MRS v Director-General, Department of Justice and Attorney-General
[2018] QCAT 186
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MRS v Director-General, Department of Justice and Attorney-General[2018] QCAT 186
MRS v Director-General, Department of Justice and Attorney-General[2018] QCAT 186
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MRS v Director-General, Department of Justice and Attorney-General [2018] QCAT 186 |
PARTIES: | MRS (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO/S: | CML035-18 |
MATTER TYPE: | Children‘s matters |
DELIVERED ON: | 21 June 2018 |
HEARING DATE: | 14 June 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 236, s 353, s 354, s 358 Baker v R (2004) 223 CLR 513 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 D and Department for Community Development [2007] WASAT 154 Re Faa [2006] QCST 15 R v Kelly [2000] 1 QB 198 RPG v Public Safety Business Agency [2016] QCAT 331 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | I McCowie |
REASONS FOR DECISION
Introduction
- [1]This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, to issue a negative notice in respect of the application by the applicant for a blue card.
- [2]A check undertaken by Blue Card Services revealed that the applicant had been found guilty of the offence of leaving a child under 12 unattended. The offence took place on 16 January 2016. The applicant entered into an $800 recognisance, was conditioned to be of good behaviour for 18 months, and no conviction was recorded.
- [3]The police brief in relation to the offence was summarised by Blue Card Services as follows:
- The applicant is the biological mother of the complainant.
- At 8:42pm on 16 January 2016 police received a call from a witness who stated that he was outside a house and could see a young child standing on the veranda wearing only a nappy and a shirt. The child was screaming.
- The witness advised police that there were no lights on and that there appeared to be no one home or attending to the child.
- Police attended the address and located the complainant child asleep on the veranda. No one was present at the house and the veranda was enclosed by steel railings, preventing police entry.
- The complainant child was awoken however was non-verbal and unable to assist.
- A sledge hammer was obtained and used to gain entry to the dwelling.
- The complainant child was removed from the dwelling and was taken to the hospital for examination to ensure his safety.
- On entry to the dwelling, no other people were found. The house was in disarray, however there was some food and bedding.
- The bathroom door was open and the bath was half full of water and there was no barrier preventing the complainant child from entering the bathroom.
- Identification belonging to the applicant was located inside the dwelling, however there was no contact number or information which could assist in identifying the child.
- Police left the dwelling at 9:45pm and Safe City kept watch on the dwelling to ascertain the time that the occupant returned. A notice of damage and information regarding police attendance and removal of the complainant child was left at the residence.
- The complainant child was found to be in good health and the Department of Child Safety were contacted. The Department had no record of the applicant having a child and were unable to assist with identification.
- A Temporary Assessment Order was applied for by police and was granted at 11:15pm. Police transported the complainant child to a placement with an approved carer that had been arranged by the Department.
- Safe City monitoring program alerted police that a male and female attended the residence at 11:35pm, however no phone call was received by police. The male and female were observed to leave shortly afterwards.
- At 12:05pm the applicant attended a police station with a female friend and enquired as to what had happened to her child.
- Police conducted an interview with the applicant and she provided the identity of the child. The applicant told police that she had moved into the house a week earlier and that she had been home with the complainant child that day. She stated that she had put the child to bed and, once he was asleep, walked to a friend's house. She stated that she came home half an hour later and the child was gone. She stated that she was gone from the house between 9:00pm and 9:30pm and that she did not come to the police station until midnight because she had to wait for her friend's partner to get home.
- The applicant stated that she was certain that she had left her house at 9:00pm and had checked her phone and that she got home 30 to 45 minutes later.
- She stated that she thought the complainant child would be ok as he was asleep. She stated that she did not think to call police when she found the complainant child was gone because she panicked.
- The applicant was advised that there was CCTV footage that showed her house. Police asked whether knowing that would cause her to change her times in any way and she stated that she may have left the child at 8:30pm. When asked whether she could have arrived home later than previously stated she said that she was not sure as she was not keeping track of time. She was asked what a reasonable period of time to leave a two year old alone was and she stated that it should not be very long however he was asleep and all the doors in the house were shut.
- The applicant told police that the bath tub was full of water and stated that the complainant child could not swim and could have drowned. She stated that she had forgotten about that.
- Police advised the applicant that she had left the child alone from 8:30pm until shortly after 11:30pm. The applicant agreed and stated that she did not realise it had been that long.
- The applicant was asked why she initially stated that it was only half an hour and she stated that she was scared. She stated that she had left the house to go to her friend's for dinner and had lost track of time. She stated that she could see her house from the doorstep of her friend's house and that she had not heard police or the breaking down of the door.
- The applicant admitted that it was too long to leave the complainant child alone and stated that she did not think that he could have opened his door to get out of his room and then opened the doors to get to the veranda.
- She stated that she did not take him to dinner because she did not want to disturb him.
- She stated that the complainant child did have asthma for which he took Ventolin and Flixotide but that he only needed it if his asthma plays up, which is not often.
- The Department of Child Safety returned the complainant child to the applicant's care after the expiration of the Temporary Assessment Order and had an open case to work with the applicant.
- Witness 1 to the incident stated that they heard a child screaming and followed the noise and found the complainant child on the veranda of the house. No lights were on and there was nobody responding to the child. The witness called police and waited until they arrived.
- Witness 2 stated that they heard a child screaming and found the child at a house with nobody around. The witness called police.
The “blue card” legislative framework
- [4]Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’). The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
- [5]A child related employment decision is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[2] The overriding concern is the potential for future harm to children.
- [6]The Working with Children Act deals with ‘blue card’ applications in two broad categories:
- (a)Where a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;[3] and
- (b)Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[4]
- (a)
- [7]The first category applies here.
What is meant by ‘exceptional case’
- [8]What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
- [9]Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
- (a)Whether it is a conviction or charge;
- (b)Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
- (c)When the offence was committed;
- (d)The nature of the offence and its relevance to employment that may involve children; and
- (e)In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
- (a)
- [10]Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
- [11]The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]
The applicant’s evidence and submissions
- [12]The applicant provided a written ‘life story’ and gave oral evidence to the Tribunal.
- [13]In her oral evidence, the applicant accepted that the description of the offence contained in the police brief (and summarised above) was accurate.
- [14]The applicant’s life story relevantly stated:
I would like to preface this with some information about the incident that caused a negative notice to be issued by blue card services.
In the time leading up to the incident I had moved into a brand new area in which I knew only 2 people, [J] and [S]. They were my only support network as I struggled with generalised anxiety disorder, major depressive disorder/post-natal depression and what is suspected to be borderline personality disorder.
This was unfortunately exacerbated by the recent breakdown of my marriage to my son’s father due to physical and emotional abuse. At the time I was in the very early stages of voluntary treatment for my mental health, having just begun receiving therapy through a psychologist alongside SSRI medication.
On the night of the incident I was having a particularly rough time with my son as he was teething and had been sleeping very little during the days beforehand. When I did finally get him to go to sleep I, obviously not thinking it through, went 3 houses down the road to [J] and [S]'s house with leftovers from dinner for them and to confide in them about how I was feeling at the time.
Looking back at this now that was obviously a terrible decision, stemming from exhaustion and stress, I failed in my duty of care as a parent and have since then taken the utmost care to not put a foot wrong as my son deserves better. I worked together with the department of children's services for 6+ months after the incident to ensure I had a support network and was doing everything I could to improve myself for my son.
One of the most important parts of that improvement was working towards a qualification so that I could support my son and myself without government assistance. I want to be able to give him more than that which I grew up with, unfortunately at this point in time I don't know how I'm going to do that. I was applying for a blue card so that I could continue with my diploma of nursing, one of the few things I found myself interested and able to pursue as a high school drop-out.
Receiving a negative notice has had a tangible negative effect on my mental health and has left me unsure of how to proceed from now on. It has become a major roadblock in my journey to be the best person I can for my son and I sincerely hope this can be resolved in a positive manner.
…
Things have improved significantly during my adult years, I now have a properly functioning relationship with my mother and the majority of my siblings, I am now in a stable relationship of almost 2 1/2 years. I have made friends and developed a support system of friends both in person and online as well as a regular gp that keeps a constant eye on my mental health.
Whilst I don't currently work I do my darnedest to be the best parent to my son and stepdaughter that I can as well as being a friend and confidant to my friends and their children. I ensure I am consistent with my medications so that I don't fall into another pit like I did during the incident and lean on others when I need to so I don't burn myself out.
In conclusion I believe I have done the best I can to self improve since the incident and I hope the work I put in can be seen from the outside as well.
- [15]While a direction was specifically made by the Tribunal on 9 May 2018 in relation to the applicant filing and serving any report from a general practitioner, psychologist and/or psychiatrist she wished to rely on, no such report was provided.
- [16]In her oral evidence, the applicant stated that she had commenced seeing a new psychiatrist about a month ago. The new psychiatrist was unwilling to provide a report at this stage of the applicant’s treatment. The applicant was offered an adjournment, but indicated that she wished to proceed with the hearing.
- [17]The applicant stated that she has been diagnosed with complex PTSD with borderline traits, major depressive disorder and generalised anxiety disorder. She is currently taking antipsychotic medication and a mood stabiliser. She plans on seeing her psychiatrist monthly, and is also looking for a psychologist in her area who bulk bills.
- [18]Records were obtained from the Department of Child Safety, Youth and Women in respect of the applicant. These records show that the outcome of an investigation and assessment by the Department was ‘Unsubstantiated – Child Not in Need of Protection’.
- [19]The records refer to an incident in which the applicant gave her child half a Valium to get him to sleep. The applicant conceded at the hearing that this had been ‘wildly inappropriate’.
- [20]The applicant provided Blue Card Services with three written references. They all speak highly of the applicant, and make positive observations of her interaction with children. None of the referees gave evidence at the hearing.
The respondent’s evidence and submissions
- [21]In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the circumstances of the particular case.
- [22]In applying that approach, the respondent identified the following protective and risk factors:
Protective factors
- (a)The applicant’s offending occurred at a time when she had just separated from her partner and the father of her son, and was socially isolated. The applicant now has a stronger social support network, suggesting that she may be less likely to repeat her offending conduct;
- (b)The applicant was observed to appear remorseful when she attended at the police station after the incident, and accepted that she ought not to have left her child unattended. The applicant also showed insight into the gravity of her conduct at the hearing, as well as in relation to the incident when she gave Valium to her child;
Risk factors
- (c)The applicant’s conduct in leaving her two year old child unattended while she went for dinner with friends was a significant breach of trust and responsibility to her child;
- (d)The applicant’s breach of trust and responsibility is particularly serious in that her child was only two years old, the bath tub in the house was full of water and the applicant was gone for over three hours;
- (e)The applicant admitted to giving her young son Valium, which was not prescribed to him;
- (f)The material before the Tribunal indicates that the applicant suffers from some form of mental illness which may impair her ability to act protectively and in the best interests of children in her care; and
- (g)Overall, the actions of the applicant in leaving her child unattended constitute a fundamental breach of her duty of care as a parent. Her behaviour directly exposed her child to significant danger and placed his health and wellbeing at serious risk of harm.
Is this an exceptional case?
- [23]The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
- [24]In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[9]
- [25]There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[10]
- [26]Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:
Whether the offence is a conviction or a charge
- [27]The applicant has had findings of guilt make against her in relation to the offence of leaving a child under 12 unattended. Although no conviction was recorded, the findings of guilt are regarded as convictions as defined in Schedule 7 of the Working with Children Act.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
- [28]The offence is not a serious or disqualifying offence.
When the offence was committed or is alleged to have been committed
- [29]The offence was committed in early 2016.
The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children
- [30]The circumstances surrounding the offence raise serious concerns regarding the applicant’s ability to create a safe environment for children and meet their basic needs.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision
- [31]As set out above, the applicant entered into an $800 recognisance, was conditioned to be of good behaviour for 18 months, and no conviction was recorded.
Other relevant circumstances
- [32]I have considered the risk and protective factors in the applicant’s life.
- [33]I acknowledge that the Department of Child Safety, Youth and Women assessed that her child was not in need of protection. I also acknowledge the applicant’s insight into her offending, her stronger social support network and the positive comments made in the references provided in support of the applicant.
- [34]However, the applicant’s offending took place relatively recently, approximately two and a half years ago.
- [35]Further, the applicant has attributed the offence to exhaustion and stress. She gave evidence that she struggles with mental health conditions, including generalised anxiety disorder, major depressive disorder and complex PTSD with borderline traits. While the applicant stated that she takes medication, is currently receiving treatment from a psychiatrist, and has previously received treatment from a psychologist and her general practitioner, no report was provided from any health professional. In the absence of such evidence, I am unable to be satisfied that the treatment of the applicant’s mental health conditions is such that the current risk of her reoffending has been minimised.
- [36]I note that s 236 of the Working with Children Act permits the applicant to bring an application to cancel her negative notice after a period of 2 years from the issue of the negative notice. It may be that after a further period of non-offending, and provision of a report setting out the applicant’s progress in treating her mental health conditions, a different conclusion would be reached.
Conclusion
- [37]Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
- [38]I therefore confirm the decision under review.
Non-publication order
- [39]I order that the publication of the name of the applicant and the names of any relevant children are prohibited other than to the parties to the proceeding pursuant to s 66(1)(a) of the QCAT Act.
- [40]I also order, pursuant to s 66(1)(a) of the QCAT Act, that the publication of documents obtained from the Department of Communities, Child Safety and Disability Services is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.
Footnotes
[1]Working with Children Act, s 5.
[2]Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358. See also ss 360, 6.
[3]Ibid s 221.
[4]Ibid s 225.
[5]Re FAA [2006] QCST 15, [22].
[6]Working with Children Act, s 226(2)(a).
[7]Ibid s 226(2)(e).
[8]Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, 4391.
[9]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [30].
[10]Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 331, [27].