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OCA v Chief Executive Officer, Public Safety Business Agency QCAT 118
OCA v Chief Executive Officer, Public Safety Business Agency  QCAT 118
Chief Executive Officer, Public Safety Business Agency
13 February 2015
6 April 2015
REVIEW JURISDICTION – BLUE CARD – where conviction is of offence other than serious offence – whether exceptional case
Working with Children (Risk Management and Screening) Act 2000 ss 6, 167, 220, 221, 226, 227, 353, 354, 360
Queensland Civil and Administrative Tribunal Act 2009 ss 17, 18, 19, 20, 21
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 FGC (2011) QCATA 291
APPEARANCES and REPRESENTATION
OCA represented by Mr Danny Booth, Solicitor, Queensland Indigenous Family Violence Legal Service
Chief Executive Officer, Public Safety Business Agency represented by Ms Natalie Taylor, Counsel
REASONS FOR DECISION
- The Applicant (OCA) seeks a review of a decision by the Respondent (the Agency) to issue a negative notice for a blue card on 11 August 2014 pursuant to s 236 Working with Children (Risk Management and Screening) Act 2000 (Qld) (Act).
- OCA has criminal convictions, including for matters involving family violence, where she was nominated as the perpetrator, as well as various notifications made to the Department of Child Safety alleging direct physical harm and causing neglect and harm to children in her care as a result of exposing them to family violence and the effects of excessive alcohol and drug use.
- None of the criminal convictions are for serious offences within the meaning of s 167 of the Act but the Agency found OCA’s case to be an exceptional one under s 221(2) of the Act and determined that issuing a blue card to the applicant was not in the best interests of children and young people ‘at this time’.
- The Applicant seeks a review of this decision on the basis that her convictions and other behaviours are ‘in the past’; that she made a conscious decision to stop consuming alcohol and drugs on 28 March 2008; that she has refrained from doing so since that time; and that her violence was all related to her previous alcohol use.
- The Department of Communities (the Department) has approached OCA to become a kinship carer and when doing so encouraged her to obtain a blue card and then to pursue a review of the negative decision.
- The evidence at hearing suggested that the Department had assessed OCA as being a suitable kinship carer and that it had done, and would continue to, place children in her care notwithstanding the outcome of this review.
- The Respondent submits that after the hearing further enquiries were made of the Department who indicated they had placed a child with OCA only as other family placements had broken down. Nothing turns on this additional information from the Respondent and the Tribunal placed no weight on it.
- OCA expressed that whatever the future intentions of the Department, her motivation to obtain a blue card was ‘a goal that I wanted to achieve’. OCA further expressed that she had a dream of establishing her own clothing business which would bring her into contact with children and young people and she believed she would need a Blue Card to pursue that dream.
- The relevant legislation for the Tribunal is:
- The Agency must issue a positive notice to a person who has not been convicted of a serious offence (as defined under that Act) unless it finds that an exceptional case applies to the Applicant.
- QCAT can review a decision to refuse to issue a positive notice.
- The welfare and best interests of children, is the paramount consideration.
- The Tribunal must produce ‘the correct and preferable decision’ and hear the matter by way of ‘a fresh hearing on the merits’;
- Neither party bears an onus to prove that an exceptional case does or does not exist. The Tribunal must be satisfied that an exceptional case does not exist on the balance of probabilities in order to issue a positive notice.
- There is no definition of “exceptional case”. The Tribunal must have regard to the matters set out at ss 226 and 227 of the Act, but is not limited to those matters. “Exceptional case” is a term used in everyday language and should be applied in each case unhampered by special meaning or interpretation.
- The Tribunal must balance the risk factors and the protective factors which apply in a particular case in determining whether an exceptional case exists.
- The Applicant has 2 criminal convictions involving violence, one in 1990 and one in 1991; and a conviction for behaving in a disorderly manner in 2000. On 14 February 2008 she was charged with breaching a Domestic Violence Protection Order. The offence was proven but no conviction was recorded. She also has a criminal conviction for possessing tainted property on a date between 19 March 2011 and 29 April 2011.
- In addition to the above convictions the Agency relies upon the following further information recorded by the Department:
- 19.08.1998: allegations of hitting and swearing at a child in her care; leaving the child unsupervised all night while drinking; having regular “grog parties” each Wednesday – Friday while children were in the house: recorded unsubstantiated as both child and applicant presented well and applicant agreed to undergo ongoing work with the Department due to subject child being in care;
- 22.10.1999: allegation that applicant had been assaulted by another person, had obtained a domestic violence order against him but had returned to live with him and wanted to withdraw her complaint, when a child was in her care: no outcome recorded;
- 22.11.2001: allegations that children in her care had been sexually harmed: no outcome recorded;
- 11.01.2007: allegations of significant domestic violence incident while caring for a child. Applicant and another person had been fighting each other by throwing bricks at each other and hitting each other with sticks; applicant had stabbed the other person in the leg with scissors; incident occurred while child was present: outcome substantiated, child at unacceptable risk;
- 14.02.2008: allegations of a number of domestic violence incidences between applicant and another over 12 months to which child was exposed, assessment of incident on 11.01.2007: recorded as unsubstantiated;
- 20.06.2013: allegations of domestic violence between the applicant and another where a child was sleeping in another room at the time: recorded unsubstantiated.
- In relation to the above, the Applicant gave evidence and was cross examined as follows:
- She denied ever hitting a child or being spoken to about that allegation. She drew attention to the reference in the material, of the child as “him” and pointed out that she had two daughters at the time referred to and no sons. The Tribunal notes other evidence suggests that OCA had a child or children placed in her care by the Department at that time.
- She denied ever having regular “grog parties” and insisted that although she drank to excess when she did drink, that she never drank consistently and furthermore, that she would make arrangements for her children to be cared for by family members if she was planning to drink.
- She initially stated that she had never heard of any of these allegations before they were put to her in evidence and appeared genuinely perplexed and visibly shocked when reading them. After further cross examination, however, she accepted that she had read the allegations when she received the Agency’s request for further submissions from her in or about April 2014 and again when she received the Agency’s Reasons for Decision in or about August 2014. She stated that she did not understand the allegations then and did not understand them now. In relation to a child or children being sexually harmed while in her care, she explained that this had occurred while a child in her care was staying at a relative’s home at which she was not present. She had had no reason to believe the child was at harm before allowing her to be there.
- She did not recall all of the convictions against her or all of the alleged notifications to the Department but agreed that at that time of her life she was often drinking to excess; that she was depressed and was attracting partners to her who were of similar disposition; that her relationships were marred by family violence; that her behaviour was often quite dangerous at times and that as a result, her behaviour presented as harmful to children at times.
- She recalled the serious domestic violence incident in 2007 except that she had no recollection of using scissors to stab the other person; nevertheless she accepted that the incident happened as recorded. She insisted however that she was only acting in self-defence of herself and the child in her care. She was adamant that ‘the child was in no harm. I wouldn’t hurt no child’. She further insisted that all domestic violent related incidents in which she was involved in the past were as a result of her ‘protecting myself’ and/or ‘protecting a child’.
- She had formed the decision on 28 March 2008 to stop drinking after her grandson who she was caring for, was removed from her care by the Department ‘because of my stupid alcohol behaviour and the people I was with at that time…’; ‘I needed to change’; ‘I had a decision to make … I chose to do what was right …’.
- She gave up marijuana at the same time and has not used it since.
- Regarding Domestic Violence, she stated that ‘in the past when depressed I went straight to drugs or alcohol. Now I can read, go to the shops, ladies’ groups, a neighbour. I don’t look for substances’.
- In relation to the incident in June 2013 the violence was occasioned to her by her adult daughter and that woman’s partner in circumstances where OCA had requested the man leave her house in the early hours of the morning as he was under the influence of alcohol or drugs; that she was protecting a child or children who was/were in the house; that she had called police for assistance; that she had taken a Domestic Violence Order against her daughter as a result of the incident.
- She has not been in an intimate relationship since she stopped drinking, that she no longer feels that she needs to be in a relationship to have a happy life and that she is not interest in pursuing a relationship as she does not want to be hurt again.
- She had not succumbed to alcohol at all since stopping on 28 March 2008. She described how she had tested her resolve with alcohol by taking a job in a bar for more than 1 year where she dealt with intoxicated people, and sold alcohol. She stated that she was not tempted at all to drink and in fact found (and still finds) the smell of alcohol repugnant. OCA appeared genuine in the way she described how she could not stand to be near people who had been drinking, even 24 or 48 hours before: ‘I don’t like the smell of it, I can’t handle being around people with it’.
- As to the effect of her behaviour on the children in her care she agreed they were impacted and said: ‘I thought it was just me but sitting down talking to my daughter today she told me she didn’t like it’. She agreed children are affected badly by domestic violence ‘… they think they’re happy but they’re not and I see that’.
- The Tribunal had recommended that the Applicant obtain a report from a psychologist but that report was not available.
- Mr Bruce Hanly, who holds a BA with a major in sociology and welfare, and who prepared a kinship carer’s assessment of the Applicant for the Department of Communities in June 2014 gave evidence for the Applicant that:
- He did not know the Applicant prior to carrying out his assessment which involved three attendances of about 2½ – 3 hours each and was unaware of her history at the time of the assessment;
- He has, since, become aware of her history, including through reading the Reasons document issued by the Respondent, and although not able to be precise about the charges and allegations against her was aware that they involved significant family violence and alcohol issues including matters where police were involved;
- In his opinion she had however, ‘chosen a different path’; she was ‘determined to create a new life for herself’ and had ‘made significant strides’ in removing alcohol and drugs from her life over the previous 7 years.
- He became aware of the blue card issue because the applicant contacted him for advice and assistance, which he provided, when the negative notice was issued;
- He believed there were no apparent stressors in her life other than this issue (attempting to obtain a blue card); and was unable to identify any particular weaknesses other than recommending that she obtain some further training around parenting;
- He witnessed her become angry/frustrated when she received the negative notice but observed that she dealt with the situation ‘in a quiet manner’;
- He had no hesitation in recommending her as a kinship carer and also understood the transferability of a blue card, having ‘no concerns whatever’.
- The Respondent submits that whilst the Applicant has made personal gains since 2008 for which she deserves credit, she has nevertheless committed violent offences while a mature adult; responded to violence with violence; exposed children to violent behaviour; placed her own relationships above the safety of children by returning to domestically violent partners; sought to justify her own violent behaviour thereby showing a lack of insight into the effects of her behaviour on children.
- As a result of the above matters the Respondent submits that there are ongoing concerns relating to whether OCA would act in a way that would safeguard the emotional and physical wellbeing of children in her care.
- The Applicant submits that she has ‘changed from her concerning behaviours’ in that she has completed a number of courses; obtained a drivers licence; attended a personal development workshop; acknowledged her history of domestic violence and the impact it has had on children in the past. The Applicant specifically points to her having undertaken the following since 2008:
- relocated to Gladstone;
- ceased consumption of alcohol;
- completed further education;
- secured private accommodation and a privately owned vehicle;
- been charged by the Department of Communities Child Safety and Disability Services with respite care of her grandson;
- sought counselling when at risk of relapse or in emotional need;
- demonstrated impact of domestic violence on children;
- implemented strategies to reduce the risk of domestic violence;
- no longer resides in environment where domestic violence likely to take place;
- was able to explain her criminal history
- The Tribunal must weigh up the risk factors and the protective factors in deciding whether an exceptional case exists that it would not be in children’s best interests for a blue card to issue.
- RISK FACTORS
- The Applicant has a history of criminal convictions, including for violence and including as a mature woman of 44 years.
- The Department outlines a lengthy history of concerns that the Applicant has engaged in violence and alcohol related behaviour over many years while children have been in her care although it is noted that many of the notifications were found to be unsubstantiated.
- The Applicant has an admitted history of involvement in domestic violence issues both as a victim and as a perpetrator, with such violence including at least one incident involving severe physical violence using bricks and sticks, and with the Applicant stabbing a person with scissors, and such incident occurring when her grandson was present.
- She sought to justify her past violent behaviour by insisting it was self-defence and necessary at the time to protect herself and/or the child, stating on more than one occasion in evidence that ‘I would do anything to protect a child’ and as a result, she showed a lack of insight into the effect of exposure to her violent behaviour on the child.
- She drank to excess on either an ongoing or a periodic basis over many years and has received no professional assessment or therapy to address her alcohol misuse.
- She appeared to minimise the likely effect of her heavy drinking on her own children in suggesting that she always made appropriate arrangements for them to be cared for by others when she drank excessively.
- Evidence suggests a child or children were often present during incidents of her drinking and or engaging in domestic violence.
- While agreeing that the effects of domestic violence on children were “bad” and made them unhappy, she was not able to identify in any real detail the impact of such behaviour on children.
- The most recent criminal offence of the Applicant is 2011.
- Protective Factors:
- The Applicant has not engaged in family violence, as a perpetrator since 2007.
- The Applicant has not consumed alcohol or illegal drugs since March 2008. Her evidence of abstinence and her extreme dislike of alcohol, including the smell of it on people who had been drinking was compelling. She remained abstinent including while working in a pub for over a year.
- Family members are no longer welcome in the Applicant’s home if they are drinking or under the influence of alcohol or drugs and she has enforced her rule by insisting her daughter’s partner leave her home when intoxicated in 2013. On that occasion she did not retaliate with violence as she has done in the past. She called police and she took a Protection Order against her daughter as a result of the incident.
- She gave evidence that her family members respect that she has changed and respect her house rules and that she has not lost her family connections with them as a result, notwithstanding the incident with her daughter in 2013.
- She has been active in forming relationships outside of her home and has a large group of people with whom she can talk about any issues which are troubling her.
- She uses activities such as walking, listening to music, going for a drive, playing with her grandson, to deal with stress.
- She has been engaged with various educational courses which have given her confidence in her own abilities, and which assisted her to interact with others and ‘communicate with the community’.
- She has engaged in various self-help courses, such as 5 Pathways Workshop which helped to broaden her thinking and gave evidence that it ‘made me change the outcome of my life and see it differently’.
- It is noted that many of the courses referred to above have been conducted online and there was no clear evidence of how/if the Applicant’s involvement in the courses was assessed independently. However the Applicant has personally gained confidence, a sense of achievement and a capacity to communicate with others in the community which are all protective factors.
- Engaged with various social networks such as Ozcare who gave her the motivation and belief she can ‘be out there doing’; Kanolu Country Connections.
- She has not engaged in a relationship involving family violence since 2007 and is comfortable being a single woman, not feeling the need for a relationship.
- She was able to recognise that her behaviour in the past would have been frightening to the children who witnessed it and accepted that the respondent had reason to be concerned about it.
- The criminal offence of 2011 was for ‘possess tainted property’. The Applicant explained how a family member had gifted her a mobile phone which was subsequently found to have been stolen. She did not know this at the time and gave evidence that she will not accept such gifts in future.
- Mr Hanly gave evidence in support of her Application. While he had not known her history when he assessed her as a kinship carer, he has since, become aware of it and that has not changed his assessment of her now. Mr Hanly has been employed as an assessor with the Department for 3½ years and prior to that worked as a Dispute Practitioner in a Family Relationships Centre and also as a child safety officer. Since becoming aware of this Application Mr Hanly has remained in contact with OCA and has assisted her in the preparation of her case. While it might be said he has taken on more the role of advocate for the Applicant this does not detract from his current and recent assessment of OCA.
- The Applicant appeared, at times, vague in her recollection of past events and timelines, but nevertheless, acknowledged that she had a serious history of domestic violence and alcohol related matters and that she well understood that the Respondent would be concerned about that and its likely effects on children. She was candid in her evidence that she had drunk heavily in her past, including as a mature woman, and that she had engaged in several violent relationships during that time.
- Regarding the earlier allegations of the Department, it was clear that OCA was intent on expressing to the Tribunal that she had no recollection of the events occurring and found it difficult to accept that anyone had believed them to be true.
- The Tribunal finds that the consumption of alcohol was the major trigger for the Applicant’s violent behaviour in the past, and that depression likely led the Applicant to misuse alcohol.
- The Applicant’s evidence of her change of attitude and behaviour since 2008 was compelling and was accepted by the Respondent.
- On balance, the Tribunal accepts that the Applicant has:
- made a genuine effort to break from her past;
- successfully avoided consuming alcohol for some 7 years;
- is committed to and has strategies in place to avoid becoming depressed and succumbing to the consumption of alcohol in the future;
- has successfully avoided being involved in violent relationships or engaging in domestic violence for some 7 years;
- was not responsible for and acted appropriately in relation to the domestic violence incident in her home in 2013;
- whilst seeking, at times, to justify her past behaviours, is genuinely embarrassed by and remorseful for her past alcohol consumption and violent behaviour;
- provided a reasonable explanation of her most recent criminal conviction.
- The Tribunal therefore finds, on balance, that an exceptional case does not exist such that it would not be in the best interests of children for a positive notice to issue to OCA and as such, a positive notice should issue.
- The Tribunal was urged by the Respondent to accept evidence that the fact that the Applicant’s own adult daughter suffers from alcohol and violence related issues is a reflection upon her own behaviour which should carry some weight. There is not sufficient evidence from which such a finding can or will be made.
- The Tribunal is of the view that there should be an order prohibiting the naming of any child or of the Applicant in this matter, or the publication of any written material in the matter which identifies such persons, as to publish those names will clearly lead to the identification of a child who is under the care of the Department.
 Reasons for the decision to issue a negative notice dated 8 August 2014, 11.
 Act s 167.
 Act ss 221(1), (2).
 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 18; Act s 354.
 Act s 6.
 QCAT Act s 20.
 Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
 FGC v Commissioner for Children and Young People and Child Guardian  QCATA 291.
 Commissioner for Children and Young People and Child Guardian v Maher  QCA 492 at 28.
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492; FGC v Commissioner for Children and Young People and Child Guardian  QCATA 291.
 Cert I Education, 15 August 2008; Introduction to Community Services, 15 August 2008; CQU bridging course, 30 June 2008; Toddler Group 11 June 2008.
 8 May 2014, online course including Anger Management.
 An Indigenous Tribal Group.
- Published Case Name:
OCA v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
OCA v Chief Executive Officer, Public Safety Business Agency
 QCAT 118
06 Apr 2015