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- Unreported Judgment
JA v Chief Executive Officer, Public Safety Business Agency  QCAT 251
Chief Executive Officer, Public Safety Business Agency
10 April 2015
3 June 2015
The decision of the Chief Executive Officer to issue JA with a negative notice is confirmed.
CHILDRENS MATTERS – review of decision to issue negative notice – where serious concerns of drug use and family violence – where new supportive relationship now exists – whether applicant presents an unacceptable risk of harm to children – whether exceptional case.
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1)
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
JA on her own behalf
Chief Executive Officer, Public Safety Business Agency representated by Ms Natalie Taylor, Advocacy Officer
REASONS FOR DECISION
- JA is studying for a Certificate IV in Child Youth and Family Intervention. As part of this course she is obliged to complete a placement in a community services organisation which will involve interaction with minors. She requires a blue card to complete her studies.
- JA’s application for a blue card was refused and the Chief Executive Officer issued her with a negative notice on 1 September 2014. She now seeks a review of this decision.
- Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The principles for administering the Act, set out in s 6, 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. Section 360 restates that principle for the purposes of reviewing a child-related employment decision.
- Once a decision is made that a person is suitable to work with children there are no conditions around that decision and the blue card holder is authorised to work with children in any work environment. This transferability means the assessment must take into account all possible work situations. The intended circumstances of the proposed employment, together with any supervision that may be available will not normally be factors relevant to the decision. Any hardship or prejudice suffered by an applicant is irrelevant to this consideration.
- Where the applicant has been convicted of an offence, other than a disqualifying or serious offence as defined in the Act, s 221 provides that a positive notice must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice. Section 226 sets out the factors that must be considered when making this decision and these include in s 226(2)(e) an obligation to consider any thing else in relation to the commission of the offence that the chief executive considers to be relevant to the assessment of the person.
- It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree. This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act.
- JA, born in 1976, describes an uneventful childhood and very good upbringing. The youngest of six children, she says her parents never displayed conflict in front of the children and they provided a stable and safe environment. She states her family ‘do not do drugs or drink’.
- While she excelled in primary school, her family moved from Queensland to Victoria in her second year of secondary school and she had trouble adjusting due to extreme shyness. Her behaviour and grades suffered. The family returned to Queensland and she attended TAFE rather than returning to school.
- Under the influence of her TAFE friends at about 17 years of age she left home, started to attend parties, use marijuana and experimented with LSD. In her oral evidence she said this was at a time she didn’t know what she wanted to do. Teenage curiosity led her to try drugs to see what they were like.
- She returned to the family home and settled down. When she was 18 she met MW. He used marijuana and she started to smoke with him. They formed a relationship and she moved in with him. She was not aware of the extent of his drug use.
- For the next 18 years JA states she was subjected to extreme physical and psychological abuse from MW. His intravenous drug use was such that on many occasions she saved him from an overdose. While there were periods of up to twelve months when things were good she left MW many times (‘about fifty times’) as a result of violence and returned after he promised it would not happen again. She loved him and believed she could help him. She describes an incident in Cairns when she jumped off a balcony resulting in a broken rib and a broken jaw in two places. The recovery took eight months and required surgery. She states her criminal history and drug use are closely related to her relationship with MW.
- She says her employment history is the result of MW interfering in any job she started. At one point he assaulted the owner of the caravan park where she was working. He was imprisoned for nine months as a result of this assault. She could not hold down a job as a result of his obsessive behaviour.
- They had two children, the oldest born in 2005 and the youngest in 2007. As they grew older JA said she tried to protect them from witnessing both the domestic violence and MW’s drug taking. However she believes their son did witness MW injecting himself and she is angry about this. She also remembers their son when he was three standing between his parents and yelling at them to stop fighting. Because their daughter was two when she left in 2009 she has not remembered the violence and it has not affected her as much.
- During their relationship MW was convicted of growing cannabis in a spare bedroom. He did spend periods in prison for assault and drug offences and breach of domestic violence orders. He would inject drugs at home and would go on benders when he would be in bed for three days after taking methadone. He did not have other drug users coming to visit him at the house and JA states they did not associate with other drug users.
- JA said she used marijuana during their relationship often during periods of despair when she thought, “Why does it matter”. She also experienced anxiety and depression. However once the children were born she ceased using marijuana but would use other drugs occasionally when the children were with their paternal grandparents. She states she has a non addictive personality and was not addicted to drugs. When referred to the police reports she accepted she had a drug problem but states she was not a junkie. She did not use drugs by choice, it was part of a range of activities she was forced to participate in against her will by MW.
- In June 2009 JA made a concerted effort to leave the relationship and was seeing a domestic violence counsellor however in this attempt she reports ‘I fell flat on my face’. She felt she did not have the necessary support in place, she was in fear of her life and she did return in December 2011.
- In May 2012 JA started to see Ms Diane Violi, a Dual Diagnosis counsellor, and this continued for two years. She states that MW spent most of 2013 in a methadone induced stupor. In mid 2013 JA connected with a former boyfriend TW on Facebook. When he became aware of her situation he offered her help to leave.
- In November 2013 JA left MW. He returned to his parents and took the children with him. The children still live with their father and paternal grandparents and JA now sees them regularly.
- JA says she now lives with Mr TW. She says she will not reconcile with MW. She stopped taking drugs two years ago and no longer associates with any of their former friends. Although she remained in contact with her family she has now re-established her relationship which became estranged when she felt she could not talk to them about what she was going through.
- JA says she no longer has mental health issues and stopped taking her medication, which was a low dose anti – anxiety medication in early 2014. When she was living with MW he made her wonder about her mental health and in 2009 she thought she was going crazy. She acknowledges the correlation between drug use and mental health issues. She says she now keeps tabs on herself and monitors her own mental state.
- When asked to identify her supports JA identified her partner, her father, her doctor and counsellor. She said she has a couple of friends and she also nominated her sister and her niece. She is not involved with community groups.
- JA states she attended a Women of Worth programme conducted by Uniting Care. She has had 23 sessions with Ms Violi and does not need more although she stays in contact by phone and email. They worked together on her plans for the future, relapse prevention plans and her need to be more assertive. She could return if she needed more treatment in the future. She started seeing her doctor, Dr Raddatz, in 2011 and has a good relationship with him. She has successfully undergone treatment for Hepatitis C.
- JA is confident she can maintain her current good physical and mental health. She employs strategies such as mindfulness, and walks for up to two hours to process her thoughts. She avoids people she used to know and she now employs different strategies when dealing with MW so she no longer feels he is controlling her. She no longer drinks alcohol or uses drugs. She feels that leaving her relationship was the biggest step she had to take to control her drug use. Because she was living against the grain for 18 years, but is now free of that, she has no need to return to her previous habits.
- JA states she carries her criminal history with shame. She attributes these behaviours to the coercion she experienced in her relationship. She says that she was not guilty of failing to take care of needles, they belonged to MW, but she pleaded guilty because she was in the house and they were found in a bag in her possession.
- JA’s criminal history is significant. She has multiple offences for possessing dangerous drugs in April 2001 when a fine was imposed but no conviction recorded. There are further charges relating to possession in August 2001 and a conviction was recorded and a fine imposed. There was a breach of a fine option order in 2002. In 2009 she has a charge of stealing and fraud with no conviction recorded and in May 2011 there was a charge of fraud where a conviction was recorded and she was placed on probation. In July 2011 there was a charge of failing to take reasonable care and precautions in respect of syringe or needle and no conviction was recorded. JA was ordered to attend a drug diversion programme. This charge was repeated in April 2012 and this time a conviction was recorded and a fine imposed. In November 2011 there was a charge of unauthorised dealing with shop goods where a conviction was recorded and probation was ordered for 12 months. There was a charge for the breach of this probation order in August 2012 where the order was revoked and a fine was imposed.
- In addition there is a history of child protection enquiries. The first one on 18 June 2009 was stated to be ’GE in relation to the mothers health’ and the second ‘CCR in relation to fathers drug use and past domestic violence. Father lives with his mother and has care of the children.’ There was a further child concern report on 10 February 2011 which related to an argument between JA, the paternal grandmother and the children’s father. It states ‘The children were present but appeared unaffected’ After investigation it was found the children were not in an unacceptable risk of future harm and no action was taken.
- Dr Raddatz provided a report dated 2 March 2015 and gave evidence to the tribunal by phone. He said has treated JA for four or five years and he is aware of her background. He knew there were drug offences, she had picked up Hepatitis C, was in a bad social situation and under a poor influence at home. He said he has seen big changes; she is now rid of Hepatitis C, has a much better partner, looks a lot healthier and has lost a bunch of weight. She has no current psychological condition. He said abstaining from alcohol is part of the Hepatitis C treatment. He said her future situation requires management rather than curing and it is up to her how often she needs to see him to monitor her state. When asked specifically about the charges relating to improper disposal of needles he said that was part of drug use but she has turned the corner now and he is positive about her future. He says her has no concerns about JA holding a blue card unless her current situation changes. He feels confident her current good health will continue.
- Ms Diane Violi provided a report dated 3 February 2015 to the tribunal, although she was not available to give oral evidence. She states ‘When I first met JA I was stuck with the extent and severity of her domestic violence history’. JA attended 23 appointments between 16 May 2012 and 18 June 2014. The sessions focussed on coping with the impact of domestic violence together with her own periodic drug use and she has shown determination to follow a path of recovery.
- Mr TW also gave evidence. He is JA’s current partner. He stated they first met when they had a relationship 20 years ago but he has now known her for 18 months. He said since their relationship has progressed he has noticed changes in JA, she is more excited about living life and is enjoying doing stuff. He is prepared to move towns with JA so she can be closer to her children. He says she has an awesome personality, gets along with people and doesn’t get angry. He said they don’t have a large social group and don’t associate with other people. He said she would rely on him and then her parents in Victoria but up here they have no other friends, just her counsellor and doctor.
- The chief executive identified the following protective factors
- Accessing professional assistance to address domestic violence and drug issues
- Attending the Women of Worth programme
- Ceased contact with ex-partner and other friends
- A willingness and strong desire to remain drug free
- Remorse and shame
- Insight into the importance of the impact of domestic violence and drug use on children
- TW’s good character
- The opinion and support of Dr Raddatz who believes JA is healthier, in a stable relationship and is suitable to work with children.
- The chief executive identified the following risk factors
- Drug use and activities including intravenous drug use for a period of 20 years
- The use has covered entire adult life with individual significant drug patterns
- 18 months since leaving her relationship
- Two years since ceased using drugs and three years since last criminal offence
- A vulnerability for recidivism as evidenced by the significant period between criminal offences and significant periods without drug use.
- The chief executive argues that in light of JA’s previous history insufficient time has passed to test her ability to maintain a drug free life on a long term basis. She has not been in a stable environment for a significant time when considered against the longevity and impact of her previous relationship.
- There is significant concern that the children were exposed to domestic violence and drug use in the home. It is clear these behaviours impacted on them.
- JA has minimised her own part in her criminal history and continues to attribute the blame to others. In this regards it is argued that the facts in the police brief must be accepted rather than an alternative explanation because it is not permitted to go behind the factual basis of the conviction.
- There are concerns JA’s support network is limited. While it is acknowledged TW is genuine in his affections and he has seen positive changes this must be tempered by the short time they have been in a relationship.
- The evidence of Dr Raddatz should be treated with caution. He has done no formal testing to determine JA’s mental state and he was not fully informed about the details of her criminal history.
- The written report of Ms Violi should be given limited weight as she was not available to give evidence. She could not be examined about her actual knowledge of JA’s previous offending or her level of insight.
- The purpose of the review is not for the specific use of a work placement for TAFE. A blue card would allow unrestricted work with children in any child related business. For this reason the extensive criminal history is relevant because it challenges the assertion JA would be able to protect children from harm and enhance their well being. Weight must be given to the recency and severity of the offences.
- While it is acknowledged JA is trying to start a new life the hardship a negative notice might impose on her and the benefits of a positive notice are not relevant considerations for this decision.
- It is the submission of the chief executive that while there have been significant gains in recent years, they have been made in a short period when viewed in the context of JA’s previous lifestyle and this makes this case an exceptional circumstance.
Consideration and decision
- JA entered an abusive and controlling relationship when she was a teenager. She has provided a lengthy and frank description of that relationship in her life story. While I summarised only the relevant points I have had regard to the document in its entirety. Her situation was abhorrent. It involved 18 years of violence, drug use, involvement in criminal activities, a curtailment of her relationship with her family who are important to her, limited opportunities to develop a career and isolation from friends and support networks. As a result she did not have the same freedoms to take risks, explore possibilities and mature that those in non-violent relationships take for granted. She questioned her own mental health, she did not develop confidence and she did not trust her own decision making ability. Her many attempts to leave the relationship were not successful. She was not an equal in her relationship with her partner.
- From 2012 with the support of her doctor, her counsellor, her parents and more recently TW, JA developed the strength to leave the abusive relationship, form a new supportive relationship, return to study, abstain from alcohol and drug use, undergo a course of treatment for Hepatitis C and ‘put faith in the world around’ her.
- As required by s 226 of the Act I have considered JA’s convictions, (which are not serious or disqualifying offences), the years the offences were committed and the penalties imposed by the court. The convictions were for stealing and drug offences. They did impact on her children. In particular the charge relating to failure to dispose of needles put her children at risk. The behaviours would impact on children who were exposed to them.
- I have considered both the child protection information and the information relating to JA’s mental health.
- I have weighed the protective and risk factors identified by the chief executive.
- I have decided this is an exceptional case where it is not in the best interests of children for JA to be issued a positive notice and blue card. My reasons are as follows.
- JA has displayed insight into the impact of violence and drug use on her children. She described the steps she took to protect the children when she was living with her ex-partner. These included taking the children from the house, keeping the door shut and explaining the statements made by their father in a different way. However this insight, normally considered a protective factor, did not result in her protecting the children effectively. She put her own fears and needs ahead of the children. She did not take responsibility for ensuring there were no needles that could have been found by young children. It appears she failed to acknowledge the full extent of the risks to her children because she felt powerless to do any thing about them. I cannot be satisfied that at this stage JA would have the strength, if by herself, to recognise and protect children in her care if faced with a dangerous situation that put them at risk.
- JA has identified strategies she can use to deal with her ex-partner and protect her wellbeing, however I did not have the opportunity to hear evidence from Ms Violi, and she did not address in her report, her current level of functioning and capacity to implement those strategies under stress. I do accept the evidence of JA that she did not hold back the realities of her criminal history from Ms Violi. Dr Raddatz is supportive of JA’s application for a blue card however his emphasis is on JA’s wellbeing. My responsibility is to consider the best interests of children.
- JA moved from one relationship and into the next one without a period where she has supported herself as an individual. In the circumstances that is understandable, however it is too early to be satisfied that JA has developed the skills and attitudes necessary to take responsibility for her own actions and the protection of children.
- JA continued to minimise her own involvement in her activities, and blamed her abusive relationship. She is of the view that she will not revert to previous behaviours because she is no longer in that relationship. She did not enjoy those activities in any event, she was forced into them. I cannot be satisfied that after such a short period of time JA would be able to with stand the impact of a person with a forceful personality in the workplace if it was necessary to do so for the protection of children.
- JA has plans to move towns to be closer to her children. Once again she will be without a support network or people available to her other than by phone. TW will be a positive influence but this will still be a difficult move. Maintaining her relationship with her children while they are living with her ex-partner and his parents will be a challenging time and could return her to a place of vulnerability. She did not identify in advance the need to have a counsellor to help her with this move
- I have been influenced by the final submission of JA where she said she is ‘trying to pick up the pieces.’ In the light of her present circumstances it would be premature to issue a positive notice.
- I confirm the decision of the chief executive.
- I have formed the view a non-publication order is appropriate in this matter. Non-publication orders can only be made in specific situations. In this case the publication of information could lead to the identification of children who have been the subject of an investigation under the Child Protection Act 1999 (Qld). Publication of the information is prohibited by s 189 of that Act. This order includes material held on the Tribunal file, the names of the applicant and family members and this decision.
- Published Case Name:
JA v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
JA v Chief Executive Officer, Public Safety Business Agency
 QCAT 251
03 Jun 2015