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TLR v Director-General, Department of Justice and Attorney-General[2017] QCAT 183

TLR v Director-General, Department of Justice and Attorney-General[2017] QCAT 183

CITATION:

TLR v Director-General, Department of Justice and Attorney-General [2017] QCAT 183

PARTIES:

TLR

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML249-16

MATTER TYPE:

Childrens matters

HEARING DATE:

27 April 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

26 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – where a drug related charges brought and not proceeded with– where applicant denies any responsibility for drug related events – whether exceptional case exists – whether not in the best interests of children to issue a positive notice

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

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

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 FGC [2011] QCATA 291;

REPRESENTATIVES:

APPLICANT:

TLR  represented by Mr S. McGhie, Solicitor, Richardson McGhie Solicitors

RESPONDENT:

The Director-General represented by Mr I. McCowie  Government Legal Officer

REASONS FOR DECISION

  1. [1]
    TLR applied for a positive notice and blue card on 21 March 2016.  The Queensland Police Service advised of relevant police information about TLR.  The Director-General then invited TLR to make submissions to support her application but on 27 September 2016, a negative notice was issued.
  2. [2]
    TLR has applied to QCAT to review this decision.  QCAT can review a decision to issue a negative notice[1]. The review is conducted on the basis that the welfare and best interests of a child are paramount[2] and is a fresh hearing of the case with the purpose of producing the correct and preferable decision[3] on the evidence before the tribunal.
  3. [3]
    The negative notice was issued because TLR had been charged with drug related offences TLR says, based on the actions of her former partner at her home in her absence.  The Police did not proceed with the charges against TLR.
  4. [4]
    TLR’s former partner and another relative were found guilty of drug related offences.  These offences included the locating by police at TLR’s home of drugs, cash, drug related utensils and steroids.
  5. [5]
    A letter from the Director of Public Prosecutions dated 9 June 2016[4]  to Blue Card Services advised as follows:

The substance of the charges against your applicant arose out of a number of incriminating text messages located on her mobile phone indicating that it was used to contact associates to source pseudoephedrine.  Defence made a submission that another co-accused sent those text messages from your applicant’s phone whilst she was away from the residence.  Considering there was evidence to suggest that the co-accused had previously used your applicant’s phone for these purposes, the Crown was of the opinion that it could not negate the possibility that this was the case in relation to the present charges.

  1. [6]
    TLR is a single mother with three children.  Two of those children are her biological children with her former partner.  The third is her adopted niece.  TLR’s adopted sister passed away recently after a troubled life.  TLR seeks to provide a stable loving home for her niece.
  2. [7]
    TLR works in the aged care sector and has done so for the past eight years.  She is also a full time university student studying nursing.  It is a requirement of her student placements to hold a blue card.
  3. [8]
    Under the Working with Children (Risk Management and Screening) Act 2000, a positive notice must be issued to TLR unless the tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because none of the current charges recorded on TLR’s criminal history are defined as serious or disqualifying offences under the Working with Children Act[5].
  4. [9]
    The Act does not provide a definition for “exceptional case”.  However guidance has been provided in past matters on how to decide if the facts give rise to an exceptional case.  In Commissioner for Children and Young People and Child Guardian v FGC the appeal tribunal stated that "exceptional case" must be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect [6].  It said the term is in common use and should be considered without any special meaning or interpretation[7]
  5. [10]
    Further guidance to deciding if there is an exceptional case is provided by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor[8] where the Court looked at the risk and protective factors as determined by the evidence in that case.
  6. [11]
    Section 226 of the Working with Children Act also provides factors this tribunal must have regard to in deciding if this is an exceptional case bearing in mind the object of the Act is to “promote and protect rights, interests and wellbeing of children and young people in Queensland[9].
  7. [12]
    If the TLR was to be issued with a blue card then that Blue card is transferrable for all purposes. The Tribunal is unable to place any condition on the issue of the card.
  8. [13]
    Section 226(2) requires this tribunal to consider charges against TLR, the nature of the offence and its relevance to child related employment, the penalty imposed, and anything else about the commission of the offence that is reasonably relevant to an assessment of the applicant for child related employed.
  9. [14]
    Is this an exceptional case in which it would not be in the best interests of children for a positive notice to be in place?

Risk Assessment

Protective factors

  1. [15]
    The Director-General points to the following protective factors in this matter:
    1. TLR has undertaken to raise her niece, as well as her two biological children;
    2. She is completing a course in nursing;
    3. In their investigation, the Department of Communities, Child Safety and Disability Services concluded that the TLR’s children were not at risk of harm and despite the charges, and the children were left in her care;[10]
    4. TLR has worked in aged care for 8 years, analogous to regulated employment with vulnerable persons;
    5. She has maintained long-term employment, while studying full time and raising three children, one of which has been adopted.

Risk factors

  1. [16]
    The Director-General points to the following risk factors:
  1. (a)
    TLR admits allowing her former partner and the biological father of her two children to move back to her home in March 2012, despite having required him to leave the previous November because of his drug-use, demonstrating that she was not able to act in the best interests of her children;
  1. (b)
    At best, the Applicant was willfully blind to her former partner’s drug operations in the Applicant’s home in circumstances where:
    1. a metal reaction vessel fashioned out of a 50 litre beer keg was located in plain view in the backyard of the property;
    2. a drum of reaction waste was located in plain view in the backyard of the property. 15 litres of reactive waste was found in total;
    3. a large glass beaker was located near the reaction vessel; used for production were in a part of the back yard TLR does not use. 
    4. at least 500 pseudoephedrine tablets were found in the house;
    5. 2 clip-sealed bags and a Tupperware container containing amphetamine or methyl amphetamine were found in the front of a cupboard;
    6. twelve vials of testosterone were near food items in the house;
    7. twenty-five thousand dollars in cash in a vacuum-sealed bag were located underneath a pillow the TLR’s former partner was using;  and
    8. TLR was in receipt of a text message on 27 February 2012 (3 weeks before the police raid) warning her that the police were making enquiries about TLR’s property;

demonstrating that TLR did not act protectively towards her children in her care;

  1. (c)
    These circumstances, taken together, support an inference that the Applicant was a knowing participant in the offending;
  1. (d)
    TLR admitted to ordering a schedule 2 drug, clenbuterol online;
  1. (e)
    TLR’s material shows some tendency to minimize the seriousness of her conduct and to place responsibility for these events on others, suggesting that she may not have good insight into her conduct.
  1. [17]
    TLR denies all involvement with drugs or drug taking.  TLR says she has never used drugs and is strongly opposed to them.  She says she has personally seen their negative effects on people close to her – her former partner and adopted sister.  TLR says her former partner was well aware of her attitude to drugs and drug taking.
  2. [18]
    In November 2011 TLR had asked her former partner to leave her home because she suspected but had not seen, drug consumption.   TLR’s father died when she was a baby.  She values her children having a relationship with their father and also thought that was good for her former partner.  Her former partner was aware of her attitude to drugs and she thought he understood that if he stayed in her home, he was never allowed to have any illegal substance with him.
  3. [19]
    On the weekend before the police raid on the Monday, TLR says she had taken her children away for the weekend.  She had allowed her former partner to stay at her house as “down time”.  He was not living at her home.  Although he was suffering a mental illness and had lost his job, she says she was unaware he was involved in drugs in any way.
  4. [20]
    TLR says she was shocked at what the police found.  The utensils were located in a part of the back yard of the property not used by TLR or the children.  TLR had not seen the money but was aware her former partner had sold a motor vehicle.  Her former partner slept in another room to her.
  5. [21]
    TLR was aware her former partner had steroids.  They were kept in a high cupboard in the pantry away from the children.  TLR believed they were a prescribed drug for her former partner. She had no knowledge of other pseudoephedrine tablets were found in the house.  They were at the back of a little used cupboard and not visible to her.
  6. [22]
    TLR admits she had Clenbuteral in her possession.  She says she bought it online from a chemist site to assist in weight loss.  She says she did not know it was an illegal drug without a prescription and it simply arrived in the mail.  She now understands the issue and will never purchase on-line again.
  7. [23]
    TLR admits she did receive a text message from a concerned friend who knew her former partner and his prior history.  She was not concerned because she believed that apart from steroids (which she thought were prescribed,) there were no drugs in the house and had not been since the November the previous year, when she asked her former partner to leave.
  8. [24]
    TLR says her former partner apologised to her for his dealings and admitted full responsibility for the drugs.  On his release from custody she only allowed her former partner to see the children supervised by her.
  9. [25]
    TLR gave evidence that she has always worked for her possessions.  She has a personal loan to finance her car and a small of gold pendant bought from a large jewellery chain of shops and financed through a credit provider. She is working hard to provide a better life for herself and her three children.[11]
  10. [26]
    Two witnesses (long standing friends) appeared to give evidence for TLR. 
  11. [27]
    Both were award of the circumstances and had read the reasons of the Director-General in initially refusing a blue card. Both described her as a wonderful, caring mother who amazed them both with the many duties she performs as mother, student and worker.  Both stressed TLR’s expressed abhorrence of drugs because of their effect on people she cared for and her total abstinence.  Both said their knowledge of the recent event made no difference to their individual admiration of TLR and her achievements.[12]   

Discussion

  1. [28]
    TLR was an honest impressive witness and I place weight on her evidence.  She admitted her failings where necessary and overall, I accept TLR that her evidence that she was unaware of the drug related issues of her former partner.
  2. [29]
    I place weight on the advice of the DPP in discontinuing the charges against her, although I accept that involves a different standard of proof to that used by this Tribunal.
  3. [30]
    I also place weight of the views of the witnesses called on behalf of TLR.  I found them to be honest and forthright in their assessment of her character, specially having full knowledge of the recent events.
  4. [31]
    TLR says without a positive notice, her dream of becoming a nurse will not be achieved.  However, personal hardship is not a relevant factor when determining if the case is exceptional.[13]
  5. [32]
    This review is conducted on the basis that the welfare and best interests of children are paramount.  When the risk and protective factors are weighted up, I am satisfied TLR’s protective factors in issuing her with an unrestricted positive notice outweigh the risk factors and the correct and preferable decision is that an exceptional case does not exist, such that a positive notice should be issued.
  6. [33]
    The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 354.

[2]Ibid ss 6 and 360.

[3]QCAT Act s 24.

[4]Exhibit 5, BCS page 28.

[5]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.

[6][2011] QCATA 291 at para [31].

[7]Ibid at para [33].

[8][2004] QCA 492.

[9]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.

[10]Exhibit 6, “Safety Assessment Summary” 21 March 2012 page 50 – 51.

[11]Testimony from exhibit 2 and oral evidence at the hearing.

[12]Exhibits 3 and 4.

[13]Chief Executive Officer, Department of Child Protection v. Scott [No 2] [2008] WASCA 171 at para [109].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 183

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    26 May 2017

Appeal Status

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

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