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  4. XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General - [2016] QCAT 454

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XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General[2016] QCAT 454

XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General[2016] QCAT 454

CITATION:

XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General [2016] QCAT 454

PARTIES:

XL

(Applicant)

v

Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General (Respondent)

APPLICATION NUMBER:

CML114-16

MATTER TYPE:

Childrens matters

HEARING DATE:

6 October 2016

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

29 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The name of the respondent is changed to Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General.
  2. The decision dated 9 March 2016 that XL’s case is ‘exceptional’ is confirmed.
  3. The Tribunal prohibits the publication of any information, which may identify XL.
  4. The reasons for decision are to be published in a de-identified format only. 

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD

WELFARE UNDER STATE OR TERRITORY JURISDICTION  AND LEGISLATION – General administrative review – Blue Card – where negative notice issued - whether an exceptional case - where convicted of an offence other than a ‘serious offence’ – where long history of illegal drug use – where long history of mental health issues and where issues ongoing

NON PUBLICATION  - Whether a non-publication order ought to be made to avoid the publication of confidential information

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221,

s 226, s 353, s 354, s 358, s 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66

Evidence Act 1977 (Qld), s 79

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

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266

Brady v Public Safety Business Agency [2015] QCAT 090

APPEARANCES:

APPLICANT:

XL

RESPONDENT:

Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

REPRESENTATIVES:

APPLICANT:

XL in person

RESPONDENT:

represented by Mr JJ Thompson, in house Counsel

REASONS FOR DECISION

  1. [1]
    In May 2015, XL applied for a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act) to allow XL to undertake voluntary work.[1]  The application was refused and a negative notice issued. 
  2. [2]
    XL seeks review of the decision made 9 March 2016 that an exceptional case exists in which it would not be in the best interests of children for a positive notice to be issued.  Such a decision is a chapter 8 reviewable decision under the Act, which the Tribunal may review.[2] 
  3. [3]
    The Tribunal is to consider the matter afresh and decide the matter on its merits.  The purpose of the review is to produce the correct and preferable decision.[3]   In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[4] 
  4. [4]
    Since the proceedings commenced the agency with responsibility for Blue Cards has changed.  It is appropriate to change the name of the respondent to reflect the correct name of the agency now responsible.

Is XL’s an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?

  1. [5]
    I find that XL’s case is ‘exceptional’ and confirm the decision of 9 March 2016.
  2. [6]
    The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[5]   The Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[6]  
  3. [7]
    The decision under review is a child-related employment decision.[7] Such decisions are to be reviewed under the principle that the welfare and best interests of a child are paramount.[8] 
  4. [8]
    A positive notice must issue unless the Chief Executive, or the Tribunal in the Chief Executive’s place, is satisfied that 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.[9]
  5. [9]
    The Act does not define what is an ‘exceptional case’.  The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[10]  The Court of Appeal accepted that identifying and weighing risk factors and protective factors was an appropriate approach and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
  6. [10]
    Section 226 of the Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence.  I address the considerations below.
  7. [11]
    XL has not been charged with or convicted of a ‘serious offence’.
  8. [12]
    XL has been charged with and been convicted of a number of offences over the period 1988 – 2008 with and without convictions being recorded.  Fines ranging from $100 - $400 were imposed.  On some occasions, probation periods were ordered. 
  9. [13]
    In a number of instances, the charges were dismissed, as no evidence was offered.  I place no weight upon those charges. 
  10. [14]
    There is no evidence that any of the offences directly involved children.  The offences primarily relate to the possession of cannabis or the possession of drug related utensils. 
  11. [15]
    In 1994, XL was convicted of assault occasioning bodily harm, fined $100, ordered to pay compensation of $250 and a 6 month good behaviour period was imposed.  XL’s evidence is that XL was advised to plead not guilty but because of XL’s personal circumstances and the humiliation of the proceedings, XL chose not to take that advice.  There is limited evidence before me as to those Magistrates Court proceedings.  I accept that whilst it is appropriate to have regard to the circumstances of the offending behaviour there is insufficient evidence to allow me to make findings that go behind the Magistrate’s finding of guilt.[11]
  12. [16]
    The Tribunal did not receive information or reports in relation to XL as described under section 226 (2)(b) – (d) of the Act nor reasons for decisions in respect of XL’s convictions.
  13. [17]
    XL explained that the charges were in relation to XL’s personal use of marijuana at XL’s own home, XL used marijuana for stress relief and to assist XL to sleep and that XL had shielded XL’s children from knowledge of XL’s drug use when they lived with XL. XL’s children are now adults.  Whilst XL has not been charged with an offence since 2007 XL acknowledged that XL had last used marijuana as recently as earlier in 2016.
  14. [18]
    Section 226(2)(e) of the Act requires consideration of

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. [19]
    The Chief Executive contends, and I accept, that I may properly consider all matters relevant to whether a particular case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue and not only those listed in section 226(2) of the Act.
  2. [20]
    I also accept that XL’s mental health history is relevant both as a matter within section 226(2)(e) of the Act and generally.  The Tribunal has previously had regard to an applicant’s mental health history in such matters.[12]
  3. [21]
    XL’s police history was not the focus of the oral hearing, rather the hearing focussed upon XL’s long history of mental health issues, which came to the attention of the Chief Executive through XL’s honest disclosure, for which XL is to be commended. 
  4. [22]
    Shortly before the hearing a large quantity of documents were produced by the Department of Communities, Child Safety and Disability Services and by Metro North Hospital and Health Services. 
  5. [23]
    These documents reveal that XL has been regularly hospitalised for mental health issues since about 1996 and that those issues are ongoing.   The evidence is that:
    1. there have been approximately 50 hospital admissions since about 1996 both voluntary and in accordance with Emergency Evaluation Orders;
    2. XL has a long history of cannabis use;
    3. XL has longstanding issues around XL’s inability to effectively regulate or manage XL’s emotions and emotional distress, has a history of overdoses of prescription drugs, suicidal tendencies and has a history of aggressive behaviour particularly toward the police and other authorities such as government departments;
    4. XL uses aggression as a defensive mechanism;
    5. an incident occurred as recently as 16 June 2016 where XL was taken to the hospital after XL had called 000 saying that XL had overdosed.
  6. [24]
    A significant protective factor is that XL recognises the need for and seeks support from XL’s General Practitioner and XL’s mental health caseworker.  XL also has the support of at least one of XL’s sons, who attended the hearing with XL. 
  7. [25]
    I accept that XL has performed valuable voluntary work in the community at various times since 1993, has the support of XL’s supervisors at the centre, at which XL wishes to continue to volunteer and for which XL requires a ‘blue card’ and has raised significant sums for a number of charities and causes.
  8. [26]
    XL’s General Practitioner gave a written reference and gave evidence during the hearing that:
    1. he had mainly treated XL recently for physical issues;
    2. acknowledged XL’s history of drug use;
    3. about 6 months prior to the hearing XL had departed from XL’s treatment plan by taking more prescription drugs ‘at times than intended’;[13]
    4. acknowledged XL’s ‘angry interactions’ when XL feels unfairly treated and that XL’s impulsivity could potentially be a problem;
    5. if XL did not feel ‘interpersonally attacked’ there would be no issues but conceded that if XL ‘felt attacked’ XL could ‘react angrily’;
    6. XL had limited coping strategies;
    7. at times XL had displayed great resilience and in circumstances of stress had at times been able to make good decisions for XL and others;
    8. he had seen XL on 20 June 2016 and that XL had presented in a stable state and he could not comment on how XL may have been on 16 June 2016 at the time of the overdose episode;
    9. he did not consider XL a danger to ‘anyone else’.
  9. [27]
    XL’s case worker gave evidence at the hearing that:
    1. XL had developed better coping skills over the last 2 years, was more able to identify triggers and better manage episodes by ‘generally’ removing XL from the situation to calm down but acknowledged that the issue had ‘not gone away’;
    2. XL had called her the day prior to the hearing to deal with the stress of the hearing and the request for an adjournment and had expressed the idea of self-harm during that call;[14]
    3. acknowledged when faced with a situation of conflict or when ‘insulted’ XL is prone to act aggressively;
    4. XL has a strong desire to contribute to society;
    5. she didn’t believe XL might act aggressively toward children;
    6. confirmation of the decision may have an adverse impact on XL’s mental health.[15]
  10. [28]
    Whilst XL’s General Practitioner and caseworker are supportive of XL being granted a ‘blue card’ I find that their evidence of XL’s at times limited coping skills and propensity to act aggressively in certain circumstances is inconsistent with their expressed views as to the risk XL may present to children in times of stress. 
  11. [29]
    XL contends that XL has never endangered a child or another human.  While there is no evidence of actual harm, XL’s own evidence is that on occasions XL has threatened to harm XL and others.   In particular, XL acknowledges that on one occasion XL threatened to ‘blow up’ XL’s house and the police in attendance outside by lighting a gas cylinder.
  12. [30]
    During the hearing, XL offered to be subjected to the condition of children not being in XL’s sole care.  Unfortunately, the Act does not provide for issuing of a positive notice subject to conditions.       
  13. [31]
    Weighing the protective factors in this matter against the risk factors, I am satisfied that this is an exceptional case where it would not be in the best interests of children to issue a positive notice. 
  14. [32]
    I acknowledge that XL has made progress in recent years in terms of improved coping mechanisms for which XL is to be commended. 
  15. [33]
    However, having regard to XL’s history of aggression when feeling attacked and history of threats to self-harm when subjected to stressors I am not satisfied sufficient progress has been demonstrated so as to be able to find that XL’s case is not an exceptional one particularly as there was an incident as recently as June 2016.

Non-publication order

  1. [34]
    There is a presumption that Tribunal decisions are made and reported in a transparent way.  However, that presumption may be rebutted in certain circumstances.[16]  The Tribunal may act on its own initiative to make a non-publication order.  Confidential information relating to XL’s mental health history formed a significant part of the evidence before me.  I therefore find that the reasons ought to be published in a de-identified form. [17]    

Footnotes

[1]  The evidence before me shows that XL was previously issued a ‘Blue Card’ in 2005.

[2] Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act),
s 353, s 354.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (QCAT Act).

[4]  Ibid, s 24.

[5]  The Act, s 5.

[6]  Ibid, s 6.

[7]  Ibid, s 358.

[8]  Ibid, s 360.

[9]  Ibid, s 221.

[10]  [2004] QCA 492.

[11] Evidence Act 1977 (Qld), s 79. WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190.

[12] Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266.

[13]  I understand this to be a reference to a drug overdose.

[14]  XL’s final written submissions denies that XL ‘expressed suicide concerns’ during that call.

[15]  In Brady v Public Safety Business Agency [2015] QCAT 090 the Tribunal has previously accepted that such a matter is not a relevant consideration.

[16]  QCAT Act, s 66.

[17]  Ibid, s 66(2)(d).

Close

Editorial Notes

  • Published Case Name:

    XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

  • Shortened Case Name:

    XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

  • MNC:

    [2016] QCAT 454

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    29 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brady v Public Safety Business Agency [2015] QCAT 90
2 citations
Jump To
Cite 1 - [2015] QCAT 90
Cite 2 - [2015] QCAT 90
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266
2 citations
Jump To
Cite 1 - [2016] QCAT 266
Cite 2 - [2016] QCAT 266
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

Case NameFull CitationFrequency
TS v Director-General Department of Justice and Attorney-General [2017] QCAT 2413 citations
1

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