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SM v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 506

SM v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 506

CITATION:

SM v Chief Executive Officer, Public Safety Business Agency [2017] QCAT 506

PARTIES:

SM

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML185-15

MATTER TYPE:

Childrens matters

HEARING DATE:

24 August 2016 and 22 November 2016

HEARD AT:

Rockhampton

DECISION OF:

Member Beckinsale

DELIVERED ON:

20 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the chief executive officer of the Public Safety Business Agency made on 17 June 2015 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of this matter will occur in a de-identified manner.

CATCHWORDS:

CHILDREN – BLUECARD – exceptional case – where a review sought of decision to issue a negative notice – where person convicted of a number of offences-where no offences were categorised as serious – where evidence applicant had mental health issues – where evidence of risk factors and protective factors – whether or not case was “exceptional” such that it would not be in the best interests of children for the chief executive officer to issue a positive notice – where decision that case was “exceptional” was confirmed

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

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221,s 226(2), s 236, s 237(1), s 237(2), s 354, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171

Commissioner for Children and Young People and Child Guardian v FCG [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

Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

Minister for Immigration v Gungor [1982] 42 ALR 209

Re FAA [2006] QCST 15

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES:

APPLICANT:

SM represented herself 

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency represented by Ms P. Hughes on 24 August 2016 and by Mr J.Thompson on 22 November 2016, officers of the Public Safety Business Agency

REASONS FOR DECISION

Background

  1. [1]
    SM was issued with a positive notice and a blue card by the Public Safety Business Agency under the Working with Children (Risk Management and Screening) Act 2000 (the Act) on 18 July 2013. After receipt of police information, SM’s eligibility was re-assessed and a negative notice issued on 17 June 2015.
  2. [2]
    SM required a blue card to live in her parents’ home while they fostered children. Additionally she wished to have a blue card to take on the role of coach in colourguard and to possibly be a foster carer herself at some time in the future. She also wished to pursue her studies in social work. She applied to the Tribunal for a review of the decision.

The Legislation

  1. [3]
    Such review is pursuant to section 236 of the Act.
  2. [4]
    Under section 354 of the Act, the Tribunal can review a decision to find that an exceptional case exists such that it would not be in the interests of children to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
  3. [5]
    The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
  4. [6]
    The Act provides that as SM has no conviction for a serious offence[3] the Chief Executive Officer must issue a positive notice and a blue card unless satisfied this is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.[4]
  5. [7]
    The Act does not define “exceptional case” and phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
  6. [8]
    Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters, including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
  7. [9]
    In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
  8. [10]
    The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist[8] when setting aside a decision.
  9. [11]
    Neither party bears the onus of proof as to whether an exceptional case exists.[9]
  10. [12]
    Any detriment to SM is irrelevant to the Tribunal’s consideration as to whether an exceptional case exists[10] as is any benefit resulting from her having access to children because of particular knowledge, experience or flair if there exists an unacceptable risk from contact.[11]
  11. [13]
    The passage of time alone is not determinative of whether or not a case is an exceptional case[12] nor does the passage of time detract from the seriousness of allegations or convictions relating to offences committed a number of years ago.[13]

The Evidence

Life History

  1. [14]
    SM is 27 years old. She was born in the United States and moved to Australia in 2013 to join her parents and siblings who had previously immigrated to Australia, which her parents viewed as a better place to raise a family. SM did not accompany her family, as at the time, she was studying for a bachelor of social work at university and engaged to be married.
  2. [15]
    SM described her childhood as normal. She said whereas most of her friends’ parents were separated, her parents were in a loving marriage and she was taught compassion through the sharing of her home with foster children. She obtained good grades at high school and earned a scholarship to study at university. She undertook a number of jobs. She was involved in the sport of colourguard and coached high school teams.
  3. [16]
    SM said the strain of trying to study and work without family support had been too much and her relationship broke down due to financial pressures. She contracted a staph infection whilst working at a hospital. It took two weeks for the infection to clear and she did not have medical insurance. She was the victim of a traumatic sexual assault.  She eventually checked herself into a psychiatric hospital for a week where she was prescribed an antidepressant and Xanax.
  4. [17]
    SM said she does not just have a chemical imbalance. She said she is “triggered” if touched violently by an adult or if she is “disrespected by a government authority”.
  5. [18]
    SM is seeking permanent residency in Australia. Her visa restrictions do not permit her to work and she has sometimes cared for children in exchange for board although mostly she has resided with her parents in Rockhampton. She strongly desires to continue studies in social work and to be involved with children whether through employment or volunteer work.

Criminal Offences

  1. [19]
    SM was convicted of a number of minor offences in 2015.[14]
  2. [20]
    A domestic violence order was issued in May 2014 against SM with her mother as complainant. SM was convicted of a contravention of the order on 12 January 2015 as well as four counts of assaulting or obstructing a police officer.
  3. [21]
    The police brief concerning the offences was obtained by Blue Card Services. The complainant told police an argument occurred with her daughter when she had told her daughter she had found her somewhere else to live. Her daughter had sworn at her and made threats that she would report her mother to Child Safety and hit a piece of toast out of her hand. SM’s mother told police she had then gone to her bedroom and closed the door and SM followed her, opening the door and causing her to feel intimidated so she had called police.
  4. [22]
    SM admitted to police when they arrived that she had knocked the toast from her mother’s hand and became involved in an argument because it would “piss her off.”[15]
  5. [23]
    SM was arrested in relation to another matter but refused to stand up when asked to by police. She was escorted down the driveway with police holding each arm. At the end of the drive way she began pulling her arms away and was warned to stop resisting. She sat down, pulling her left arm free and when a police officer tried to take hold again of her left arm, she pushed him in the chest causing him to fall backwards onto the ground. Police were forced to handcuff her.[16]
  6. [24]
    SM was convicted with no conviction recorded. She was fined $250 and ordered to pay a moiety of $250.[17]
  7. [25]
    The tribunal was provided by SM with the police incident log in relation to an incident when police were called by SM’s mother to their home on 29 October 2014. It is recorded that the informant stated her daughter (SM) was “having an episode” and was yelling and screaming and escalating. The incident log records that DM said there were children aged three and four at the residence and she and the children were in a bedroom, that no physical violence had yet occurred. She said her daughter was possibly under the influence of drugs and takes medication for mental health.
  8. [26]
    Upon arriving at the address, police observed all persons to be calm and cooperative. Police were informed that mother and daughter and their husband and father lived there with four young foster children. Both SM and her mother cared for the children and an argument arose between them about the discipline and upbringing of the children. Police determined no domestic violence had occurred at this time. 
  9. [27]
    SM was also charged with a number of offences which went before the Grafton Local Court in New South Wales on 17 February 2015 but she was discharged into care under mental health legislation.[18] The offences were assaulting an officer, resisting an officer and using offensive language in a public place.[19]
  10. [28]
    A copy of the police brief obtained from New South Wales Police was provided to the tribunal. The brief outlines that SM was working as a nanny and had a dispute with her employer. She came into contact with police due to being without accommodation or funds. Her family agreed to put funds into her account the following day to enable her to return home.
  11. [29]
    Police were unable to arrange overnight accommodation with a refuge but did obtain emergency housing which SM refused to access due to not being able to take her therapy dog inside. Due to concerns for SM, police agreed that she could stay in the foyer of the police station with her belongings and dog.
  12. [30]
    During the evening police inside the station heard someone yelling from outside “Fuck off!” Officers went outside and asked who was yelling and SM, who was seated at the front, replied “I did. I told the bats to fuck off.” The police sergeant told her she was outside a police station and cannot use offensive language and asked her not to do so again.
  13. [31]
    SM responded that it was a public place and she could say what she liked and “fuck off flagpole.”
  14. [32]
    The sergeant told SM she could not use offensive language in a public place and warned her not to do so again. She replied that she knew what she could say and there was nothing he could do. The sergeant warned her if she swore again she would receive a Criminal Infringement Notice. SM responded “Give me one. I know what I can tell the judge so fuck off. Just fuck off.”
  15. [33]
    The sergeant told SM she had been warned and he was giving her an Infringement Notice for using offensive language and asked for her passport. She responded that he was not having her passport, to “fuck off” and that he could not do anything. He picked up her handbag and asked whether the passport was in there. SM yelled at him to leave it alone and jumped up and charged him with her arms swinging. She collided with him and he grabbed her stating she was under arrest for assaulting police. Another officer assisted, attempting to restrain SM who was screaming and lashing out. Police attempted to handcuff her and she kicked out, striking the sergeant. SM was wrestled to the ground and kicked up at the sergeant striking him in the groin. Police constantly told her to stop resisting. A number of police were assisting. She bit the sergeant’s hand and when he said “she’s biting” another officer, who was wearing leather gloves, pushed her face away from the sergeant’s hand. She bit down on his gloved hand. SM had to be held by her arms, legs and head before police could handcuff her.
  16. [34]
    SM continued to struggled and thrash about as she was taken into the station. She kicked the sergeant in the shin and elbowed another officer in the face. She was forced through the front doors and ended up on the ground kicking and trying to bite. She was dragged into a cell and began smashing her handcuffs into the door Perspex yelling obscenities such as “fucking fat cunts!”
  17. [35]
    When SM calmed down half an hour later police removed the handcuffs and she tried to force her way out of the cell and was only detained by force.
  18. [36]
    The brief records that the sergeant suffered small lacerations to his hand, a sore elbow and grazes to his shin whilst the other officer received grazes to his elbow.
  19. [37]
    On 27 February 2015, SM was convicted of unauthorised dealing with shop goods on 12 January 2015. She was fined $250 with no conviction being recorded.[20]
  20. [38]
    At the first hearing date SM was also facing a charge for a further offence of stealing on 4 May 2015 which she said she would be “fighting”. However, on 14 September 2016, after pleading guilty, she was convicted and fined $500 with no conviction recorded.[21]

SM’s Evidence Regarding Criminal Offences

  1. [39]
    SM said police (in Australia) do not have to follow legislation and can “manipulate it how they like.” She said (in Australia) you have to agree with everything a policeman says and “bow down.” She said police received extra money every time they are assaulted and that they therefore “triggered” her “on purpose.”
  2. [40]
    SM did not agree with how the police information represented what occurred when her mother called police. She said she was outside the house sitting against the garage and was peaceful. The officer grabbed her by the shoulder and dragged her down the driveway and she fell on the officer.
  3. [41]
    SM related that one occasion when her mother called police occurred in the context of she and her mother arguing about her medication. SM locked herself in her room and her mother had tried to get in using a butter knife. SM had suddenly come out of the room and her mother was accidentally knocked over. SM also related an incident between herself and her brother which resulted in her having to seek medical attention for a torn earlobe (from an earring) and the siblings taking out DVOs against each other.
  4. [42]
    SM said at the hearing that she did not remember much about her shop lifting. In the earlier incident she had left a suitcase she took from the store right out the front. In the second incident she apparently walked out of a store with some toys which she then attempted to return and made no attempt to conceal them. She attributed her loss of memory to the Xanax she was taking and said after she told her doctor about this, he took her off that medication (in May 2015).
  5. [43]
    As regards the charges in Grafton, SM said she had accompanied her friend who went to New South Wales to get away from her violent ex-partner. The friend told SM they would stay with the friend of a cousin but on the way, the friend went to the home of a man she had met on Facebook. He was a member of a bikie gang. He kicked SM therapy dog. She was there four days before SM phoned police after seeing drug use. Police advised they should leave. SM was not able to access available emergency accommodation due to having her dog.
  6. [44]
    SM described the police brief as completely false. She said her own statement has not been taken into account. She said whereas the police state she was allowed to stay in the foyer she was made to go outside because of her dog. She said when bats flew out of a tree she got a fright and swore “fuck off.” She said several police officers came outside and told her she could not swear in a public place. She said she told them she was sorry but had got a fright from the bats. She said she only swore “to the flagpole after the warning.” She had got defensive but was irritated with the way she was treated when she had come to police for help. She said she had said she did not have to provide her passport and had a driver’s licence but the officer had begun rummaging in her bag. She pointed out that collide does not imply “intention”. She freaked out when one of them put his gloved hand over her mouth and nose and she hit him. She said there had been five police officers kicking her and she suffered bruises and scrapes. It was not true that she had tried to force her way out. She only put her foot in the door to speak to someone about contacting her parents but she was kicked in the stomach to push her back in.
  7. [45]
    SM said she should have “fought” the charge because of having PTSD. (The tribunal notes her mental health was taken into account with the Local Court discharging her into care under that state’s mental health legislation.)
  8. [46]
    SM attributed her behaviour in part, to taking Xanax which she said made her angry and irritable and caused problems with her memory. She provided a Consumer Medicine Information Leaflet about “Kalma” which contains the same active ingredient, alprazolam.
  9. [47]
    SM complained during cross-examination that the police (in Australia) do not have to follow legislation, but can manipulate it as they like. She said (in Australia) you have to agree to everything police say and “bow down” to them.
  10. [48]
    SM said she thought if her convictions were not recorded they could not be used against her and if she had been aware how they could be brought up, she would have defended the charges.

Evidence Regarding Mental Health

  1. [49]
    SM said that once in Australia she has only engaged with mental health services in relation to her immigration application and police charges although she did see a counsellor at the Women’s Health Centre five or six times. She said she had been unable to afford a private psychiatrist and had not followed up a referral from her psychiatrist in Brisbane to see another psychiatrist.
  2. [50]
    SM said she found the local public mental health services unhelpful on the occasions she attended there to obtain an assessment for her court proceedings. She said she felt disrespected by the doctor who did not listen to her. She said that doctor provided a report but she did not provide it to the court and she did not feel it was necessary that report be provided to the tribunal.
  3. [51]
    SM said she had a very therapeutic relationship with her GP and has not needed anything else. She sees her GP between one to three times a week. He listens to her, validates her feelings and gives her advice, such as around impulse control. She said she had not been prescribed medication since May 2015 however recently her GP had prescribed a low dose of Valium. This has helped her to sleep when she has experienced additional stress, such as recent surgery for a medical procedure. She explained that her doctor only gave her an allocated number of tablets at the surgery rather than providing a script. She requested that because she wanted to be closely monitored and wanted to avoid what she experienced with the Xanax.
  4. [52]
    SM said she felt none of the earlier medications had worked because her situation depressed her. Her behaviour had improved since she was off all medication. She did not recall when she stopped taking the Sertraline referred to by the psychiatrist, in part because a lot of different medications had been trialled.
  5. [53]
    SM was asked about her strategies for dealing with her mental health. She said she reads a lot and is involved in her church. She wants to do what god put her here for.
  6. [54]
    SM said she does not have a mental illness, only anxiety which comes and goes. She was depressed at the time she sought help in the United States when she did not want to continue life but is not depressed now. She said she has not been formally diagnosed with Post Traumatic Stress Disorder by a mental health professional but thinks that is what she experienced in Grafton and at other times dealing with police.
  7. [55]
    SM said whilst she does not believe she currently has a mental health problem, her mental health would be a problem without the support of her family. SM said she has advised the Department of Immigration that she would struggle with her mental health without family support. She said that the Commonwealth Medical Examiner has reported that she does not have a mental illness but requires support of her family.
  8. [56]
    SM said at the hearing on 26 August 2016, her mother did not accompany her because her mother wanted her to show that she could handle herself appropriately. She said her mother does not blame her for the children being removed from her care and regrets calling the police. Her mother does not think the system is fair and did not want to be involved.
  9. [57]
    SM agreed that her position was she wanted to be stable before undertaking work and study or volunteer work. She retracted her earlier statement during evidence that her present personal problems meant that she was not currently able to take on these roles. She said once she is able to work in Australia, and therefore afford the cost, she will look at undertaking dialectical behaviour therapy. She said this is a “talking” therapy that helps deal with stress.

Other Evidence

  1. [58]
    SM provided a copy of her Witness Statement dated 14 June 2014 which she provided to Queensland Police Service in conjunction with their investigations of a threat of violence made against SM’s friend. SM describes in her statement the protective actions taken by her towards young children who were present when the threatening behaviour occurred. 
  2. [59]
    SM also played two short videos at the hearing of her twin niece and nephew aged two whom she said she looked after weekly. The children were obviously enjoying her company and she theirs.
  3. [60]
    SM provided a Letter of Certification from Tulsa County Sheriff’s Office that she has no criminal record as well as a letter from the Federal Bureau of Investigation in the United States, that she has no arrest recorded.

Witnesses

  1. [61]
    HL was a friend of SM who provided a written statement and attended the hearing by telephone She said they had met through mutual friends on Facebook and met up physically in March 2016 and see each other at least weekly.
  2. [62]
    HL described SM as having suffered severe trauma before seeking refuge with her parents in Australia. She referred to SM as being treated unfairly and working hard every day to become an Australian Citizen. She described blue card services’ statement of reasons as “absolutely ridiculous” as she had observed SM as very caring with children. She said she had witnessed numerous positive interactions between SM and children.
  3. [63]
    HL was not aware of SM’ offences in New South Wales. She said she “disagreed” with her criminal history. She described SM as “rectifying the issue” by discontinuing her medication in reference to the stealing offence. She was aware of SM’ mother taking out a domestic violence order and seeking its removal. She referred to SM as “falling” onto a police officer at her mother’s house.
  4. [64]
    Although in her written statement HL referred to SM having suffered PTSD “from police that have often incited violence by instigation,” at the hearing she stated a belief that SM did not have any mental health concerns. HL wrote that she had seen SM “act with self-control and restraint” and that it had been difficult for SM to heal “due to police discrimination and harassment by blue card.”
  5. [65]
    RV provided a written reference and attended the hearing by telephone from her home in the United States of America.
  6. [66]
    RV worked with SM for two years at a day care centre from 2008 and a few years after that SM had babysat RV’s step siblings for a year. More recently she had observed SM with her niece and nephew via video link. She described SM dealing well with both children and their parents. She said she was “capable of diffusing all situations in a respectable(sic) manner.”  RV said she was aware of “all the information and charges” and disagreed that the charges had “anything to do with her behaviour towards children.” She said she would not hesitate to recommend SM to work with children. She described SM as getting into trouble with the law whilst under the influence of Xanax. She said SM had good reason for lacking trust in police.

Written References

DM

  1. [67]
    A written statement dated 29 August 2015 was provided from SM’s mother. The tribunal gave leave for DM to represent her daughter but DM did not attend the hearing at all.
  2. [68]
    DM said her daughter “was not in the same place” as when DM obtained the DVO or when she was in Grafton.
  3. [69]
    DM said while some police officers were helpful others would incite SM by rough handling, pushing her to the ground unprovoked and “hurling insults and threats.” DM said that happened at her home and at Grafton. She said her daughter has multiple charges due to these altercations, which she did not defend in court, because she gets depressed and feels hopeless after each incident. She said her daughter harbours angry feelings at some officers for the things she experienced.
  4. [70]
    DM said as her daughter got better, the DVO caused more problems than it helped with the police as they assumed things about her daughter which were not true and affected their treatment of her. She and her son, who also had a DVO against SM tried to have them revoked in court.
  5. [71]
    DM said revoking her daughter’s blue card was unfair for a number of reasons.
  6. [72]
    DM said that none of the incidents alleged by police involved children being present and her daughter, at her worse, never lost control in front of children.
  7. [73]
    DM said her daughter may like to be a carer for an elderly friend but will not be able to do so with her blue card revoked.
  8. [74]
    DM said fostering children is a cultural value held dear by her family and that will be denied her daughter who has always been around disabled people and foster siblings. She described her daughter as an excellent role model who knows how to keep children feeling safe and loved. She said children naturally trust her because she knows she cares about them.
  9. [75]
    DM continued:

(She) would literally throw her life away if she unravelled(sic) all that was done to help her through what she has gone through this far. She is very aware of the price of sacrifice that was made for her by each member of her family. If per chance, she did anything to undermine the therapeutic progress she has made through all the people who have supported her and guided her and understood her through this all, I, for one, would not be there to catch her again when she fell. She did nothing to create the situation she was in the first time, but it was devastating for her family to go through it with her. She has a responsibility to keep getting better and better. I believe she will do just that. However, if she does not, I will be the first one to contact Blue Card Services and any other organization that would be adversely affected by her behaviour. I love my daughter, but she is aware of the problems her past caused and I won’t go through it again.

  1. [76]
    DM concluded that her daughter “possesses the ability to deal constructively with situations of conflict, although her recent experiences with the police department have made her vulnerable to rapidly escalating anxiety when confronted by police.” She said the detrimental effects of revoking her blue card “far outweigh the possibility of an incident where a child will become adversely affected from (her) behaviour with a police officer.”
  2. [77]
    DM also provided a letter dated 4 September 2016 after the tribunal requested written submissions about a non-publication order. The hearing was reopened to allow DM to attend and be cross-examined but she did not.
  3. [78]
    DM wrote that the altercation with her daughter on 29 October 2015 occurred after an argument with her about what SM perceived as her mother’s favouritism towards a foster child. She said she was “concerned that (her daughter) needed the presence of the police to de-escalate because she was not responding to (her) direction to calm down.” She wrote that there had been previous “incidents of abuse” while her daughter was taking anti-anxiety medication.
  4. [79]
    DM wrote that the police had come and talked to them both, de-escalated her daughter and gone on their way. There was no violence and the children only observed an argument.
  5. [80]
    DM wrote that this incident led to blue card services questioning her daughter’s character and that two days later her foster children were removed from her home. She added that the Department of Child Safety had then pursued a suitability assessment of her and her husband and after twenty years of fostering children, they decided to relinquish their licence. She obtained the report of the incident through Freedom of Information which is referred to in paragraph 25 above.
  6. [81]
    DM detailed her concerns for the future impact on her daughter of having her blue card revoked and her objections to the actions of the Department of Child Safety.

Other References

  1. [82]
    An undated handwritten letter was received from, the elderly gentleman referred to by DM. He was aware SM had incidents with police and that resulted in her not having a blue card. He said SM acts fine whenever he has seen her with children. When she was having problems in the past she would “settle easily if she was treated with respect and talked to calmly.” He said he could trust SM to help him and she is a good person.
  2. [83]
    A hand written statement dated 31 August 2015 was provided from a friend who had known SM for a year. He said he had not seen SM around children. He helps her “blow off steam” when she is frustrated and he has not seen her aggressive or lose control.
  3. [84]
    A very positive reference dated 28 August 2015 was provided from a member of the senior citizens club where SM had performed ten hours of community service. After that time was served, SM continued working as a volunteer.
  4. [85]
    An undated reference was provided from a person who said SM had been a live in nanny for their partner’s grandchildren. The referee stated they had read the allegations about SM and did not agree with the police statements. They described how well SM cared for the children and recommended her to care for children.

Psychiatrist’s Letter

  1. [86]
    A letter dated 27 October 2014 was provided from a Brisbane psychiatrist. The letter was addressed to a Grafton solicitor and referred to the charges she faced in the Local Court.
  2. [87]
    The psychiatrist described SM as a patient under his care referred by her GP in Rockhampton. He said he had originally seen her for a report in relation to her application for migration to Australia.
  3. [88]
    The psychiatrist referred to SM developing a major depressive episode after the break-up of her engagement in the United States. He said her depression had partially responded to treatment but she was in a situation of not being able to work and living with her parents whilst applying for permanent residency.
  4. [89]
    The psychiatrist described SM as “impulsively” travelling to New South Wales with her friend “of dubious judgment” and calling police when distressed by the situation in which she found herself. He said SM had “cultural expectations” from rural America that police could provide her with accommodation. He said she related becoming “distressed, hysterical and threatening towards police” and that she accepted her behaviour was out of control and was “utterly remorseful for her actions.”
  5. [90]
    The psychiatrist stated SM had a diagnosis of major depressive disorder and was then on 200mgs of Sertraline per day. He said she would need that on a maintenance basis for a further 12 months and he had arranged “more thorough follow up care” with a psychiatrist in Rockhampton.
  6. [91]
    The psychiatrist stated the presence of SM’s mental illness “leaves her emotionally fragile if put under stress, but she does not represent a danger to herself or anyone else.” He described her as immature but not having an anti-social personality or anti-social traits. He said she does not take illicit substances and is fully compliant with treatment. He described her family as highly supportive.
  7. [92]
    The psychiatrist asked that the court look “charitably” on SM’s situation “as an individual who has shown poor judgement whilst socially isolated in threatening circumstances and who is now acutely remorseful for her actions and very unlikely to reoffend.”
  8. [93]
    The psychiatrist stated his treatment recommendations were that SM live with her family, increase her dose of Setraline to 200mgs per day, see the psychiatrist in Rockhampton and that her GP formally coordinate her plan.

Evidence of General Practitioner

  1. [94]
    A letter dated 25 August 2015 was provided from SM’s GP which stated SM had problems with anxiety and depression in the past and had been on various types of medication over the past two and a half years since coming to Australia. The GP described SM as having behavioural problems associated with her anxiety and depression and the medication. He stated she had weaned off medication over the last several months and her family reported the behavioural problems had stopped. The letter stated that to the GP’s knowledge SM had not been a threat to any children and that he cannot find any medical reason for her not to be able to care for children.
  2. [95]
    The same information was confirmed in a later letter from the GP dated 16 December 2015 which stated that SM had not had prescribed antianxiety medication since May 2015.
  3. [96]
    SM provided a further letter from the GP after the hearing when asked for submissions regarding a non-publication order and the hearing was reopened to enable SM to call the doctor, as well as her mother, as witnesses enabling their cross-examination.
  4. [97]
    That letter, dated 2 September 2016, stated the GP had been SM’s treating general practitioner since she arrived in Australia in March 2013. He described her as attending his practice regularly with seventy-six visits between November 2015 and August 2016.
  5. [98]
    The GP reported that SM’s main condition requiring treatment and management was depression and anxiety. He said various antidepressants had been trialled but none had been tolerated or effective. He said short-term anti-anxiety medication had been tried during various crises. He noted SM was taking Xanax during May 2015 which “likely contributed to the uncharacteristic incident involving police.”
  6. [99]
    The GP wrote that SM had been treated for Post Traumatic Stress Disorder, Depression and Anxiety in the United States. She sought to emigrate to Australia and remain a part of her family unit as they are her primary source of support. The GP described SM as suffering a high degree of distress regarding ongoing legal matters with distress leading to frequent flare-ups of anxiety and bouts of depression. These result in her experiencing insomnia, difficulty concentrating, lack of drive and motivation as well as affecting her general functioning.
  7. [100]
    The GP wrote that SM’s visa application as well as the loss of her blue card could have serious repercussions for her future and mentioned a number of those repercussions. He said she is in a relationship with her partner having two children. He said SM “anticipates difficulty continuing her relationship once stigmatised by a negative notice of her blue card” and that the situation has “caused significant strain on the rest of her family.”
  8. [101]
    The GP concluded SM had made medical progress since her arrival in Australia. He said she has tried to maintain a positive outlook and managed difficult circumstances to the best of her abilities. He said there had been an attempt at his practice to provide her with a safe environment to allow her to work through her personal issues and that she has grown more resilient. He said she had been making better and more mature choices as evidenced by having no police involvement over the past twelve months.

Submissions of Blue Card Services

  1. [102]
    The Agency identified a number of protective factors relevant to SM including:
    1. The penalties received by SM were relatively minor and the offences were not directly child-related and were not committed in the presence of children.[22]
    2. SM has references attesting to her ability to engage with children and the elderly.
  2. [103]
    The Agency submitted that whilst there were protective factors there were a number of risk factors arising from the evidence, which the agency submitted, were significant and not addressed by SM.
  3. [104]
    Recency is a significant risk factor with offences committed in early 2015. Further, SM’s criminal history reflected violent, aggressive and antisocial behaviour suggesting an inability to engage in appropriate behaviour and exercise self-control. That SM sought to deny or minimise her offending behaviour, shows she lacks an appropriate level of insight or remorse. SM said she was not guilty of a number of offences for which she was convicted but the tribunal cannot go behind the finding of guilt.[23]
  4. [105]
    In February 2015 the Grafton Court discharged SM into care pursuant to mental health legislation suggesting she was suffering a mental health condition which may have been a catalyst for her behaviour.
  5. [106]
    The written material of the GP reports SM has been on medication and had associated behaviour problems. Given the recency of offending behaviour, an insufficient period of time has passed to show stability as regards SM’s mental health. There is limited third party evidence to enable the tribunal to conclude that the triggers which gave rise to her offending have been adequately addressed, or to attest to mental health treatment to show adequate protective strategies. Since SM’s move to Australia, she has engaged with mental health predominantly only in relation to legal or immigration issues.
  6. [107]
    The report of the psychiatrist is problematic. It is out dated having being written in October 2014 and predates some of the offending behaviour, so undermines his opinion that she is at low risk of reoffending. The psychiatrist refers to SM’s statements of remorse however that is inconsistent with the evidence she provided. Of concern are his recommendations not complied with. He recommended an increased dosage of medication to be continued for twelve months but SM discontinued medication altogether prior to the elapse of twelve months and did not follow through with his referral to another psychiatrist.
  7. [108]
    The respondent acknowledged SM engaged with a GP and that she says that is helpful. The GP gives an opinion which is supportive of her working with children but that carries limited weight for the following reasons:
    1. The GP has not been called as a witness and the respondent is denied the opportunity to cross-examine so the evidence is untested;
    2. It is not clear he is aware of the extent of involvement with police;
    3. Or that he has read the Statement of Reasons;
    4. His references are brief and it is not clear what was the basis for his conclusions;
    5. There is no indication he has used formal assessment tools.
  8. [109]
    In conclusion, while The GP’s letters are of some assistance, his evidence should be distinguished from that of an appropriately qualified psychologist or psychiatrist who could have considered the applicant independently and provided a risk assessment.
  9. [110]
    A number of referees were not called and therefore there was no opportunity to ask further questions. Some appear to disagree with police information and the respondent was unable to explore that any further.
  10. [111]
    HL provides support for SM but “disagrees” with some of the police information. She was unaware of the 2014 offences which goes to the weight of her statement and she has known SM for a short time only.
  11. [112]
    The written evidence of DM must be tempered by the close relationship and it was concerning she was absent from the hearing when the support of family was clearly identified as necessary for SM’s long term well-being.
  12. [113]
    The written evidence of SM and her mother both emphasised the negative impact on SM both now and into the future, which is not a relevant consideration for the tribunal.
  13. [114]
    The agency submitted that the transferability of a blue card means SM’s limited intention presently for its use is not relevant.
  14. [115]
    The risk factors clearly outweigh the protective factors, such that SM’s is an exceptional case.

SM’s Submissions

  1. [116]
    In addition to her written material and oral evidence, SM made the following oral submissions.
  2. [117]
    She disagreed with the respondent. She has been treated unfairly by police.  She has admitted remorse today. Since following medical advice she has not offended further.
  3. [118]
    Protection of children is the focus of the legislation and she has provided evidence she has acted protectively. A blue card should only be taken away if you actually misbehave around children. The altercation she had was with adult police officers and children were not involved.
  4. [119]
    If the psychiatrist’s letter is not relevant because it is out of date she questioned why the charges against her are relevant having been brought so long ago.
  5. [120]
    The DVO against her has expired. Breaches of a DVO should not be relevant. She has not committed any other further offences.
  6. [121]
    She did not need her parents at the hearing to hold her hand.
  7. [122]
    Since she has been off the medication she believes it was a situational illness. She reiterated she was very remorseful. She followed the doctor’s advice and knew for a fact Xanax caused her issues. It was not easy to get off Xanax. She would have had therapy if she could afford it. Mental health is misunderstood. Mental illness can be temporary.
  8. [123]
    The psychiatrist states she does not have antisocial traits. She has put blame on police due to their very aggressive nature. She and her mother now know how the Queensland Police are and they will no longer be involved in their life. Where there is even a suggestion of violence, police willingly “slap on” a DVO and will not let you make a statement. She was brutally assaulted by police and that does not mean she has problems caring for children. She lost control because of PTSD and should have curbed her mouth and is remorseful for that.
  9. [124]
    If she had known that “no conviction recorded” does not actually mean that, she would have fought the charges. She had no record before moving to Queensland.
  10. [125]
    She worked in day care and taught children responsibility. She has cared for her two year old niece and nephew, toilet trained them and taught them the ABCs. She have given her all to better herself and put protections in place to see the behaviour does not happen again. There is no proof she would cause harm to a child or has ever harmed a child. The witness statement she provided shows better judgment dealing with children and self-control.
  11. [126]
    She was not prepared to let go of her identity for someone else’s opinion. She was prepared to have conditions placed on her including a period of “probation.” Because she did not go to school here and did not have these witnesses she was disadvantaged. Needing family support does not mean she cannot take control herself. This will affect her whole life and she did not want it implied she has ever done anything wrong to a child or in front of a child.

Discussion

Witnesses

  1. [127]
    The evidence of the two witnesses who attended by telephone was not of great assistance. There was no doubt that both women had observed SM’s positive interactions with children and supported her obtaining a blue card but their knowledge of SM’s offending behaviour and her mental health issues was limited.
  2. [128]
    The statements provided from her mother did not really assist SM. DM focussed on the unfairness of police, the blue card system and on the repercussions for her daughter whereas the tribunal needed evidence about the risk and protective factors present for SM which her mother may well have been able to comment on.
  3. [129]
    SM had emphasised that children had never been exposed to her problematic behaviours, yet DM provided documentation obtained under Freedom of Information which recorded that DM had felt it necessary to put herself and two foster children aged three and four in a bedroom while waiting for police to arrive and intervene with her daughter whom she described as “having an episode.” She stated the children only witnessed an argument but it was an argument of sufficient magnitude that DM called police. I also note DM’s recollection that the argument actually arose over her daughter’s perception her mother was favouring a foster child which seems immature and not child focussed.
  4. [130]
    Of greatest concern as regards DM, is the apparent lack of support for her daughter. SM tried to present her mother’s absence from the hearings as a choice made to show her strength to deal with matters herself but that was not the impression given by other submissions. SM referred in submissions to her mother not wanting anything to do with the process. The hearing was reopened to specifically allow cross-examination of DM (as well as the GP) so that her written evidence could be tested and given due weight but she did not appear. SM appeared to have expected that her mother would attend but said she had changed her mind at the last minute. She appeared very distressed by that change of heart. I found the tone of DM’s written statements to be less than supportive of her daughter in these circumstances.
  5. [131]
    The remaining written references are of limited assistance with the authors not present for cross-examination. Whilst positive statements about SM’ character and dealings with children were made, these brief references do not show a detailed knowledge of SM’s offending behaviour or her mental health issues.
  6. [132]
    I agree with the submissions of the agency that the report of the psychiatrist is problematic for the reasons suggested. (Paragraph 107 above.)
  7. [133]
    Similarly, I agree with the submissions of the agency concerning the GP’s material. If he had attended for cross-examination, it is possible the deficiencies in his evidence may have been addressed. A second opportunity for SM to arrange for him to attend was provided following the later material being provided to the tribunal but that did not occur. (Paragraphs 108 and 109 above.)
  8. [134]
    SM presented as a sensitive and quite intelligent young lady. She was very emotional during parts of the hearing. That intensity of emotion was understandable at some points but at other times reflected a level of immaturity and self-pity for the situation in which she found herself. SM presented as respectful of the tribunal and the hearing process.
  9. [135]
    I was concerned with SM’s attitude to police. Whilst it may be that the treatment of her was not ideal in every situation, I have to accept the facts as contained in the written documentation rather than SM assertions of “brutality” and an intention to provoke and receive extra money. I agree that her evidence at the hearing was in contrast to the psychiatrist’s report (which referred to the Grafton offences) that she accepted her behaviour was “out of control” and was “utterly remorseful.” I agree with the submissions of the agency that SM’ denial or minimising of her offending behaviour shows a lack of appropriate remorse and insight.
  10. [136]
    SM offending behaviour is not my greatest concern, although it was recent and involved aggression against police officers. SM sought to explain both her shop lifting and reaction to police, in terms of mental health and medication issues. In my view, there was insufficient evidence that any treatment for mental health issues has addressed the triggers for SM behaviour or that adequate protective strategies have been explored. I agree with the submission that insufficient time has elapsed to show SM’ mental health stability in the absence of specific evidence from a mental health professional. SM also presented as emotional and fragile at the hearing.
  11. [137]
    I agree also, that given the emphasis which has been placed on SM requiring the support of her family to achieve stable mental health, the absence of evidence of such support was a concern. Only one family member, her mother, provided a written statement (the deficiencies of which  have already been addressed) and not one attended the hearing. DM’ statement refers to the “sacrifice” made by “each member of her family” and that if SM did anything (her emphasis) to undermine progress DM “for one, would not be there to catch her again.” While she does say she thinks her daughter will not fail, the tone, as I have already said, is not supportive.
  12. [138]
    The GP, in his letter dated 2 September 2016, refers to SM having a partner. He wrote that SM anticipated “difficulty continuing her relationship once stigmatised by a negative notice.” That comment adds to the impression that SM is not well supported by those closest to her. That she had a partner was not even mentioned by her in evidence she gave to the tribunal. I consider that a significant omission given SM sought to portray her situation as one of stability.   
  13. [139]
    SM is a young women who appears to have achieved academic and sporting success in her life as well as contributing to her community. She clearly has an affinity with children and other vulnerable members of the community. Her future holds promise. I think that if she addresses the issue of her mental health and the other concerns raised in this matter, and presents evidence of that, she should reapply for a blue card.  At present I find that there are risk factors which outweigh the positive factors and I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the decision of the chief executive officer of the Public Safety Business Agency that the applicant’s case is “exceptional” within the meaning of section 221(2) the Act is confirmed.

Non-Publication of Identifying Information

  1. [140]
    Following the hearing on 24 August 2016, I requested written submissions from the parties regarding a non-publication order.
  2. [141]
    SM submitted that if she was granted a blue card she was “fine” with a non-publication order. If denied a positive notice, she requested that her hearing information was public or potential employers “may assume the negative outcome is much more detrimental than the facts of this case.”
  3. [142]
    With those submissions SM forwarded additional letters from her mother and doctor and the Magistrates Court record dated 14 September 2016 of her conviction and sentence for a charge of stealing.
  4. [143]
    The respondent’s submitted that as the evidence before the tribunal had not concerned any particular child, a non-publication order on the grounds that the proceedings involved child complaints or could adversely affect a child’s interest, did not apply.
  5. [144]
    The respondent submitted that section 66 of the Queensland Civil and Administrative Act 2009 provides for a presumption of publication which may be departed from only if the tribunal considers that one of the criteria set out in section 66(2) of the act have been met.
  6. [145]
    Further, the courts have consistently held that the potential distress, embarrassment and damage to reputation are insufficient to justify the prohibition or suppression of publication of proceedings.
  7. [146]
    The respondent submitted that the order made by the Grafton Local Court reflects the Magistrate’s view that SM was developmentally disabled, suffering from a mental illness or suffering from a mental condition for which treatment was available in a mental health facility.[24]
  8. [147]
    The respondent submitted SM had given evidence about her criminal history, mental health and past traumas including sexual assault. She told the tribunal she experiences anxiety and situational depression as well as post traumatic stress disorder when interacting with police.
  9. [148]
    The respondent submitted that whilst SM described herself as “well” she said indicated her mental health would be “precarious” without family support. She said she sees her GP for ongoing mental health support several time a week and takes Valium for anxiety. There is limited independent medical evidence regarding SM’s mental health. The report of The psychiatrist indicates at that time SM was suffering from a mental illness and had a diagnosis of a major depressive disorder and recommended an increase in her medication. The reference of The GP dated 16 December 2015 stated SM had been experiencing anxiety and depression for a number of years and had recently been weaned off medication.
  10. [149]
    The respondent had submitted at the hearing that there was insufficient evidence to demonstrate that SM’s mental health had stabilised or that long term protective strategies for mental health management were in place.
  11. [150]
    Notwithstanding the presumption under section 66 of the QCAT Act, the respondent submitted that the evidence as a whole, supports a conclusion that publication of SM’s identifying particulars would risk endangering or further destabilising her mental health.
  12. [151]
    I agree with the submissions of blue card services and I order that publication occur in a de-identified manner.

Orders

  1. The decision of the chief executive officer of the Public Safety Business Agency made on 1 June 2015 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is confirmed.
  2. Publication of this matter will occur in a de-identified manner.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a), s 20(2).

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld). s 167.

[4] Ibid. s 221.

[5] Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 at [31].

[6] Ibid at [33].

[7] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [28].

[8] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

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

[10] Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.

[11] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.

[12] Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 at [65].

[13] Grindrod v Chief Executive Officer, Department for Community Development op cit.

[14] Statement of Reasons at pages 8 and 9.

[15] Ibid at page 12.

[16] Ibid at page 15.

[17] Ibid at pages 8 and 9.

[18] Mental Health (Forensic Provisions) Act 1990 (NSW) section 32(1)(a).

[19] Statement of reasons at page 8.

[20] Statement of reasons at page 8.

[21] Copy of Verdict and Judgment Record provided by SM.

[22] Submissions were made on 24 August 2016 prior to additional material filed by applicant.

[23] Re FAA [2006] QCST 15.

[24] Mental Health (Forensic Provisions) Act 1990 (NSW) section 32(1)(a).

Close

Editorial Notes

  • Published Case Name:

    SM v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    SM v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 506

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    20 Dec 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
3 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Cite 3 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
Grindrod v Chief Executive Officer [2008] WASAT 289
2 citations
Jump To
Cite 1 - [2008] WASAT 289
Cite 2 - [2008] WASAT 289
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
1 citation
Jump To
Cite 1 - (1982) 42 ALR 209
Re FAA [2006] QCST 15
2 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
SM v Chief Executive Officer, Public Safety Business Agency [2017] QCAT 506
1 citation
Jump To
Cite 1 - [2017] QCAT 506
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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