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MCH v Director-General, Department of Justice and Attorney–General

 

[2020] QCAT 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MCH v Director-General, Department of Justice and Attorney–General [2020] QCAT 75

PARTIES:

Mch

(applicant)

 

v

 

Director-GEneral, DePartment of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML157-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

9 March 2020

HEARING DATE:

25 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 2 April 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant.
  3. Accordingly, these reasons have been de-identified.

CATCHWORDS:

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 – blue card – where issue of negative notice – application for review – where applicant has convictions including for assault and public nuisance – where not categorised as serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66, s 99(2)(a)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360, Schedule 7

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Re TAA [2006] QCST 11

APPEARANCES

& REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

D Taylor

REASONS FOR DECISION

  1. [1]
    MCH applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), to enable her to undertake student placement in her studies.
  2. [2]
    The respondent proposed to issue a negative notice, so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent issued a negative notice on 2 April 2019 and the applicant seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28-day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    MCH is not a disqualified person and sought the review of the decision within the prescribed period.

The legislative framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.[6] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[7] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[8] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[9] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[10]
  2. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[11] The principles under which the WWC Act is to be administered are:
  1. (a)
    the welfare and best interests of a child are paramount;
  1. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[12]
  1. [9]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[13]
  2. [10]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
  1. [11]
    For the present purposes, a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
  2. [12]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[14]

  1. [13]
    In determining whether there is an exceptional case when a person has been convicted of an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. (b)
    any information about the person given to the chief executive under section 318 or 319;
  1. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (d)
    any information about the person given to the chief executive under section 337 or 338;
  1. (e)
    anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [14]
    The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[15]
  2. [15]
    ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  3. [16]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[16] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[17]

The material and the evidence

  1. [17]
    The applicant provided the Tribunal with her personal history and personal statement as well as statements from her GP, a clinical psychologist, her university course coordinator, her employer and friend, and her daughter. She made oral submissions. Only the applicant and her daughter gave oral evidence to the Tribunal. The applicant wished to proceed with the hearing rather than adjourn to take up the opportunity to have her medical witnesses available to give evidence.
  1. [18]
    The respondent provided the Tribunal with its reasons for decision and a bundle of documents paginated BCS-1 to BCS-94. The respondent had the opportunity to cross-examine MCH and provided final oral and written submissions.

Consideration of s 226(2) WWC Act

  1. [19]
    The matters listed in s 226(2) WWC Act must be considered by the Tribunal and are addressed below.

Whether the offence is a conviction or a charge

  1. [20]
    For the purposes of the WWC Act, the applicant has convictions for the following offences:
    1. (a)
      Possession of a knife in a public place or school;
    2. (b)
      Unlawful possession of a controlled drug;
    3. (c)
      Commit public nuisance at licensed premises or in the vicinity of licensed premises;
    4. (d)
      Commit public nuisance (two convictions);
    5. (e)
      Assault or obstruct police officer (four convictions);
    6. (f)
      Assault or obstruct police officer on licensed premises;
    7. (g)
      Contravene a direction or requirement;
    8. (h)
      Wilful damage of police property;
    9. (i)
      Stealing; and
    10. (j)
      High range prescribed concentration of alcohol – drive motor vehicle.

Whether the offence is a serious offence and, if it is whether it is a disqualifying offence

  1. [21]
    None of the offences on the applicant’s criminal history are serious or disqualifying offences under the WWC Act.

When the offence was committed or is alleged to have been committed

  1. [22]
    The driving offence occurred in 1999 while the remainder of the offending occurred in 2014, 2015 and 2016. The ongoing and recent nature of this offending and the number of offences committed in this period are significant risk factors.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children

  1. [23]
    The applicant’s offending involved mainly drug and alcohol related offending and public disorder.
  2. [24]
    In 2014 the applicant was driving her vehicle in an unsafe manner causing another vehicle to have to swerve to avoid her.[18] The police report indicates that the applicant then bumped into another vehicle. The applicant denies hitting the other vehicle but acknowledged to the Tribunal that she had blacked out as a result of alcohol consumption so does not recall the events. At the watch house MCH was searched and police found her in possession of Xanax, which MCH had stolen from her employer in order to self-medicate for personal stressors she was experiencing at the time. When arrested for this offence she was heavily intoxicated (with a blood alcohol concentration of 0.252) and assaulted or obstructed police and was determined to have been a public nuisance.
  3. [25]
    Following the 2014 offending the applicant undertook drug and alcohol rehabilitation.
  4. [26]
    She committed several alcohol-related and violent offences in 2015[19] despite this rehabilitation. In February 2015 the applicant was extremely intoxicated at an hotel. She was abusive and aggressive towards police. While in police custody she behaved aggressively, assaulting police and damaging police property. In May 2015[20] while receiving treatment in the accident and emergency department of a hospital, MCH became aggressive towards hospital staff and violent and aggressive with police upon their attendance. While the police report makes no mention of the applicant being affected by alcohol, MCH admitted to the Tribunal that she was affected by alcohol at the time of the incident.
  5. [27]
    The applicant engaged in further alcohol-related offending in 2016[21] when she was agitated and abusive towards staff at a medical centre and refused to leave. The applicant was asked by police to move on, but she returned later and again verbally abused staff at the medical centre. Police at the scene formed the view that the applicant was under the influence of alcohol. She was arrested and searched, and police found MCH was in possession of a knife.
  6. [28]
    The applicant’s offending demonstrates a pattern of anti-social behaviour heavily influenced by her abuse of alcohol and drugs.
  7. [29]
    Children are entitled to be cared for by adults who do not engage in anti-social behaviour. Exposure to such behaviour affects a child’s perception of what is appropriate behaviour in the community. The holder of a blue card must be able to provide a protective environment for children in activities regulated by the WWC Act.

In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision

  1. [30]
    The court imposed penalties including fines, community service and probation. The court recorded convictions in relation to the 2015 and 2016 offending. The court’s reasons for imposing these penalties are not known to the Tribunal.

Any information about the person given to the chief executive under section 318 or 319

  1. [31]
    No information was given under s 318 or s 319 of the WWC Act.

Any report about the person’s mental health given to the chief executive under section 335

  1. [32]
    No information was given under s 335 of the WWC Act.

Any information about the person given to the chief executive under section 337 or 338

  1. [33]
    No information was given under s 337 or s 338 of the WWC Act.

Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [34]
    Other factors relevant to the police information are addressed in the further consideration below.
  2. [35]
    MCH is a 55 year old woman. She was a mature adult at the time of her offending behaviour.
  3. [36]
    The applicant’s offending of concern relates to a pattern of anti-social behaviour between 2014 and 2016. She has a history of drug and alcohol abuse, telling the Tribunal that she was totally dependent upon alcohol from the age of 21, causing her to drop out of university at that age. The applicant returned to university to study social work in 2011. She became overly reliant upon anti-anxiety medication in about 2014 following the suicide of a classmate.
  4. [37]
    MCH indicated that generally she had no recollection of her offending behaviour due to her alcohol consumption. She accepted responsibility for her offending behaviour.
  5. [38]
    Following the 2014 offending and having identified that alcohol was a significant problem for her she sought a residential facility to assist her in addressing this issue as well as her ability to deal with day to day stresses. However, she said this did not eventuate as she was ineligible for a publicly funded program and was unable to afford a private program.
  6. [39]
    She detoxed from alcohol and Xanax with medical support over eight days and voluntarily underwent the Queensland Magistrates’ Early Referral into Treatment Program for 13 weeks, completing the program in October 2014.
  7. [40]
    In 2014 the applicant attended about 10 counselling sessions with GXM but did not continue those sessions at the expiration of the mental health plan as she did not feel she was achieving anything but rather felt she was ‘going in circles’. GXM’s report in about 2014[22] supports this view.
  8. [41]
    MCH’s 2014 offending behaviour was examined by the respondent when the applicant applied for a blue card in 2014. She told the respondent in December 2014, ‘my intent and purpose at this stage is to remain abstinent, become emotionally stronger and return to my university studies next year; as well as support my son as he begins his. I believe I now have the supports in place to successfully achieve this and be fully responsible for my actions.’[23] Further she told the respondent in that submission that she had been sober for three years. MCH told the Tribunal that the period of sobriety at that time was ‘definitely shorter’ and was not a continuous three-year period. She later told the Tribunal that her only previous continuous period of abstinence was for the duration of her pregnancy. The applicant was granted a positive notice and blue card at that time.
  9. [42]
    Only about 12 weeks after providing that submission to the respondent, in February 2015, the applicant re-offended, while grossly affected by alcohol. She offended again in May 2015. The applicant told the Tribunal that she was affected by alcohol on this occasion and has no recollection of the offending behaviour.
  10. [43]
    From March 2015 MCH attended an alcohol and drug service on a weekly or fortnightly basis and a letter from the service in December 2015[24] said that MCH had indicated her intention to continue attending the service. The author observed that MCH ‘has shown intent to obtain support with the view of maintaining positive changes in her life. It is expected that her progress will continue as long as she remains focused on the insights she has made to date.’
  11. [44]
    In September 2016 MCH offended again. She was verbally abusive and had a knife in her possession.
  12. [45]
    MCH explored other counselling options and commenced EMDR sessions with PAC over the period September 2016 to June 2017. She said she found these sessions effective in targeting the trauma she experienced in her youth, trauma which fuelled her alcohol abuse. During this time she continued to consume alcohol but changed the way she drank, consuming cider rather than beer, which she considered a significant positive change. PAC observed in her June 2017 letter that ‘[MCH] has successfully addressed the underlying contributors to her over use of alcohol and the impulse dynamics involved.’[25]
  13. [46]
    The applicant resumed counselling with GXM in about April 2019.
  14. [47]
    The applicant told the Tribunal she stopped drinking on 3 June 2019, that she does not take non-prescription medication and is not taking anti-anxiety medication. She consulted with GXM recently and will see her for about five sessions up until the end of 2020, describing these sessions as ‘touching base’.
  15. [48]
    Despite her drug and alcohol dependency, MCH has maintained employment throughout her adult life. She was accepted back into university to continue her social work degree, in July 2017.
  16. [49]
    The applicant has convictions for a number of traffic offences. She was convicted of ‘high range prescribed concentration of alcohol – drive motor vehicle’ in New South Wales in 1999.[26] In 2011 she was convicted of unlicensed driving. In April 2014 she was convicted of driving under the influence with a blood alcohol concentration of 0.146 and in May 2014 for driving under the influence with a blood alcohol concentration of 0.252. Most recently, in August 2018, she was fined for speeding.[27]
  17. [50]
    MCH has a transgender adult daughter with whom she has a close relationship. Her daughter came out as transgender in 2017. She told the Tribunal that her daughter is a key protective factor for her because her daughter needs to be able to rely on her. MCH said that her daughter can rely upon her now because she is sober but could not do so when MCH was not sober.
  18. [51]
    The applicant accepted that her drinking affected her daughter and described this as unacceptable and said that her daughter should not have been affected by it. A turning point for MCH was when she realised her daughter was denying who she was so as not to upset her mother. She said this made her ashamed as a mother.
  19. [52]
    MCH said that even at her lowest her daughter was her priority. MCH said she made sound judgements and acted protectively of her daughter, making appointments for her to see a psychologist, but was not available to her emotionally.
  20. [53]
    MCH’s daughter, BMA, provided a statement to the Tribunal[28] and met with the Tribunal on her own.[29] BMA said that her mother has remained sober since June 2019, ceasing her alcohol consumption because she knew she needed to be there for her daughter. Since giving up alcohol BMA has observed her mother to be more focused and more determined, and able to more properly express her emotions. BMA has always felt her mother took care of her first, regardless of what was going on in her mother’s life.
  21. [54]
    SGA, an employer and friend of MCH provided a statement[30] indicating she had read the respondent’s reasons. She was not available for cross-examination. SGA has known MCH for 15 years as MCH undertakes her domestic and business cleaning. She trusts MCH. She observed that MCH treated SGA’s children kindly.
  22. [55]
    DNE, the applicant’s course coordinator, provided a statement.[31] She has known the applicant in this capacity for two years. She indicated she was aware of the applicant’s alcohol use issues, mental health stressors and police involvement. DNE commended MCH for her achievements including raising her daughter, maintaining employment and accommodation and undertaking her studies, despite these obstacles. She observed the applicant to be motivated to complete her studies and to use those qualifications to help others. Further, DNE considered BMA to be a key driver for the applicant. MCH seeks a blue card to enable her to undertake placement for her studies. DNE indicated that, absent a blue card, a suitable placement would be found for MCH.
  23. [56]
    GXM provided a report dated 6 September 2019[32] to the Tribunal in which she observed the applicant ‘shows interest in a full recovery.’ GXM indicated she believed the applicant could remain sober with adequate support, suggesting MCH undertake regular supervision sessions to monitor and manage her situation and reduce the risk of relapse. While MCH said she thought she provided the respondent’s reasons and the order of the Tribunal indicating the matters to be addressed to GXM, this is not apparent from the report.[33] GXM was not available for cross-examination. Accordingly, the weight the Tribunal affords this report is limited.
  24. [57]
    MCH’s GP since 2014, KSU, provided a report to the Tribunal.[34] She stated she had knowledge of MCH’s application, had read the refusal letter and was aware of all the police incidents. She indicated that the applicant had shown significant improvement since 2016, developing good insight into her behaviour and its impact. She identified MCH’s daughter as a protective factor as she wanted to be there for her. KSU’s assessment seemed to be conditional upon the applicant ‘continu[ing] on her current journey with ongoing commitment.’ She offered to report any future concerns regarding the applicant’s wellbeing or the wellbeing of the public. As KSU was not available for cross-examination her evidence was untested, limiting the weight able to be given to her evidence.
  25. [58]
    The respondent acknowledged that the applicant demonstrates some remorse for her offending and appears to be strongly driven to support her daughter. The respondent submitted that in light of the applicant’s history of drug and alcohol abuse, despite the steps she has taken to rehabilitate herself, it is too early in the applicant’s recovery to be sufficiently satisfied the applicant can manage the issues on an ongoing basis. The respondent expressed concern about the limitations of the medical evidence provided. The respondent submitted MCH’s case remains an exceptional case.

Consideration

  1. [59]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[35]
  2. [60]
    A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.
  3. [61]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[36]

  1. [62]
    The applicant submitted she is not the same person referred to in the police reports, saying she is now alcohol free and is not taking non-prescription medication or anti-anxiety mediation.
  2. [63]
    The Tribunal accepts that MCH is remorseful for her offending, and now realises the impact that it might have on her future plans. She expressed insight into the effect of her behaviour on her daughter, but the Tribunal is not satisfied that MCH appreciates the impact her offending behaviour may have on children who might be in her care. 
  3. [64]
    The applicant’s daughter articulated changes she had observed in her mother since becoming sober, but these changes have occurred only since June 2019.
  4. [65]
    The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.[37]
  5. [66]
    There are a range of protective factors relevant to the Tribunal’s consideration:
    1. (a)
      The applicant demonstrates some remorse. She has expressed a passion for working in social work and a strong engagement in her studies. She has considered the negative effect further offending may have on her goals, particularly her employment prospects;
    2. (b)
      She says she is currently refraining from substance abuse. The medical reports from GXM and PAC indicate that MCH has taken steps to rehabilitate herself; and
    3. (c)
      She asserts that throughout the period of her substance abuse she acted protectively of her daughter and prioritised her wellbeing. The applicant appears driven to continue to support her daughter and this relationship serves as a protective factor for the applicant.
  6. [67]
    The risk factors for the applicant are:
    1. (a)
      The material indicates a pattern of drug and alcohol abuse and anti-social behaviour. She admits to periods of drug and alcohol dependency. Although she sought to act protectively of her daughter, BMA was aware of the applicant’s substance abuse, which reflects adversely on the applicant’s ability to act protectively and present as a positive role model to children who may be in her care;
    2. (b)
      Concern about whether the applicant’s rehabilitation is complete. Prior to her 2014 convictions, the applicant said she was sober for a period of time. Her evidence on this was inconsistent – her period of sobriety was not three years as she told the respondent in 2014 when seeking a positive notice, but some lesser time. Whatever this period of time, despite her stated resolve,[38] 12 weeks later she reoffended while grossly intoxicated;
    3. (c)
      The applicant’s most recent submissions are similar to those previously made to the respondent indicating she had taken steps to address her substance abuse and mental health issues and has insight into her behaviour;
    4. (d)
      The reports of GXM and PAC indicate that regular reporting or monitoring would be useful to reduce the risk of relapse. This suggests that the applicant is not yet able to manage her mental health without significant support and raises concerns that, should she disengage from treatment, she may be at risk of relapse;
    5. (e)
      The applicant has not articulated any personal strategies she has in place to manage her mental health to ensure she remains stable and refrains from relapse into substance abuse;
    6. (f)
      As a result of these factors and the recency of the applicant’s rehabilitation, sufficient time may not have passed to be satisfied that applicant is able to manage these issues on an ongoing basis; and
    7. (g)
      The effect of issuing a blue card is that the applicant is able to work in any child-related employment, or conduct any child-related business, supervised or unsupervised, regulated by the WWC Act, not just for the purpose for which the applicant has sought the card.  The Tribunal has no power to issue a conditional blue card and once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
  7. [68]
    The applicant has not engaged in in any concerning or offending behaviour since 2016. However, the passage of time is not determinative of whether or not a case is an exceptional case.[39] This risk factor must be considered in the context of all the relevant circumstances.
  8. [69]
    MCH’s drug and alcohol use is more extensive than revealed in her criminal history. She has turned to drugs and alcohol in times of personal stress. In 2014, when seeking a blue card, the applicant expressed the view that she was ready to abstain and emotionally ready to return to study and support her son and that she had an appropriate support network. The applicant shortly thereafter, under the influence of alcohol, reoffended.
  9. [70]
    The applicant said she has been sober since June 2019, having abused alcohol for 33 years. This relatively very short period of abstinence adds to the risk of relapse.
  10. [71]
    MCH has a professional support network. She said that her mental health is stable, but this was not supported by the medical evidence available to the Tribunal. Given the applicant’s history of drug and alcohol abuse and the nature of the offending, the medical evidence is, in the Tribunal’s view, critical. On the basis of the evidence available, it is too soon for the Tribunal to be confident that the applicant will not relapse.
  11. [72]
    The Tribunal accepts the applicant’s desire to support her daughter. Clearly too, the applicant is passionate to work in social work. However, these protective factors have been insufficient to prevent the applicant’s offending behaviour in the past.
  12. [73]
    The applicant should be commended for the steps she has taken to address the trauma of her past and her offending behaviour. MCH may apply for the negative notice to be cancelled two years after the original decision. If MCH remains drug and alcohol free and has supportive professional documentation attesting to this, she should have a much stronger application to put to the respondent.
  13. [74]
    On balance, after consideration of all of the evidence, the findings of fact, weighing the risk and protective factors, and the relevant matters in the WWC Act, including
    s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.

Non-publication/de-identification

  1. [75]
    Pursuant to s 66 of the QCAT Act, the Tribunal may make non-publication orders. Having heard evidence from the applicant’s daughter pursuant to s 99 of the QCAT Act, the Tribunal indicated, at the conclusion of the hearing, its intention to make such orders and the parties did not oppose this.
  2. [76]
    The Tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant.
  3. [77]
    Accordingly, these reasons have been de-identified.

Footnotes

[1]  WWC Act, s 221(2).

[2]  WWC Act, s 169 (definition of ‘disqualified person’).

[3]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’).

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’).

[5]  WWC Act, s 353(a).

[6]  QCAT Act, s 19(a).

[7]  Ibid, s 20.

[8]  Ibid.

[9]  WWC Act, s 360.

[10]  QCAT Act, s 24(1).

[11]  WWC Act, s 5.

[12]  Ibid, s 6.

[13]  As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[14] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

[15] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42].

[16]  Ibid, [30].

[17] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[18]  Ex 8, BCS-85 to BCS-92.

[19]  Ex 7, BCS-71 to BCS-84.

[20]  Ex 7, BCS-69 to BCS-70.

[21]  Ex 7, BCS26 to BCS-29.

[22]  Ex 8, BCS-43.

[23]  Ex 8, BCS-41.

[24]  Ex 8, BCS-56.

[25]  Ex 8. BCS-58.

[26]  Ex 8, BCS-19, additional police information.

[27]  Ex 8, BCS-66.

[28]  Ex 7.

[29]  QCAT Act, s 99(2)(a).

[30]  Ex 6.

[31]  Ex 5.

[32]  Ex 4.

[33]  Ex 4.

[34]  Ex 3, dated 6 September 2019.

[35]  WWC Act, s 360.

[36]  [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

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

[38]  Ex 8, BCS-41, letter from the applicant to the respondent dated 8 December 2014.

[39] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

Close

Editorial Notes

  • Published Case Name:

    MCH v Director-General, Department of Justice and Attorney–General

  • Shortened Case Name:

    MCH v Director-General, Department of Justice and Attorney–General

  • MNC:

    [2020] QCAT 75

  • Court:

    QCAT

  • Judge(s):

    McDonnell

  • Date:

    09 Mar 2020

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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