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LB v Director General, Department of Justice and Attorney-General[2019] QCAT 167

LB v Director General, Department of Justice and Attorney-General[2019] QCAT 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LB v Director General, Department of Justice and Attorney-General [2019] QCAT 167

PARTIES:

LB

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML-272-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 June 2019

HEARING DATE:

17 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that LB’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of LB.
  2. Publication of the name or identifying information of LB, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – criminal history – charge of dangerous conduct with a weapon – conviction of possession or use of weapon under the influence of liquor or a drug – where not categorised as serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Commission for Children and Young People Bill 2000, Explanatory Notes, [10]

Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171

Commissioner for Young People v Storrs [2011] QCATA 28

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Re FAA [2006] QCST 15

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES & REPRESENTATION:

 

Applicant:

B O'Brien, Barrister-at-Law, instructed by J Anderson of LawRight

Respondent:

A Bryant, In-House Government Legal Officer

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (who is the chief executive officer), Department of Justice and Attorney General (‘the Respondent’) that the case of LB (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant is a 39 year old woman. She has two children: a daughter aged about 19 years and a son aged about 9 years. The Applicant’s son has cerebral palsy and epilepsy amongst other serious health conditions. Neither child currently lives with the Applicant although she continues to have regular contact with them.
  3. [3]
    The Applicant’s criminal history contains:
    1. (a)
      A charge for dangerous conduct with a weapon – domestic violence offence; and
    2. (b)
      A conviction for possession or use of a weapon under the influence of liquor or a drug.
  4. [4]
    The Applicant seeks a blue card to study for a Diploma of Nursing.
  5. [5]
    In May or June 2017, the Applicant applied to the Respondent for a positive notice and blue card under the WWC Act.
  6. [6]
    The Respondent considered the Applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that the Applicant had been charged or convicted for an offence other than a serious offence.[1] The Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[2] Accordingly, by letter dated 21 August 2018, the Respondent advised the Applicant of its decision to issue a negative notice.
  7. [7]
    The Applicant has applied to the Tribunal for review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[3] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[4] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the Respondent issued a negative notice.[5]
  2. [9]
    The Applicant has satisfied the prerequisites to apply for the review because the Applicant is not a ‘disqualified person’ and the Applicant applied to the Tribunal for review within the prescribed 28 day time limit.[6]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the Respondent as to whether or not there is an exceptional case for the Applicant, because that decision resulted in her being issued with the negative notice.[7]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[8]
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[9]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[10]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[11]
  5. [16]
    The role of the Respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[12]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that where a person has been charged or convicted with an offence other than a serious offence,[13] a positive notice must be issued[14] unless the Respondent is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. In that case, a negative notice must be issued.[15]
  2. [18]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [19]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person –
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
  1. [20]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [21]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [22]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and
  1. (b)
    is aware that the person has been convicted of, or charged with, an offence.
  1. (2)
    The chief executive must have regard to the following -
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person-
  1. (i)
    whether it is a conviction or a charge;
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed;
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. (a)
    any information about the person given to the chief executive under section 318 or 319;
  1. (b)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (c)
    any information about the person given to the chief executive under section 337 or 338;
  1. (d)
    anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [23]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [24]
    The Tribunal cannot go beyond convictions and must accept them as they are.[16] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[17]
  3. [25]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[18]
  4. [26]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[19]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [27]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[20]
  2. [28]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[21]
  3. [29]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[22]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [30]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott No.2, Buss J observed:[23]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [31]
    The Tribunal should consider risk and protective factors when determining a review decision.[24]
  2. [32]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[25]
  3. [33]
    Neither party bears the onus in determining whether an exceptional case exists.[26]
  4. [34]
    The Tribunal must review a decision under the WWC Act under the principle that the welfare and best interests of a child are paramount.[27]

Matters required to be considered by section 226 of the WWC Act

Criminal history information given under section 318 of the WWC Act

  1. [35]
    The Applicant’s criminal history contains:
    1. (a)
      A charge for dangerous conduct with a weapon – domestic violence offence; and
    2. (b)
      A conviction for possession or use of a weapon under the influence of liquor or a drug.
  2. [36]
    Neither are a serious offence nor a disqualifying offence.[28]
  3. [37]
    Both offences were committed, or alleged to be committed, on 5 April 2016 and relate to the same incident.
  4. [38]
    The facts relevant to the offences, noted in the Queensland Police Service (‘QPS’) Brief, is that on the evening of 4/5 April 2016, the Applicant returned to the house where she was residing with her parents (who were asleep at the time). The Applicant hid the phones in the house. She then obtained a key to her parents’ gun safe and retrieved two guns from the safe which she placed outside the house. Between midnight and 12.30am, the Applicant woke her parents. She told them that she had hit a kangaroo and asked her father to go outside and have a look. The Applicant’s father walked outside with the Applicant following. The Applicant was heard to say ‘sorry Dad’ and the Applicant’s father turned around to find the Applicant pointing a gun at him. The Applicant’s father talked to the Applicant. A couple of times, the Applicant lowered and then again raised the gun. The Applicant eventually lowered the gun and placed it on the ground. When police arrived, the Applicant’s parents were inside the house and the Applicant was outside the house without any weapons.
  5. [39]
    The QPS Brief noted that the Applicant was originally charged with dangerous conduct with a weapon – domestic violence offence, however no evidence was offered on that charge and the charge was changed to possession or use of a weapon under the influence of liquor or a drug. The Applicant was convicted of possession or use of a weapon under the influence of liquor or a drug, and released upon entering into a $600 recognisance to be of good behaviour for 6 months. No conviction was recorded.
  6. [40]
    The conviction of possession or use of a weapon under the influence of liquor or a drug is a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[29]
  7. [41]
    The Court’s reasons for imposing that penalty and decision not to record a conviction were not known to the Respondent and no evidence has been provided to the Tribunal in that regard.
  8. [42]
    There is no evidence that any child was physically in attendance at the house at the time the offence was committed.
  9. [43]
    The relevance of the offences to employment, or carrying on a business, that involves or may involve children is that the Applicant’s behaviour placed persons at risk of serious psychological harm and possibly physical harm. It indicated a tendency to respond to stressors in an aggressive manner and a serious lack of good judgement. Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the Applicant’s ability to provide a protective environment for children and ensure their safety and wellbeing.

Sexual offender order information given under section 319 of the WWC Act

  1. [44]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [45]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under section 337 or 338 of the WWC Act

  1. [46]
    No information was requested or received pursuant to those sections.

Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [47]
    Additional matters which the Respondent considered particularly relevant are that the offences occurred in the context of the Applicant experiencing mental illness and being intoxicated with alcohol, the Applicant’s history of mental illness and alcohol dependence and the Applicant’s limited insight into her behaviour.

Materials provided by way of Notice to Produce

Material from the Department of Child Safety, Youth and Women (‘DOCS’)

  1. [48]
    Material from DOCS was produced to the Tribunal pursuant to a Notice to Produce issued on 7 January 2019.
  2. [49]
    The material indicated that DOCS was notified:
    1. (a)
      On 13 January 2013, that the Applicant had been subjected to an incident of ‘minor’ domestic violence by her then partner (who was the father of her son) and the Applicant had reported previous incidents of domestic violence (including almost daily emotional abuse) over a period of years and increasing in frequency. The Applicant’s son was noted to be in another room at the residence but the children’s living arrangements were noted to be ‘reside with friends’. No concerns were noted regarding the mental or physical health of any child. No assault complaint was made.
    2. (b)
      On 24 March 2014, that the Applicant had attended her then ex-partner’s home uninvited and damaged property by pouring lubricating gel on his pillows and bed and burnt two small holes in the mattress using a cigarette. Notes indicated that the Applicant’s child was in view and/or hearing of the incident however observation of children present was ‘fine’. No concerns were noted regarding the mental or physical health of any child. The Applicant denied any offence and her ex-partner advised that he did not wish to make a wilful damage complaint.
    3. (c)
      On 10 December 2015, that the Applicant’s son had been exposed to incidents of domestic violence perpetrated by the Applicant towards her ex-partner. No detail was recorded.
    4. (d)
      On an unknown date, that the Applicant’s son had been exposed to domestic violence and that he was ‘directly involved in [the Applicant’s] assault of [the Applicant’s ex-partner’s new partner] while she was holding [the Applicant’s son]’. It was acknowledged that the Applicant’s son did not suffer any significant injuries. No detail was recorded. It was acknowledged that there had been no reports of further domestic violence since February 2015.
    5. (e)
      On 5 April 2016, that the Applicant had engaged in conduct which led to her resulted in her conviction for possession or use of a weapon under the influence of liquor or a drug. It was noted that the Applicant’s son was not present at the time of the incident. It was noted that the Applicant was being held for mental health assessment pursuant to an Emergency Examination Order. DOCS intervention was not required at that time given that the Applicant’s son was then in her ex-partner’s care and any contact between the Applicant and her son was to be supervised. However, it was noted that concerns were held and if contact arrangements or custody arrangements were changed in regards to the Applicant having unsupervised contact or having custody of her son, an investigation would likely be required. (In this regard, the Tribunal notes that the Applicant has now had unsupervised contact with her son since early 2018 and there is no evidence that any investigation has found that to be inappropriate.)
  3. [50]
    The material notes that none of the incidents met the threshold for a Child Protection Notification to be recorded under s 14 of the Child Protection Act 1999 (Qld) (‘CP Act’) and DOCS did not provide information to the police under s 14(2) of the CP Act in respect of any of the incidents.
  4. [51]
    The Tribunal notes that there is no evidence that any formal complaints or criminal charges were made against the Applicant in respect of any alleged domestic violence by her.

Material from the local Hospital and Health Service, Hospital (‘Hospital’)

  1. [52]
    Material from the Hospital was produced to the Tribunal pursuant to a Notice to Produce issued on 7 January 2019.
  2. [53]
    The material indicated that:
    1. (a)
      On 11 March 2014, the Applicant attended the Hospital emergency department and advised she had consumed alcohol and taken multiple prednisone tablets in response to stress she was experiencing after her son was taken by her ex-partner. The Applicant advised she subsequently ‘realised her mistake’ and induced vomiting. The Applicant was discharged home.
    2. (b)
      On 5 April 2016, following the incident which led to her charge and conviction, the Applicant was admitted to Hospital for assessment under an Emergency Examination Order. The Applicant described longstanding depressive symptoms, worsening since her son went to live with his father and reported having been assaulted by her ex-partner. The Applicant was noted as being ‘remorseful’ for the incident which she described as occurring in the context of being angry for a perceived lack of support for her and her son. The Applicant admitted to regularly engaging in binge drinking. The Applicant disclosed a previous suicide attempt and suicidal ideation. An impression was formed that the incident appeared to be ‘driven by anger, distress and intoxication as opposed to psychosis with no evidence of psychosis observed on assessment’. The Applicant was discharged later that day into the care of her parents.
    3. (c)
      From 6 April 2016, the Applicant has had ongoing contact with the Hospital’s outpatient mental health services.
    4. (d)
      On 8 April 2016, an impression was formed that the Patient had depression with some evidence of psychotic component. The Applicant was then commenced on anti-psychotic medication and has subsequently remained compliant with medication prescribed.
    5. (e)
      From 11 April 2016, the Applicant has regularly attended the local Alcohol and Other Drugs Service (‘AODS’) and obtained assistance and support to maintain sobriety and stability in her mental health.
    6. (f)
      On 15 April 2016, it was noted that it was possible that the Applicant had a ‘low grade psychotic illness’. It was also noted that the Applicant’s rapport with her parents had improved and that there was ‘helpful input from [the Applicant’s brother]... who is a mental health nurse’.
    7. (g)
      On 26 August 2016, an impression was recorded of schizophrenia in partial remission and alcohol dependence in remission.
    8. (h)
      On 6 January 2017, an impression was recorded of schizophrenia; in partial remission and alcohol dependence in early remission.
    9. (i)
      The Applicant maintained abstinent of alcohol and her mental health improved during 2017.
    10. (j)
      In or around September 2017, some psychotic symptoms were noted following alteration of her medication however those symptoms settled with further alteration of medication.
    11. (k)
      On 9 March 2018, an impression was recorded of schizoaffective disorder with recent hypomania symptoms. It was noted that the Applicant positively remained abstinent of alcohol.
    12. (l)
      On 1 June 2018, an impression was recorded that the Applicant’s schizoaffective disorder remained ‘relatively stable’ however she was shaken by a recent medical emergency affecting a family member. It was noted that the Applicant’s alcohol dependence ‘remains in remission’. The Applicant’s medication was further adjusted.
    13. (m)
      On 27 June 2018, the Applicant reported strong urges to drink alcohol. Strategies to manage such urges were discussed.
    14. (n)
      On 29 June 2018, the Applicant reported that her brother’s medical emergency a few weeks ago had triggered memories of her son’s seizures and she worried about her brother’s health. The Applicant reported continued alcohol cravings but denied ‘feeling tempted to drink’.
    15. (o)
      On 16 July 2019, the Applicant telephoned the Hospital outpatient services and reported a relapse in alcohol use of approximately four beers every three days. She requested and was prescribed medication to control her cravings for alcohol. The notes record that the Applicant admitted that she hadn’t been honest regarding her alcohol use.
    16. (p)
      On 23 November 2019, the Applicant was reviewed by psychiatrist, Dr Pascoe who noted that her schizoaffective disorder remained stable and in remission and her alcohol dependence was in ‘early remission’ with the Applicant describing no cravings for alcohol.
    17. (q)
      A letter from AODS dated 20 December 2018 noted that since 20 April 2016, the Applicant had regularly engaged with her psychiatrist and case manager to maintain her sobriety and stability in her mental health. It noted that the Applicant had developed skills to assist with difficult situations, she was proactive with her mental health and substance issues and if she feels she is at risk she will contact her case manager to discuss issues and explore strategies. It noted that the Applicant had shown marked improvement in those areas and that support by her case manager and medical staff would continue as needed.

Witness evidence

The Applicant

  1. [54]
    The Applicant gave evidence by way of a written ‘life story’ dated 7 October 2018, a written statement of evidence dated 30 January 2019, a document titled ‘further material’ which is undated and oral testimony given during examination-in-chief and cross-examination.
  2. [55]
    The Applicant is a 39 year old woman. She has two children, a daughter currently aged about 19 years and a son aged about 9 years.
  3. [56]
    The Applicant’s son has severe physical disabilities. He has cerebral palsy and epilepsy, amongst other serious health conditions. He requires a high level of care.
  4. [57]
    The Applicant was cross-examined about two suicide attempts, one when she was aged in her late teens and one in 2014. The Applicant described a long period of depression and taking anti-depressant medication prescribed by her GP. She never received psychiatric treatment at that time although she did see a counsellor or psychologist.
  5. [58]
    After a difficult relationship, during which the Applicant alleges she was physically and emotionally abused, the Applicant separated from her son’s father in about 2011. They reconciled for a period but then finally separated. The Applicant successfully cared for her son as a single mother for a number of years, however in about 2014 her son went to live with his father. At that time, the Applicant’s daughter was living with her father.
  6. [59]
    The Applicant was cross-examined in relation to allegations that her children had been exposed to domestic violence. The Applicant described limited memory of some incidents of alleged domestic violence. She said that her children would have witnessed some incidents of domestic violence against her by her son’s father. The Applicant admitted that her son would have witnessed one incident of domestic violence by her: when the Applicant was intoxicated with alcohol and allegedly pushed her ex-partner’s girlfriend and then the Applicant fell down stairs. The Applicant denied that she would ever hurt her children. The Applicant says that she tried her best to avoid her children being exposed to incidents of domestic violence. The Applicant acknowledged that it would have been distressing and psychologically damaging for her children to be exposed to domestic violence.
  7. [60]
    The Applicant started drinking excessively, in the form of binge drinking to numb her emotional pain, substantially after her son went to live with his father in around 2014. She admits that she did not have insight into the seriousness of her drinking behaviour at that time.
  8. [61]
    The Applicant’s mental health deteriorated further between 2014 and 2016 although she did not recognise it was a problem at the time.
  9. [62]
    On 5 April 2016, the Applicant engaged in conduct at her parent’s home which resulted in her conviction for possession or use of a weapon under the influence of liquor or a drug. The Applicant has not disputed the conduct alleged in the Police Brief except that she denies that she hid the telephones prior to calling her father outside. The Applicant says that no children were present at the time of the incident.
  10. [63]
    The Applicant acknowledged that her conduct deeply scarred and emotionally affected her parents, particularly her father. The Applicant expressed shame and regret for the impact of her conduct on her parents and said that she was ‘extremely remorseful’. The Applicant also acknowledged that her conduct was serious and dangerous and that it would be emotionally damaging to any child or vulnerable person exposed to such conduct. The Applicant says that no child was present at the time.
  11. [64]
    The Applicant described the incident as a ‘wake-up call’ and she has taken steps to avoid similar behaviour in the future.
  12. [65]
    The Applicant attributes the offending conduct to her then undiagnosed mental illness, ‘unresolved issues’ from her past which caused her to feel guilt and angst and alcohol abuse.
  13. [66]
    The Applicant has received a number of mental health diagnosis following the incident in April 2016. Currently she has a diagnosis of Schizoaffective Disorder.
  14. [67]
    Since April 2016, the Applicant has regularly engaged with and received help to treat and manage her alcohol dependence and mental health. She had intensive engagement with AODS and has been case managed by a clinical nurse. She sees a consultant psychiatrist, Dr Pascoe as required. The Applicant’s GP referred her to a clinical psychologist, Dr Else, who she has also seen on a regular basis. The Applicant has taken medication prescribed by her treating psychiatrist, which has been modified over time to find the optimum treatment. The Applicant says that she has developed insight into her mental health and triggers for alcohol relapse and she has learnt relapse prevention strategies.
  15. [68]
    The Applicant feels that her mental health has benefited from prescribed treatment and engagement with mental health professionals. She intends to continue treatment and engagement in the future.
  16. [69]
    The Applicant reported that she has a close and supportive relationship and frequent contact with her immediate family, including her parents. The Applicant is particularly close to her brother who is a qualified enrolled nurse with experience in forensic mental health. She said they have been supportive of her remaining abstinent of alcohol and obtaining mental health treatment. She said that they confronted her when she commenced drinking lightly in about June/July 2018 and her brother was particularly supportive in accompanying her to appointments with her treating professionals at that time.
  17. [70]
    The Applicant also described a close and supportive relationship with two friends who are aware of her offending conduct and past abuse of alcohol.
  18. [71]
    The Applicant was abstinent of alcohol since the incident in April 2016 until June 2016.
  19. [72]
    In June/July 2018, the Applicant had a relapse in alcohol use over a period of about four weeks following trauma she experienced as a result of a medical emergency involving her brother. During the period of relapse in alcohol use, the Applicant had about two or three drinks around every three days. At the time when she was using alcohol, the Applicant knew she was doing the wrong thing and she felt guilty. She does not know why she did not reach out to her supports at the time.
  20. [73]
    After the Applicant’s family confronted her in July 2018, the Applicant reported her relapse of drinking behaviour to her doctors and they initiated treatment that stopped her from drinking.
  21. [74]
    The Applicant has remained abstinent of alcohol since July 2018
  22. [75]
    The Applicant believes she has developed further and considerable insight into her alcohol dependence and mental health, triggers and warning signs of a potential relapse.
  23. [76]
    On 11 February 2019, the Applicant’s brother was involved in another medical emergency. The Applicant relied upon her support networks and learnt coping strategies to maintain abstinence from alcohol during that time. She believes that demonstrates that she has developed sufficient insight and has sufficient protective factors in place to ensure she will overcome future adversity without risk of using alcohol.
  24. [77]
    Neither child currently lives with the Applicant although she maintains regular contact with them both. She travels to visit her son every eight weeks. The Applicant’s visits with her son were supervised following the offending conduct in April 2016, however the visits have been unsupervised since around early 2018. The Applicant’s daughter lives close by, with the Applicant’s parents, and she sees her frequently.
  25. [78]
    In mid-2016, the Applicant commenced a Certificate 3 in Aged Care, which she since completed. She worked at an Aged Care facility for 9 months. She then commenced her current employment with her current employer in a role which involves caring for aged clients and young adults with disabilities. The Applicant enjoys the work and finds her employer to be supportive.
  26. [79]
    The Applicant requires a blue card in her current employment so she can work with people under the age of 18 years who have disabilities. She also requires a blue card to commence studying a Diploma of Nursing.
  27. [80]
    On 8 October 2018, the Applicant received a positive notice pursuant to s 54 of the Disability Services Act 2006 (Qld) from the Department of Communities, Disability Services and Seniors.

Dr Alan Pascoe (Consultant Psychiatrist)

  1. [81]
    Dr Pascoe gave evidence by way of a letter dated 4 September 2017, a letter dated
    17 October 2018 and oral testimony given during examination-in-chief and cross-examination.
  2. [82]
    Dr Pascoe was aware of the details of the Applicant’s offending conduct. He was also aware of the Respondent’s decision to issue a negative notice and had read the Respondent’s written reasons for that decision.
  3. [83]
    As a treating consultant psychiatrist and addiction medicine specialist with AODS,
    Dr Pascoe is aware that the Applicant has engaged with AODS since April 2016.
    Dr Pascoe has personally reviewed the Applicant on a regular basis since about August 2016.
  4. [84]
    Dr Pascoe confirmed that the Applicant has a current diagnosis of Schizoaffective Disorder which has been complicated by alcohol dependence. He confirmed that the Applicant’s offending behaviour occurred in the context of alcohol intoxication and untreated mental illness.
  5. [85]
    Dr Pascoe believes that the Applicant has good insight into those contributors towards her offending behaviour and also the impact her offending behaviour has had on her family members. Further, the Applicant is aware of the need to maintain alcohol abstinence and psychiatric treatment adherence to prevent further offending behaviour and the subsequent impact her offending behaviour has on others.
  6. [86]
    Dr Pascoe said that the Applicant has willingly engaged in and adhered to ongoing professional treatment for her mental illness and alcohol dependence.
  7. [87]
    Over time, there has been some adjustment to the Applicant’s prescribed medication in the process of determining optimum treatment for her mental illness. However, Dr Pascoe does not anticipate any significant changes to medication in the foreseeable future.
  8. [88]
    The Applicant’s Schizoaffective Disorder is currently in remission and stable on her current psychotropic medication.
  9. [89]
    The Applicant has been abstinent from alcohol since the offending behaviour (over three years) apart from a period of alcohol use in June/July 2018.
  10. [90]
    The period of alcohol use by the Applicant in June/July 2018, occurred in the context of the Applicant demonstrating symptoms of hypomania followed by low mood after she experienced trauma as a result of a medical emergency involving her brother. The Applicant’s brother identified potential relapse of her mental illness and high risk of alcohol consumption and supported her to obtain professional treatment, which she willingly engaged in. The Applicant’s brother’s provided vital information to assist the treating team to develop the current diagnosis and optimum treatment for the Applicant. Since that time, the Applicant has remained abstinent of alcohol and her mental illness has remained in remission.
  11. [91]
    Dr Pascoe recognised that alcohol addiction is a chronic relapsing condition. However, he considered that the incident in July/July 2018 demonstrated the effective operation of the Applicant’s support system. He considered that it also demonstrated that the Applicant had enough insight to recognise and candidly express her thoughts such that she could receive treatment before it escalated. Whilst the Applicant has experienced similar stressors since that time, she has managed better with no further lapses in alcohol abstinence.
  12. [92]
    Since the offending behaviour, the Applicant has successfully maintained full-time employment and lived independently, with regular contact with her supportive family and friends. She has not engaged in any further violent conduct since the offending behaviour.
  13. [93]
    Protective factors include the Applicant’s extensive local family support that promotes treatment adherence and alcohol abstinence, and having a meaningful role in her full-time employment as a home care attendant. Continuing engagement with the Applicant’s psychologist and AODS caseworker are additional protective factors.
  14. [94]
    Having regard to various static and dynamic risk factors and protective factors,
    Dr Pascoe considered that the Applicant was likely to be a low risk of harm if working with children and young people in the future.

Dr David Else (Clinical Psychologist)

  1. [95]
    Dr Else gave evidence by way of a letter dated 20 November 2019, a letter dated
    25 January 2019 and oral testimony given during examination-in-chief and cross-examination.
  2. [96]
    Dr Else was aware of the details of the Applicant’s offending conduct. He was also aware of the Respondent’s decision to issue a negative notice and had read the Respondent’s written reasons for that decision.
  3. [97]
    Dr Else has treated the Applicant as psychologist on a regular and ongoing basis for almost three years since about 6 May 2016.
  4. [98]
    The Applicant has demonstrated ‘excellent insight’ into the impact her offending behaviour and alcohol use had on her family and the risk it posed to society and those around her. He said that the Applicant had expressed ‘intense guilt and remorse’ for her actions.
  5. [99]
    The Applicant has engaged well with the process of therapy and has utilised agreed strategies to assist with her recovery and reduce her risk of reoffending. These include: regular appointments with Dr Else as her psychologist, her psychiatrist and her GP; regular attendance at AODS; regular visits and caring for her disabled son, regular employment as a carer; independent living with a good supportive friend; maintenance of her medication; attempts to improve her overall health via exercise; and abstinence from alcohol.
  6. [100]
    The Applicant has ‘shown very good progress’ and has changed her behaviour including almost complete abstinence from alcohol, maintaining consistent employment and calm, consistent re-integration toward helping parent her disabled son.
  7. [101]
    Dr Else acknowledged that the Applicant did trying drinking ‘small amounts’ of alcohol over a period of about 3 weeks in June/July 2018 which was triggered by her feeling of helplessness when her brother suffered a medical emergency. He noted that the Applicant realised that was not helpful for her. He also noted that the Applicant’s family was supportive in assisting her to obtain professional treatment and the Applicant has abstained from alcohol since that time. Dr Else said that demonstrated the effective operation of the Applicant’s support mechanisms to assist her to maintain sobriety and a stable mental state.
  8. [102]
    Dr Else said that the insight that the Applicant developed from that incident, together with the various other protective factors, would likely assist her to more ably manage a similar stressor in the future.
  9. [103]
    Dr Else anticipates that the Applicant will continue to see him regularly for the foreseeable future. Future treatment will focus on emotional regulation, ongoing monitoring of function, assessment of risk factors and work around trauma and other personal idiosyncrasies.
  10. [104]
    Having considered relevant risk and protective factors, Dr Else believes that the Applicant represents a low risk in harming others. He supports the Applicant working with children and her application for a positive notice and blue card.

PB (the Applicant’s brother)

  1. [105]
    PB gave evidence by way of a letter dated 17 January 2019 and oral testimony given during examination-in-chief and cross-examination.
  2. [106]
    PB is qualified as an Enrolled Nurse and his experience includes working for about
    8 years in Forensic Mental Health within the Tasmanian Forensic Health Service. In that role, he was engaged in day to day care and risk assessment of mental health patients from a nursing perspective.
  3. [107]
    PB described being aware of, over a period of years prior to the Applicant’s offending conduct which occurred in April 2016, the Applicant’s worsening binge drinking, downturn in her mental health and poor insight. He explained that this was in the context of the Applicant’s care for her son (who has a significant disability as a result of cerebral palsy), her difficult relationship with her son’s father and her sometimes placing blame on her parents for a perceived lack of support to both herself and her son.
  4. [108]
    Despite the Applicant’s self-doubt, he considered the Applicant to be an ‘extremely dedicated mother’ to her son with a serious disability and her parents to be supportive.
  5. [109]
    PB was aware of the details of the Applicant’s offending conduct in April 2016 and acknowledged the seriousness of that offence.
  6. [110]
    PB said that the Applicant was ‘extremely remorseful’ for her offending conduct.
  7. [111]
    Since the offending conduct in April 2016, the Applicant had taken positive steps including connecting with AODS, developing a therapeutic relationship with her psychologist and regularly engaging with her other care providers.
  8. [112]
    In the almost three years since the offending conduct occurred, the Applicant had made significant achievements including gaining a recognised qualification and maintaining employment in community health care.
  9. [113]
    He believes that the Applicant has developed a ‘very high’ level of insight into her mental illness and triggers. He said that the Applicant recognises and ‘speaks openly and genuinely about any issues and triggers’.
  10. [114]
    PB acknowledged that the Applicant had a small period of destabilisation in about June/July 2018. PB and the Applicant’s parents confronted the Applicant about their concerns and the Applicant immediately and without hesitation admitted to having consumed alcohol over a period of about one month. The Applicant initiated appointments with her AODS case manager, psychologist and psychiatrist. PB attended appointments with her.
  11. [115]
    PB described mood changes and symptoms historically experienced by the Applicant when she is mentally unwell, which he last observed to a degree around June/July 2018 when the Applicant consumed alcohol. Since the Applicant subsequently commenced on mood stabiliser medication, he has not observed such mood changes in the Applicant and her mental state has remained relatively stable.
  12. [116]
    He believes that the Applicant has a strong and effective support structure from her healthcare providers, immediate family and very close friends.
  13. [117]
    PB described healing and remarkable improvement in the Applicant’s relationship with her immediate family since her offending behaviour. He said the Applicant’s immediate family is close-knit and supportive of each other. They maintain regular contact with each other: the Applicant’s daughter currently lives with the Applicant’s parents; PB has relocated to live independently on the parent’s property; and the Applicant lives close by and visits regularly. He said they have an open and honest relationship and have been able to talk about negative and positive aspects of the Applicant’s behaviour.
  14. [118]
    PB was aware of the Respondent’s decision to issue a negative notice. He is supportive of the issue of a positive notice and blue card. He believes that the Applicant would not present a risk to children.

AN (the Applicant’s friend)

  1. [119]
    AN gave evidence by way of a letter dated 16 December 2018 and oral testimony given during examination-in-chief and cross-examination.
  2. [120]
    AN works as a registered nurse at the Hospital.
  3. [121]
    AN has known the Applicant for many years. They have been close friends for at least the last 18 months and possibly two years. They live in the same town and usually see each other about three times each week.
  4. [122]
    AN was aware of the details of the Applicant’s offending conduct in April 2016. She is aware that of the Applicant’s history of binge drinking prior to the offending conduct. She understands that the Applicant has a current diagnosis of Schizoaffective Disorder. She knew of the Respondent’s decision to issue a negative notice and had read the reasons for that decision.
  5. [123]
    AN said that the Applicant has ‘turned her life around’ after her offending conduct in April 2016.
  6. [124]
    The Applicant has been very dedicated in attending appointments with AODS and medical professionals. She has been very compliant with prescribed medication. She has also been proactive in talking with her psychologist about any difficulties that she has experienced.
  7. [125]
    AN is aware that the Applicant relapsed alcohol use in June/July 2018. AN confronted the Applicant when she first relapsed using alcohol although the Applicant proceeded to drink alcohol. AN said that the Applicant only drank two or three light beers in a social setting at AN’s house. She was not aware that the Applicant consumed other alcohol. AN is not aware of the triggers that led to the Applicant’s relapse in alcohol use.
  8. [126]
    AN said that the Applicant admitted her relapse in alcohol use and took immediate measures to address it when her brother spoke with her about it.
  9. [127]
    AN said that she has observed the Applicant in social settings where other people are drinking alcohol and the Applicant has not appeared to have any interest in relapsing alcohol use. AN said that she would probably say something to the Applicant if she proposed to drink alcohol in the future.
  10. [128]
    AN said that she has observed a noticeable change in the Applicant over the last 18 months. In particular, AN has observed that rather than going out a lot at night, the Applicant now consistently lives a relatively quiet life and spends most of her time at home or with her family. When the Applicant occasionally goes out, she is usually home early.
  11. [129]
    AN said that the Applicant has a close and supportive relationship with her immediate family which she believes will continue. AN said that the Applicant has regular contact with her daughter and they have a good relationship. AN has observed the Applicant with her son and described her as being very attentive to his special needs.
  12. [130]
    AN has no concerns about the Applicant working with children in an unsupervised capacity. AN supports the issue of a positive notice and blue card to the Applicant.

Respondent’s submissions

  1. [131]
    The Respondent identified the following risk factors relevant to the Applicant:
    1. (a)
      The offending behaviour which gave rise to the Applicant’s conviction for possession or use of a weapon under the influence of liquor or a drug occurred as recently as April 2016 and there is risk that she may again resort to the use of violent and threatening behaviour in response to conflict and personal stressors;
    2. (b)
      Children were exposed to ongoing domestic violence whilst in the Applicant’s care, with the Applicant being the perpetrator of violence at times, which suggests that she may not have appropriate skills to resolve conflict in a calm and non-violent manner;
    3. (c)
      The Applicant’s history of alcohol abuse led to her risky behaviours including the offence which gave risk to her conviction for possession or use of a weapon under the influence of liquor or a drug. Although the Applicant remained abstinent since the circumstances of the offence, her relapse in mid-2018 despite receiving ongoing professional support suggested that she has not yet addressed the underlying issues relating to her alcohol dependency and may suffer further relapse in the future;
    4. (d)
      The Applicant’s history of mental illness also led to her risky behaviours including the offence which gave risk to her conviction for possession or use of a weapon under the influence of liquor or a drug. Insufficient time has elapsed to demonstrate a long-term implementation of strategies sufficient to avoid future relapse of her mental illness;
    5. (e)
      The Applicant has little genuine insight into her criminal history and behaviours of concern and their effect on her own children and potentially other children in her care; and
    6. (f)
      Because of the unconditional and fully-transferrable nature of a blue card, the effect of issuing a positive notice and blue card to the Applicant would mean that she could work in any child-related employment or conduct any child-related business under the WWC Act.
  2. [132]
    The Respondent identified the following protective factors:
    1. (a)
      The conviction and charge relating to the incident in April 2016 are the only entries recorded on the Applicant’s criminal history;
    2. (b)
      The Applicant sought and received ongoing professional treatment for her alcohol abuse and, apart from a period of relapse in mid-2018, she appears to have maintained sobriety since approximately mid-2016;
    3. (c)
      The Applicant sought and received ongoing medical treatment for her mental health issues including skills to manage some of the underlying issues to her mental health concerns. Medical evidence indicates that the Applicant’s schizoaffective disorder has remained and remains relatively stable;
    4. (d)
      The Applicant demonstrated remorse in relation to the incident in April 2016 and her alcohol abuse and demonstrated some insight into her offending behaviour;
    5. (e)
      The Applicant identified her family and two close friends as her support network and indicated that they intervened when she suffered a relapse in alcohol use in 2018. Supportive witness statements spoke to the Applicant’s good character, love for her son, commitment to engaging in professional treatment for mental health issues and alcohol abuse and her passion for pursuing a career in nursing.
  3. [133]
    The Respondent submitted that a precautionary approach should be adopted by the Tribunal even though the Applicant’s criminal offending was not directly child-related.
  4. [134]
    Further, the Respondent submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
  5. [135]
    The Respondent submitted that the risk factors identified rendered the Applicant’s case an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to issue should be confirmed.

Applicant’s submissions

  1. [136]
    In relation to the risk factors identified by the Respondent, the Applicant submitted that:
    1. (a)
      The period of over three years which has now passed since the offending behaviour which gave rise to the Applicant’s conviction is sufficient to demonstrate that the Applicant has adequately dealt with the triggers for her offending behaviour.
    2. (b)
      No children were present during the offending behaviour which gave rise to the Applicant’s conviction;
    3. (c)
      No concerns have been raised in relation to the Applicant currently working with other vulnerable people;
    4. (d)
      The Applicant has now sought appropriate professional and medical assistance and has the support of her family; and
    5. (e)
      Dr McEniery and Mr Else consider that the Applicant presents a low risk of harm and have no concerns with the Applicant working with children.
  2. [137]
    In relation to the protective factors, the Applicant submitted that:
    1. (a)
      The Applicant has the support of her family (including her father and brother) and the support of long term friends (like Ms Neale);
    2. (b)
      The Applicant has committed to seeking professional treatment for her mental health and alcohol misuse with positive outcomes;
    3. (c)
      The Applicant is currently employed to work in aged care;
    4. (d)
      The Applicant has been recently issued a positive notice for a yellow card that enables her to work with people with disabilities;
    5. (e)
      The Applicant has no convictions apart from the conviction for possession or use of a weapon under the influence of liquor or a drug. Undiagnosed and untreated mental health issues and alcohol abuse in the context of the Applicant’s distress about her son was a significant contributor to that offending, however the Applicant has now undergone treatment to deal with those stressors; and
    6. (f)
      The Applicant is remorseful about the offending behaviour.
  3. [138]
    The Applicant submits that a number of decisions of this Tribunal provide guidance, on a comparative basis, of what would be an appropriate finding in this case.
  4. [139]
    The Applicant submits that the various risk factors do not outweigh the protective factors such as to render the Applicant’s case an ‘exceptional case’. The Applicant submits that the decision of the Respondent should be set aside.
  5. [140]
    Further, the Applicant submits it is appropriate for a non-publication order under s 66 of the QCAT Act to be made to de-identify references in any material to the Applicant, her family and her children.

Findings of fact

  1. [141]
    There were some relatively minor inconsistencies in the Applicant’s evidence and she expressed limited memory of some events. However, she admitted alleged conduct which was against her interests and accepted responsibility for her conduct. The Applicant presented as having sincere and deep remorse for the effects of her behaviour on her family. Overall the Applicant presented as open and honest. The Tribunal finds the Applicant to be a credible witness and accepts her evidence.
  2. [142]
    PB, the Applicant’s brother, knew of the Applicant’s binge drinking history, the offending behaviour and the Applicant’s mental health diagnosis. He has some understanding of mental health matters as a result of his previous training and work and attended the Applicant’s appointments with her treating professionals following her brief period of alcohol use relapse in June/July 2018. Dr Pascoe said that the Applicant’s brother provided vital information to assist the treating team to develop the current diagnosis and optimum treatment for the Applicant. The Applicant’s brother gave balanced and measured evidence which included evidence both in support and against the interests of the Applicant. He presented as open and honest and the Tribunal found him to be a credible witness. In the circumstances, the Tribunal accepts his evidence.
  3. [143]
    AN, the Applicant’s friend, has been close friends with the Applicant only for about two years. However, she expressed an understanding of the Applicant’s offending behaviour, mental health issues and alcohol dependence issues. She presented as open and honest, and the Tribunal accepts her evidence.
  4. [144]
    The Applicant provided to the Tribunal a letter from her father, AB, dated 28 January 2018. AB did not present at the hearing for cross-examination. The Applicant’s legal representative explained that AB was unable to attend the hearing because it would be unduly taxing on him. The Tribunal accepts the explanation for AB’s absence from the hearing but, because he was not available for cross-examination, the Tribunal does not place any weight on any evidence from AB.
  5. [145]
    Dr Pascoe is a qualified Clinical Psychiatrist who has treated the Applicant for some time. The Tribunal accepts his evidence concerning the Applicant.
  6. [146]
    Dr Else is a qualified Psychologist who has also treated the Applicant for some time. The Tribunal also accepts his evidence concerning the Applicant.

Consideration of the law and facts relevant to this case

  1. [147]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  2. [148]
    The Tribunal has also considered the submissions on behalf of the Applicant and Respondent respectively concerning relevant risk factors and protective factors.
  3. [149]
    The DOCS material notes some historical exposure of children to domestic violence whilst in the Applicant’s care, with the Applicant being the perpetrator of violence at times. However, none of the incidents met the threshold for recording a Child Protection Notification and DOCS did not provide information to the QPS under
    s 14(2) of the CP Act. Further, no formal complaints or criminal charges were made against the Applicant in respect of any alleged domestic violence by her. Accordingly, the Tribunal places limited weight on that information and its relevance to risk.
  4. [150]
    The Tribunal accepts that the Applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[30] However, the Applicant was convicted of an offence of possession or use of a weapon under the influence of liquor or a drug, alleged to have been committed on 5 April 2016. The Applicant was released upon entering into a $600 recognisance to be of good behaviour for 6 months and no conviction was recorded. The Applicant’s behaviour placed persons at risk of serious psychological harm and possibly physical harm. The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[31]
  5. [151]
    The offending behaviour which gave rise to the Applicant’s conviction for possession or use of a weapon under the influence of liquor or a drug is a significant risk factor. Although no child was physically present at the time the offence was committed, the Applicant’s conviction raises serious concerns about her ability to provide a protective environment for children and ensure their safety and wellbeing. It indicated a tendency to respond to stressors in an aggressive manner and a serious lack of good judgement. Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. There is risk that the Applicant may again resort to violent and threatening behaviour in response to conflict and personal stressors.
  6. [152]
    The question arises as to whether the Applicant has adequately dealt with the triggers for her offending behaviour.
  7. [153]
    The Tribunal accepts that the offences noted are the only entries recorded on the Applicant’s criminal history.
  8. [154]
    The Applicant has not engaged in any further offending or concerning behaviour in the three-year period since the offending behaviour on 5 April 2016.
  9. [155]
    However, the passage of time alone is not determinative of whether or not a case is an exceptional case[32] and is necessary to consider this risk factor in the context of all the relevant circumstances.
  10. [156]
    The Applicant’s untreated mental illness is a significant risk factor because it was identified as a significant contributor to her offending behaviour. However, since the time of her offending behaviour, the Applicant has consistently and willingly engaged with mental health professionals and received treatment for her mental illness. The effectiveness of that treatment is demonstrated by the Applicant’s current diagnosis of Schizoaffective Disorder being in remission and her mental state being stable. It is expected that the Applicant’s psychiatric engagement and treatment will continue for the foreseeable future.
  11. [157]
    The Applicant’s alcohol abuse is also a significant risk factor because it was also identified as a significant contributor to her offending behaviour. However, since the time of her offending behaviour, the Applicant has consistently willingly engaged with AODS and received treatment and support to manage her alcohol dependence. The Applicant has also consistently engaged with her treating psychologist and received treatment and support to manage underlying psychological issues which are a trigger for her alcohol use. The effectiveness of that support is demonstrated by the Applicant successfully maintaining sobriety since approximately mid-2016, apart from a period of relapse, when the Applicant drank ‘small’ amounts of alcohol over a four week period in June/July 2018. It is expected that the Applicant’s AODS and psychological treatment and engagement will continue for the foreseeable future.
  12. [158]
    The Applicant’s relapse in alcohol use in June/July 2018, despite receiving ongoing professional support, is relevant because it suggested that she has not yet addressed the underlying issues relating to her alcohol dependency and may suffer further relapse in the future. However, in this case, risk relevant to the Applicant’s relapse is mitigated by several factors.
  13. [159]
    Firstly, the relapse occurred in the context of the Applicant demonstrating symptoms of mental illness after she experienced trauma as a result of a medical emergency involving her brother. After the Applicant’s brother provided vital information, her treating psychiatrist corrected her diagnosis and treatment. As a result, the Applicant’s mental illness is now in remission and her mental state is stable.
  14. [160]
    Secondly, the relapse demonstrated that the Applicant had enough insight to recognise and candidly express her thoughts to her family and her treating professionals such that she could receive treatment before it escalated. There is some concern that the Applicant did not candidly admit her relapse to her family and professional support at an earlier time however she was honest and receptive when confronted by her family.
  15. [161]
    Thirdly, the relapse demonstrated the effective operation of the Applicant’s support systems. The Applicant’s family confronted her about her alcohol use. Her brother supported her to obtain professional treatment and support and was instrumental in correcting her diagnosis and treatment. The Applicant has a close, honest and supportive relationship with her family, particularly her brother. The Applicant’s brother has been of particular assistance to ensure the Applicant receives optimum treatment and support for her mental illness and alcohol dependence. The Applicant’s treating team has provided further treatment and support with the result that she has experienced no further relapses since that time. There is no evidence to indicate that will not continue for the foreseeable future.
  16. [162]
    Fourthly, the Applicant demonstrated genuine remorse for her relapse and a commitment to take steps to avoid future relapses. The Applicant also demonstrated genuine insight into the effect of her offending conduct and her history of alcohol abuse on her family and the potential impact such behaviour would have on any children in her care. She demonstrated sincere remorse and a genuine desire to change her behaviour. Further, the Applicant has demonstrated genuine commitment to obtaining ongoing professional treatment and support.
  17. [163]
    Fifthly, the relapse has given the Applicant additional insight into triggers and strategies to effectively manage future stressors without relapse in alcohol use. This is demonstrated by the fact that although the Applicant has experienced similar stressors since that time, she has managed better with no further lapses in alcohol abstinence. The Applicant has also successfully maintained full-time employment and lived independently.
  18. [164]
    No concerns have been raised in relation to the Applicant currently working with other vulnerable people. This is demonstrated by the Applicant’s ongoing employment as a carer of elderly people and her recently being issued with a ‘yellow card’ which enables her to work with people with disabilities.
  19. [165]
    Further, Dr McEniery and Dr Else consider that the Applicant presents a low risk of harm and have no concerns about her working with children.

Conclusion

  1. [166]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that there is not a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  2. [167]
    The Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a positive notice.
  3. [168]
    Accordingly, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
  4. [169]
    The Tribunal orders that the decision of the Respondent that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the Applicant.

Non-publication

  1. [170]
    The Tribunal orders that publication of the name or identifying information of the Applicant, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 QCAT Act.
  2. [171]
    Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  Defined in s 167, WWC Act.

[2]  Section 221(2), WWC Act.

[3]  Defined by s 169 of the WWC Act.

[4]  Section 354(1), WWC Act.

[5]  Section 353, WWC Act, definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’.

[6]  Section 33(3), QCAT Act.

[7]  Section 353, WWC Act, definition of ‘chapter 8 reviewable decision’; s 354, WWC Act.

[8]  Section 19(a), QCAT Act.

[9]  Section 19(c), QCAT Act.

[10]  Section 20(1), QCAT Act.

[11]  Section 20(2), QCAT Act.

[12]  Section 21, QCAT Act.

[13]  Defined in s 167, WWC Act.

[14]  Section 221(1), WWC Act.

[15]  Section 221(2), WWC Act.

[16]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner 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].

[17]Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[19]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[20]  Section 5(b), WWC Act.

[21]Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[22]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[23]  2008 (WA) SCA 171, [109].

[24]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[25]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336.

[26]Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[27]  Section 360, WWC Act.

[28]  As those terms are defined by ss 167 and 168 of the WWC Act.

[29]  Schedule 7 of the WWC Act, definition of ‘conviction’.

[30]  As those terms are defined by ss 167 and 168, WWC Act.

[31]Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[32]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

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Editorial Notes

  • Published Case Name:

    LB v Director General, Department of Justice and Attorney-General

  • Shortened Case Name:

    LB v Director General, Department of Justice and Attorney-General

  • MNC:

    [2019] QCAT 167

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    19 Jun 2019

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