TRN v Director-General, Department of Justice and Attorney-General
[2018] QCAT 39
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- TRN v Director-General, Department of Justice and Attorney-General[2018] QCAT 39
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TRN v Director-General, Department of Justice and Attorney-General[2018] QCAT 39
TRN v Director-General, Department of Justice and Attorney-General[2018] QCAT 39
CITATION: | TRN v Director-General, Department of Justice and Attorney-General [2018] QCAT 39 |
PARTIES: | TRN (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML171-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 5 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 22 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review – blue card – negative notice – whether exceptional case – whether not in best interests of children to issue positive notice FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – protective factors – where protective factors included support network, no prior criminal history and ceasing to associate with past undesirable influences – where applicant well regarded by family and friends – where no offences child related or committed in presence of children FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – risk factors – where applicant convicted for failing to take reasonable care and precautions in respect of a syringe or needle and possessing used utensils or pipe – where no convictions recorded – where applicant associated with persons with drug-related issues – where applicant failed to act with sufficient responsibility to keep own immediate environment safe – where applicant minimised involvement and showed limited insight into risks presented by hazard FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS –EXCEPTIONAL CASE – where applicant’s failure to appreciate seriousness of situation and attempts to minimise involvement are directly related to child-related employment – where failure to provide protective environment – where failure to properly manage immediate environment and failure to assist police to manage risk is contrary to responsibilities placed on those whom community trusts with paramount responsibility to protect children Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 221, s 226, s 360, Schedule 1 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 Re TAA [2006] QCST 11 Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 |
APPEARANCES: |
|
APPLICANT: | TRN appeared in person |
RESPONDENT: | Ms S Jayatilaka appeared for the Director-General, Department of Justice and Attorney-General |
REASONS FOR DECISION
What is this Application about?
- [1]Working with children requires an understanding of risks to their lives and safety. This means providing a protective environment. Managing the immediate environment to prevent hazards, or at least to not allow hazards, is fundamental.
- [2]On 28 November 2016, the police found two used methylamphetamine pipes and a used hypodermic needle and syringe in TRN’s car. TRN was later convicted and issued with a ‘negative notice’, meaning she is unable to work with children.[1]
- [3]TRN wants the Tribunal to review the Chief Executive’s decision. Because TRN is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.[2]
- [4]In reviewing the Chief Executive’s decision that TRN’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for TRN to obtain a Blue Card.[3] To determine this, I must identify and balance protective factors with risk factors.[4]
- [5]TRN is not required to show any error by the Chief Executive: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[5]
Is it not in the best interests of children to issue a positive to TRN?
- [6]Because a positive notice authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a positive notice to TRN.[6]
- [7]Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
What protective factors favour issuing a positive notice to TRN?
- [8]TRN is a AA-year-old dental assistant who, apart from the recent convictions, has no criminal history. TRN has never been convicted of any offences related to children or in the presence of children. She is being adequately treated for a mental health issue.[8]
- [9]TRN denied any drug use apart from a small amount of cannabis and ‘ecstasy’ when she was 18 or 19 years old. She has a AA-old son and BB step-children. She is in a relationship and says she understands the importance of being an appropriate role model to children, including to protect and keep them from any involvement in drugs. She said that being a mother has changed her attitude towards drugs, as she would not want to expose her children to drugs. She is looking to study youth awareness in drugs and alcohol.
- [10]TRN also provided a positive work reference[9] and positive written character references from one of her sisters, current partner and a friend. Unfortunately, the weight to be attached to these references must be reduced because the referees did not attend the hearing and were not available for cross-examination.[10] However, all character referees said TRN is loving, caring and dedicated. None expressed any concerns about her interactions with children.
- [11]
- [12]However, TRN’s other sister, WRN, did give oral evidence and was aware of the reasons for TRN being issued with a negative notice. WRN was straightforward and honest when giving her evidence, and was able to give a balanced view of her sister, while still showing deep love and care for her. WRN’s evidence was:
- TRN got caught up with the wrong people;
- Her life has changed for the better since becoming a Mum;
- TRN understands the consequences of whom she associates with;
- TRN poses no danger and is a good role model;
- TRN can be a “lost soul”;
- At the time of the incident, TRN’s family had been concerned that she had been taking drugs due to her erratic behaviour; and
- TRN is determined, beautiful and has a “big heart”.
- [13]I am satisfied that the evidence shows that TRN is a generally kind and caring person with a support network of family and select friends. It also shows that TRN is making positive changes to her life by ceasing to associate with past undesirable influences and focusing on being a good Mum for her little boy.
What key risk factors prevent issuing a positive notice to TRN?
- [14]The key concerns are that TRN failed to act protectively and has shown only some insight into the potential impacts of her choices on others. At the very least, the evidence suggests that as recently as November 2016, TRN’s wrong choice of associates has compromised her ability to provide a protective environment.
- [15]Following an incident in November 2016, TRN was convicted of failing to take reasonable care and precautions in respect of a syringe or needle and possessing utensils or pipes that had been used. The learned Magistrate fined her $500.00 for the first offence and $350.00 for the second offence and ordered no convictions be recorded.
- [16]In sentencing, the learned Magistrate specifically referred to this being the first occasion as a mitigating factor in recording no convictions, but nevertheless noted the seriousness of the offences.
- [17]At the time of the offences, TRN was driving an unregistered vehicle with a female passenger in the front seat. The police pulled TRN over and found multiple drug-related items in her car (including more than ten needles and syringes in the boot) and a needle in the bottom of her handbag.
- [18]Although TRN has since suggested that her passenger may have owned the items, she did not provide a name or details of anyone to assist police at the time. She claimed that she was unaware of the items and only accepted responsibility because they were in her car. She said she was trying to be a mentor for her passenger, who has children.
- [19]TRN said her “only real crime is putting trust into the wrong people and not being 100% aware of their actions at all times, especially when in my car”. She believes her problem was the people with whom she socialised at the time and she does not socialise with them anymore.
- [20]The Tribunal cannot go beyond the convictions and must accept them as they are.[13] It is difficult to accept that TRN was not aware of the items. The pipes were found in a sunglasses case in the centre console of her car. Although readily visible and claiming it was not hers, TRN did not check it. The needle was found in the bottom of her handbag, not readily accessible to others.
- [21]Even on TRN’s own evidence, she had been associating with persons with drug-related issues and failed to act with sufficient responsibility to keep her own immediate environment safe. She said that her passenger had a past history of drug charges and had already been found with utensils like syringes throughout her car a couple of weeks earlier. Despite this, she did not think to check her car.
- [22]Moreover, although TRN denied any knowledge of the items, she showed only limited understanding and insight into why the presence of those items would be a concern, the risks they present and how her claimed lack of knowledge of their presence is in itself a risk. Instead, her submissions focus on minimising her involvement, despite her plea of guilty.
Is this an ‘exceptional case’ to not issue a positive notice to TRN?
- [23]Although TRN was adamant she would never expose children to drugs or people associated with drugs, the evidence is that she has been connected with items used for illicit drugs and persons associated with illicit drug use. This shows a lack of responsibility and presents a risk of harm to children who might come into her care.
- [24]TRN’s association with someone whom she knew to have been recently pulled over for possessing hazardous items and claimed ignorance of the hazards in her immediate environment is at odds with the responsibilities of being the holder of a positive notice for a Blue Card.
- [25]TRN expressed concern about her career and that she will lose her job that she has worked very hard at for the past five years. The Tribunal accepts that TRN not having a positive notice will impact upon her employment. However, the law requires that in considering whether to allow a person a positive notice for a Blue Card, the interests of children must take priority over an applicant’s interests.[14]
- [26]The Tribunal accepts the learned Magistrate’s sentencing remarks for TRN to not let others ruin her occupation and His Honour’s recording of no convictions. However, the Tribunal’s role is different from that of the learned Magistrate. A person’s behaviour takes on greater magnitude when viewed in the context of protecting children. Children depend on adults to have insight into their actions and their likely effect.[15] Children must be protected from potentially hazardous environments, situations and people.
- [27]A person working with children must be vigilant and attuned to their immediate surrounds. The evidence is that TRN was, at the very least, unaware of illicit items presenting as potential hazards in her immediate vicinity. She was driving an unregistered vehicle at the time. She did not help the police to manage the risk by identifying any person whom she believed may have owned the hazardous items, despite claiming they were not hers. She has minimised her own involvement, without helping to minimise the risk presented by the hazardous items.
- [28]These are not the actions of a person required to act sufficiently responsible to provide a safe and protective environment for children. TRN’s failure to appreciate the seriousness of the situation and her attempts to minimise her involvement are directly relevant to child-related employment.[16]
- [29]TRN did not provide a protective environment. Failing to properly dispose of needles and syringes stored in easily opened containers within her vehicle raises significant concerns about her ability to act protectively of others who may be in her vehicle and particularly children who may be in her care.
- [30]Unfortunately for TRN, these risk factors outweigh the protective factors. TRN’s case is exceptional because her recent failure to properly manage her immediate environment and appreciate the risk it presented is contrary to the responsibilities placed on those whom the community reposes its trust with the paramount responsibility to protect children.
- [31]TRN needs to take responsibility for her own actions so the community can be satisfied that she can be trusted to work with children. Issuing TRN with a positive notice at this time is not in the best interests of children.
- [32]During the hearing, TRN said that becoming a Mum means she now has purpose and therefore has no need to associate with undesirable influences. The Tribunal encourages TRN to continue to focus her energies on being the best Mum she can, and with some more time, she might be in a position to show that she might again be eligible for a Blue Card.
Non-publication order
- [33]The Tribunal considers that it is the interests of TRN’s children and in the interests of justice that an order is made to prohibit the publication of any information in these proceedings that could identify the children in any way.[17] This order extends to material on the Tribunal file and the names of the applicant and family members.
- [34]Accordingly, these reasons are published in a de-identified format.
Conclusion
- [35]Because her case is ‘exceptional’, the correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 26 June 2017 to issue TRN a negative notice.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, Schedule 1.
[2] Ibid, s 226.
[3] Ibid, s 221.
[4] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[6] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(a), s 360.
[7] Ibid, s 6(b).
[8] Report of Dr BEP dated 16 December 2017.
[9] Email CME To Whom It May Concern dated 19 January 2018.
[10] Statutory Declaration of GS sworn 9 May 2014 and email dated 28 July 2016; Reference of PT dated 15 September 2016; Reference of LS dated 17 September 2015; Reference of DY dated 19 February 2017; Reference of JA dated 10 June 2017; Reference of VX undated.
[11] QPS Court Brief dated ZA.
[12] Reasons for the decision to issue a negative notice dated ZB.
[13] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257, [37].
[14] HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [63].
[15] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.
[16] HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [65].
[17] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.