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TS v Director-General Department of Justice and Attorney-General[2017] QCAT 241

TS v Director-General Department of Justice and Attorney-General[2017] QCAT 241

CITATION:

TS v Director-General Department of Justice and Attorney-General [2017] QCAT 241

PARTIES:

TS

(Applicant)

v

Director-General Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML140-16

MATTER TYPE:

Childrens matters

HEARING DATE:

7 October 2016 and 21 April 2017

HEARD AT:

Mackay

DECISION OF:

Member Lanigan

DELIVERED ON:

27 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision dated 13 May 2016 that TS’s case is ‘exceptional' is confirmed.
  2. The tribunal prohibits the publication of any information, which may identify TS.
  3. The reasons for decision are to be published, other than to the parties, in a de-identified format only.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where no serious offences – where extensive convictions and charges over 13 years – where child protection history – where history of substance abuse and illegal drug use – where history of mental illness and issues ongoing – whether exceptional case in all the circumstances – whether a non-publication order ought to be made to avoid the publication of confidential information

Queensland Civil and Administrative Tribunal Act 2009 (QLD), s 20(2)

Working With Children (Risk Management and Screening) Act 2000 (QLD), s 6, s 221, s 226, s 353, s 360

AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

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

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

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

APPEARANCES:

APPLICANT:

TS in person

RESPONDENT:

represented on 7 October 2016 by Ms Anna Sargood

represented on 21 April 2017 by Mr Iain McGowie

REASONS FOR DECISION

  1. [1]
    On 9 October 2015, TS applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act).
  2. [2]
    The Respondent received information from the Queensland Police Service about the Applicant’s criminal history and the Respondent issued a negative notice to the Applicant under the WWC Act on 13 May 2016.
  3. [3]
    TS seeks review of the Respondent’s decision that an exceptional case exists and that it would not be in the best interests of children for TS to be issued with a positive notice and blue card.
  4. [4]
    TS originally applied for a blue card so that she could be considered by the Department of Communities, Child Safety and Disability Services (‘DOCS’) to be approved as the kinship carer for a friend’s children. TS also seeks a Blue Card because she wants to work with young people. She is currently studying a Certificate 3 in Community services and she hopes to progress to study a Certificate 4 in Youth Work.
  5. [5]
    I find that TS’s case is exceptional and confirm the decision of the Respondent dated 13 May, 2016.

The relevant legislation

  1. [6]
    The principle under which the WWC Act must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s well-being.[1] The welfare and best interests of the child are paramount.[2]
  2. [7]
    TS has not been convicted of a serious offence and the decision-maker must issue a positive notice unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so.[3]
  3. [8]
    The purpose of the review is to produce the correct and preferable decision.[4]
  4. [9]
    The decision under review is whether the Applicant’s case is ‘exceptional’.[5]

Exceptional Case

  1. [10]
    The term ‘exceptional case’ is not defined in the WWC Act. 
  2. [11]
    In Commissioner for Children and Young People and Child Guardian v Maher & Anor,[6] the Court of Appeal accepted that identifying and weighing risk factors and protective factors was an appropriate approach. The Court found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
  3. [12]
    The passage of time since allegations or convictions is not determinative of whether or not a case is an ‘exceptional case’.[7]
  4. [13]
    Hardship or prejudice to an Applicant are not relevant in determining whether a case is exceptional.[8]
  5. [14]
    Section 226 of the WWC Act sets out mandatory considerations that must be considered, when deciding whether there is an ‘exceptional case’ where the person has been convicted of or charged with an offence. Section 226 is not an exhaustive list of considerations.

Criminal History

  1. [15]
    In relation to the commission of offences by the Applicant, the tribunal must have regard to the matters set out in s 226(2) of the WWC Act.
  2. [16]
    None of the offences are serious offences or disqualifying offences as prescribed by Schedules 2 - 5 of the WWC Act. 
  3. [17]
    TS was charged with her first offence at the age of 13. She was charged with a variety of offences as a juvenile (between 2000 – 2004) including:
    1. Assault police officer and obstruct police officer (13 charges);
    2. Wilful damage;
    3. Possess graffiti instrument;
    4. Behave in a disorderly manner;
    5. Stealing;
    6. Enter or remain unlawfully with others in building or on land used in connection with same;
    7. Wilful damage – police property;
    8. Enter premises and commit an indictable offence;
    9. Wilful damage to property caused by spraying, writing, drawing, marking, applying paint or other substance;
    10. Unauthorised dealing with shop goods;
    11. Without lawful excuse found in any dwelling house etc;
    12. Unlawful use of motor vehicle;
    13. Common assault;
    14. Minor-consume liquor/possess liquor on licensed premises;
    15. Wilful destruction of property in the night; and
    16. Commit public nuisance.
  4. [18]
    One conviction was recorded during her period of juvenile offending. Various penalties were imposed including a good behaviour bond, probation, community service, court ordered anger management and substance abuse programs, a reprimand and detention.
  5. [19]
    Between 2005 – 2009, TS was convicted of a variety of offences including:
    1. Serious assault (5 charges);
    2. Obstruct police officer;
    3. Assault police officer;
    4. Enter or in premises with intent to commit an indictable offence;
    5. Arson;
    6. Possess utensils or pipes etc;
    7. Receiving;
    8. Stealing;
    9. Wilful damage;
    10. Wilful damage – police property;
    11. Possessing dangerous drug;
    12. Commit public nuisance; 
    13. Drunk or disorderly in premises to which a permit/licence relates;
    14. Producing dangerous drugs;
    15. Breach of bail conditions;
    16. Breach of community service order;
    17. Breach suspended sentence;
    18. Breach probation.
  6. [20]
    TS was sentenced to a range of penalties for her offending between 2005 – 2009 including recording of convictions for all charges, probation, community service orders, fines and terms of imprisonment.[9]
  7. [21]
    No charges or convictions are recorded from 2009 until November 2013, when TS was convicted of commit public nuisance and assault or obstruct police officer. For this conviction, TS was placed on 12 months probation and a 3 month banning order was imposed.[10]
  8. [22]
    Many of the offences are violent in nature. Others involve use of drugs and other anti-social behaviour. There is no evidence that any of the offences specifically involve children.
  9. [23]
    The tribunal considered the circumstances relating to the criminal history. 
  10. [24]
    TS provided 2 written statements to the tribunal, dated 22 January 2016[11] and 21 September 2016.[12] TS also gave oral evidence.
  11. [25]
    TS describes her childhood and adolescence as traumatic. She informed the tribunal of childhood sexual abuse, domestic violence, foster care placements, periods of homelessness and further sexual abuse as an adolescent. She describes substance abuse, self-harming behaviour and suicide attempts. She gave evidence that her actions were partly in a response to the trauma that she experienced as a child as contributing to her offending and that she had “no care factor for any of my actions”.[13]
  12. [26]
    The Applicant’s criminal history shows 20 charges (7 convictions) for assault police officers and/or obstructs police officers. In her evidence TS states:

I wouldn’t be able to tell you how many times I have assaulted police because I honestly don’t know and even to go by my criminal history isn’t the exact number as there are offences that weren’t recorded as not enough evidence was tendered by the time the case went to court.[14]

TS expressed remorse for some of her offending directed towards police but said that at times she received unfair treatment from police. She informed the tribunal of excessive force complaints and that she has “caused a few separate CMC investigations”.[15] She also gave oral evidence that her relationship with police has changed in recent years. She said it has been 10 years since her last deliberate attack on police.

  1. [27]
    TS informed the tribunal that she has recently made various disclosures about sexual abuse which occurred during her adolescence. As a result of these disclosures, the alleged offender has been charged. These charges are currently before the criminal courts. She informed the tribunal that what happened to her as a teenager is a contributing factor to her criminal behaviour.[16]
  2. [28]
    TS also acknowledged a long history of substance abuse, including illegal drugs and excessive alcohol consumption. She gave evidence of daily drug use between the ages of 14-19. A large number of her offences occurred in the context of drug use and/or excessive alcohol use.
  3. [29]
    TS described her offending behaviour as in the past but also acknowledged that it has only been three years since her last offence.
  4. [30]
    In 2013, she was charged with commit public nuisance and assault or obstruct police officer. The charges related to an incident that occurred when she was attending ‘Oktoberfest’ celebrations at a local establishment. 
  5. [31]
    TS admitted that she had ingested mushrooms for the first time and that she had consumed 6 rums over a period of 8-9 hours. She was spraying patrons with a water pistol. TS says she was having a water pistol fight with a friend. A security officer told her to leave. TS admits that she threw a cup of water in the security officer’s face. Security began escorting her from the premises and police came to assist security. TS was resisting and she flailed her arm, striking police. TS gave evidence that the reason she was resisting when being escorted from the premises was that she believed it was security, rather than police, escorting her from the premises. She said that if she had known that it was police then she would not have resisted.
  6. [32]
    Prior to the 2013 offence, TS had not been charged since 2009, when she was convicted of producing dangerous drugs and possess utensils or pipes for use. A search warrant was executed at TS’s address and TS was found to be producing a 10 centimetre cannabis plant in a pot. The police also found a cone piece which contained burnt cannabis.
  7. [33]
    TS informed the tribunal that she had found a cannabis seed in her handbag and that she had thrown the seed into a pot to see if it would grow. She informed the tribunal that she was not using drugs at the time of the offence in 2009 as she was pregnant with her daughter.

Child Protection History

  1. [34]
    The tribunal received evidence from TS that a significant turning point in her life was the birth of her daughter ES. ES was aged 6 at the time of the hearing. 
  2. [35]
    DOCS records were obtained pursuant to a Notice to Produce. 
  3. [36]
    On 14 June 2011, ES was admitted to the M Hospital after sustaining bruising, allegedly from falling from her cot. She was then transferred to the Mackay Base Hospital as she developed vomiting and her injuries were inconsistent with falling from her cot. 
  4. [37]
    At the time that ES’s injuries occurred, she was in the care of AB, TS’s then partner. TS had left ES in AB’s care while she went out to get some breakfast after staying up all night the previous evening. She was called home by AB shortly after she left because ES had been injured. TS called the ambulance and ES was transported to hospital.
  5. [38]
    ES was in hospital for 8 days. An initial investigation by DOCS determined that ES had suffered physical and emotional harm and was at risk of further harm. As it could not initially be determined whether TS was involved with the assault or if she had failed to act protectively, DOCS took ES into their care. 
  6. [39]
    TS ended her relationship with AB shortly after ES was removed from her care.
  7. [40]
    DOCS records show that AB was criminally charged with assault occasioning bodily harm for ES’s injuries. TS informed the tribunal that he was convicted of this charge.
  8. [41]
    TS worked with DOCS under an Intervention with Parental Agreement. ES was ultimately returned to her care on 27 April 2012. 
  9. [42]
    In oral evidence TS informed the tribunal that AB had never been violent before the incident with ES and that she had no concerns leaving ES with AB at the time. She said that ES had been a bit wary of AB and that she wasn’t as friendly towards him but that there was no way that she could have known what AB was going to do. She said that she now understands that AB assaulted her child and that she never found out why.
  10. [43]
    TS admitted that she had informed DOCS that she was “winging it” when it came to parenting. She said this was a random comment and that because ES is her first child she is still learning.
  11. [44]
    TS also admitted that she used to leave ES alone in the bath for a couple of minutes while she went outside. She said that she now knows that you are not supposed to do that and that she has gained age appropriate information from the parenting course she had undertaken. 

History of bipolar disorder, self-harm and substance abuse

  1. [45]
    The tribunal may consider the Applicant’s mental health history as a matter relevant within s 226(e) and generally. This is consistent with previous tribunal decisions.[17]
  2. [46]
    Records from the M and District Support Services, M Community Health and M Hospital were obtained by order of the tribunal.
  3. [47]
    The tribunal received evidence that TS has a significant history of bipolar symptoms and that she has experienced manic, hypomanic and major depressive episodes culminating in significant acts of self-harm.[18]
  4. [48]
    TS reported that there have been difficulties over the years in diagnosing her mental illness. She gave evidence that at times she has been diagnosed with depression, anxiety, schizophrenia, drug induced psychosis, borderline personality disorder, bipolar disorder and post-traumatic stress disorder. 
  5. [49]
    She described her symptoms as rapid thinking, highs and lows and nightmares. She informed the tribunal that she also suffers from insomnia.
  6. [50]
    TS reported that she currently manages her symptoms through the use of medication. She takes a mood stabiliser and an anti-psychotic. She also takes Valium occasionally and visits her General Practitioner, Dr MS, every couple of weeks. 
  7. [51]
    A letter from TS’s General Practitioner, Dr MS, dated 18 July 2016, was also admitted into evidence.[19]  In this letter Dr MS writes:

She has new onset issues with past sexual abuse and needs to be doing counselling with an appropriate person. She is not drinking excessively anymore and she is still smoking marijuana for coping. She cares for her 6 year old daughter too. I am also referring her to ATOD’s as dual diagnosis.

  1. [52]
    TS acknowledges significant substance abuse issues that she says are all now in the past. She states that she started smoking at the age of 11, using marijuana at the age of 12 and drinking alcohol at the age of 13. She informed the tribunal that she was “chroming” and injecting “speed” at age 14. 
  2. [53]
    She does not receive counselling or support for substance abuse issues but she is receiving counselling in the context of childhood sexual abuse. She denies any current drug use and says that the last time she did drugs was when she tried mushrooms in 2013. She informed the tribunal that she continues to socialise with people who use drugs but she does not see this as a risk factor for herself reverting to drug use.
  3. [54]
    TS acknowledged excessive alcohol use as a contributing factor to her offending and said that she now limits herself to just a few drinks. She informed the tribunal that she no longer drinks spirits.
  4. [55]
    TS also describes self-harming or cutting behaviour that first occurred when she was about 13 years of age. She said that she harmed herself many times, cutting her wrists and legs and leaving visible scars. She said that she no longer engages in self-harming behaviour and the last time she self-harmed was when ES was in the care of DOCS. 
  5. [56]
    She gave evidence of a number of suicide attempts with her last hospital admission being 5 years ago. She described what she called a “mental breakdown” when ES was in the care of DOCS. She said that she slashed her wrists and had 50 stitches. She gave oral evidence of another occasion when she took all of her anti-psychotics after an argument with her boyfriend.   
  6. [57]
    She informed the tribunal that she has been admitted to hospital a substantial number of times, approximately 20, for her self-harming behaviour but that she has never been placed in a mental health treatment facility and she has never been subject to an involuntary treatment order.  
  7. [58]
    Apart from her General Practitioner, TS has also received treatment from a psychologist, SF, and from a counsellor, MP.
  8. [59]
    SF provided a letter to the tribunal stating that she has seen TS on 4 occasions since 4 August 2016 in the context of historical childhood sexual abuse. In her letter to the tribunal, SF states that TS has developed some insight into the relationship between her substance abuse and anti-social behaviour. She recommends that TS continue to work on issues associated with alcohol abuse and boundaries in addition to her trauma. 
  9. [60]
    The Applicant has been receiving counselling support from MP, Senior Social Worker at M Community Health. MP provided a letter to the tribunal and also gave oral evidence. MP holds a Bachelor of Social Work.  In addition to her counselling experience, she has worked in child protection services.
  10. [61]
    MP provided evidence to the tribunal that:
    1. TS has attended 13 counselling sessions with her since 22/7/2016;
    2. The counselling is specifically in the context of historical child sexual abuse and providing support to assist her in coping with the legal process;
    3. Substance abuse is not the focus of the counselling sessions but that TS has not disclosed any and recent or current problems relating to substance abuse that would cause her to be concerned about TS’s ability to function day to day, nor about her ability to provide a safe and stable home environment for her daughter;
    4. TS’s history of abuse led to both internalising (self-destructive and risky behaviours including alcohol abuse) and externalising behaviours (repeated displays of anti-social and aggressive behaviours) in response to her pain;
    5. TS used drugs and alcohol as a teenager and in early adulthood as an attempt to cope with the trauma she experienced as a child;
    6. TS demonstrates awareness of the link between her past alcohol abuse and destructive behaviour; and
    7. TS has been open and honest with her about her childhood experiences of abuse and her criminal offending.

Other relevant information

  1. [62]
    TS has a background in hospitality work but is now studying a Certificate 3 in Community Services. She wishes to work with troubled youth and believes she has a lot to offer because of her life experience. She hopes to study a Certificate 4 in Youth Work.
  2. [63]
    She informed the tribunal of the happy home she has built for herself and her daughter and the “fresh start” she has found in the community. She described the importance of stability for her daughter and the support network she has in the community. 
  3. [64]
    TS has successfully established a small business in her local community, baking and selling cookies to order. She said that she has approximately 350 members on her Facebook page. She has been operating the business for 2 years.
  4. [65]
    The Respondent submitted that the Applicant has also demonstrated tendency to act impulsively, which is relevant to a consideration of whether an exceptional case exists. As an example, on the evening prior to the incident involving DOCS, the Applicant attempted to inject herself in the chest with an epi-pen because “her epi-pens always expire before she uses them so she decided to use it to see what happens”. In oral evidence, the Applicant admitted to this, acknowledging that it may have been impulsive. She said that it was “bad timing” that she did it the night before the incident with DOCS. She said that she now knows how to use the epipen.

Other referees

  1. [66]
    TS provided a number of personal referees. All of the personal referees provided written letters to the tribunal. AL was the only personal referee who did not provide oral evidence.
  2. [67]
    TS’s personal referees were consistent in their support of TS holding a blue card. They all attested to the fact that she has turned her life around and those with children spoke confidently of leaving their children with the Applicant.
  3. [68]
    RLB is a friend of TS’s who has known TS for 8 years as a co-worker and as a housemate. She spoke highly of TS’s skills looking after children, including her own daughter. She gave evidence that TS smokes but hardly ever drinks. She also states that TS was a great personal support to her through her own difficult times. 
  4. [69]
    MAO is a friend of TS’s who has known the Applicant for 16 years. She gave evidence that she was comfortable leaving her own 4 children in TS’s care and that the Applicant was very capable of caring for, providing for, attending to and dealing with children whilst maintaining their safety, health and wellbeing as a priority. When asked about TS’s alcohol use, she said that if TS does have a drink, she will limit herself to 1-5 drinks and will not have more than a 6 pack of beer.
  5. [70]
    SB is a high school friend of TS’s. He gave evidence that TS was a “wild child” in her teen years but that she is now a calm, caring emotional person. He also gave evidence of personal support provided by TS to him during his own difficult times. 
  6. [71]
    SB is also a friend of TS’s who has known her for approximately 6 years.  She lives in B and therefore does not see the Applicant often. She gave evidence that when she visited with TS, TS was very calm around her son and that when he misbehaved she would put him in “time out”. 
  7. [72]
    SB is a registered nurse and friend of the Applicant. She attested to the changes TS has made to her life and stated that TS is a mature role model who has learned from her mistakes. She also said she would be happy to leave her 10 year old son with TS.
  8. [73]
    SL is a friend of the Applicant. She gave evidence that two of her children were placed into the care of the DOCS. She selected TS to be her nominated carer for her children because she knows that TS can care for children and protect them.
  9. [74]
    AL provided a personal written reference for the Applicant but was not available to give oral evidence. AL has 6 children and she said that TS is great with children and TS has baby sat for her with no problems. She said she has never seen TS violent.

Is it an ‘exceptional case’ whereby the issuing of a positive notice would not be in the best interests of children? 

  1. [75]
    TS has an extensive criminal history spanning 13 years. She also has concurrent mental health issues and child protection history. 
  2. [76]
    The Respondent submits that the following risk factors are present:
    1. The Applicant has been sentenced on 24 separate occasions, generally for offences involving assaulting or obstructing police officers, public order, liquor and property-related offences;
    2. The Applicant submits that ‘her life as an adult in the past 8 years has not [been traumatic]. It has been eventful but nothing I can’t handle’ demonstrates a lack of insight into the seriousness of the Applicant’s 2013 offending and into the circumstances that led to DOCS’ investigation into the Applicant;
    3. Further, the Applicant’s statement seems to be at odds with the circumstances of the 2013 offending, in which the applicant engaged in aggressive and abusive conduct towards members of the Queensland Police and admitted to being under the influence of alcohol and drugs at the time;
    4. Further the Applicant’s statement appears to be at odds with the Applicant’s statement that there is a current police investigation of her;
    5. The Applicant’s criminal history and surrounding circumstances indicate that she lacks the ability to manage aggression and has a propensity to react violently to situations of conflict. This is of direct relevance to work with children because it suggests she may be unable to judge appropriate behaviour and manage her anger, and may resort to violence in an attempt to resolve conflict;
    6. The Applicant has been directed to attend anger management counselling by the Court, however despite the counselling she has continued to commit offences of a violent nature. This suggests she hasn’t addressed the triggers to her offending behaviour; 
    7. Many of the Applicant’s offences involved an element of substance abuse and the Applicant has admitted to long term drug use. The long term nature of the Applicant’s drug use suggests that the Applicant may be at risk of relapsing which would inhibit her ability to act protectively towards children in her care and may trigger further offending;
    8. DOCS were concerned that the injuries to the Applicant’s daughter were not consistent with the explanations given by the Applicant and were considered “suspicious” and considered that the Applicant’s daughter had “extensive” unexplained bruising. 
    9. In addition to her substance abuse history, the Applicant also has demonstrated some tendency to act impulsively. For example on 14 or 15 June 2011, the Applicant attempted to inject herself in the chest with an epi-pen because “her epi-pens always expire before she uses them so she decided to use it to see what happens”.  
    10. In June 2011 officers of DOCS considered that the Applicant’s daughter was at a very high risk of harm and that the Applicant had failed to act protectively towards her daughter. 
    11. The Applicant has a history of mental health concerns including a “significant history of bipolar symptoms” which in both manic and depressive states would inhibit her ability to act protectively towards children in her care.
  3. [77]
    The Respondent submits that the following protective factors are relevant:
    1. The Applicant has expressed remorse for her offending, particularly for the offences of a violent nature perpetrated against police;
    2. The Applicant has demonstrated some insight into the triggers of her offending behaviour and the impacts of this behaviour;
    3. The Applicant has completed a number of anger management and parenting courses;
    4. While DOCS, in June 2011 had sufficiently serious concerns about the Applicant to remover her daughter, DOCS acknowledged that the Applicant had acted protectively to her daughter by promptly seeking medical assistance, had not acted to hinder the investigation in any way, and that the Applicant took steps to end the relationship with her former partner while the DOCS investigation was conducted;
    5. The Applicant has received treatment for her mental health issues, as evidenced by the reports of her general practitioner Dr MS and psychologist Dr SF, and is currently seeing a social worker;
    6. Dr SF reports that the Applicant “has developed some insight into the relationship between her substance abuse and anti-social behaviour”;
    7. The Applicant has detailed appropriate strategies for dealing with children’s behavioural issues;
    8. The Applicant has provided a reference and witness statements from several people who support her working with children. These people have also attested to her positive interactions with children;
    9. The witness statements provided by the Applicant also demonstrate that she has a support network in place;
    10. The Applicant is committed to furthering her education through study.  She is presently undertaking a Certificate III in Community Services and has expressed an intention to subsequently enrol in a Certificate IV in Youth Work; and
    11. The Applicant appears to presently be living a more stable lifestyle.
  4. [78]
    Consistent with the approach approved by the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor,[20] the tribunal has weighed the risk and protective factors in determining whether there is an exceptional case. I make the following observations about the identified risk and protective factors.
  5. [79]
    Many of the entries in TS’s criminal history involve violent offending against both police and members of the public. Persistent violent offending is of concern to her ability to work with children because it suggests the Applicant may resort to violence in an attempt to resolve conflict. TS has attended Anger Management courses. The tribunal accepts the Respondent’s submission that TS’s offending continued after participation in these courses indicating that she has not fully addressed the triggers for her offending.
  6. [80]
    TS has described her childhood sexual abuse as contributing to this offending. She is now attending counselling to specifically deal with the childhood sexual abuse and to assist her to cope with the associated legal proceedings. However, TS is not receiving ongoing support to specifically deal with her issues associated with substance abuse, despite this being recommended by her Psychologist and General Practitioner. 
  7. [81]
    SF, the Applicant’s Psychologist, indicated that TS has developed some insight into the relationship between her substance abuse and the impacts of her offending behaviour. TS at times gave evidence that appeared to be at odds with an understanding of the impacts of violent offending. For example, she stated that the only reason she resisted/struck out towards the police officers in 2013 was because she believed them to be security guards. This indicates to the tribunal a lack of understanding of the impact and seriousness of violent offending against members of the public generally, not just police officers.
  8. [82]
    The Respondent submits that the long term nature of the Applicant’s drug use suggests that the Applicant may be at risk of relapsing. The Applicant gave evidence that she no longer uses illegal drugs, the last time being mushrooms in 2013. The tribunal received written evidence from the Applicant’s General Practitioner, Dr MS, that in July, 2016 TS was using cannabis for coping. TS denies actual use of cannabis in July, 2016 and said she was simply “thinking” about using cannabis for coping.  
  9. [83]
    The tribunal is satisfied that there is a very real risk of recidivism of drug use in light of:
    1. The Applicant’s admitted history of substance abuse (14 years); and
    2. The fact that the Applicant is not seeking counselling or other support services specifically for her substance abuse issues; and
    3. The relatively short time since her last admitted use (2013). 

Relapsing into drug use, a trigger for her violent offending, would inhibit the Applicant’s ability to act protectively towards children in her care and may trigger further offending.

  1. [84]
    The Respondent submits a significant risk factor is that the Applicant has a history of mental health concerns, including a “significant history of bipolar symptoms” which in both manic and depressive states would inhibit her ability to act protectively towards children in her care. TS is engaged with medical and mental health support services to address her bipolar symptoms and her evidence was that her symptoms are currently stable.   However, as recently as July, 2016, the TS’s General Practitioner described “new onset symptoms”. This indicates to the tribunal that the issues are ongoing. 
  2. [85]
    A protective factor in the Applicant’s favour is her dedication and commitment to her daughter. While in 2011 DOCS had concerns that the Applicant had failed to act protectively, ES was ultimately returned to her care following their investigation. The Respondent acknowledges in submissions that the Applicant sought immediate medical attention for ES, cooperated with DOCS and ended her relationship with AB. ES was reunified with the Applicant after 10 months. DOCS records showed no further notifications or concerns relating to the Applicant after the incident involving AB. The Applicant acknowledges the seriousness of the assault and makes no excuses for his behaviour.   
  3. [86]
    All of the Applicant’s personal referees attested to the Applicant’s reformed character. The Applicant has a good support network and appears to be leading a more stable life in recent years. She is taking steps to further her education and to build up her home-based business.
  4. [87]
    The Respondent argued that insufficient time has passed to demonstrate that the underlying issues which have resulted in the Applicant’s offending behaviour have resolved and she is not at risk of reoffending. Her last offence occurred only 3 years ago in the context of admitted drug and alcohol use. The tribunal agrees with the Respondent that the Applicant has not yet demonstrated that she has resolved the issues underlying her offending and that she is not at risk of reoffending.
  5. [88]
    While the Applicant has clearly taken a number of positive steps towards stabilising her mental health issues and addressing the triggers of her offending behaviour, the tribunal is not satisfied that sufficient progress has been demonstrated at this stage. 
  6. [89]
    In reaching its decision, the Tribunal also considered the Respondent’s submission that a positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities.
  7. [90]
    On balance, the Tribunal is satisfied that TS’s case is an exceptional case, in that she should not be issued a positive notice, and the Tribunal confirms the decision of the Respondent.

Non-publication

  1. [91]
    The Tribunal may act on its own initiative to make a non-publication order and has done so in previous decisions.[21] 
  2. [92]
    Non-publication was raised with the parties by the Tribunal at the hearing.  The Applicant said she would have asked for this had she been aware it was possible. The Respondent indicated they were not opposed.    
  3. [93]
    Confidential information relating both to TS’s mental health history and to the child ES, formed a significant part of the evidence before me. I therefore find that the reasons ought to be published, other than to the parties, in a de-identified form only.  

Footnotes

[1]WWC Act, s 6.

[2]Ibid, s 360.

[3]Ibid, s 221.

[4]Queensland Civil and Administrative Tribunal Act 2000 (Qld), s 20(2).

[5]WWC Act, s 353.

[6][2004] QCA 492.

[7]Ibid.

[8]AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

[9]Exhibit 1, 064-067.

[10]Ibid, 067.

[11]Exhibit 2, 053 – 060.

[12]Exhibit 3.

[13]Ibid, 6.

[14]Ibid, 9.

[15]Ibid, 9.

[16]Ibid, 5-9.

[17]Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266; XL v Blue Card Services, Justice Services, Department of Justice and Attorney-General [2016] QCAT 454.

[18]Request for Medication Review by RJ Adams dated 17/03/2014 admitted as Exhibit 8. 

[19]Exhibit 9.

[20][2004] QCA 492.

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

Close

Editorial Notes

  • Published Case Name:

    TS v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    TS v Director-General Department of Justice and Attorney-General

  • MNC:

    [2017] QCAT 241

  • Court:

    QCAT

  • Judge(s):

    Member Lanigan

  • Date:

    27 Jun 2017

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
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
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
Preradovic v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 266
2 citations
Jump To
Cite 1 - [2016] QCAT 266
Cite 2 - [2016] QCAT 266
XL v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General [2016] QCAT 454
3 citations
Jump To
Cite 1 - [2016] QCAT 454
Cite 2 - [2016] QCAT 454
Cite 3 - [2016] QCAT 454

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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