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- Unreported Judgment
RS QCAT 234
RS  QCAT 234
Director-General, Department of Justice and Attorney-General
10 March 2017
10 July 2017
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURSIDICTION OR LEGISLATION – OTHER MATTERS – where a review sought of decision to issue a negative notice – where person convicted of a number of offences including property offences – where offence of robbery with actual violence whilst armed categorised as serious – where domestic violence – where evidence of risk factors and protective factors – whether or not case was “exceptional” such that it would not harm the best interests of children for a positive notice to issue – where decision that case was not “exceptional” was confirmed
Child Protection Act 1999 (Qld), s 189
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a), s 20(2)
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 225, s 226(2), s 237, s 354, s 360
Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
Grinrod v Chief Executive Officer, Department for Community Development  WASAT 289
Minister for Immigration v Gungor  42 ALR 209
Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27
Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243
Director-General, Department of Justice and Attorney-General represented by Ms H. Marunda
REASONS FOR DECISION
- RS applied to the (then) Public Safety Business Agency to be issued with a positive notice and blue card under the Working with Children (Risk Management) Act 2000 (Qld) (the Act). The Chief Executive Officer of the Public Safety Business Agency issued a negative notice to RS on 28 July 2016.
- RS required a blue card to be a kinship career with his partner of her grandchildren and applied to the Queensland Civil and Administrative Tribunal (the Tribunal) for a review of the decision.
- RS contacted the Tribunal to advise that he would not attend the hearing. He declined to seek an adjournment or to attend by telephone.
- Under section 354 of the Act, the Tribunal can review a decision that an exceptional case does not exist such that it would not be in the best interests of children to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.
- The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.
- 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. “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.
- 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.
- 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.
- 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 when setting aside the decision.
- Neither party bears the onus of proof as to whether an exceptional case exists.
- After a difficult birth, RS described an initially happy childhood. His mother was a nurse and his father in the army so the family moved frequently. He described coming under the influence of older boys on the army base and starting to get into trouble. He was overweight as a child and subject to bullying and teasing and fitting into a group was important. The frequent moving negatively impacted on him and his relationship with his father deteriorated when he was aged about fifteen.
- At around the age of sixteen RS said he started using drugs, initially marijuana then amphetamines. He began stealing to pay for his drug use. He said at seventeen he was diagnosed with Bipolar Affective Disorder Type 2. He did not accept that diagnosis.
- RS recalled that with the exception of his twenty-first, he was in jail for his birthdays between the ages of eighteen and twenty-seven. He said his nearly eight years of incarceration gave him the chance to understand his wrongs and be truly remorseful for his crimes. In jail he had completed courses in anger management, cognitive skills and addiction as well as work force qualifications. RS provided a list of such courses and associated certificates from Queensland Corrective Services.
- RS outlined employment he obtained after prison. He described himself as finally accepting his mental illness and taking steps to become well. At the date of his written life history (05/09/2016), he said he had been well and stable for over two years.
- RS was married for seven years. He said the relationship deteriorated two years after the birth of their son through IVF. He said his untreated bipolar at the time made the situation worse. His wife became controlling and manipulative. She took out a Domestic Violence Order against him and left with their son. He said his wife refused to let him see his son for almost two years and he had fought through the Family Court to be able to have his son alternate weekends and half school holidays. He said his ex-wife still tries to control and manipulate.
- RS has numerous convictions for criminal offences dating back to 1994 when he was aged 16 to 2014 when aged 36.
- The offences committed by RS up until 2001 included numerous property offences and he was sentenced to terms of imprisonment on a number of occasions.
- In 2001 RS was sentenced to a term of imprisonment of six years for offences including robbery with actual violence whilst armed with a weapon which he committed in 1999.
- The victim was a twenty-five year old pizza delivery driver. RS was at home with his brother who ordered pizza. RS told police he decided to rob the driver and hid at the front of the house armed with a carving knife. When the driver arrived, he demanded money and punched him in the head with a closed fist and stabbed his hand. He pushed the victim to the ground before cutting off his money bag and running from the scene. RS told police he spent the stolen $51 on amphetamines. The victim required sixteen stitches to his hand and suffered facial abrasions and a broken tooth from hitting the concrete driveway.
- After his release from prison, RS went on to commit offences of breaching a Domestic Violence Order in 2008 and 2012 and in 2013, possession of Cannabis.
- In 2008, RS’s wife at the time had a current Domestic Violence Order against him. After an argument, RS sought to speak to his wife after she went to their bedroom. At one point, he pinned her to the bed and held the door closed so she could not exit. She escaped and called RS’s parents from a neighbour’s house. While his wife was at the neighbours he pushed food into her face saying “here’s your tea”. He was fined $400.
- In 2012, RS’s then wife had a current Domestic Violence Order against him which prohibited him from attending at her residence except for contact with their son. RS attended at his wife’s residence and argued with her about living arrangements and visiting their son. He used abusive language and refused to leave. He grabbed his wife and took her phone which he threw, causing it to come apart. He was fined $750 on that occasion.
- RS’s last conviction was on 21 January 2014 for possessing dangerous drugs. Police attended at an address in response to a reported disturbance. Police observed RS engaged in a physical confrontation with another man. They arrested RS for Breach of the Peace, restrained and escorted him from the premises. Police located a small clip seal bag containing two grams of cannabis in RS’s pocket. RS was fined $500.
RS’s Evidence Regarding Criminal Offences
- RS writes that at the time he committed the armed robbery in 1999 he was extremely unwell with bipolar disorder and self-medicating with drugs and alcohol. He writes that the time he spent in jail was justified and gave him time to reflect.
- RS made oral submissions to Blue Card Services on 27 January 2016. When asked about the most recent charge for possession, RS said it was a thumbnail sized bit and belonged to a friend with whom he had shared a joint. As regards the 2012 breach of a Domestic Violence Order, RS said there had been no violence and his relationship with his ex-wife is now more civil and his time with his son is court regulated.
- RS described himself as very family orientated. He has his five year old son alternate weekends as well as half school holidays and special days and described being very involved in all levels of his development. He said several days a week, he shared the care with his partner of her grandchildren, aged eight, two and one.
- RS wrote that he had been in his current relationship nearly three years and had not been involved in any illegal activities since. He described this relationship as different to what he had in the past. He said he and his partner were supportive of each other in good times and bad. They are both committed to caring for his son and her grandchildren. He described as “devastating” that his partner has been able to spend so little time with her grandchildren because of his failing to get a blue card.
- SK gave an account of her own difficult background and provided copies of a number of certificates and assessments undertaken by her. She said she had known RS three years. Their friendship had evolved into a relationship. They separated for a time due to her concerns RS was not addressing his mental health issues. She said he subsequently admitted himself to hospital and took ownership of his mental health. They resumed their relationship, which she said had gone from strength to strength. SK said she was aware of RS’s criminal history and that he had served time in jail. She described him as remorseful for the crimes he committed “as a young man” and was now a “totally different person” who had not been involved in anything illegal during their relationship. She described him as a devoted family man with positive relationships with his son, her grandchildren and the family in general.
- RS’s GP wrote that the doctor has seen him since July 2015 although RS had attended at the clinic since January 2014. The doctor said RS has bipolar affective disorder for which he is prescribed lithium. The doctor reported RS’s mental status as stable during the period of his treatment and that RS was compliant with treatment and had lithium levels tested regularly. The doctor recommended RS “regularly follows up in our clinic.” The doctor stated that RS regularly had his son and partner’s grandchildren in his care and “I have not observed any behaviour that is detrimental to childcare.”
- SM stated he had known RS approximately ten years. He became aware that RS had bipolar disorder. He reported watching RS struggle to have a child and when his marriage ended, his struggle to have his son. SM writes that RS did not accept he had a mental illness until January 2014 when he admitted himself to the mental health unit. He said the change since then had been “like day and night.” SM described RS as now taking the time to weigh things up and being a lot calmer. He noted RS had been in a supportive and positive relationship about three years. SM said he had seen RS with his son as well as with SM’s children and that he would have no problem leaving them in his care.
- A document termed a “personal reference” was provided by NS, president of a local Riding for the Disabled Association. RS elsewhere referred to helping his father with Riding for the Disabled and it is possible NS is RS’s father although he makes no mention of that in the reference. The reference states RS has worked as a volunteer for nine years, mostly in the role of general handyman. The writer states RS “displayed sound judgment, tact and total honesty and integrity at all times” and he “would have no hesitation in recommending him for the Blue Card.”
- RS’s mother MS provided a reference which referred to RS “going off the rails” as a teenager. She said in his twenties he was diagnosed with bipolar but refused to accept that or take medication. She wrote “When he married and started to mature he then turned his life around in 2007 started taking medication and accepting his condition.” MS describes her son as a “hands on” dad to his son and had previously cared for his nieces. She goes on to say there was never any doubt that RS coped and was “very good with children.” She noted as a nurse for 34 years, she considered herself a good judge of character.
- RS’s brother provided a reference which described RS as open and honest and his good qualities as a father and uncle. He said his daughters, aged 13 and 15 had grown up around their uncle and loved him dearly. He said he can leave them with RS without concern.
- SK’s sister provided a reference describing RS as friendly, helpful, patient and kind and committed to her sister as well as his son. She said the couple had together created a safe and welcoming home for their children and grandchildren. She said RS relates well to the children: giving time to play with and comfort them and space for them to be themselves. She said RS had shown himself to be responsible, dependable and caring.
- SK’s sister’s partner provided a reference which stated RS was supportive of SK and a positive influence. He said he engaged well with children and was able to interact at their level. He said RS’s caring nature was evident when with young children and that his patient manner would be very supportive of them.
Kinship Carer Assessment
- RS provided a copy of a Kinship Carer Initial Assessment Report with regards to himself and SK dated 8 April 2016 as well as the couple’s response to that assessment, dated 14 April 2016.
- The report recommended that should RS receive a positive notice for a blue card, that he and SK be approved as kinship carers for SK’s three granddaughters. The writer stated:
“While there have been possible risks identified, both prospective carers have demonstrated insight into their current and past experiences and highlighted strategies that reduce potential vulnerabilities.”
- The report writer recommended that the children be placed with RS and SK:
“on regular overnight respite care to enable them to experience caring for all three children on a regular basis. This should enable them to ascertain the impact the children’s behaviours will have on triggering their mental health issues.”
- The report detailed interviews with RS and SK as well as a number of other referees which supported the positive statements made in the documents outlined above.
- RS and SK expressed strong disagreement with the assessment that they be approved as respite carers only. They identified some inaccuracies in the report and said the assessor misunderstood what they had said about “triggers”. They pointed out they had cared for RS’s son for up to a week in holidays and had had SK’s granddaughters for a day at the same time without issue. They stated they were mentally and physically capable of caring for the children full-time.
Family Court Report
- RS provided a copy of a Family Report Update dated 13 February 2015 written by a Family Consultant in the course of his proceedings seeking orders in relation to his son. The Consultant recommended RS’s time with his son be increased to alternate weekends, half holidays and special days. RS and his ex-wife ultimately consented to orders in those terms. The report reiterates what RS says about admitting himself to a mental health unit in January 2014 and turning his life around from that point.
- RS had informed the report writer that as part of his hospital discharge plan, he was appointed a “care officer” for three months and afterwards referred to a local community mental health support team.
- The report writer noted RS attended a psychiatric assessment on 27 June 2014. The psychiatrist raised concerns about RS’s capacity to make decisions relating to his son’s long-term welfare and development when mentally unwell and recommended a continuation of active treatment, monitoring, testing and support. The psychiatrist recommended incorporating a safety plan within the parenting arrangement to reduce the risks to RS’s son should he relapse. He recommended that RS’s ex-wife be informed if RS’s mental health deteriorates so their son could be protected.
- The consent orders RS entered into with his ex-wife included provisions that he keep her informed of his health care providers and that they were authorised to provide her with information and documentation concerning his mental health.
Submissions of Blue Card Services
- The Agency identified a number of protective factors relevant to RS including:
1) He expressed remorse for his past actions.
2) He accepted his illness, is medicated and his doctor reported his condition as stable.
3) His partner and other witnesses reported favourably on his parenting his son and interactions with other children.
4) He and his partner have been approved as kinship carers for her grandchildren.
- The Agency submitted that whilst there were protective factors there were a number of risk factors arising from the evidence.
1) RS’s criminal history contained multiple convictions for a number of offences, including a conviction for a serious offence, and includes violent and property-related offences.
2) His criminal history continued well into his adulthood.
3) His offending demonstrated a propensity to react violently to situations of conflict.
4) RS was convicted of the “serious offence” of robbery with actual violence whilst armed in 1999. He stated he was remorseful for that offending and said his time in prison allowed him to attend a number of courses, reflect on his actions and help him grow as a person. However, he re-offended after his release which raised the issue as to the weight to be given to such statements.
5) RS had a seventeen year history of self-medicating with drugs and alcohol which contributed to his offending. Insufficient time has passed since his offending to conclude that he has dealt with the triggers for offending and is unlikely to resort to similar behaviour in the future.
6) RS’s doctor attested to his attendance at the clinic and described his condition as stable. The doctor also stated “it is recommended he regularly follows up at our clinic” which suggested ongoing supervision and support are needed and that insufficient time has passed to satisfy the Tribunal of RS’s rehabilitation.
7) RS has a past history of non-compliance with medication.
- The Department submitted that the ongoing and serious nature of RS’s criminal history cast doubt on his ability to make appropriate decisions in relation to young people in his care. Had he attended the hearing the Tribunal could have explored the issues of his convictions for breaching domestic violence orders, compliance with medication, whether he attended courses after prison and whether he followed up with a psychologist. From the material available it appeared that RS only sees his GP and is not linked to additional services. If RS and his doctor had attended the hearing, his insight into the triggers for offending could have been explored as well as the strategies he said he now has, nor were any other witnesses present to attest to that.
- The Department notes that RS and his partner were only approved as respite carers as the assessor had concern about the time which had passed since RS was on medication and the Department shares that concern. The Family Consultant referred to a psychiatrist having a similar concern. The Family Court Order provides for protection of RS’s son, but in terms of a blue card, it would be unknown if RS was compliant. While the material provided by RS suggests he is compliant and stable, whether he maintains that improvement in the long term is yet to be tested. It is unknown whether RS has ongoing supports such as seeing a psychologist or counsellor, for example, for anger management in relation to the past domestic violence.
- The Department submitted that little weight could be given to the references provided by RS given that the authors were not available for cross-examination. Further the Tribunal did not have the benefit of the expert evidence of a mental health professional. The Family Report touched on such issues and there needed to be further exploration of the issues. Even RS’s treating GP was not made available.
- RS’s material states he has accepted his treatment for bipolar disorder and is now law abiding but the Department submitted that the Appeal Tribunal has determined that simply “turning one’s life around” is not “exceptional”.
- The Department submitted that the transferability of a blue card is a factor to be considered. RS requires a blue card to be a kinship carer and states that is the only use he will have for it but the issue of a blue card is unconditional and cannot be confined.
- The Department submitted that given all these considerations, this is not an exceptional case in which it would not harm the best interests of children for RS to be issued with a blue card at this time.
- The document filed by RS in the Tribunal, which was treated as an Application to review a decision, referred to his wanting a blue card solely for kinship care of grandchildren, that he has moved on from his criminal past and has time with his own son pursuant to Court Orders.
- RS subsequently filed a letter in the Tribunal on 25 November 2016. He wrote that he was not the same person as when he was younger and since accepting his mental health problem and taking steps to maintain mental health. He gave an example of applying what he had learned by reacting calmly in response to inappropriate behaviour by his son’s mother and grandmother at a recent handover.
- RS wrote that since being medicated and stable and in a positive relationship he has a different outlook on life whereby he can recognize a situation, “breath, walk away, take five minutes. Things I have never been able to do previously.”
- RS wrote that he keeps busy at home; gardening, keeping fish, chickens and guinea pigs and helping his father with Riding for the Disabled. He wrote of his strong relationship with his son and his partner’s grandchildren and hoped that his “past mistakes” would not stop them “bringing the grandchildren home.”
- RS’s absence from the hearing greatly impacted on the evidence available to me. I agree with the submissions of the Department that RS’s insight into the triggers for his past non-compliance and offending required further exploration. Given the length of time for which RS was not treated for his mental health condition and his extensive criminal history spanning two decades, with some offending continuing after his lengthy term of imprisonment, I agree that insufficient time has passed to have confidence that RS’s vastly improved circumstances will continue. That RS is “now functioning in the community at a level expected of a person of his stage and age in life” is insufficient grounds to determine his case is “exceptional”.
- RS submitted that his term of imprisonment enabled him to undertake courses as well as to reflect on his offending, and therefore not reoffend. Further exploration of the circumstances around his breaching Domestic Violence Orders and using marijuana as recently as 2013, could not occur in his absence.
- RS’s non-attendance gave no opportunity to ascertain his up to date situation in terms of mental health, stability of his relationship and other factors which may be protective or put him at risk of future offending.
- I agree with blue card services that little weight can be attached to the references provided given no witnesses attended for cross-examination. There were further difficulties with the written references. Only RS’s partner refers to knowing of his past criminal history, although it might be expected that members of his family would be aware of that also. None of the referees reports having read the Statement of Reasons so I am not aware whether they would share any of the concerns raised in those given their knowledge of RS. RS’s mother’s reference contradicts his own written material in that she states his “turn around” and treatment for his illness occurred in 2007 after his marriage whereas other evidence before me is that the change did not happen until January 2014. Unless NS of the local RDA is in fact unrelated, other than RS’s GP, the only referee who is not related to RS or his partner, is SM. As already noted, he makes no mention of any knowledge of RS’s criminal offending.
- The material from RS’s GP is very brief. Without having the GP available for cross-examination the information is of limited assistance. Again, it is unknown what knowledge the GP has of RS’s criminal offending. The GP writes of not observing “any behaviour detrimental to childcare” but that is not stating whether that GP might have any concerns about RS’s ongoing condition and whether there is any risk to children.
- The written references comment positively on RS’s interaction with children and his own material refers to his great enjoyment of time with his son and partner’s children. The lack of a blue card will impact on his ability to be a carer for those grandchildren. As already outlined, any detriment to RS is irrelevant to my consideration as to whether an exceptional case exists as is any benefit resulting from his having access to children if there exists an unacceptable risk from contact.
- I accept the submissions of blue card services as to the protective and risk factors relevant to RS. While RS has made substantial changes to his life and should be proud of what he has achieved, I am satisfied that based on a consideration of RS’s circumstances as set out in these reasons, involving both the risks and the protective factors, that there are not exceptional circumstances for the purposes of exercising the discretion under section 225 of the Act. Accordingly, the decision of the chief executive officer of the Department of Justice and Attorney-General is confirmed.
Non-Publication of Identifying Information
- The evidence before me is that RS’s partner’s grandchildren are children to whom the Child Protection Act 1999 applies. It is therefore required by section 189 of that Act that the Tribunal make an order prohibiting the publication of any information that would identify, or may lead to the identification of those children.
1. The decision of the Director-General, Department of Justice and Attorney-General made on 28 July 2016 that the applicant’s case is not “exceptional” within the meaning of section 226 of the Act is confirmed.
2. Publication of this matter will occur in a de-identified manner.
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.
Ibid, s 225.
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291, .
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492, .
Ibid, citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171.
Grindrod v Chief Executive Officer, Department for Community Development  WASAT 289.
Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243, .
Grindrod v Chief Executive Officer, Department for Community Development  WASAT 289.
Letter filed 05/09/2016.
Letter and attachments filed 25/11/2016.
Criminal History Information detailed in updated National Police Check current as at 09/11/2016 in Statement of Reasons, 60-64.
Statement of Reasons, 10.
Statement of Reasons, 13.
Statement of Reasons, 19.
Statement of Reasons, 22.
Letter of RS in Statement of Reasons, 33.
Statement of Reasons, 47.
Statement of Reasons, 34.
Letter filed 05/09/2016, 5 and 6.
Statement of Reasons, 35-40.
Letter filed 25/11/2016.
Letter dated 07/11/2016.
Letter dated 14/11/2016.
Letter dated 15/01/2017.
Letter dated 25/11/2016.
Family Report Update, .
Family Report Update, .
Orders of Family Court dated 15/05/2015, .
Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27.
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171.
Grinrod v Chief Executive Officer, Department for Community Development  WASAT 289.
- Published Case Name:
- Shortened Case Name:
 QCAT 234
10 Jul 2017