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CIS v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 103

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CIS v Director-General, Department of Justice and Attorney-General [2020] QCAT 103

PARTIES:

CIS

 

(applicant)

 

v

 

DIrector-General, Department of Justice and Attorney-General

 

(respondent)

APPLICATION NO/S:

CML190-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

7 April 2020

HEARING DATE:

19 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is an exceptional one 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, any complainants, any witnesses appearing for the applicant and any relevant child.

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 of decision to issue negative notice– where applicant has a criminal history including drug convictions – where there is a significant amount of child safety material – 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

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

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 & 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

Introduction

  1. [1]
    CIS, a 33 year old mother of three (R aged 10½, E aged 5½ and C aged 2½), 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 pursue a career in nursing.
  1. [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.
  2. [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 applicant’s case was exceptional within the meaning of the WWC Act.
  3. [4]
    By letter dated 14 May 2019 the respondent advised of its decision to issue CIS a negative notice. CIS seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  4. [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]
  5. [6]
    CIS is not a disqualified person and sought review within the prescribed period.

The Legislative Framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the 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 where a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. The matters listed in s 226 are not exhaustive. Rather, s226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[15]
  2. [14]
    ‘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. [15]
    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]

Consideration of s 226(2) WWC Act

  1. [16]
    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. [17]
    For the purposes of the WWC Act, the applicant has convictions for the following offences on her criminal history:
    1. (a)
      Possession of dangerous drugs (two convictions);
    2. (b)
      Possession of utensils or pipes etc that had been used; and
    3. (c)
      Contravention of a direction or requirement.
  2. [18]
    In addition, the applicant has a finalised charge for possession of anything used in the commission of a crime defined in Part 2.

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

  1. [19]
    None of the offences are categorised as serious or disqualifying under the WWC Act. However, all offences on a person’s criminal history are able to be taken into account in order to assess the applicant’s eligibility to hold a blue card.

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

  1. [20]
    The offending and alleged offending occurred between 2013 and 2016.

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

  1. [21]
    The applicant’s drug related offending and alleged offending is directly relevant to her capacity to provide a protective environment for children in her care.
  2. [22]
    Blue card holders are expected to behave in a manner that protects and promotes a child’s safety and physical and psychological wellbeing. Drug use would be likely to detract from the applicant’s ability to provide a protective environment for children placed in her care, and her ability to present as an appropriate role model for them.

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. [23]
    The applicant has been sentenced to financial penalties, drug diversion and a good behaviour bond in relation to her offending. The Tribunal was not provided with the Court’s reasons for the imposition of these penalties.

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

  1. [24]
    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. [25]
    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. [26]
    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. [27]
    Other factors relevant to the police information are addressed in the further consideration below.

The material and the evidence

  1. [28]
    The applicant provided the Tribunal with her life story, statements from her parents, one of her brothers, a psychologist, a mental health nurse, a domestic and family violence practitioner, a social worker, a GP, and two personal references. CIS made brief oral submissions. A support person attended at the hearing with her.
  2. [29]
    The respondent provided the Tribunal with its Reasons for Decision and documents comprising pages BCS-1 to BCS-44 and documents NTP-1 to NTP-445 obtained pursuant to a notice to produce. The respondent had the opportunity to cross-examine CIS, her parents and her friend. The medical experts were not available for cross-examination. The respondent made final oral submissions.
  3. [30]
    CIS grew up in a close and loving family in rural Queensland. She was the victim of sexual assault and rape as a teenager.
  4. [31]
    She began binge drinking in September 2006. At the same time she met VJJ. Despite being exposed early in the relationship to his violence, she said she was blind to this and to his immaturity. After her daughter, R, was born VJJ became physically, sexually, verbally and emotionally abusive. In late 2010, at VJJ’s insistence she began to smoke cannabis, which she found helped her sleep and relieved her anxiety.
  5. [32]
    She said her relationship with VJJ was on and off – she would tell him to leave and he would manipulate his way back into her life. She felt she could not cope without him. The relationship was characterised by ongoing, extreme domestic violence.
  6. [33]
    In 2011 police raided the home she shared with VJJ and they found cannabis. As VJJ was on probation he would have gone to jail if he was in possession of the cannabis, so she said she told police it was hers. She said she undertook a drug diversion program as a result of this.
  7. [34]
    CIS said that despite a DVO with a ‘no contact’ clause being in effect[18] she agreed to have direct and indirect contact with VJJ and allowed VJJ to have contact, including unsupervised contact, with R. She later sought to vary the DVO[19] to allow VJJ to have a relationship with R. The Tribunal concludes that in 2011, the applicant minimised VJJ’s very serious behaviours and domestic violence issues and placed her own desires ahead of the needs of her daughter.
  8. [35]
    Only 9 weeks later, in June 2011, CIS was violently assaulted by VJJ. This assault was witnessed by R. CIS was driving the car with her daughter in the back seat when VJJ knocked CIS out. He put her in the boot of the car and drove her into bushland, where he dragged her through the forest and sexually and physically assaulted her. R, not yet aged two, released herself from her car seat and ran from the car. CIS saw VJJ run after R. She endeavoured to escape from the bushland with R but had a car accident while trying to do so. She woke later in hospital with significant injuries, which were noted to be not consistent with the motor vehicle accident. VJJ was sentenced to two years jail for grievous bodily harm. CIS accepted that her daughter would have been terrified by what she witnessed.
  9. [36]
    Despite his mistreatment of her, CIS visited VJJ while he was incarcerated and later upon his release, without R. CIS said that in 2012 she ceased all contact with VJJ.
  10. [37]
    At the end of 2011 CIS began associating with people who used amphetamines and began to use them herself, becoming a regular user. Because of this, her parents asked her to move out, which she did. R remained with CIS’s parents.
  11. [38]
    CIS commenced a relationship with MAJ, a drug dealer who dealt drugs from their home, in January 2013. In May 2013, their home was raided by police who found cannabis and three cannabis seeds. CIS was convicted and released upon entering into a $150 recognisance to be of good behaviour for four months. No conviction was recorded. CIS was ordered to undertake a drug diversion program. She attended a residential rehabilitation facility where she remained for six weeks. She left because she did not want to be there, telling the Tribunal she was not ready for rehabilitation at the time. She did not complete the program.
  12. [39]
    Upon returning to their home she remained sober for another two months. She later moved back in with her parents and her son, E, was born in September 2014. When her drug use recommenced, her parents asked her to leave their home and took E into their care.
  13. [40]
    CIS lived with MAJ until an incident of domestic violence occurred in the relationship. In April 2016 she moved out and stopped using amphetamines.
  14. [41]
    In April 2016, police searched her new residence and found cannabis, scales used to weigh cannabis, a coffee grinder used to chop cannabis and a ‘bong’. The applicant admitted to smoking cannabis earlier in the day. CIS was convicted of possession of dangerous drugs and possession of utensils and fined $350. No convictions were recorded. No evidence was offered in relation to the charge of possessing anything used in the commission of a crime.
  15. [42]
    In August 2016, she moved again and began her sobriety. She saw her two children twice a week and was undergoing regular drug testing. She said she was not passing drug testing in early 2016. A letter from the Department of Communities, Child Safety, and Disability Services[20] dated 13 January 2017 said that urine drug screens had been clean, with no drug use, since September 2016. A July 2017 drug screen[21] noted that no drugs were detected but that the sample was very diluted suggesting the applicant had consumed a large amount of water prior to the testing, or the sample had been diluted. CIS said she regularly consumes a lot of water and thought that was the cause of the diluted sample. She denied using drugs at the time of that test.
  16. [43]
    In October 2016 CIS moved in with a friend. Having been unemployed since 2013, she commenced working full time. By early January 2017 her visits with her children were no longer supervised. Child Safety allowed CIS to visit R and E whenever it suited her parents, so she visited most days after work and often stayed overnight. In July 2017 CIS said she secured accommodation but as her children were settled with her parents, she moved back in with them. Her third child, C, was born in October 2017. Also in October 2017, Child Safety returned CIS’s children to her care, although she continues to share custody of R with her parents.
  17. [44]
    The Safety and Support Plan for E prepared at this time envisaged that CIS would help care for E while living with her parents and would seek professional support for her mental wellbeing, drug misuse and domestic violence from previous partners. CIS told the Tribunal that she did not recall seeing this plan. CIS’s evidence about professional support in this regard was inconsistent. She was surprised by the requirement to obtain professional support. She said that she engaged with ATODS in 2019 and a psychologist in 2018 and then later acknowledged that working with the professional support envisaged has not occurred. The Tribunal finds that CIS was not proactive in seeking this support.
  18. [45]
    CIS said she accepted responsibility for her actions giving rise to her criminal history. She said she has not looked back since October 2017. In January 2019 she began studying for a diploma of nursing and she seeks a blue card to enable her to pursue this ambition.
  19. [46]
    CIS said that as a result of the traumatic events in her life she made wrong and reckless choices. She said she has since attended counselling and courses. There was no evidence of courses attended by the applicant and the applicant’s engagement with counselling is limited. She said her determination and the love and support of her family have been a significant factor in getting her to where she is today.
  20. [47]
    The documents obtained pursuant to the notice to produce paint a picture of a woman who experienced significant trauma and domestic abuse and descended into drug abuse. On the applicant’s evidence, CIS’s drug use was more extensive than indicated by her criminal history. Her evidence was that she was involved in drug related activities over a period of six years from 2010 to 2016. CIS acknowledged that she is a drug addict with a history of polysubstance abuse including methamphetamine (ice), cannabis, amphetamines (speed), ecstasy (occasionally) and acid on one occasion, unwillingly. While the material from Child Safety in November 2015 notes she was an ‘ongoing intravenous drug user’,[22] she denied using drugs intravenously.
  21. [48]
    The material contains reports that CIS was an alcoholic, but she disagreed with this. She told the Tribunal that she began binge drinking in November 2006 but stopped in about May 2007, drinking only socially from then. She said she maintained sobriety for a period of time in 2013 and abstained from alcohol from 2016 but does not accept she is or was ever an alcoholic. The applicant’s evidence suggests to the Tribunal that alcohol was a more significant issue for CIS than she was prepared to acknowledge.
  22. [49]
    It is apparent from the material that from 2010 to 2017 the applicant had significant contact with Child Safety, due to Child Safety’s concerns for the emotional and physical wellbeing of her children.
  23. [50]
    There were references in the material that on a number of occasions CIS did not have formula for E. CIS denied this, acknowledging only one occasion on which she did not have food for E, the last night he was in her care. The material indicates that it was reported to Child Safety that in 2011 the applicant was living with R in a car[23] and that in 2015 E had last been seen in a ‘wet and dirty jumpsuit’.[24] The applicant denied these allegations. However, Child Safety recorded in November 2015:

over the course of a one week period, due to [CIS] driving around and having no stable accommodation and additionally running out of money it was reported that [CIS ] ran out of formula for [child] and was unable to provide clean clothes and bottles for him. [CIS] later acknowledged that this was ‘not ok’.[25]

  1. [51]
    In November 2015 the Department received a report[26] that CIS was experiencing a psychotic episode, and so held concerns that the applicant was unable to provide a safe and stable home environment for E. CIS agreed that she experienced this episode and acknowledged that her mental health was not stable at that time; that as a result of her drug use, she continued to be paranoid.
  2. [52]
    In its assessment in November 2015,[27] Child Safety observed:
    1. (a)
      There had been 14 recorded contacts with the department between 2009 and 2012 consisting of 11 Child Concern Reports and two Child Protection notifications;
    2. (b)
      In 2011, R was assessed as a child in need of protection as result of exposure to repeated and extreme levels of domestic violence. The ongoing intervention was closed when CIS’s parents secured full custody of R;
    3. (c)
      When CIS became pregnant again contact with the department recommenced. In 2014-2015 there were eight reported contacts with the department in relation to concerns for E consisting of two Child Protection Notifications, six Child Concern Reports and one Intake Enquiry;
    4. (d)
      In August 2015, E was assessed as a child in need of protection as he had suffered emotional harm and would be at an unacceptable risk of further emotional harm;
    5. (e)
      CIS was assessed as not being willing and able to meet E’s care and protection needs, prioritising her own needs above those of her children, even when this continually placed them at risk of harm; and
    6. (f)
      The applicant failed to engage with Chid Safety and other recommended services.
  1. [53]
    As a result of this assessment, on 20 April 2016, an 18-month child protection order was made for E.
  1. [54]
    The applicant’s evidence about her understanding of the effect of her lifestyle on her older children varied over the course of her evidence. CIS accepted that during her drug use she caused her daughter emotional harm and that her daughter was exposed to violence. She accepted that she had failed E but hoped that she had not harmed him and denied neglecting him. CIS agreed with Child Safety’s observation that during her ‘drug phase’ she demonstrated little insight into the impact of her behaviour on her children. However, she said she now understands the harm she has caused them, observing that it was ‘not very nice’ coming to this realisation and said she is remorseful for causing this harm.
  2. [55]
    CIS said that she did not take drugs in E’s presence but that she took them and tried to obtain them while he was in her care. Drug dealing occurred in the house in which she lived with E and CIS admitted to regularly driving a car with E as a passenger, while under the influence of drugs. In 2015 she was convicted of driving while a relevant drug is present, while E was in the car. It is clear to the Tribunal that CIS’s conduct exposed her older children to harm and that CIS demonstrated limited insight in relation to this.
  3. [56]
    Motivated by the desire to have her children returned to her, the applicant consulted ELJ, a psychologist, who reported on 6 September 2016 that the applicant was ‘at times resistant to some of the strategies’ but that ‘our last sessions have been more productive’.[28] The applicant agreed that at that time she was not fully cooperative with ELJ and while wanting to do the right things to be safe around her children, was resistant to intervention. She did not maintain this engagement with support.
  1. [57]
    Following the birth of C in October 2017, Child Safety conducted an assessment.[29] At that time CIS was living with her parents. Child Safety observed that CIS’s family provided close support and that CIS was ‘extremely remorseful and appears genuine in her desire to remain clean.’
  2. [58]
    The applicant consulted again with ELJ for three sessions up to November 2019. In the concluding report[30] ELJ noted the applicant to be motivated, focussed on motherhood and studies, insightful into her past journey, taking ownership of her past poor choices. ELJ further observed evidence of significant changes the applicant had made in her life ‘demonstrating that she is no longer trivialising her past behaviour and is motivated to make healthy choices for the sake of herself and her children.’ ELJ observed that CIS demonstrated remorse and understood the impact her conduct had on her own life and others, particularly her children and parents.
  3. [59]
    The applicant said that she gave the respondent’s reasons to ELJ, but they are not referred to in the report and it not apparent from the report that ELJ was aware that CIS was applying for a blue card. The extent of ELJ’s knowledge of the Child Safety material is unknown. For these reasons and because ELJ was not available for cross-examination limited weight is given to her evidence.
  4. [60]
    The applicant told the Tribunal that it was not until these late-2019 sessions that she felt she has benefited from engaging with a mental health professional. CIS indicated that she intends to continue to engage in counselling to deal with the issues in her past, everyday stressors and to assist with relaxation techniques.
  1. [61]
    The applicant said she provided the respondent’s reasons to YGP, the GP who provided a report dated 16 September 2019.[31] YGP has been her GP since August 2019. She has consulted other doctors in the same practice over the preceding two years, but they had since left the practice. YGP had limited firsthand knowledge of CIS but was clinical supervisor for those other doctors, so was broadly aware of her presentations and progress. He observed that she maintains sobriety and had taken an enthusiastic and proactive approach to all recommended treatment. It was not clear what he meant by the reference to ‘recommended treatment’. It was not apparent from the report whether he was aware of the applicant’s criminal history or had read the respondent’s reasons, but it was apparent that he had some knowledge of CIS’s involvement with Child Safety. As YGP was not available for cross-examination and had limited personal knowledge of the applicant the Tribunal affords very limited weight to his evidence.
  2. [62]
    In addressing risk factors for her offending the applicant indicated that she has made a point of not socialising with the people she mixed with when she used drugs, she avoids places where it would be easy to fall back into that behaviour and talks herself through the reasons she does not wish to go back to that life.
  3. [63]
    CIS and her children will live with her parents for the foreseeable future. In addition to the financial imperative, CIS said her children are happy there, that it is good for her children, the children have developed a close relationship with their grandparents, and the arrangement works for her.
  4. [64]
    MIS, CIS’s mother, provided a statement[32] and was available for cross-examination. She said that for a period of time she would have nothing to do with CIS, going so far as to remove her from her telephone contacts. She believes that the change in CIS occurred because she wants to care for her children. MIS has observed that since 2016 CIS has grown up, ceased her old ways, deciding not to use drugs or live the life she had been living, and now takes her responsibilities to heart. She said CIS is very remorseful for her past conduct. She now observes her to be open, honest, engaging and responsible. MIS said that even at her worst CIS was a protective mother, asking her for help if required. She denied that CIS ever harmed her children. She believes that CIS can care for her children in her own home saying that CIS decided it was unfair to move them, so CIS moved in with her parents. MIS said she is aware of CIS’s behaviour when she is on drugs and that CIS does not take drugs or drink alcohol. The Tribunal accepts MIS’s evidence in relation to the applicant’s drug and alcohol use, but finds that she minimised the effect of CIS’s behaviour on her children.
  5. [65]
    DIS, the applicant’s father, provided a statement[33] and was cross-examined. He said that previously CIS’s drug addiction completely consumed her so that she was selfish and unreliable. As a result, she was outcast from her family. Then three to four years ago she started to change and was welcomed back into her family. He said that she had been free of drugs and their influence since 2016. He said that as she lives with them, he is very aware of what she does and that she no longer uses drugs, does not consume alcohol and uses tobacco only. In his opinion, CIS’s drug taking clouded her decision making such that she ceased to be a protective mother while under the influence of drugs. He considered that CIS has emotionally harmed R, but not her other children.
  6. [66]
    BIS, the applicant’s brother, provided a statement to the Tribunal.[34] While he had minimal contact with CIS due to her actions and lifestyle choices up until a few years ago, he has observed more recently that she is capable of making better choices. He believes she is aware these changes are better for her children and that this is a driving force for her change. He observed that she is now successfully caring for her children while pursuing higher education, as she wants to provide for her family.
  7. [67]
    NEL, a family friend who has known CIS for more than 30 years, provided a statement[35] and was available for cross-examination. She had read the respondent’s reasons. She gave evidence that since 2016 CIS has turned her life around. While NEL observed that CIS had been in a destructive spiral, popping into and out of her family’s life, once CIS got a job again in late 2016 she shed her destructive side, exercising self-care by paying attention to her diet, exercise and skin care and became actively involved in her children’s lives including making an emotional connection with them. While the changes started in 2016, NEL said that it had been a ‘process’ and was a long hard journey for CIS, who has had to face up to her past. NEL did not consider that CIS had ever harmed her children. She was of the view that CIS has always been protective of her children; recalling a night when CIS was in a ‘bad place’ and took her children to her cousin so they would be safe – while she had no capacity to look after them she wanted them to be safe. She said that CIS has severed her ties to her past.
  8. [68]
    While not available for cross-examination, WOR provided a statement[36] to the Tribunal. She is presently employed in a childcare centre and prior to that was a kindergarten teacher. She has known the applicant for a number of years through mutual acquaintances and in her professional capacity teaching and caring for E and R. She did not indicate any knowledge of the applicant’s criminal history, the child protection material or the respondent’s reasons for refusal of CIS’s positive notice. She has observed CIS to be ‘courteous, engaged and responsible in every facet within our operations’ and that her demeanour and attachment with her children has always been ‘safe, secure and positive.’
  9. [69]
    The respondent urged that caution be exercised when considering the weight to be afforded the evidence of CIS’s family and friends because MIS and NEL were of the view that CIS was always protective of her children and denied she had harmed her children, which was inconsistent with the applicant’s own evidence. This may have been due to the fact that the witnesses were not aware of the detail of the Child Safety material.

Consideration

  1. [70]
    In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.[37]
  2. [71]
    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.
  1. [72]
    The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.[38]
  2. [73]
    There are a range of protective factors relevant to the Tribunal’s consideration:
    1. (a)
      That the applicant has not engaged in offending behaviour since 2016. However, the passage of time is not determinative of whether or not a case is an exceptional case.[39] This factor must be considered in the context of all the relevant circumstances;
    2. (b)
      Child Safety has surrendered care of CIS’s children to her;
    3. (c)
      She no longer drinks alcohol or uses drugs, which was confirmed by her family and NEL;
    4. (d)
      The applicant has reconnected with her family;
    5. (e)
      She has a supportive network of friends and family; who have observed the changes CIS has made in her life in the last three to four years; and
    6. (f)
      She has recommenced employment and undertaken study with the intention of providing for her family in the long term.
  3. [74]
    The risk factors for the applicant are:
    1. (a)
      The applicant’s criminal history;
    2. (b)
      The applicant’s significant history of drug and alcohol abuse over a period of six years which is more extensive than suggested by her criminal history. She used drugs when children were in her home and in her care;
    3. (c)
      Her limited engagement with professional support;
    4. (d)
      The applicant’s past resistance to intervention and repeated relapses following intervention;
    5. (e)
      She demonstrated limited insight into her conduct and the effect of her behaviour on her children;
    6. (f)
      A child protection history which included an inability to extricate herself from a toxic relationship. The child safety material indicates that her two older children were subject to emotional and physical harm and were exposed to serious domestic violence; and
    7. (g)
      That a blue card, if issued, is fully transferrable across all areas of regulated employment and is unconditional.
  1. [75]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:[40]

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.

  1. [76]
    CIS was convicted of drug related offences. CIS accepted that she was guilty of the offences and told the Tribunal she accepted responsibility for her actions.
  2. [77]
    The Tribunal accepts that CIS was the victim of domestic violence for many years. She told the Tribunal she was a drug user from 2010 until 2016. The applicant downplayed alcohol as an issue for her.
  3. [78]
    The applicant has a lengthy involvement with Child Safety with substantiated allegations in relation to her two older children being subject to the risk of emotional harm. CIS failed to act protectively towards her two older children causing them harm by her conduct – including her drug use, that she did not have the ability or foresight to extract herself from violent relationships and her failure to work cooperatively with Child Safety. Her failure to protect her children from domestic violence and drug use as recently as 2016 is a risk factor. It is too early to be satisfied that CIS has developed the skills and strategies necessary to take responsibility for her own actions and for the protection of children.
  4. [79]
    She expressed remorse, aware that her behaviour was wrong. However, her inconsistent evidence in relation to her insight, as well as the significant Child Safety material, is of concern to the Tribunal. The Tribunal finds that CIS demonstrated limited insight into her past behaviours and the effects of her conduct and lifestyle on her two older children.
  1. [80]
    The Tribunal accepts that since 2017 the applicant has made improvements to her life; she no longer uses drugs and has re-established positive relationships with her family. With the support of her parents, CIS has secured the return of her children to her care. She is providing for her children, maintaining employment and pursing studies. The Tribunal is satisfied the applicant is significantly motivated by the desire to care for her children. The applicant should be commended for the positive steps she has taken.
  1. [81]
    The applicant has a history of relapsing, despite intervention. She has only very recently engaged with professional support, seemingly prompted to do so by her desire to obtain a blue card. Having derived benefit from this she has indicated she intends to continue to engage. This may enable the applicant to address the trauma in her past and develop strategies for the future.
  2. [82]
    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.
  3. [83]
    The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is confirmed.

Non-publication/de-identification

  1. [84]
    Given that this case involved sensitive issues about children and domestic violence, pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and any relevant child.
  2. [85]
    Accordingly, these reasons have been de-identified.

Footnotes

[1]  WWC Act, s 221(2).

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

[3]  Ibid, 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]Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391.

[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 & 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 13, NTP-177.

[19]  Ex 13, NTP-123.

[20]  Ex 13, NTP-423.

[21]  Ex 13, NTP-413.

[22]  Ex 13, NTP-337.

[23]  Ex 13, NTP-187.

[24]  Ex 13, NTP-270.

[25]  Ex 13, NTP-374.

[26]  Ex 13, NTP-337.

[27]  Ex 13, NTP373 to NTP-380.

[28]  Ex 11.

[29]  Ex 13, NTP401-404.

[30]  Ex 10.

[31]  Ex 5.

[32]  Ex 7.

[33]  Ex 8.

[34]  Ex 9.

[35]  Ex 6.

[36]  Ex 4.

[37]  WWC Act, s 360.

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

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

[40]  [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

Close

Editorial Notes

  • Published Case Name:

    CIS v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    CIS v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 103

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    07 Apr 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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