibility. He did not see this as a risk factor. [22] The Commissioner concluded that the assessment lacks balance and this affects the weight afforded to the report. [23] The Commissioner acknowledged the Departmental representatives support of DAC regarding her strong progress to reunification with her children. At this stage her children were in her care four days per week and with their grandmother and kinship carer, DS, for the remaining three days per week. [24] Ms Giles, team leader of the child safety service centre was confident, given that: DAC has developed insight into her past drug use and the impact on her children; has remained involved in her children‟s lives, maintaining her relationship with them; has a supportive family network and support services in place. Ms Giles herself believed that DAC would prioritise her children‟s interests over her relationship with her partner. The child safety officer had confirmed DAC‟s partner had a wonderful relationship with the children „as if they were his own‟. [25] The Commissioner identified a risk factor that is highly material to the Tribunal‟s determination regarding exceptional case. The long term guardianship orders will not be discharged until success of the reunification is established. Being in care for a long time presents challenges and difficulties. DAC may experience pressure in caring full time for the children. The order will be in place for 6-12 months as a safety net. [26] The Commissioner acknowledged her treating psychologist, Mr Rob Holmes endorsed the excellent progress being made, emphasising her persistence and determination to abstain and to have the children returned. DAC‟s partner‟s drug use was a risk factor if it resurfaced. Mr Holmes recommended ongoing counselling with both DAC and her partner. [27] The Commissioner made no cautionary statement about the evidence of a Family Intervention Practitioner from a non government agency who had worked toward the reunification for 6-7 months with DAC. To her the reunification had been very straightforward, not a challenge. Rehabilitation and securing appropriate housing had been managed well by DAC. [28] The Commissioner‟s view is that it is too soon for the Tribunal to be satisfied that DAC‟s case is exceptional. Reunification will test the stability of the rehabilitation of DAC and her partner. Risk factors remain. The long term guardianship orders will remain in place until the reunification is deemed successful. Ongoing counselling has been recommended. The decision should not be overturned when guided by the principle that the welfare and best interests of children are paramount. -- 5 of 8 -- 6 What must the Tribunal consider in determining exceptional case? [29] The object of the Commission for Children and Young People and Child Guardian Act 2000 (the Act) is to promote and protect the rights, interests and wellbeing of children in Queensland (s 5). Chapter 8 of the Act requires that decisions must be made under the principle that the welfare and best interests of a child are paramount. The Tribunal is required to consider the same principles as the Commissioner. [30] The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v Maher & Anor,1 the Queensland Court of Appeal, at [30], adopted the proposition that: “the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.” [31] In Maher‟s case the Queensland Court of Appeal endorsed the approach of identifying and balancing potential risk factors and potential protective factors when considering circumstances amounted to an exceptional case. [32] Risk factors may vary from the perspective of the assessor, but more particularly will vary according to the known facts. Risk in the context of the Tribunal is not concerned with what may be mere possibilities, but rather will require some foundation in fact. The Tribunal is looking at whether, in all circumstances, there is real and appreciate risk. It does this as part of its consideration of whether exceptional case exists. [33] The Tribunal is guided by the judgement of Young CJ in Eq Commission for Children and Young People v V2 in [42] of his judgment where he refers to the necessity to find “a real and appreciable risk” to the safety of children. [34] The Act is not a statute intended to impose additional punishment on a person who has criminal history. Rather, it is intended to put gates around employment to protect children from harm. [35] The matters prescribed are not to be considered in isolation. Section 226 also allows for decision makers to consider anything else relating to the omission, or alleged commission, of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person. [36] The term exceptional case is not defined in the Act and the case law that has considered its meaning is well advanced. 1 [2004] QCA 492. 2 [2002] NSWSC 949. -- 6 of 8 -- 7 What is the Tribunal’s view? [37] The Tribunal begs to differ with the Commissioner. We acknowledge the need for extreme caution when determining who should work with children. DAC has a litany of past offences. The need to maintain the paramouncy principle is central to our decision making. Of relevance as well are the risk and protective factors, the insight and remorse of DAC, her credibility as a witness and the credibility of those others who stepped forward to speak on her behalf. Is there a real and appreciable risk in this case? Is her case exceptional? The Tribunal believes it to be so. [38] DAC has lifted herself out of a dysfunctional lifestyle, which had been marred by criminal acts to feed a drug addiction. She lost her children to care and in so doing her life spiralled further out of control. She now has a firm support base behind her achievements and her significant lifestyle changes in the past two years. [39] It is exceptional that DAC is being reunified with her children who are on long term guardianship orders. This is extremely rare in child protection matters. It is exceptional to have Child Safety representatives endorse her progress to such a degree that it counters the position of the Commissioner. The Department are returning children to a woman who has rehabilitated. They believe she is now a parent willing and able to care for them. They will continue to work with DAC and her partner to bed the reunification down successfully. Significant resources have gone into making this reunification a success because DAC has demonstrated to the Department that she is no longer a risk to her own children. [40] There is a National strategy in place to support drug users to rehabilitate. DAC is one of the success stories in the eyes of her witnesses and referees, many of whom are professionals who have worked in the sector for many years. The positive opinion of professionals is very relevant to our decision making. The Tribunal was impressed by the calibre of these professionals and the confidence afforded to DAC and her rehabilitation. Such support is not forthcoming without real evidence of commitment and perseverance by the rehabilitee. [41] DAC has won back the deep respect and trust of her parents, the kinship carers of her children. They are hard task masters and DAC‟s mother has been her strongest critic. They are not naive to the trauma of drug addiction on children. They lived through it with their daughter and the aftermath in taking the children into their care. Her parents have great confidence now in their daughter and believe she has turned her life around. [42] Finally DAC herself spoke candidly about her past life and how it had destroyed her family. The impact of losing her children led to a downward spiral from which she has emerged. Her efforts over the last two years are impressive. To have lived such a dysfunctional life and come to a point of now living a life focussed on re-establishing her family and aiming to contribute back is compelling. There is no evidence of drug taking or of a -- 7 of 8 -- 8 potential for relapse. There is no evidence of a real and appreciable risk to children. [43] The Tribunal is of the view that DAC‟s case is exceptional and a positive notice (a blue card) should be issued forthwith. NON - PUBLICATION ORDER [44] On its own initiative, the Tribunal is able to make a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009. The Commissioner does not oppose the making of such an order, to the effect that the decision be de-identified. [45] The Tribunal is satisfied that names of the applicant, her children and witnesses, and the organisations named in this decision should be de- identified as it is contrary to the public interest. [46] The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of blue card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified. -- 8 of 8 --