WAL v Director-General, Department of Justice and Attorney General
[2017] QCAT 218
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- WAL v Director-General, Department of Justice and Attorney General[2017] QCAT 218
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WAL v Director-General, Department of Justice and Attorney General[2017] QCAT 218
WAL v Director-General, Department of Justice and Attorney General[2017] QCAT 218
CITATION: | WAL v Director-General, Department of Justice and Attorney General [2017] QCAT 218 |
PARTIES: | WAL (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML263-16 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 31 March 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Ford |
DELIVERED ON: | 30 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – where applicant has criminal history involving her own children – whether case is exceptional Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 360 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 |
APPEARANCES: |
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APPLICANT: | The applicant appeared on her own behalf
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RESPONDENT: | I McCowie for the Director-General, Department of Justice and Attorney-General |
REASONS FOR DECISION
- [1]WAL is a middle aged woman who needed a blue card to work at a non-government organisation. However, on 19 October 2016 she was issued a negative notice by the Director-General. The Director-General found that she was not eligible for a blue card due to the results of a criminal history check undertaken by Blue Card Services.
- [2]WAL is considered to be an exceptional case[1] in that it would not be in the best interest of children for her to be issued with a positive notice. The Director-General was particularly concerned with child related offending which occurred in September 2014 (common assault of her three children) and October 2014 (breach of bail condition attempting to see her son when no contact was specified, willful disturbance and insulting a staff member of a state, the school principal). As well, it is the recentness of this offending that is considered to be a significant risk factor in their assessment.
- [3]WAL also had earlier charges and convictions from 1987 to 2000 involving obscene language, possession of dangerous drugs and utensils, breaching bail and unlawfully taking shop goods away. A blue card had previously been issued before it lapsed in 2013.
- [4]WAL made an application for a review of this decision to the Tribunal. It is her view that the incident relating to her pleading guilty to assault on her children was at a time when there were exceptional circumstances in her life. She considered that she was raising her children, studying and working as every other ordinary Australian does and that this incident relating to her children was against a background of an unmarred history of the last 20 years of her life.
Background
- [5]WAL left home at a young age, having her first depressive episode at the age of 16 years old. She had experienced a traumatic event which she believed her mother was aware of, but who did not validate what had happened to her. Following these circumstances, WAL experienced a period of anxiety and depression and she isolated herself, not returning to her family home.
- [6]WAL states that she looked after herself until she was 30 years old and experienced post-natal depression after one of her children was born in 1999. She was put on antidepressants and in mid-2000 a diagnosis of bipolar disorder was made. WAL had been self-medicating with marijuana in order to slow her mind down. The diagnosis was devastating to her self-esteem and WAL states that she was determined to learn about her illness and to make healthy choices. She went off medication under clinical supervision when she was studying. She stated that, if she experienced stress, she would go back on medication with a psychiatrist's recommendation. She believes that she has a good insight into her illness now.
- [7]WAL has three children and in 2010 she was working as a community mental health worker. She was granted a blue card. However, the blue card expired on 20 December 2013. Upon making an application for a new blue card, the charges and convictions relating to assault on her children in September 2014 led to the negative notice issued by the Director-General. These offences are not serious offences under the WWC Act and, as such, she should be issued with a positive notice. However, the Director-General determined her case was exceptional and she should not hold a blue card.
The 2014 offending
- [8]WAL’s marriage broke down in February 2014 after 10 years. Her partner moved out, commencing a new life with the woman with whom he had had an affair. The family home was put up for sale in April 2014, requiring her to move house with the children. A parenting agreement was signed between her and her ex-partner, with the children living with her.
- [9]In June 2014, WAL lost her employment, due to funding cutbacks, after four years with a mental health recovery program. A dispute arose with her ex-partner and he refused to pay any child support payments as agreed to in the parenting plan. The Child Support Agency contacted her in August 2014 advising the agreement was legally binding and she should be paid the agreed amount from August onwards for three years. However, he was encouraging parental alienation with the children. This led to her getting legal advice.
- [10]Her eldest child, aged 15, admitted to being encouraged to collect evidence of her being a bad parent, giving her a USB stick of recorded conversations he had made for his father. Her son was very angry with her about the break up.
- [11]WAL was under a persistently high level of ongoing, sustained stress throughout this period. She stated she had been functioning well without pharmacological support for four years and she did not identify the triggers requiring her need to address any mental health concerns.
- [12]On 1 September 2014 an argument with one of her children about eating dinner escalated leading to WAL’s physically assaulting her children, both inside and outside the house. A neighbor intervened and she states she told her eldest son to call police, as the neighbor was unknown to her and dressed in his underwear. Upon the arrival of their father, after he was contacted, further arguments occurred. The children were removed to the care of their father upon her agreeing to the police request. WAL was charged by the attending police at the police station with assault, at that stage only in relation to her daughter. She declined to give a formal record of interview.
- [13]WAL did not see her children for several weeks due to the bail conditions specifying no contact. She had requested the bail conditions be amended to no avail.
- [14]On 15 October 2014, WAL breached the bail conditions, set down that morning, by going to her son’s school to see him. In so doing, she willfully disturbed the good order of a state educational institution and insulted and abused the school principal. Children were present during this altercation.
- [15]WAL states she pleaded guilty on advice to prevent her children having to give evidence about the first charges. On 29 June 2015 no conviction was recorded and she received a sentence of 12 months’ probation.
Blue Card Services’ concerns – the risk factors
- [16]The Director-General is concerned that there is a history of offending including obscene language, assault police, resist police, insulting language, possession of a dangerous drug, possessions of a pipe used in connection with smoking a dangerous drug, breaching bail three times, common assault three times, willful disturbance and insulting a staff member of a state educational institution. It is acknowledged that WAL was given a blue card before the recent offending as there had been no criminal history for ten years. It was determined that her case was not exceptional at that time.
- [17]Of major concern is the child related offending which occurred in September 2014 and October 2014.
- [18]The circumstances affecting her children involved her being charged with common assault. She pleaded guilty and the Director-General cannot go behind the court findings.
- [19]After considering all of the material, having regard to the factors presented in the criminal history, the Director-General was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to WAL. The concerns are as follows:
- WAL recently engaged in two separate and related incidents of violence and aggression in the direct presence of children. On one occasion she engaged in a prolonged and violent attack on her three children. This is significantly adverse in the assessment of her eligibility to hold a blue card.
- The Applicant was 44 years of age at the time of her recent concerning offending and was therefore mature enough to understand the wrongfulness of her behaviour.
- WAL has bipolar disorder and the evidence before the Director-General indicated that this significantly contributed to her recent child related violence and aggression. The applicant's mental health is of direct relevance in the assessment of her current eligibility to be entrusted to care for the safety and wellbeing of children in an unsupervised capacity in activities related to the WWC Act.
- WAL has minimized and displaced blame for her violent behaviour, by blaming the 15 year old complainant for being angry with her and escalating the confrontation. She also blamed her estranged partner for trying to remove the children from the street in violation of a custody agreement. She also suggested that an apparent lack of photographic evidence supports that the offences did not occur as described. For the Director-General, this indicates the very concerning failure to accept responsibility for her offending and wrongfulness of her violent behaviour towards her children.
- The Director-General is concerned that WAL’s actions would have likely caused distress to the three children and her submissions show no insight into the physical and emotional harm her behaviour likely caused. It is noted that WAL outlined her version of events relating to the common assaults against her children and that her assertions are that the allegations made were excessive. However, given the court accepted the applicant’s guilty plea, the Director-General is not able to look behind the fact of the applicant’s conviction. Blue Card Services does not have the authority to conduct its own investigation into the matter and relies on the court’s finding of guilt.
- While WAL stated that she was well at the time of the offending in 2014, this is inconsistent with references from her treating psychiatrist and psychologist. They both indicated that, at the time of the offences, she was unwell and in a manic episode. This raises concerns about WAL’s insight into her illness and her future ability to seek appropriate help if she were to again become unwell to prevent further offending, including child related offending.
- Limited weight should be placed on the comments of these two health professionals in relation to WAL's interactions with children. Dr Wheelan had no concerns about her interacting with children, however he went on to say that this was the case while the applicant was in a well mental state. Ms Cole, her psychologist, indicated that she had only seen the applicant interacting with children on one occasion and her comments in this regard were based mainly on WAL's self-report.
- A blue card is unconditional and fully transferrable across all areas of regulated employment in business. The Director-General is concerned that the effect of issuing WAL with a blue card is that the applicant would be able to work in any child related employment or conduct any child related business, not just the purpose for which she has sought the card.
WALs’ submissions – the protective factors
- [20]WAL acknowledges that she is not a perfect parent nor that she is innocent of losing control of a situation that involved many complex factors over a long period of time. These factors related to her children and the breakup of her relationship with their father. She is not proud of how she handled the situation nor proud of the confrontation at her son’s high school six weeks later with the headmaster. She freely admits that she did not handle herself well. If she could do it over again she would do so differently.
- [21]WAL states that she is genuinely remorseful for any hurt and upheaval that her actions caused in the lives of her children and has sincerely only tried to protect them from any further hurt or disruptions to their lives since then. To that end, the children remain living with their father. The incident involved a personal family situation against the background of being highly stressed. She was struggling with a number of issues that were not related to the children, including losing her job, her home and her relationship. During this period she was doing her best to shield her children from some of the adult issues that were going on and connected to the breakup with their father.
- [22]WAL states that she had been well for a long period of time without medication and she simply forgot to put supports in place for herself. The second incident, at her son's school, was at a time when the stress levels had increased tenfold.
- [23]WAL states that she has learned from her mistakes, she has lost a lot, and she has begun the long process of recovering and rebuilding her life. She has realized that she has a great deal to contribute, her mental health is important and that she “does matter”. She has moved on with her life and reconnected with her children on their terms. While they moved to live with their father after the 2014 incidents, she still loves being their mother. She is in a wonderful supportive and loving relationship with a man who is a nurse. She has great friends who know her and support her and her family, particularly her father who has always been her greatest support.
- [24]WAL provided references, and evidence of courses she had attended, to both Blue Card Services and to the Tribunal. Chris Deighton, coordinator for a resident recovery program, saw her as a woman who had a positive approach to her work and showed a high level of professionalism in her role as a community resource outreach worker in 2011. As a dental nurse and receptionist, she was found to be highly valued by the dentist with whom she worked.
- [25]WAL had been admitted to the Prince Charles Hospital at the end of 2014 after a manic episode following the assault charges. Upon discharge, Dr Wheelan, psychiatrist, reported she attended regular follow up appointments and remained compliant with all treatments prescribed. He further reported that she was an inpatient between 19 February 2016 and 3 March 2016. At the time she had been experiencing sadness and depression in the context of her life situation and difficulty seeking access to her children. Again, Dr Wheelan states, she engaged appropriately in the treatments and remained compliant with all treatment recommendations.
- [26]WAL has been linked in with an employment agency for some time and they continue their employment support to her. She has volunteered at a community organisation on the Gold Coast, where she now lives with her partner. She is linked in with numerous clinical supports, including her new general practitioner on the Gold Coast, Dr Rupnarain and psychiatrist Dr Monika Walia. She also continues to see her psychologist, Sally Cole, who has known her for nine years.
- [27]Dr Walia, her new psychiatrist, is fully supportive of her receiving approval to hold a blue card. Her long term psychologist, Sally Cole, agrees. WAL does not believe that having a diagnosis of bipolar disorder, in and of itself, should suggest that she is not a suitable candidate to hold a blue card. She has previously had one issued in 2010 when the diagnosis was required to be disclosed on the blue card application. When she pleaded guilty to the charges of 2014, the Judge determined that no criminal conviction be recorded so that it would not impede her ability to get employment.
- [28]WAL believes that she has had bipolar disorder since she was a teenager. She was one of those people who "fell through the cracks" and she did her best to cope. Even when she struggled with her mood fluctuations, she was never once been violent or aggressive towards others before or after the 2014 traumatic events. She has always been a kind and gentle person by nature and, since her diagnosis in 2000, overall her life has been successful and productive. She has always demonstrated professional responsibility, which is why she believes that the incidents that occurred in 2014 are the exception to her rule. She has a great level of both personal and clinical support, as well as her own ability to self-manage her stress levels to ensure that something like the incident of concern will never happen again.
The Tribunal’s decision – Is this an exceptional case?
- [29]A review of a reviewable decision must be decided in accordance with both the WWC Act and the Queensland Civil and Administrative Act 2009 (Qld) (the QCAT Act). I am required to produce the correct and preferable decision.[2] The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland.[3] The principal under which this Act is administrated is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[4] A child related employment decision must be reviewed under the principal that the welfare and best interest of the child are paramount.[5]
- [30]In deciding whether or not an exceptional case exists I must be mindful of the balance of probability, bearing in mind the gravity of the consequences involved.[6]
- [31]The term exceptional case is not defined in the Act. What is exceptional is a question of fact and degree, decided in each individual case, having regard to “…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite, obviously, designed to protect: children”.[7] Prejudice or hardship to any applicant is not relevant in determining whether a case is exceptional. The Tribunal is also mindful of the decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[8] in 2004 that the risk and protective factors should be considered when determining a review decision.
- [32]The passage of time since the allegations or convictions is not determinative of whether or not the case is an exceptional case. Where a person has been charged with or convicted of an offence, the Tribunal must have regard to considerations prescribed by s 226 of the WWC Act in determining whether an exceptional case exists.
- [33]The Tribunal acknowledges that WAL found herself under sustained intense stress over a period of time when her marriage broke down and subsequent responsibilities that went with managing a household with young children and maintaining, then losing, employment. WAL acknowledges that the incident involving assault of her children was against a background of there being a lot of instability and a sense of her being unable to have any control over events and outcomes. She felt overwhelmed by circumstances in her life throughout this period. The Tribunal is mindful that bail conditions were set down determining she have no direct or indirect contact with the children after the assault charges in September 2014. She had been the children’s primary care giver for their entire lives and it is appreciated that this restriction would have caused her great distress.
- [34]The Tribunal accepts that WAL has bipolar disorder and that she has had mental health issues since she was a teenager. WAL was very open in discussing the issues that had related to her mental health problems for a number of years. She acknowledges that stress has led to mental health concerns in the past. The Tribunal notes that WAL has suffered from post-natal depression but has also had significant periods of wellness and she has been on medication and off medication, mostly under the guidance of mental health professionals.
- [35]The Tribunal accepts that WAL acknowledges the events of 2014 were against a background of her trying to manage children, work issues and the separation from her partner. She acknowledges that she failed to respond to her deteriorating mental health and that she should have sought support from her general practitioner and ask for medication to help her to get through this stressful time.
- [36]WAL has demonstrated remorse with regards to what had occurred to her children leading up to the assault charges and thereafter. A protective factor is that WAL is now taking a mood stabilizer and her children have been visiting her regularly since February 2015. She is also in a supportive relationship with a new partner who she met in June 2016. Before losing her blue card, WAL had been working with a non-government organisation and she received a lot of support from this organisation. They were impressed with her work ethic and her abilities in the job that she was undertaking. She had been asked to apply for a full time position within the organization, before the negative notice was issued.
- [37]The Tribunal acknowledges that the health professionals, including mental health professionals, in WAL’s life have supported her desire to hold a blue card. The health professionals have seen WAL both as an inpatient in a hospital context as well as receiving counselling support. There have not been any concerns previously regarding dealings with her own children or any other children.
- [38]The Director-General's representative did acknowledge there were protective factors in place at the hearing. This included that it appears WAL is managing her mental health issues through having a psychiatrist and psychologist in place. She is currently in remission and continues to comply with the medication regime. WAL presents as having good insight into her illness and is aware of the need for further treatment. In that regard, the Tribunal notes the mental health professional evidence presents a woman who is compliant with the treatment required and willingly seeks help, including as an inpatient.
- [39]The Director-General’s representative also acknowledged that she carried significant guilt with regards to the incidents adversely affecting her children and leading to the charges. The Tribunal however is mindful of the risk factors. The 2014 incidences involving her children led to the conviction in 2015. The Tribunal agrees that WAL failed to manage her behavior in her attempt to manage the children in her care at the time. The Tribunal acknowledges that she was under great stress and at the end of a long running relationship at the time. However, WAL failed to act in a timely manner to manage the stress most particularly in seeking an appropriate medication regime to assist her in managing the difficulties at the time. WAL did not make an appropriate decision when she acted so adversely against her children.
- [40]The Tribunal is not as concerned, however, as the Director-General that, if there were further incidents of stress, WAL would not manage them adequately. Losing her children due to the 2014 charges and being convicted has been a life defining period in her life. She has not buckled further under this stress, nor has it led to further charges or child protection issues. She has appropriately addressed the mental health stressors and continues to engage with mental health professionals. She had been engaging in meaningful and purposeful work. She has insight into how her offending behaviors impacted adversely on her children. She is remorseful for her actions. She has successfully completed her probation period. She is in a stable relationship with a professional nurse, who would be able to identify any mental health issues that may emerge.
- [41]The Director-General asserts that WAL minimized her behaviors in giving alternative explanations to the offences. Her explanation that she pleaded guilty to prevent the children being required to give evidence and be further traumatized is not unreasonable, it could be said to be protective.
- [42]While the onus of proof is not placed on either party, I am satisfied that WAL has met her 'evidentiary burden'[9] to adduce or present evidence to support her application so that the Tribunal can make the correct and preferable decision.
- [43]The Tribunal is not satisfied this is an exceptional case. WAL held a blue card against the background of offending pre 2000. She had not committed any offences for 14 years. There is no evidence of previous child related offending nor further offending since 2014. The Tribunal accepts that WAL's aberrant behavior was a combination of extreme stressors at that time. Against the background of a marriage breakdown, loss of her home, her employment and her sense of a future, and the grief and loss associated, she failed to manage her situation, including her mental health, and failed to act protectively toward the children in her care. The fallout has been catastrophic for all concerned. However, WAL has demonstrated a determined and resilient capacity to address her behaviors, to work proactively with mental health professionals and repair her relationships, particularly with a focus on her children and family. The tribunal believes the protective factors far outweigh the risk factors in this case.
- [44]The tribunal's decision is that the applicant's case is not exceptional.
Confidentiality Order
- [45]The Tribunal considers it is appropriate in this case to make a confidentiality order under s 66 of the QCAT Act. This decision is not opposed by the representative of the Director-General. The children could be identified through the naming of their mother and through other identifiable information. The public interest is served through the publication of these reasons, albeit in a de-identified format.
Footnotes
[1]Working with Children Act (Risk Screening and Management) Act 2000 (Qld) (the WWC Act), s 353.
[2]QCAT Act, s 20(1).
[3]WCC Act, s 5.
[4]WCC Act, s 6.
[5]WWC Act, s 360.
[6]Briginshaw v Briginshaw (1938) 60 CLR 336.
[7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].
[8][2004] QCA 492.
[9]Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].