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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
KAT v Director-General, Department of Justice and Attorney General  QCAT 60
DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
3 March 2020
17 June 2019
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – previous issue of blue cards in 2004 and 2012 to the Applicant – negative decision in 2018 based on Applicant having pleaded guilty to drug related charges in 1991 and 2018 and conviction for ‘obtaining financial advantage’ in 2009 – 2018 convictions in context of recent release of son from prison and non-typical behaviour – applicant having significant experience working with families and children and support of long-term partner –applicant is grandmother seeking to be kinship carer of her grandchildren
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – publication order – whether contrary to public interest to identify name of applicant
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 19, s 220, s 221, s 222, s 223, s 226, s 23, s 257, s 354, s 360
Commissioner for Children and Young People and Child Guardian v Eales  QCATA 303
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Chief Executive Officer, Department of Child Protection v Scott [No 2]  WASCA 171
T Smitt, instructed by C Pereira of the Aboriginal & Torres Strait Islander Legal Service (‘ATSLS’)
R Te-Kani, in-house legal counsel for Director General, Department of Justice and Attorney General
REASONS FOR DECISION
The Application to QCAT
- The Applicant applied for QCAT review of a decision of the Director of Blue Card Services in respect of a negative notice made 24 October 2018. KAT included in her Application that she is of Chinese, Aboriginal and German heritage and was born in north Queensland. Her mother passed away when she was young and her three younger sisters relied on her for support through difficult times due to her father’s alcohol dependency. The Applicant has four children and nine grandchildren and lives with her long-term partner in a regional town in far north Queensland.
- KAT has held managerial positions and worked as a Community Development Officer, Education Counsellor and Homework Coordinator. She has a Diploma in Primary Health Care and worked for Queensland Health where she delivered and facilitated the Triple P – Positive Parenting Program, Sexual Health Education to High Schools and hearing tests.
- The Applicant has worked in aged care, and as a disability support worker. She is no longer working as her father is receiving palliative care and is living with her and her partner. KAT currently cares for three of her grandchildren for at least part of each week and the Department Child Services wishes for her to be a kin carer for her son’s two children.
- KAT was a founding member of the Indigenous Family Violence Outreach Unit and Secretary and replacement coach to her sons Junior Rugby League team. The Applicant was Dormitory Coordinator in an Aboriginal-oriented school and travelled to remote communities to liaise with parents. Following this role she was, for two and a half years, the Special Services Coordinator for Jobfind on Palm Island.
- Five years ago, one of her sons developed a drug dependency and developed a relationship with a similarly addicted woman and they had two children. KAT and her partner have sought assistance for her son who was diagnosed with drug induced psychosis. Her son went to jail for breaching a Domestic Violence Order and during his incarceration Community Services removed his children from their mother’s care.
- The Applicant’s family have suffered a series of harassing incidents from her son’s partner’s family. The son was released from prison on 15 March 2018. The Applicant’s son was stabbed in the back by the mother of his children; he recuperated at his parent’s house, and is now reportedly sober, addressing his drug dependency, gaining weight, becoming healthy, and will soon be moving to live independently of his parents.
- KAT has a drug-related conviction from 1991 and one for ‘financial advantage’ in 2009. Following her son’s release from prison, there were incidents involving the Applicant and police on 16 March 2018; a drug raid by eight officers at her home resulted in her being charged with possessing anything used in commission of crime – pipes and grinder, assault and obstructing a police officer.
- On 22 March 2018, police accused KAT’s partner of giving them a rude sign as a police car passed she and her partner as they were returning home from his discharge from hospital. An altercation ensued at their house and charges for assault or obstruct a police officer and public nuisance were laid. These incidents form the basis of the Applicant’s recent convictions.
- Queensland’s blue card scheme is managed by Blue Card Services under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) which provides for screening of individuals who engage in the care of children or regulated employment. The basic principles under which the Act operates are to uphold the welfare and best interests of children with the entitlement of every child to protection from harm and the promotion of wellbeing.
- The CEO of Blue Card Services may approve an application with a positive notice and issuing of a blue card or a negative notice of refusal. There is a presumption of issue of a blue card unless an Applicant has convictions for serious offences and disqualifying circumstances. The presumption is also rebutted where the CEO finds there are ‘exceptional circumstances’ where it would not be in the ‘best interest of children’ to issue a positive notice.
- Without a blue card, a person may not apply for or engage in regulated employment or be a foster or kin carer of children. No restrictions, such as supervision or restrictions to situation applied for, are possible when a blue card is issued. A person issues a negative notice can reapply for a blue card after 2 years.
Respondent’s Reasons for the issue of a ‘negative notice’
- The Director in her reasons for issuing a negative notice stated that the paramount consideration under the Act is to ‘promote, and protect the rights, interests and wellbeing of children in Queensland.’ Although the Act does not define an ‘exceptional case’, this is a matter of discretion and a matter of fact and degree to be determined by the circumstances of individual cases and in regard to the legislative intention of the Act.
- The Director referred to the Applicant’s criminal history outlined the circumstances of each offence, and referred to references provided by the Applicant, the authors of which both knew of the Applicant’s criminal history through reading the Director’s Reasons:
- (a)KAT’s sister stated that: ‘she is not a violent person by nature and does NOT do drugs or alcohol… [KAT] babysits my children and they do arts and crafts … always at least one of her grandchildren staying with her and they are always well fed, well clothed and well behaved.’ (emphasis in original)
- (b)A male friend of 25 years known through sporting associations stated: ‘I have not seen her “act out” or display aggressive behaviour. I have always found her to be supportive and understanding person with whoever she interacts with. She has always been there with help with guidance and generally listen over the years… She has babysat my children and my kids look forward to seeing her.’
- The Director stated in making her decision she had to consider the factors in s 226(2) of the WWC Act and that KAT’s convictions included ‘assault and obstruct police’ and ‘public nuisance’ which:
…involved the applicant behaving in an aggressive and verbally abusive manner towards police officers. This conduct indicates she may have a propensity to react violently or aggressively to situations of conflict.
- The Director stated that she considered this an ‘exceptional case’ based on:
- (a)The Applicant’s recent conviction (March 2018) for possession of utensils and smoking cannabis, a substance which would impair her ability to care for children; and
- (b)The Applicant’s recent conviction of public nuisance and assault of a police officer, which displays aggressive behaviour, using profanity, verbal abuse, and being uncooperative with police direction. This behaviour reflects adversely on her ability to deal with conflict constructively and exercise self-control, and hence, provide a safe environment for children. These offences occurred in the presence of children. This offending behaviour is averse to her ‘providing them with good examples of safe and legal behaviour in their developmental years’.
- The Director considered the Applicant’s behaviour was averse to her promoting the best interests of children. She acknowledged the remorse of the Applicant, but her denial of culpability attempted to deflect responsibility onto the police. This deflection of responsibility was the use of drugs recently, and in the past. The Applicant had not outlined strategies for more appropriately dealing with conflict and avoid future involvement with drug-related activities.
- The Director acknowledged the Applicant’s passion and skill in caring for children and considerable work experience with children. However, these factors and positive references provided did not mitigate the associated risks. The fact that a blue card enables a person to work in any child-related activity regulated under the Act does not allow for a condition to be placed on a card. The Director therefore was ‘satisfied that issuing the applicant’s blue card is not in the best interests of children and young people at this time’.
- A person may apply for review of the CEOs decision to QCAT under procedures set out in Chapter 9 of the Act.
- The purpose of a review under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) is to make the ‘correct and preferable’ decision after a ‘on the merits’ hearing upholding the WWC Act and exercising all the functions of the original decision-maker. The QCAT hearing can accept new evidence not seen by the CEO in making their decision.
- The paramount principle in decision-making being the ‘welfare and best interests of a child’. The Act contains the presumption of issuing a blue card unless there are ‘exceptional circumstances. This term is not defined and is reliant on the circumstances of each case. A leading case is Maher’s Case, where the Briginshaw balance of probabilities is the standard to be used. Maher’s Case outlined the consideration of risk and protective factors as a useful guide, but held that such factors should be weighed to arrive at a ‘correct and preferable’ decision.
Applicant’s submissions and witnesses
- KAT held a blue card in 2004 and 2013 after her convictions in 1991 and 2009. The negative notice of 2018 was based on her conviction for possessing utensils for smoking cannabis, public nuisance, and the assault or obstruction of police. These are not ‘serious offences’ defined by the Act but the negative decision was based on her being an ‘exceptional case’.
- The risk factors identified by the Respondent related to:
- (a)Involvement in drug use and drug related activities and her ability to avoid such activities in future
- (b)Propensity to react violently or aggressively in situations of conflict and not having developed strategies to appropriately deal with conflict
- The Applicant acknowledged that drug utensils were found in her house during a ‘drug raid’ but that she thought that they may have belonged to her son who had been incarcerated for drug-related offences. During the raid by eight officers, she had been woken and dragged from her bed causing pain, shock and unsteadiness due to a medical condition verified by her doctor; she was not intoxicated or affected by drugs.
- Three water pipes were found at the Applicant’s house, but she denied knowledge of them. The police alleged that she admitted that she ‘used a pipe to smoke crack that morning’. The Applicant submitted that she was being sarcastic and did not think the police would take her remark literally.
- The Applicant acknowledged that she was verbally aggressive and that her actions had made the situation worse during the incident when her partner was accused of making a rude gesture to the police. KAT stated that no children were present, her behaviour was ‘out of character’, that she had never been charged with anything similar previously or since, and that she has never been a party in a Domestic Violence Order.
- The Applicant stated that this period around the time when her son was released from jail, had been particularly stressful and she believed that her son was being ‘targeted’ by police. She feared his return to prison where he had attempted suicide.
- The Applicant submitted that such a coalescence of circumstances is unlikely to occur again. The Applicant has a long history of working with children in various situations and says that she deals with situations of conflict with composure. KAT stated that she has sought the help of a Mental Health Occupational Therapist and she has agreed to further interventions to enhance her abilities and strategies to reduce risks of re-offending.
- Protective factors identified by KAT included: her age and maturity; narrow time-frame of offending; previously holding a blue card without incident; insight and willingness to adopt strategies; protective and successful parenting role with siblings, children and grandchildren; stable relationship; commitment to children at work, and sporting activities; not being a drug or alcohol user; and embarrassment and remorse over incidents with police.
- In summary:
- (a)Mental Health Occupational Therapist: KAT had consulted her and scheduled future appointments where her skills and strategies would be further developed. KAT has insight into her behaviour sufficient to stop a reoccurrence of the incidents for which she held convictions. KAT had not disclosed suicidal thoughts and is not at current risk and in the opinion of the therapist not a drug user. KAT was fearful of police attention, being intimidated, and the impact on extended family particularly of her son returning to jail.
- (b)Friend 1: had known Applicant since 2000 when they worked together and they kept in irregular contact. She had always found Applicant appropriate and concerned for grandchildren and all children. KAT had contacted police when working at the school, sometimes in difficult situations and interactions had always been good. They all had to take drug tests before employment and she believed drugs found in her house belonged to KAT’s son, not her.
- (c)Friend 2: She had been a friend of the Applicant since Primary School and they had also worked together. She thought the incident with police was completely out of character with the person she knows, as KAT is not aggressive, but a peacemaker with a ‘wicked sense of humour’. The Applicant is definitely not a drug user and would not expose children to such use.
- (d)Partner: KAT is known as ‘Auntie’ by many children. The drug paraphernalia was definitely not his or KAT’s and not used recently as it had a wasp nest in it. Since the drug paraphernalia was found they had been through entire house and there was nothing hidden. He admitted he had used marijuana but always away from the house. He agreed that his son needed to move out and live independently.
- KAT acknowledged that she had behaved badly and out of character and that she respects people and property. She said she had trained others in the Triple P Program and that she is supported by the Department of Child Safety and she wants to make positive contribution to her grandchildren’s lives. Her therapist says she has no ‘ongoing’ problems and that she has developed strategies to remove herself from such situations. KAT submitted that in her 55 years she has had only two days when she ‘lost it’ under very stressful circumstances.
- The Applicant thinks that the police were ‘targeting’ her son and family; one officer was common to all the incidents and he had called her a ‘junkie’ which she certainly is not, as she does not take drugs or drink alcohol. KAT stated that no children were present at the incidents.
- KAT said that in both possession convictions, years apart, she had felt responsible as the drug paraphernalia had been found on her property. There is an understanding that people who take drugs are not welcome at her house and they have placed a sign on their gate reading ‘No alcohol or drugs allowed’.
- In respect of the conviction for ‘financial advantage’, she was living away from her partner and due to complications with payments, she did not realise she was being overpaid. She had made reparation and her ‘mistake’ at this time does not mean she is not a good role model for her grandchildren.
- Her barrister submitted that the protective factors in favour of the Applicant far outweigh the negative. The two incidents in 2018 of major concern to the Director, were a result of great stress relating to her son’s the release from prison. The Applicant is embarrassed, remorseful and unlikely to re-offend. She and her partner have taken active steps to make sure her home is drug-free, and she is obtaining counselling.
- The Applicant has an historic drug-related conviction, but she explained that she thought that she had to accept responsibility as the items were found at her house. The recent incidents, over a short timeframe and particular circumstances, are far outweighed by an adult life of care for children and good character. The adult has not suddenly become a risk to children. Her therapist said that she considered the trigger for KAT’s behaviour was her fear of her son returning to jail.
- The Applicant’s remark about taking drugs that morning was made in jest and not to be taken seriously which the police seem to have done. The drug in question was cannabis not ‘crack’ – the expression that she had used. KAT has never been a drug user.
- The charge of ‘financial advantage’ had been explained as being an unfortunate misunderstanding and full reparation had been made. Her ability to be a good role-model is not diminished by her convictions.
- The Respondent acknowledged that the Applicant held blue cards in 2004 and 2012 without incident. The Applicant also pleaded guilty in 2018 to assault or obstruct a police officer and that a child was present at that time. The police had visited the premises a few days earlier and had to subdue a dog with pepper spray. The Applicant had been convicted of obtaining financial advantage in 2009 and a sentence of six months was suspended, and reparations were made.
- The Director stated that of particular concern was the Applicant having four drug related convictions between 1991 and 2018. In the earlier case the Applicant admitted that the drug paraphernalia was hers and that two children were resident on the premises at that time. Police information in relation to the 2018 conviction was that the Applicant admitted that the drug paraphernalia was hers and that she had used the water pipes to smoke a dangerous drug that morning.
- Scott’s Case was cited for the proposition that although the issuing of a negative notice may have an adverse impact on the applicant, this is not a factor which the CEO is obliged or entitled to take into account. Also, that ‘any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance’.
- Maher’s Case provides that, in considering a person for the issuing of a blue card, risk and protective factors should be considered. In this application, protective factors include:
- (a)The Applicant is supported by a long-term partner, family and friends;
- (b)The Applicant has identified some triggers for her offending behaviour, shown remorse and some insight;
- (c)Materials form the Department of Child Safety, Youth and Women confirms that she is caring for her grandchildren, has acted protectively towards them and that the Department wants her to continue seeing and interacting with them;
- (d)KAT has extensive experience working with families and children including delivering the Triple P – Positive Parenting Program; and
- (e)The Applicant wishes to be a kinship carer for her two grandchildren.
- Risk factors include:
- (a)The Applicant was convicted and sentenced to imprisonment for six months (released immediately on her own recognisance and good behaviour bond of 3 years, which indicates the seriousness of her offending.) The Applicant made reparation of $10,055.56 and she suggests that the overpayment was an inadvertent mistake or oversight. This is an offence of dishonesty and blue card holders must be able to model behaviour which reinforces the need to comply with legal and socially acceptable standards of behaviour;
- (b)The Applicant has been convicted of drug offences in 1991 and 2018. The Applicant states that the drug paraphernalia were not hers, but she felt that she had to take responsibility as they were found on her premises;
- (c)Children were living at both premises, in 1991 and 2018, when drug paraphernalia was found at the Applicant’s homes. The police allege, and the Applicant and her partner deny, that children witnessed that incident at their home in 2018. Blue card holders are expected to model appropriate behaviours in front of children;
- (d)The Mental Health Occupational Therapist concluded that KAT ‘may demonstrate inappropriate emotional regulation’. The Department noted that the Applicant had suicidal ideations in 2016 and that she consulted a psychologist at that time. Her current Therapist indicated that the Applicant was assessed not to be at risk of suicide; and
- (e)The Director stated that she must adopt a precautionary approach as blue cards are issued without restriction and may be used in any role with children not only that for which her application was made.
- The Applicant has knowledge, a long history and flair for working with children, but cases such as Scott’s Case hold that this cannot direct the Director’s decision. Considering the protective and risk factors is also not a case of adding up ticks on each side but a question of judgment. There is no definition of what ‘exceptional circumstances’ are and so the Director must be guided by the paramount consideration and factors inherent in considerations under this legislation.
Confidentiality of participants
- The Respondent’s counsel submitted that she considered that a Non-Publication Order would be appropriate in these circumstances. The Applicant’s counsel agreed with this submission.
The Tribunal’s view
- In making decisions in WWC Act matters, the overarching principle is that ‘the welfare and best interest of children are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes wellbeing’. Of relevance is the fact that the issuing of a blue card enables the recipient able to work in any regulated employment and situations with children, not just the situation in which they make their application.
- The Applicant had held blue cards in 2004 and 2013 following her first two convictions. The Director’s decision must therefore concern the incidents in 2018 between police and the Applicant around the time of her son’s release from prison. The Applicant says this time was very stressful for her. She feared her son returning to jail where he had tried to kill himself. The family was being harassed by her son’s partner’s family and police seemed to be targeting them.
- In respect of the conviction for ‘financial advantage’, I accept the Applicant’s explanation of her being involved in a misunderstanding, her making full reparation and never being involved in anything similar before or since. Although blue card holders must be good role models to children, it might be taken that even where serious mistakes are made, it is possible to make amends and ‘move on’.
- The drug convictions appear to have occurred at times when the Applicant has felt responsibility due to the drug paraphernalia being found at her house. Although, in the ‘raid’, the items appeared to have not been used in some time. The Applicant is strenuous in her statements, which are supported by her friends, partner and therapist that she is not a drug user and does not drink alcohol.
- The Applicant and her partner have taken action to ensure there is no drug use in their house – they have put a sign on their gate, thoroughly inspected they house to ensure there is nothing related to drugs on the premises, and assisted their son to move to independent living.
- Deciding blue card matters is not a case of ticking boxes of positive and negative factors but requires careful consideration and weighing of all factors. March 2018 appears to have been an incredibly stressful time for the Applicant, when she was extremely fearful that police attention would deliver her son back to jail, where he had previously tried to kill himself.
- KAT’s actions at this time appear to have been out of character with the rest of her life. The Applicant is responsible for the care of children, sometimes in difficult situations, and where she has interacted positively with police and other agencies. KAT was responsible for life enhancing training and community development.
- The Applicant is supported by the Department of Child Services who are seeking that she is a kin carer to her grandchildren. She already has the care of three other grandchildren for varying periods each week.
- Although the Director’s concern can be understood, I consider that they do not amount to ‘exceptional circumstances’ in relation to the Applicant.
- The question to determine is whether the publication of the names of individuals in relation to this matter would be contrary to the public interest or the interests of justice.
- The Applicant comes from a regional community where publication of the names of persons involved and in relation to her children and young grandchildren would not be beneficial.
 WWC Act, s 5.
 Ibid s 6.
 Ibid s 220.
 Ibid s 221, s 226.
 Ibid s 223.
 Ibid s 257.
 Ibid s 236.
 Ibid s 5.
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492 (‘Maher’s Case’).
 1991 - Conviction and fine (s 230) for possession of a dangerous drug; pipes and cones used in connection with smoking dangerous drug; 2009 - Conviction, imprisonment 6 months – released forthwith on recognisance $2,000, good behaviour 2 years and reparation $10,055.56 for obtaining financial advantage; 2018 - Charged with no conviction and fines totalling $1,100 for committing public nuisance and assault or obstructing police officer on 22 March 2018; Assault or obstruct police officer, possession anything used in the commission of a Part 2 crime; possession utensils or pipes that had been used on 16 March 2018.
 WWC Act, s 226(2).
 Ibid s 354.
 QCAT Act, s 20.
 WCC Act, s 360, under ‘best interests of child principle’.
 QCAT Act, s 19.
 WWC Act, s 360.
 Ibis s 221(2).
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
 Commissioner for Children and Young People and Child Guardian v Eales  QCATA 303 (‘Eales’ Case’).
 Chief Executive Officer, Department of Child Protection v Scott [No 2]  WASCA 171.
 Chief Executive Officer, Department of Child Protection v Scott [No 2]  WASCA 171.
 Maher’s Case.
 Commissioner for Children and Young People and Child Guardian v Eales  QCATA 303.
 WWC Act, s 6.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2).
- Published Case Name:
KAT v Director-General, Department of Justice and Attorney General
- Shortened Case Name:
KAT v Director-General, Department of Justice and Attorney General
 QCAT 60
03 Mar 2020