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- Unreported Judgment
NFC v Chief Executive Officer, Public Safety Business Agency QCAT 14
NFC v Chief Executive Officer, Public Safety Business Agency  QCAT 14
Chief Executive Officer, Public Safety Business Agency
1 October 2015
Dr Cullen, Member
15 January 2016
CHILDREN'S MATTER – BLUE CARD – where applicant received a negative notice – where applicant has charges for convictions for fraud, burglary and fraud from her mother and sister – where applicant has depression and has engaged in self-harm – where applicant has obtained psychiatric therapeutic assistance – whether case is exceptional
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 353, s 360,
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Laidlaw v Queensland Building Services Authority  QCAT 70
Queensland Building and Construction Commission v Mudri  QCATA 78
NFC, represented herself
Kylie Heath, represented the Public Safety Business Agency
REASONS FOR DECISION
Nature of decision under review
- The Applicant, NFC, has just turned 22 years of age. She has overcome a number of childhood obstacles, including sexual abuse by her father. Compounding this suffering, as a result of the trauma symptoms she experienced, she was misdiagnosed with autism, and the abuse she had endured remained hidden for a further period of time.
- Despite these psychological hurdles, NFC has moved forward with her life, and is hoping to gain employment in future as a nurse. She is on the cusp of completing her training with an Institute of TAFE in South-East Queensland. It is a requirement that she hold a ‘Blue Card’ authorising her to work with young people and children in order to complete the practical rotations required to obtain her qualification.
- When she began her nursing studies in 2011, NFC applied for, and was given a ‘positive notification’ – meaning that she had a valid Blue Card at that point in time.
- However, in the intervening timeframe, some criminal activity that NFC took part in while she was between the ages of 16 – 18 has come to the attention of the Queensland Police Service and been dealt with by way of youth justice mediation. In short compass, the criminal activity involved credit card fraud by NFC against her mother, and theft from her sister. As such, when NFC applied for renewal of her Blue Card, this criminal history was disclosed to the Public Safety Business Agency (‘PSBA’), which manages the Blue Card process.
- After providing NFC with the opportunity to make submissions in support of her eligibility to continue to hold a Blue Card, on 22 May 2014, the PSBA issued her with a negative notice, having decided that NFC’s case was an ‘exceptional case’ In which it would not be in the best interests of children for NFC to be issued with a positive notice and Blue Card.
- NFC has applied to the Tribunal for review of the 22 May 2014 decision. She submits that her criminal activity was limited, explainable in view of the surrounding circumstances, and was not of a nature where she could be seen to pose any sort of threat to the safety and wellbeing of children.
- Helpfully, the Department has provided the Tribunal an outline of submissions setting out the legal framework within which the Tribunal must consider NFC’s application.
Purpose of the Blue Card System
- The purpose of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) is, in part, to set up a screening process to ensure that persons who might be working with children are suitable for such work. Where appropriate, persons suitable are issued with a ‘positive notice’, possession of which affords a basis upon which the holder can be considered to be the sort of person who would be capable of caring for children in a way that protects them from harm and promotes their wellbeing.
- The decision under review is whether NFC’s is an ‘exceptional case’, such that the presumption of suitability prescribed by s 221 of the Act has been displaced. In NFC’s circumstances, the PBSA considers NFC’s criminal history and mental stability to give rise to an ‘exceptional case’. In order for the Tribunal to issue a positive notice (meaning she is issued with a Blue Card) to NFC, it must be satisfied on the balance of probabilities and considering the intent of the legislation, that an ‘exceptional case does not exist.’
- In reviewing a decision of this nature, protecting children from harm is the paramount consideration of the Tribunal, over and above any interests held by the applicant.
- Between 1 June 2010 and 30 November 2011, NFC stole six of her mother’s credit cards, and then made false representations to the financial institutions that issued them, resulting in her receiving replacement credit cards that she could utilise herself, without her mother’s knowledge or consent. She was able to do this, as she resided with her mother, who works full time as a local school teacher. NFC would wait for the mail delivery, and then acquire the replacement cards and statements surreptitiously.
- Eventually, this conduct came to her mother’s attention, as NFC was not making payments on the cards, and the debts progressively enlarged. NFC’s mother was then left with the unfortunate options of either making a criminal complaint in relation to her own daughter’s conduct, or being forced to personally repay approximately $50,000.00 of debts.
- NFC’s fraudulent conduct was significant. Not only did she take the cards from her mother, she then impersonated her mother, so that she would not be alerted to the fraud. When the banks began ringing their home to ask her mother to pay off the debts, NFC would impersonate her mother (who was at work during the day) and ask for hardship leniency.
- NFC’s conduct came to light around the point in time that her mother became aware she needed to have surgery for skin cancer, at a cost of approximately $30,000.00. NFC’s mother indicated that she intended to use the credit cards, which she believed to have been paid off, to fund this necessary surgery. At this point, NFC confessed to her mother.
- Unfortunately, NFC’s criminal conduct extended to the theft of her sister’s husband’s wedding ring valued at approximately $500.00, from her sister’s residence, in May of 2012. NFC then sold the ring at a pawn shop for approximately $200.00.
- Ultimately, these matters were dealt with through Queensland’s “Justice Mediation” process, with the support of NFC’s mother and sister. On 1 May 2013, NFC was convicted in the Brisbane Magistrates Court of two charges of ‘burglary and commit indictable offence’ and ‘fraud – dishonesty obtains property from another’. The convictions were not recorded. The process resulted in the prosecution offering no evidence in relation to the fraud charges given the family dynamic, and in NFC being placed on probation for 12 months.
- NFC explains that at the time of her criminal activity (around the ages of 16-18), she was suffering from severe depression and post-traumatic stress disorder. She says that she was motivated to take these steps because ‘comfort eating and buying things’ for herself was her ‘only refuge’ and ‘the way [she] got through life’. She attributes her depression to child sexual abuse, by her father, which took place when she was between the ages of 4-9.
- NFC’s parents had separated, and the abuse happened at times she, along with her brother and sister, had parental contact with their father. NFC was the only child of her sibling group to report abuse.
- As a consequence of the abuse, NFC’s behaviour had become anti-social, such that she was diagnosed with autism when she was approximately five years old. It was not until she was older, and able to explain what had happened to her, that her mother and doctors realised this diagnosis was incorrect.
- The misdiagnosis had a flow on effect into NFC’s early schooling. NFC refers to an episode when she was nine, and her arm was broken by a teacher following some challenging behaviour by her. NFC she says that she simply ‘shut down from the world’, and while her mother tried to get her help, she simply stopped talking. At this stage NFC was no longer being sexually abused as her father had decided that he ‘no longer wanted her’.
- Whilst her father’s decision may have provided relief from the immediate impact of the abuse, NFC explains that she was an ‘empty shell,’ felt rejected, had no friends, and was very alone in life.
- In April of 2013, NFC began to see a psychiatrist with whom she was finally able to make progress, Dr CA. Dr CA provided a written letter to the PSBA at the time it was considering NFC’s Blue Card application, wherein he indicated that:
[NFC] has been a patient of mine since April 2013. She has treated for PTSD related to childhood abuse from the age of 4-10. This was misdiagnosed as autism due to her symptoms of withdrawal.
Her situation was complicated by an outburst at school when she was 10 years old related to her ongoing abuse. Her situation was further complicated by her mother suffering from depression throughout her teens. [NFC] felt she had to take over many of the housekeeping duties. This required access to her mother’s credit card which [NFC] then used inappropriately. [NFC] has expressed ongoing remorse about her actions.
She attends for therapy on a weekly basis with myself. She has not responded to various medications in the past including Risperdal, Zoloft, Seroquel, Zyprexa and Abilify with no effect and considerable side effects. In addition she has also received therapy from a psychologist and case management from the RBH.
[NFC] has never demonstrated any problems with children and enjoys time with her nieces.
I do not believe she is a danger to children and believe she should be granted a blue card…
- The PSBA was not satisfied, despite Dr CA’s letter that NFC should be issued with a Blue Card, considering the circumstances of her case ‘exceptional’.
Basis for the PSBA’s decision
- The PSBA readily acknowledges that the criminal offences which NFC committed are not defined as serious offences or disqualifying offences under the Act. The PSBA does, however, consider the relative recency of the criminal offending to be a significant factor in its risk assessment. Although the actual offending took place between 2010 and 2012, the justice mediation process did not see those charges finalised until 2015.
- As a consequence of her criminal offending, NFC’s personal circumstances have been placed under a microscope. It is important to note that the primary basis upon which the PSBA asserts NFC’s case is ‘exceptional’ such that it has refused to issue her with a positive notice/Blue Card is not because of her criminal history.
- Rather, in the course of the Blue Card application process, the PSBA learned that NFC had some serious psychiatric challenges that included episodes of self-harming. The PSBA considers NFC’s case to be exceptional because of concerns that NFC is unable to ‘manage her mental health’.
- In its Statement of Reasons, the PSBA acknowledges that Dr CA has provided NFC with a positive reference, but expresses concern that as at 30 May 2013, Dr CA said that he considered NFC’s problems to be ‘long-standing and unlikely to benefit from short-term therapy’. The PSBA is concerned that NFC has yet to demonstrate that she can maintain a stable lifestyle, which shows continuous compliance with psychiatric treatment over a significant period of time.
- The evidence borne out at the hearing supports a view that NFC is stable, and further that she has demonstrated sustained commitment to psychiatric treatment. Dr CA gave oral evidence at the hearing, and was extensively cross-examined by the PSBA. Dr CA explained that NFC had last attempted self-harm in July 2012, and he considered that her now two-and-one-half year period of successful psychiatric treatment sufficiently long for her condition to be considered medically stable. There is no evidence before the Tribunal to the contrary.
- In short compass, the PSBA is concerned that NFC’s past self-harming behaviour may in some way result in her posing a danger to children that could potentially be in her care. The Tribunal considers that this is overly speculative and unsupported by the evidence before the Tribunal by Dr CA. The Tribunal does not consider that NFC’s past self-harming behaviour can logically be extrapolated to suggest that she is a potential risk to children.
- Dr CA also gave evidence, which was not challenged, that in his experience having treated survivors of sexual abuse, women in particular tended to be protective of children in their care. In terms of NFC having developed insight into the circumstances that caused her to self-harm, Dr CA told the Tribunal that the period during which NFC’s Blue Card decision was under review had been very stressful for her. However, despite this, he had not seen any signs of clinical regression.
- In her submissions, NFC has said ‘if my blue card isn’t approved I fear I may go backwards with my recovery as it would mean dropping out of my studies’. The PSBA submitted that this statement affords a basis upon which the Tribunal could find that NFC’s emotional resiliency is at risk when she encounters stressors in her life. The Tribunal does not consider there to be any force in this submission. It is self-evident that every unsuccessful Blue Card applicant suffers a setback as a matter of normal human experience. This does not indicate psychiatric instability per se; it indicates understandable disappointment in an outcome over which the Applicant has little control.
- The PSBA submits that the Tribunal should place weight upon the observations made by Mr Christopher Tomkins, who provided a referee’s report for NFC, which she in turn supplied to the PSBA. Mr Tomkins, who was a church associate of NFC’s, says that NFC is:
…suitable to work in a paid/volunteer role in a program / service whose participants are children aged infant to early adolescent, with sufficient supervision / support from more experienced workers.
Further information sourced from [NFC] and her psychologist / psychiatrist regarding he progress with emotional resiliency and if relevant skills acquired to work with older adolescents before undertaking a role with this age group due to the complexity and severity of psychological matters prevalent in this age group.
- Mr Tomkins did not appear at the hearing of this matter, and was not cross-examined. Moreover, Mr Tomkins does not suggest that NFC is unsuitable per se, but appears to suggest that training would be of benefit to her before undertaking work with a particular sub-group of adolescents.
- As such, the Tribunal considers the best evidence before it to be the evidence from Dr CA. The PSBA submit that the Tribunal should not place the same weight upon Dr CA’s evidence (as he has a therapeutic relationship with NFC) that it might upon the evidence of a truly independent psychiatric practitioner. However, in this matter, the Tribunal has not been provided with a report from an independent psychiatrist. For this reason, the Tribunal considers it important to say something about the need for applicants to adduce evidence in review proceedings of this nature.
An Applicant’s evidentiary burden in merits review
- As set out recently in the QCAT Appeal decision of Queensland Building and Construction Commission v Mudri, in merits review proceedings, there is no obligation on the part of an applicant to ‘meet the case’ against them, subject to any contrary requirements contained within enabling legislation. The Tribunal in Mudri relied upon the earlier decision in Laidlaw v Queensland Building Services Authority, wherein the Tribunal found that:
…there is no formal onus of proof in merits review but the Tribunal must be satisfied that the ‘provision under consideration can be invoked on the information or material before it’. The Tribunal said:
‘Consideration has been given to the issue of onus in merits review proceedings in the federal arena before the Administrative Appeals Tribunal, where similarly the AAT Act does not deal with the issue of onus of proof. Generally there is no onus… However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it… In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden,… but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.’
- Here, as in both Mudri and Laidlaw, NFC has an ‘evidentiary burden’ to adduce or present evidence to support her application so that the Tribunal can make the correct and preferable decision. She has done this.
- There is no obligation on the part of an Applicant in administrative law merits review proceedings of this nature to obtain an independent psychiatric evaluation, at significant personal cost. If, as a model litigant, the PSBA considers that it could be helpful to the Tribunal to have an independent report, then it could consider obtaining a report.
- Otherwise, the best evidence before the Tribunal will be that which applicants are more readily able to obtain, without significant cost. There is no basis for the Tribunal to disregard the only medical evidence before it, simply for the reason that Dr CA has treated and continues to treat NFC, and where the opinions he expressed are otherwise consistent with the balance of evidence before the Tribunal.
NFC’s family support network
- NFC also gave evidence at the hearing. NFC does not have an active social life with peers, and is limited in her social interactions. She finds it difficult to form friendships and to trust people. Considering the issues she faced in her childhood, this is not surprising.
- NFC does have a support network, which although limited, is particularly strong. She has a loving and trusting relationship with her mother particularly, and also with her sister - despite the criminal activity perpetrated by her against them. NFC has made every effort to regain their trust, and is fortunate that they have both allowed her the opportunity to do so. NFC has now been allowed back into her sister’s home, and babysits for her children on a routine basis.
- These relationships are protective factors that provide a safety net for NFC, should she face challenges with her mental health in future. The Court of Appeal, in Commissioner for Children and Young People and Child Guardian v Maher & Anor, has endorsed an approach whereby the Tribunal considers relative ‘risk’ and ‘protective’ factors arising from particular case circumstances in deciding whether an ‘exceptional case’ exists in Blue Card matters. The existence of protective factors, such as these strong family relationships and commitment to psychiatric treatment by NFC, are positive.
- NFC does not have the social life that one might expect a typical 22-year old enrolled in a TAFE course to have. She eschews nightclubs and drinking, and rarely seeks out friendships. This is the unfortunate legacy of her childhood abuse.
- That NFC has, in the past, engaged in self-harm does not, in the Tribunal’s view, suggest that her mental well-being poses a risk to children. This is particularly so where she has responded positively to treatment. The PSBA does not explain how NFC’s suicide attempts might place children in danger, even if she were again to become depressed.
- In point of fact, if NFC has been a danger to anyone, it has been to herself. In taking all of this into account, the Tribunal has formed the view that NFC’s case is not an exceptional one such that it would harm the best interests of children for her to have a positive notice.
- The Tribunal sets aside the PSBA’s decision to issue NFC with a negative notice, and orders that she be issued with a positive notice.
- The Tribunal accepts NFC’s submissions that this matter warrants an order prohibiting publication of information that could identify her, and her family. There would be no public interest served by publication, particularly given the suffering it would cause those involved to further endure, given the history of childhood sexual abuse. The Tribunal orders that the publication of information that may identify NFC or her family is prohibited.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’), s 353.
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, citing the Briginshaw test (1938) HCA 34; (1938) 60 CLR 336.
 The submissions of the PSBA suggest that the last self-harm attempt was in 2013. Whilst the actual date is not determinative, to the extent that there is inconsistency in the evidence on this point, the Tribunal accepts the evidence of NFC and Dr CA that the date was in July of 2012 as being the more reliable evidence.
  QCATA 78, at .
  QCAT 70.
 Ibid, .
  QCAT 70, .
  QCA 492.
- Published Case Name:
NFC v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
NFC v Chief Executive Officer, Public Safety Business Agency
 QCAT 14
15 Jan 2016