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LMC v Director-General, Department of Justice and Attorney-General QCAT 254
LMC v Director-General, Department of Justice and Attorney-General  QCAT 254
Director-General, Department of Justice and Attorney-General
12 May 2017
15 May 2017
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant has an aged criminal history, comprising of a single unrecorded conviction for stalking – where stalking is not an offence defined by the Act as serious or disqualifying – where the respondent issued a negative notice to the applicant – where the applicant sought a merits review – where the applicant has substantial protective factors and minimal risk factors – where the applicant’s case is not exceptional
EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would endanger the mental health of a person – where to publish would disclose confidential information – where to publish would be contrary to the public interest
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 167, s 221, s 226, s 360
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, 66
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commission for Young People v V (2002) 56 NSWLR 476
TAA, Re  QCST 11
Volkers v Commission for Children and Young People and Child Guardian  QCAT 243
Mr I McCowie, Government Legal Officer for the Director-General, Department of Justice and Attorney-General
REASONS FOR DECISION
What is this application about?
- The applicant applied to the respondent for a Blue Card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) (the application).
- On 21 June 2016, the respondent rejected the application and issued a negative notice under the WWC Act. The applicant requests this tribunal review that decision.
- By her own account, the applicant was a rather anxious and sensitive child. She and her siblings were raised to accept the teachings of a religious group that she described as a cult. She had little by way of outside friendships and lived a sheltered life. In about 1995, she left the religious group at the age of 25 years.
- By 1997, the applicant had developed trichotillomania (hair pulling disorder) and she sought professional mental health assistance from the [name withheld] Mental Health Clinic. She was a patient of the clinic between 1997 and 2001. Clinicians diagnosed the applicant with trichotillomania, obsessive-compulsive disorder, and finally borderline personality disorder.
- Through the mental health clinic, a female psychologist assisted the applicant on a regular basis. The applicant formed a bond with her and tried to take the relationship further. It was at about this time that she was dealing with depression and anxiety, while coming to terms with her own sexuality. She believed that she was in love with her psychologist and she proceeded to stalk her, having the delusional belief that they could be friends. Stalking behaviours, which included sending flowers to the psychologist’s home, increased when the clinician ended the professional relationship. By her own account, at that time the applicant was irrational, delusional and feeling very frustrated and distressed. She acknowledges that in hindsight she was mentally very unwell.
- She now appreciates that the kind of relationship she believed she could have with her psychologist would have crossed many boundaries. But at the time, the applicant says she had no insight into the fact that such relationship would have been unethical, unhealthy, and inappropriate.
- The applicant approached the Transport Department, claiming that she was in a traffic accident with the complainant, and obtained the psychologist’s home address over the counter.
- In July 1999, the applicant approached a health worker at the mental health clinic where her psychologist worked and said words to the effect of ‘[name withheld] should be scared. If I meet her she will really know what scared is.’
- On 14 March 2000, the applicant telephoned the mental health clinic and said she ‘wanted to blow [name withheld]’s head and kneecaps off’. During the call, the applicant said she had a semiautomatic gun which belonged to her father. In evidence, the applicant said that in fact, her father did not have any gun.
- Police interviewed the applicant in relation to the matter at the [name withheld] Private Hospital in the presence of a nurse who was aware of the applicant’s mental health conditions. By that time, the applicant had been diagnosed as suffering from borderline bipolar disorder and she was receiving medication. The applicant gave an account to the police willingly, stating that she did make a phone call to the mental health clinic but did not threaten the psychologist. She went on to say that when she is sick, she has an infatuation which she could not control. The applicant further stated that she was feeling ill prior to the making of the phone call to the clinic and took controlling medication, but the medication did not work until after the phone call was completed.
- Some six weeks later, at the request of police, the applicant went with her mother to the police station and she was arrested and charged for stalking.
- According to the disclosed police records, the stalking charge was not referred to the Mental Health Tribunal to determine whether the applicant was fit to stand trial for the offence. The police decision to proceed with the prosecution was based on information obtained from doctors from the same mental health clinic where the psychologist worked.
- The unlawful stalking charge proceeded to be dealt with by law and on 22 March 2001, the applicant entered a plea of guilty in a Magistrates Court to unlawful stalking. The presiding magistrate did not record a conviction and imposed a recognisance (a bond) in the sum of $500 for the defendant to be of good behaviour for 12 months.
- That is the extent of the disclosed criminal history for the applicant.
- After presenting her application for a Blue Card, officers of Blue Card Services spoke with the applicant in relation to the stalking conviction. The applicant acknowledged her wrongdoing and said that she was very unwell, with admissions in and out of hospital and she was coming out as a gay person.
- The respondent rejected the application due to concerns about the stalking conviction and the applicant’s mental health condition.
The tribunal conducts a merits review
- The tribunal has all the functions of the decision-maker for the reviewable decision. The tribunal conducts the review within the same legislative framework as the primary decision-maker and has the power to confirm or amend the decision, set aside the decision (and substitute its own decision) or set aside the decision (and return the matter for reconsideration to the decision-maker).
- In conducting the review, the tribunal does so by administering the principles contained in the WWC Act. The WWC Act is to be administered under the following principles:
- The welfare and best interests of a child are paramount;
- Every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.
- The tribunal must have regard to this principle in the context of reviewing child-related employment decisions.
The legal test
- The screening of persons in employment or carrying on particular businesses is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland. A Blue Card authorises a person to work with children in any environment, whether supervised or not.
- Often, as in this case, the tribunal must decide where the applicant has suffered criminal convictions.
- For an applicant with a conviction for a serious offence, the default position is that the respondent must issue a negative notice (that is, deny the applicant a Blue Card). Otherwise, the case must be exceptional to warrant issuing a negative notice to the applicant.
- The principles apply equally to the tribunal when it conducts a review.
The position in this case within the determinative framework
- In this case, the applicant has only one unrecorded criminal conviction. The offence was stalking, which is not defined in the WWC Act as a serious offence.
- At the hearing, it was common ground that the basis upon which the respondent denied the applicant a blue card was the criminal conviction and the applicant’s mental health issues.
How does the tribunal determine whether this case is exceptional?
- The tribunal must have regard to the considerations prescribed by section 226 of the WWC Act in determining whether an exceptional case exists, based on the conviction for stalking. The considerations listed in section 226 are not an exhaustive list.
Risk factors and protective factors
- The tribunal must consider protective factors and risk factors in deciding whether a case is exceptional.
- The tribunal must not proceed on the basis that there is to be no risk. That is not the appropriate test. The relevant function of the tribunal is to undertake an analysis and evaluation of risk. The weight the tribunal applies to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.
- The applicant gave evidence and called two professionals, a clinical psychologist, and a psychiatric mental health nurse.
The evidence of the clinical psychologist, Dr AB
- Dr AB is a clinical psychologist and member of the Australian Psychological Society College of Clinical Psychologists. She provided a report addressed to the tribunal and gave direct evidence at the hearing.
- Dr AB says the stalking offence was not in relation to a child or children and the applicant has no further offences.
- The applicant consulted Dr AB from February 2013 until early in 2016. Dr AB encouraged the applicant to transition to another therapist psychologist given that she planned to retire sometime in the next year and it would be wise and appropriate for the applicant to do so, so that she was not left unsupported.
- Regarding the applicant’s insight, in her report Dr AB said:
[The applicant] is very aware of how inappropriate her behaviour was at the time. Over the last few years she has shown to be capable of making good decisions and not acting on impulse and was able to respect other people’s boundaries.
- During the hearing, Dr AB said that the applicant is insightful, able to cope and has good support. Regarding the risk of reoffending, she said that she is no greater risk than anyone else, citing herself and those attending the tribunal by way of general comparison. She supported her statement by saying that if the applicant was truly recidivist then something else would have shown up by this time. In short, she assessed risk levels as of no significance to the safety of children (or adults).
- Dr AB described the medication taken by the applicant prior to their involvement as ‘heavy duty’. She worked with the applicant in a planned approach under the care of a psychiatrist to come off that medication over a period of two years, and did so while maintaining stability. Dr AB said that the applicant has remained stable since she has been taken off the strong medication.
- Dr AB said that the applicant does (now) respect boundaries.
- Dr AB said that the stalking actions (the subject of the conviction) were an attempt to get attention, that the applicant misread the situation and that her actions were not predatory.
- Dr AB was critical of the complainant psychologist, suggesting that as a trained therapist she ought to have known how to deal with the common occurrence of patients who attempt to disrespect boundaries. She said that the therapist overreacted.
- Mr McCowie urged the tribunal to give little weight to Dr AB’s criticism of the complaints to police by the applicant’s former psychologist, because Dr AB is not qualified to make such statements. Mr McCowie pressed Dr AB about her academic and experiential qualifications. The tribunal determines that Dr AB is a highly credentialed and experienced clinical psychologist of long-standing, with impressive and relevant qualifications.
- The tribunal does not accept the submission that the evidence of Dr AB should be given little weight. The tribunal accepts the evidence of Dr AB. The evidence of Dr AB, when considered in the context of the penalty imposed by the learned magistrate, suggests to the tribunal that the offending behaviour was of a low level of criminality for this offence.
- The tribunal accepts the evidence of Dr AB in its entirety. The evidence presented by Dr AB is strong evidence of the existence of protective factors in favour of the applicant, with minimal risk factors.
The evidence of the psychiatric mental health nurse, Mrs CD
- Mrs CD is a psychiatric mental health nurse. She provided a report to the tribunal and gave direct evidence to the tribunal at the hearing.
- In her report, Mrs CD said that the applicant has a long history of mental health care. She first consulted with the applicant in private practice in October 2014, however she was previously well known to her when she was employed with the public adult mental health service. Mrs CD spoke of the applicant’s extensive outpatient psychiatric consultations with her and a consultant psychiatrist.
- Mrs CD said that the applicant’s psychiatric conditions are stable. The applicant meets with Mrs CD or her psychiatrist every three to four weeks, and is compliant with her medication plan. The medication is suitable.
- Mrs CD said the applicant has long-term and stable support networks and shows good engagement. The applicant complies with management plans and successful strategies are in place to deal with her depressive disorder. No major mental health issues are noted and her ongoing risk assessment towards herself or others is low.
- Mrs CD spoke of specific strategies involving the applicant that have been, and continue to be, successful and they are:
- Cognitive behaviour therapy, where the applicant develops her own strategies;
- Dialectic behaviour therapy, which incorporates extensive counselling and challenges the thoughts, reactions, and emotions of a patient; and
- Trauma therapy.
- Mrs CD says the applicant has developed well because of these therapies. Mrs CD described the applicant’s progress in this way:
After many years and with extensive psychological input [the applicant] has not repeated any of these offences. She has engaged well in her recovery and maturity has contributed to her success. [The applicant]’s previous offences were some 16 years ago, and now at the age of 46 years, she should be commended on her participation in her recovery. Today, [the applicant] reports only minor mood disturbances secondary to frustration and prejudicial lifestyle, mainly depression and anxiety.
- The tribunal notes that Mrs CD described the applicant’s offences as ‘documented offences of stalking in the years 1997 and 2001’. The tribunal notes that in 1997, a prosecution was commenced against the applicant for stalking, however it was discontinued.
- Mrs CD said that issues to do with the former actions of the applicant in crossing boundaries is not an issue of any concern now. Mrs CD said that the applicant has improved and is now able to better manage her pervasive patterns of instability in interpersonal relationships, self-image, and emotions. She stated an opinion that a re-occurrence of past behaviour, noted 16 years ago, is possible but unlikely while she is engaged in a meaningful endeavour with adequate supervision.
- Mrs CD said that the applicant’s insight now is good and that she has had the benefit of intense therapy for the past 16 years. Mrs CD spoke positively of the applicant’s study towards her certificate in Mental Health and her desire, subject to receiving a Blue Card, to extend her voluntary work with FLOURISH (a community mental health outreach service). In short, Mrs CD says that the applicant’s psychiatric conditions are stable and stationary. She believes that repetition of previous unlawful behaviours is a ‘non-issue’.
- The tribunal accepts the evidence of Mrs CD in its entirety. The evidence presented by Mrs CD is strong evidence of the existence of protective factors in favour of the applicant, with minimal risk factors.
The evidence of the applicant
- The applicant spoke of her delusional period, which coincided with the period of her offending behaviour.
- The applicant expressed remorse for her actions and said that she is not now, and never has been, a violent person, but she is ashamed about how she behaved at that time. She was just trying to be the psychologist’s friend and she categorised her statements about a firearm and causing harm as a verbalisation of her delusions.
- She spoke of a relapse in 2013. She sought help and was admitted voluntarily to hospital.
- She spoke of strategies to deal with stressful situations and they include listening to music, adult colouring, meditation, tapping and walking (with her dogs). She said that she understands that therapists cannot be friends with their patients and that such friendship is inappropriate. She spoke positively of the support that she receives from mental health care professionals and her family. She did speak of problems that relate to depression and generalised anxiety, but does feel that she is able to cope with these issues. In describing her current ability to cope, the applicant said in her statement to the respondent, the following:
I have worked hard to adjust and adapt to living my life with a mental illness, over the years. I have developed healthier coping strategies/methods and I now have control over how I behave, and how I deal with stress and frustration et cetera. I am now able to cope better with the delusional thoughts and episodes of paranoia and psychosis. Yes, I still have problems with this and fluctuating mood swings and anxiety and some OCD symptoms. I still have episodes of depression and elevated mood at times. And I understand there is no cure for my condition, however I have learned how to live and cope with it. I have also been told that I have good insight. I have been supported and counselled by various clinicians and doctors and support workers over the years, who have all contributed in different ways to my growth and maturity. And, I believe my recovering journey is a lifelong one, for I hope there will always be something left to learn and some room for further growth. As, I think, so it is for the majority of people who walk this planet.
- She describes herself today as a mature, responsible, independent, law-abiding, and respectful woman, living alone with her companion dogs. She has a few close friends and gets on well with most of her family. She feels that, if it should occur, she can cope with volatility in relationships and that she has many protective factors.
- The applicant spoke of her offending period coinciding with the time when she was taking powerful medication. She said that her demeanour changed during that time. She said that she now regards herself as a sweet, loving, kind, caring, sensitive, stubborn, and compassionate person. When she was taking the strong medication, she became angry. The applicant said she is happy with her current medication regime and believes it is appropriate.
- The applicant spoke of studying for a Certificate IV in Mental Health at TAFE. She spoke of her great motivation to complete this course and to learn more than she knows already, so that she is ‘well-equipped to do my best when I have the opportunity to do some work within the community’. She spoke of her motivation to assist others and she feels the best way she can do this is utilise her life experiences to contribute to society. She spoke of the need to secure a Blue Card to advance her work in this field.
- The tribunal accepts the evidence of the applicant in its entirety. The evidence presented by the applicant demonstrates that the applicant understands the impact that her actions between 1997 and 2000 had on the complainant. She has not attempted to minimise her actions. Her evidence was honest and she demonstrated the existence of many protective factors. The applicant acknowledges and has developed strategies to cope with risk factors.
What protective factors exist in this case?
- The applicant’s protective factors are excellent coping strategies, time, insight, professional support, family and friends, appropriate and settled medication regime and strategies to deal with stress issues, including volatility of relationships, should that occur.
- Good insight into the harm that an applicant has caused is a protective factor. In TAA, Re, the former Children Services Tribunal stated:
A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.
- The tribunal concludes that there are substantial protective factors in this case.
What risk factors exist in this case?
- In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.
- In issuing a negative notice, the respondent considered that the applicant’s case was exceptional, such that it would not be in the best interest of children for the applicant to have a positive notice.
- The tribunal concludes that there are minimal risk factors in this case.
Is this an exceptional case?
- The tribunal is required to consider whether the applicant’s case is an exceptional one, such that it would not be in the best interests of children for the applicant to have a positive notice.
- Is the applicant’s case out of the ordinary, unusual, or special, such that the applicant should not have a positive notice?
- The tribunal is to determine the question on the balance of probabilities, bearing in mind the gravity of the consequences involved.
- When determining whether the case is exceptional, the tribunal must consider many matters in relation to the commission or alleged commission of an offence. The tribunal determines that the offending behaviour was at a low level of criminality for the charge of stalking. The tribunal considers the penalty imposed by the court and the expert evidence about the conduct of the complainant in that regard. The offending behaviour was coupled with strong mitigating factors.
- The time between the offending behaviour and the application is not, of itself, a relevant factor. However, the work done by the applicant, the support network that she has accessed and continues to access, and the changes that she has made are relevant factors.
- The offending behaviour did not involve children and children were not exposed to the offending behaviour.
- The tribunal is mindful of the fact that a Blue Card is ‘fully transferable’. The holder of a Blue Card can undertake a wide range of child-related activities. The Blue Card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children.
- The tribunal must make its determination by reference to what activities the holder of a Blue Card could conceivably undertake, and not what activities the holder of the Blue Card intends to undertake in relation to child-related activities.
- The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children.
- The tribunal considers that this is not an exceptional case. It would be in the best interests of children for the tribunal to overturn the decision of the respondent.
- The primary question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.
- Section 66(1) provides that:
The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
(a) the contents of a document or other thing produced to the tribunal;
(b) evidence given before the tribunal;
(c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
- Section 66(2) provides that:
The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for any other reason in the interests of justice.
- Section 66(3) provides that:
The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
- The tribunal concludes that an order prohibiting the publication of information that may enable the identity of the applicant or any witnesses who appeared before the tribunal to be identified, is necessary to avoid endangering the mental health of the applicant and to avoid the publication of confidential information. The tribunal comes to this conclusion in the interests of justice.
- The tribunal prohibits the publication of the names of the applicant and the witnesses in this case.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(2).
Ibid, s 20(1).
Ibid, s 19(3).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
WWC Act, s 6.
Ibid, s 360.
Ibid, s 5.
A ‘serious offence’ is defined in s 167 of the WWC Act.
The WWC Act also provides for ‘disqualifying offences’ however a person who suffers a disqualifying offence conviction becomes a ‘disqualified person’ and may not make an application for a blue card. Accordingly, I have not considered that type of offending behaviour within the context of this summary of the determinative framework under the Act.
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492 (Philippides J).
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291.
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492 (Philippides J).
Volkers v Commission for Children and Young People and Child Guardian  QCAT 243, .
TAA, Re  QCST 11, .
Commission for Young People v V (2002) 56 NSWLR 476.
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
WWC Act, s 226.
QCAT Act, s 66(2).
- Published Case Name:
LMC v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
LMC v Director-General, Department of Justice and Attorney-General
 QCAT 254
15 May 2017