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Preradovic v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 266

CITATION:

Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266

PARTIES:

Darmen Preradovic

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML062-16

MATTER TYPE:

Childrens matters

HEARING DATE:

19 July 2016

HEARD AT:

Caloundra

DECISION OF:

Member Clifford

DELIVERED ON:

28 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 10 February 2016, to issue a negative notice to Darmen Preradovic, is confirmed.

CATCHWORDS:

ADMINISTRATIVE REVIEW – CHILDREN’S MATTER - BLUE CARD - where negative notice issued – where no serious or disqualifying offence – where extensive charges and convictions over a 17 year period -where last offence 6 years ago – where applicant has been clean just over 2 years - where history on longstanding and ongoing mental health issues – where last hospital admission 3 years ago – where applicant’s current mental health status stable – where risk factors outweigh protective factors - where satisfied exceptional case exists. 

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

Queensland Civil and Administrative Tribunal Act 2009;

Working with Children (Risk Management and Screening) Act 2000;

APPEARANCES and/or REPRESENTATIVES:

APPLICANT:

Darmen Preradovic - Self representation

RESPONDENT:

Paula Hughes, Legal Officer, representing the Chief Executive Officer, Public Safety Business Agency.

REASONS FOR DECISION

Background

  1. [1]
    Darmen Preradovic is a 38 year-old man who lives on his own in a flat on the Sunshine Coast. Mr Preradovic has an extensive criminal history that spans many years and has included a variety of anti-social, violent and illegal drug use offences. Mr Preradovic also has a longstanding and previously under-treated mental health illness.
  2. [2]
    Mr Preradovic states that he has ‘been clean for 2 years and 2 months’.
  3. [3]
    In 2015 Mr Preradovic applied for a Blue Card so that he could work as a support worker in mental health services and where he may come in contact with children. On the 10 February 2016 the Respondent issued Mr Preradovic a ‘negative notice’. Mr Preradovic sought review of this decision with the Tribunal.

Legal framework

  1. [4]
    The Working with Children Act 2000 prescribes what decisions of the Chief Executive Officer, Public Safety Business Agency are reviewable, which persons may apply for review and what the Tribunal may or may not do in relation to the review.[1] Furthermore, the QCAT Act provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The Tribunal may either confirm the decision of the Chief Executive Officer, or set it aside, and substitute it with its own decision, or return it to the Chief Executive Officer with appropriate directions.[2]
  2. [5]
    When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
  3. [6]
    The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. Certain offences ‘disqualify’ a person from applying for a Blue Card and ‘serious offences’ require the Chief Executive Officer to issue a negative notice unless an exceptional case is made out.
  4. [7]
    The law also provides that Applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. Mr Preradovic’s application is captured by this provision.[4]
  5. [8]
    The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor,[5] provided some guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case.  The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.[6]

Evidence and material considered

  1. [9]
    In considering this matter the Tribunal relied upon Mr Preradovic’s oral testimony and submissions, his application, supporting documents and references to the Agency; his application, supporting documents and references to the Tribunal, and a Psychological Report prepared by Francis Sibraa, Psychologist. The Tribunal also relied upon the Respondent Reasons for Decision and supporting documents, original application and supporting documents, and oral submissions.
  2. [10]
    The Tribunal also considered the oral testimony of Francis Sibraa, Psychologist, Milena Preradovic - Simpson and Simo Preradovic.[7] The Tribunal also gave relevant consideration to the untested references provided by Philip Horsall, Registered Nurse and Dr Linda Barron, Psychiatrist, both from of the Mountain Creek, Mobile Intensive Rehabilitation Team

Issue – Is Mr Preradovic’s an exceptional case whereby he should not be issued a ‘positive notice’?

  1. [11]
    Firstly, in relation to the statutory considerations.  Mr Preradovic was charged/convicted with a variety of offences including illegal drug use, unlawfully entering dwellings, stealing, obstruct/assault Police, and stalking and dangerous operation of a vehicle from 1994 when he was a minor up until May 2001. No charges or convictions are recorded after May 2001 until August 2006 when further convictions are recorded up until the last offence (possess dangerous drug) in 2010.[8]  None of the offences are serious offences or disqualifying offences as prescribed by Schedules 2 - 5 of the Working with Children Act.
  2. [12]
    Whilst Mr Preradovic had ‘no conviction recorded’ on many charges including the juvenile matters and the most recent offence, Mr Preradovic was variously fined and convicted on other offences and imprisoned on a number of occasions between 14 days and 12 months along with intensive correctional orders. One of the offences involved unlawful stalking of his sister and threatening violence between 2 - 8 December 1999.  In one instance Mr Preradovic’s then 6 year-old nephew was in attendance and was fearful. All of the offences are relevant to the moral, psychological and physical safety and well-being of children if Mr Preradovic is employed or carrying on a business that may involve children.
  3. [13]
    The Tribunal received no information or reports in relation to Mr Preradovic, as described under section 226 (2) (b) (c) or (d) of the Working with Children Act.

Circumstances of the offences

  1. [14]
    Mr Preradovic freely admits that, in summary, most of the offences took place during a period in his life when he was using illegal drugs and when he was essentially undiagnosed and or untreated for mental health issues.  Mr Preradovic testified that he started using drugs at around the age of 13/14 years. Mr Preradovic also testified that he had an eating disorder when he was at school and was hospitalised for an extended period. Mr Preradovic stated that he had no help and was later excluded from school. Mr Preradovic testified that the peak of his drug misuse was between 17 - 22 years when he was taking amphetamines, methamphetamine and narcotics, ‘bingeing’ fortnightly. Mr Preradovic stated that he was hospitalised a number of times during that period and was variously diagnosed with depression, and either Schizophrenia or Schizoid Affective Disorder.  Mr Preradovic testified that he had been living with his sister for a period, but after he left he kept breaking in to steal food. Mr Preradovic testified that between the ages of 21 – 28 years he attempted intensive rehabilitation 2 or 3 times but continued to use drugs later. Mr Preradovic testified that he has been ‘clean for 2 years 2 months’. Mr Preradovic testified that he was suicidal and hospitalised about 3 years ago after a relationship failed.

Mr Preradovic’s current circumstances and risk and protective factors

  1. [15]
    The Tribunal has taken the approach of considering relative risks and protective factors to assist in deciding whether a particular case is an exceptional case. The Court of Appeal in Maher and Anor accepted this approach as one way of deciding whether an exceptional case is made out.
  2. [16]
    Mr Preradovic states most of the offences took place because of drug misuse and untreated mental health issues. Mr Preradovic testified that he has been engaged with the Mountain Creek Mobile Intensive Rehabilitation Team (MIRT) for a couple of years. A support worker was in attendance with Mr Preradovic at hearing. Mr Preradovic stated that he touches base with a support worker about once a week and sees a psychiatrist regularly for general and medication reviews. Mr Preradovic outlined his current medication regime and current changes to it. Mr Preradovic also stated that he attends Narcotic Anonymous three times a week.
  3. [17]
    Mr Preradovic testified that he had started study at TAFE but he has discontinued as the timeframes for completing work were changed and that they were unrealistic and he could not meet them.
  4. [18]
    Mr Preradovic stated that he now occupies his time visiting his parents, going to the gym, fishing and attending archery classes. Mr Preradovic stated that he is now 38 years and he wants a good clean life and hopes to meet someone and have a family later.
  5. [19]
    Mr Preradovic stated that he finds his past embarrassing and shameful. In relation to the offence concerning his sister, Mr Preradovic stated his actions were disturbing and understands his nephew was very upset, and that he made him fearful of him. Mr Preradovic however stated he tries not to look back and his relationship with his nephew now is a good one.
  6. [20]
    Mr Preradovic’s sister and father both testified. Mr Preradovic Senior acknowledged his son’s turbulent early life. Mr Preradovic Senior opined that Mental Health Services has helped his son and that he now has contact with him daily, that he participates in home duties, behaves very well, obeys all traffic rules and he seeks Mr Preradovic Senior’s opinion when needed. Mr Preradovic Senior opines his son wants to make something of his life and a clean slate. Mr Preradovic Senior stated his son has his ongoing support.
  7. [21]
    Ms Preradovic-Simpson whilst acknowledging her brother’s earlier problems opines Mr Preradovic has overcome his problems in the last 5 - 6 years. Ms Preradovic-Simpson testified that she has no hesitation in leaving her three sons (ages 22,16 and 4 years) with her brother. Ms Preradovic-Simpson stated that it took her a couple of years to repair her relationship with her brother after the stalking offence, and that it took her son who was present during that period a little longer.
  8. [22]
    In May 2016 Mr Preradovic undertook psychological assessment with Francis Sibraa, of Calm Mind Psychology. A one-page letter dated 22 May 2016 was provided to the Tribunal in which Mr Sibraa gave a brief overview of Mr Preradovic’s personal circumstances and life history including mental illness and substance use and abuse and Mr Preradovic’s wish to work in mental health services as a support worker. Mr Sibraa opined: I believe that Darmen, despite his complex and at times rebellious past, has the ability to adapt the new challenges and responsibilities expected of him should he be given permission and the opportunity to work in the area of mental health support.
  9. [23]
    At hearing Mr Sibraa opined Mr Preradovic was a ‘remarkably genuine person’, not pushy and he deduced after several meetings that he had survived a challenging and demanding life, that he had matured and because of his experiences would be suitable to work in mental health services. Mr Sibraa opined that Mr Preradovic had ‘considerable insight’ and that he was on the threshold of a new era in his life.
  10. [24]
    On cross-examination it was clear Mr Sibraa had little documented information about Mr Preradovic’s full criminal history and mental health status. Mr Sibraa stated Mr Preradovic was referred by a General Practitioner to be assessed as a potential mental health support worker. Mr Sibraa testified that he understood Mr Preradovic last used illegal drugs when he was in his early twenties, and that he was last hospitalised around the same time. Mr Sibraa testified he understood Mr Preradovic was not currently accessing mental health or drug and alcohol services. Mr Sibraa testified that he assessed Mr Preradovic through interview and that ‘there was nothing in our sessions to suggest mental health issues or drug misuse.’  Mr Sibraa testified that if Mr Preradovic had had more recent charges or was accessing mental health services his view about Mr Preradovic would not change.
  11. [25]
    Mr Sibraa opined Mr Preradovic’s protective factors included his well balanced lifestyle, insight, alcohol, drug and tobacco free status and that he functions well in the community. Mr Sibraa opined although minimal risk, new stress would be a challenge for Mr Preradovic. Mr Sibraa opined there were enough protective factors and self-regulation to deal with risks.
  12. [26]
    Dr Linda Barron, Psychiatrist, provided a reference dated 6 October 2015 during the initial application. Dr Barron noted that she was Mr Preradovic’s treating psychiatrist, that Mr Preradovic has a long history with mental health services (since 1992) and has a diagnosis of Schizoaffective Disorder. Dr Barron records Mr Preradovic’s mental health has been compounded by substance misuse, non-compliance with medications, and period of homelessness and prison sentences. Dr Barron records that in recent times Mr Preradovic has developed good insight into his illness and is able to reflect on the consequences of his past behaviours on others and him. Dr Barron records Mr Preradovic engages well with the Mobile Intensive Rehabilitation Team and has a positive attitude towards managing his mental health. Dr Barron states she is extremely supportive of Mr Preradovic returning to the workplace. Dr Barron states she is unaware of any interactions Mr Preradovic has with children, and is not aware of any concerning issues relating to children.
  13. [27]
    Dr Barron was not made available for cross-examination, however the Tribunal accepts Dr Barron’s general overview of Mr Preradovic’s personal circumstances, mental health history and his current status. It is in keeping with Mr Preradovic’s own testimony.

Submissions

  1. [28]
    In summary, the Respondent’s oral submissions rely on the totality of evidence, it’s Statement of Reasons and the legislative requirements that the best interest and welfare of the child is paramount and a child is entitled to be cared for that is protective and promotes well-being.
  2. [29]
    The Respondent submitted, in summary, that it acknowledges Mr Preradovic has a number of factors that can be seen as protective factors, including stable mental health, improved engagement with Mental Health Services, regular engagement with Narcotics Anonymous, currently not using drugs and a supportive family and team of health care providers. However, the Respondent submits that the risk factors are significant and the protective factors are insufficient against a 17 year criminal history that has included violence, nuisance, stalking, illegal drug use and significant penalties including incarceration. The Respondent submits, notwithstanding the 6 years since the last offence, there is a high risk of recidivism given the long history of highly addictive drug use, including methamphetamine, and being a self-described ‘poly drug user’. The Respondent noted the three unsuccessful attempts at drug rehabilitation and previous relapse after a long period.
  3. [30]
    The Respondent further submitted Mr Sibraa’s evidence was limited as he was not fully informed of Mr Preradovic’s drug use, criminal history and mental health status, and was focussed on work in the mental health sector not the broad area of child related industry. It noted Mr Sibraa opined that there would need to be further assessment and support for Mr Preradovic if for example he wished to become a foster carer.
  4. [31]
    Finally, the Respondent submitted that this is an exceptional case whereby it is not in the best interest of children to issue a positive notice. The Respondent submitted the decision under review should be confirmed.
  5. [32]
    Mr Preradovic made brief oral submissions. Mr Preradovic also advised that he was not sure if he made Mr Sibraa aware he was seeking Mental Health Services and was on medication. Mr Preradovic stated that he has never been an involuntary patient and has always been voluntary. Mr Preradovic testified that he has been ‘clean for 2 years and 2 months’. Mr Preradovic submitted if the decision does not go his way, ‘work loses with out my experience’ and he submitted, “I hope it comes up my way”.

Consideration and conclusion

  1. [33]
    The principles of the Working with Children Act are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. When a positive notice/Blue Card is issued, it is unconditional and transferable to enter into any field of child related occupation. It is not just issued for the purpose for which it was initially sought.
  2. [34]
    Mr Preradovic’s circumstances are captured by provisions that provide given his offences are not classified as serious or disqualifying offences, he should be issued with a positive notice unless the Tribunal is satisfied an exceptional case is made out, whereby that the issuing a positive notice would not be in the best interest of children.
  3. [35]
    Mr Preradovic has an extensive criminal history spanning 17 years. The offences of which he has been charged are troubling in regards to the impact they would generally and specifically on the welfare and best interest of children.  The offences include illegal drug use, self described by Mr Preradovic as ‘bingeing’ and ‘poly drug user’, that led him to commit further offences that involved violence, stealing, break and enter, assault and stalking his own sister in the presence of his young nephew.   Furthermore Mr Preradovic has had concurrent mental health illnesses, eating disorder, depression and Schizoaffective Disorder, which for many years were inadequately treated because of the drug use and his poor engagement and non-compliance with services and treatment.
  4. [36]
    Whilst the Tribunal applauds Mr Preradovic’s journey of recovery and learning, and acknowledges the stability in his mental health, the positive support of his family and health workers and that it has been six years since he was charged with an offence, the Tribunal agrees with the Respondent that the risk of recidivism or relapse, given the long history criminal history is relatively high. Whilst Mr Preradovic has not been charged with an offence for six years, Mr Preradovic testifies that he has been clean for only 2 years 2 months. The Tribunal can only, and does, infer that he has continued to use drugs up until that time. Whilst that may be a great personal achievement for Mr Preradovic, for someone wishing to obtain authority to work with children, it is a risk factor that would not be in the best interest of children to be exposed, morally, psychologically or physically, to a person who engages in illegal drug use and has a history of violence when doing so.  Complicating Mr Preradovic’s criminal history are his longstanding mental health issues. Whilst stable at present Mr Preradovic is vulnerable to fluctuation, and still requires significant ongoing engagement with mental health services. Only 3 years earlier Mr Preradovic attempted suicide and was hospitalised following the break-up of a relationship. Whilst Mr Preradovic’s mental health status on its own may not exclude him from obtaining a Blue Card, when intersected with a long history of illegal drug use and violent offences, it adds to the risk factors when deciding whether his case is an exceptional case.
  5. [37]
    On balance, the Tribunal is satisfied that Mr Preradovic’s case is an exceptional case, in that he should not be issued a positive notice, and the Tribunal confirms the decision of the Respondent accordingly.

 Order

  1. [38]
    The decision of the Chief Executive Officer, Public Safety Business Agency dated 10 February 2016, to issue a negative notice to Darmen Preradovic, is confirmed.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000, sections 352 and 354.

[2] Queensland Civil and Administrative Tribunal Act 2009, sections 17 - 24.

[3]  Op.cit, Working with Children Act, section 6 and 360.

[4]  Ibid, s.221

[5] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[6]  Op.cit, Working with Children Act s.226 (2)

[7]  Milena Preradovic – Simpson and Simo Preradovic are the Applicant’s sister and father respectively.

[8]  PBSA, Reasons for Decision pages 5 – 8.

Close

Editorial Notes

  • Published Case Name:

    Preradovic v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Preradovic v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 266

  • Court:

    QCAT

  • Judge(s):

    Member Clifford

  • Date:

    28 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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