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Kislitsa v Director-General, Department of Justice and Attorney-General[2019] QCAT 87

Kislitsa v Director-General, Department of Justice and Attorney-General[2019] QCAT 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kislitsa v Director-General, Department of Justice and Attorney-General [2019] QCAT 87

PARTIES:

RUTH ALLISON KISLITSA

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML191-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

28 March 2019

HEARING DATE:

21 March 2019

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General made on 4 June 2018 is confirmed.

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 353, s 354, s 358

Baker v The Queen (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 [2001] 1 QB 198

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

R Te Kani

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, made on 4 June 2018, to issue a negative notice in respect of the application by Mrs Kislitsa for a blue card.
  2. [2]
    A check undertaken by Blue Card Services disclosed that Mrs Kislitsa has the following criminal history:
    1. (a)
      On 12 July 2008, Mrs Kislitsa was charged with Destroy or damage property <= $2000 and Possess unregistered firearm – not prohibited firearm/pistol.  The police brief records that Mrs Kislitsa attended the complainant’s home, screaming and hitting a rear door with a large brush hook.  She was yelling, ‘Die you bastard’.  Mrs Kislitsa was also recorded as having smashed three windows and left claw marks on the rear door.  She was further recorded as having approached a car containing two occupants and pointed a single barrel air rifle at the front windscreen.  She then dropped the gun on the car’s front bonnet.
    2. (b)
      On 14 July 2008, Mrs Kislitsa was charged with Contravene prohibition/restriction in AVO (personal) and Breach of bail – application to re-determine.  The police brief records that when Mrs Kislitsa was taken into custody on 12 July 2008, the police obtained a personal violence order which named two protected persons, and the order was served on Mrs Kislitsa.  She was granted bail at Coffs Harbour Local Court, conditional on her complying with the conditions of the personal violence order and not approaching within 10 metres of the complainant’s address.  It is recorded that Mrs Kislitsa was yelling and screaming from halfway up the complainant’s driveway.
    3. (c)
      On 29 March 2012, Mrs Kislitsa was charged with three counts of Assault officer in execution of duties.  The police brief records that Mrs Kislitsa caused a disturbance at an IGA supermarket.  It is recorded that:

The accused is well known to Coffs Harbour Mental Health Unit and local police.  The accused suffers from delusions, schizophrenia and other mental illnesses.  When the accused is off her medication she can be violent and a serious harm to herself and others.

Mrs Kislitsa is recorded as having her belt around her neck and attempted to hang herself while she was in a police caged truck.  She was sprayed with capsicum spray and forcefully removed from the caged truck.  Mrs Kislitsa screamed ‘Fuck you, you Taser cunt’ and spat at two police officers.  She kicked the leg of a third officer.  Mrs Kislitsa was transported to Coffs Harbour Hospital.

  1. [3]
    Each of these charges was dismissed under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).  That provision, amongst other things, enables a Magistrate to dismiss a charge if it appears to the Magistrate that:
  1. (a)
    that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
  1. (i)
    developmentally disabled, or
  1. (ii)
    suffering from mental illness, or
  1. (iii)
    suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and
  1. (b)
    that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
  1. [4]
    Material was also obtained from the Mid North Coast Local Health District.  This material indicates that Mrs Kislitsa was diagnosed with bipolar affective disorder in 2000 and had a concurrent history of tetrahydrocannabinol use.
  2. [5]
    Between 2005 and 2012, Mrs Kislitsa had eight mental health admissions.  A medical certificate issued under Schedule 2 of the Mental Health Act 1990 (NSW) dated 12 August 2005 stated that there were reasonable grounds that temporary care, treatment or control of Mrs Kislitsa was necessary for her protection from serious harm and the protection of others.
  3. [6]
    In March 2012, Mrs Kislitsa was the subject of an involuntary treatment order which was revoked prior to her being discharged from hospital.  Once the subsequent community treatment order lapsed, Mrs Kislitsa failed to engage with community mental health or attend on her general practitioner for scripts resulting in her re-admission in April 2012.
  4. [7]
    Material was also obtained from the Bellingen Local Court.  This material indicates that Mrs Kislitsa was named as the defendant to an apprehended personal violence order.  It was alleged that Mrs Kislitsa was harassing the complainant’s three year old son, appeared to be acting irrationally, was behaving aggressively and was yelling abuse.

The ‘blue card’ legislative framework

  1. [8]
    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.
  2. [9]
    A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [10]
    As applicable to this case, the Working with Children Act requires that 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.[4]

What is meant by ‘exceptional case’

  1. [11]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [12]
    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]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [13]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [14]
    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

  1. [15]
    Mrs Kislitsa provided the Tribunal with her life story dated 30 July 2018, and further statements dated 25 November 2018 and 4 February 2019.
  2. [16]
    At the commencement of the hearing, I offered Mrs Kislitsa an adjournment in order to obtain a report in in relation to her current mental health.  Mrs Kislitsa declined the opportunity to obtain a report.
  3. [17]
    Mrs Kislitsa denied having bipolar affective disorder.  She stated that her 2000 diagnosis arose from her then fiancé forging a marriage certificate and having her committed.  At the time, she stated, a husband had the power to commit his wife.  Mrs Kislitsa was hospitalised for three months.  Every time she was about to be released, her fiancé would visit and make her upset, resulting in a continuation of her hospitalisation.
  4. [18]
    After she was released from hospital in 2000, Mrs Kislitsa stated that she saw a psychiatrist.  She made an appointment directly with the psychiatrist, without a referral from a general practitioner.  The appointment lasted 45 minutes, and at the conclusion she was given a certificate that she was sane.
  5. [19]
    In around 2005, Mrs Kislitsa stated that she was introduced to marijuana, which resulted in her being admitted for drug induced psychosis.  She could not explain her diagnosis of bipolar affective disorder.
  6. [20]
    Mrs Kislitsa stated that the incident on 12 July 2008 arose from her employer trying to rape her.  Mrs Kislitsa fought him off.  She had been told by her lawyer at the time that she was charged with attempted murder, but now accepts that this was not the case.  Mrs Kislitsa questioned how she could have been charged with the firearm incident which was said to have occurred at the same time.
  7. [21]
    In relation to the 14 July 2008 incident, Mrs Kislitsa stated that she took her shoe off and threw it at the man who she said tried to rape her.
  8. [22]
    In relation to the 23 March 2012 incident, Mrs Kislitsa denied that she tried to hang herself.  She stated that the police had dislocated her shoulder, and she had taken her belt off to try to fix it.
  9. [23]
    Mrs Kislitsa stated that she has no knowledge of the apprehended personal violence order relating to the allegation that she was harassing a three year old child.  She expressed concern that she might have done this.
  10. [24]
    Mrs Kislitsa stated that she had four sessions with a psychiatrist in Coffs Harbour, which taught her valuable skills in coping with stress.  She did not get a report from this psychiatrist as Mrs Kislitsa was unable to find her.
  11. [25]
    Mrs Kislitsa gave evidence that she has been seeing a professional counsellor for the past 12 months, at intervals of between three and six weeks.  She did not ask him for a report as she did not want to get him involved in the proceedings.
  12. [26]
    Mrs Kislitsa has becoming involved in a church and has recently completed a chaplaincy qualification.  She is in a stable relationship with her husband, Mr Philip Kislitsa.
  13. [27]
    Mr Kislitsa and his mother, Mrs Tamara Kislitsa, both provided references and gave evidence at the hearing.  Ms Sarah Jennings also provided a reference and gave evidence.  These witnesses all spoke highly of Mrs Kislitsa.
  14. [28]
    Further favourable references were provided by Robyn Therese Bellen, Emily Mills, Hamish William Ingleson, Ruth Lillian Clarke and Jeanette-Marie Cottrell.  These persons did not give oral evidence.

The respondent’s evidence and submissions

  1. [29]
    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.
  2. [30]
    In applying that approach, the respondent identified the following protective and risk factors:

The Respondent submits that the following protective factors are relevant in this matter:

(a) the Applicant is supported by her husband, family and friends as demonstrated by their written references;

(b) the Applicant wishes to work as a chaplain and attend to the needs of the community; and

©  the Applicant has identified certain strategies she has to deal with stressors and conflict.

The Respondent further submits that the following risk factors are present:

  1. (a)
    the Applicant's criminal history reveals multiple alleged offences which were dismissed pursuant to the [Mental Health (Criminal Procedure) Act] and not because of a lack of evidence that the behaviours of concern had occurred;
  1. (b)
    the material suggests that the Applicant was experiencing significant difficulties with her mental health at the time of her alleged offending in 2008 and 2012 which was exacerbated by cannabis use and which manifested itself in violent and aggressive behavior towards others, as well as suicidal behaviour. It is important to establish that the Applicant is now not using illicit drugs and is mentally well so as to ensure that she is at less risk of re-offending …;
  1. (c)
    the Applicant has a history of cannabis use. The Applicant does not address whether she has stopped using cannabis and if so, how she achieved this. The Applicant may be at risk of re-offending if she either continues to use cannabis or if she does not have sufficient strategies in place to stop her from using it again …;
  1. (d)
    the medical records from New South Wales Mid North Coast Local Health District state that the Applicant was diagnosed with bipolar affective disorder which required medication and treatment. The Applicant was subject to involuntary and community treatment orders when she was unwell and non-compliant with medication and treatment. In her material, the Applicant suggests that she has no mental health issues and that she has been diagnosed with PTSD. It is of concern that the Applicant may still lack insight into her mental illness and may be non­compliant with medication and treatment as this increases the risk that she will offend again.

Further, there is no independent psychological material before the Tribunal outlining what risk factors continue to be present which could contribute to the Applicant reoffending or what protective factors and preventative strategies are present to reduce the Applicant's risk of future reoffending. Given the connection between the Applicant's mental health and her behaviours of concern, this lack of supportive evidence suggests a significant risk factor. This will be explored further at the hearing; and

  1. (e)
    an APVO was made as the Applicant was allegedly harassing a three year old child. This directly child-related behaviour is of significant concern as it suggests that the Applicant may be unable to exercise impulse control, act in the best interests of children or act protectively towards them …;
  1. (f)
    it is unclear as to what remorse the Applicant has in regards to her offending and what insight she has into her offending behaviour. In her material, the Applicant provides alternate facts to those given by the police or states that she was acting in self-defence or anger. The importance of an Applicant possessing insight as a protective factor is demonstrated in the published decision of Re TAA, where the former Children's Services Tribunal stated at paragraph 97 of its reasons:

"The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children."

  1. (g)
    in his written statement, the Applicant's husband admitted to having had suicidal thoughts and being angry to the point that he damaged property. It is of concern that the Applicant's primary support may not be able to offer the Applicant reliable and predictable emotional support. It is important that a member of a support network exhibits a positive influence on a blue card holder …;
  1. (h)
    while the Applicant identifies certain strategies that she has, it is unclear how effective those strategies are in helping the Applicant manage stress and deal with situations of conflict.   For example, the Applicant states, "To get through that moment of bad mood, I choose gentleness and if I say to myself 500 times that day, "Ruth, be gentle." I will."  It is important that the Applicant can clearly identify triggers for her behaviour and the corresponding skills and strategies that she has in place which effectively address those triggers. Unless her triggers are addressed, the Applicant is at risk of re-offending and is also inhibited in her ability to act in the best interests of children or act protectively towards them …; and
  1. (i)
    the effect of issuing the Applicant's blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just for the purpose for which the Applicant has sought the card, studying and to become a community chaplain. The Tribunal has no power to issue a conditional blue card and once issued, the blue card is unconditional and fully transferable across all areas of regulated employment and business.

[footnotes omitted]

Is this an exceptional case?

  1. [31]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [32]
    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]
  3. [33]
    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]
  4. [34]
    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

  1. [35]
    Mrs Kislitsa has not had findings of guilt made against her in relation to the charges set out in her criminal history above.  The charges were dismissed for reasons relating to her mental health.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [36]
    The alleged offences were not serious or disqualifying offences.

When the offence was committed or is alleged to have been committed

  1. [37]
    The offences were alleged to have been committed in 2008 and 2012.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children

  1. [38]
    Mrs Kislitsa has a history of allegations of aggressive behaviour, involving assault, firearms and destruction of property.  Children are dependent upon adults around them to manage conflicts in an appropriate manner. Mrs Kislitsa’s alleged offending suggests that she may lack the appropriate skills to manage conflict in an appropriate way.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [39]
    Mrs Kislitsa has not been convicted of an offence.

Other relevant circumstances

  1. [40]
    I have considered the risk and protective factors in Mrs Kislitsa’s life.
  2. [41]
    Mrs Kislitsa is to be commended for her chaplaincy studies.  The letters of support provided are also complimentary of Mrs Kislitsa’s qualities.
  3. [42]
    It appears to me to be highly likely that there was a significant overlap between Mrs Kislitsa’s alleged offending and her mental health at the time.  However, while there are no allegations of offending since 2012, there is also is no evidence in relation to Mrs Kislitsa’s mental health since that time.  It is clear from her own evidence that Mrs Kislitsa has received psychological treatment, but no reports from her treating professionals have been provided. 
  4. [43]
    I am concerned that, notwithstanding her significant mental health history, Mrs Kislitsa denies that she suffered from any condition other than drug induced psychosis.  Her explanation for her diagnosis of bipolar affective disorder in 2000 is farfetched and speaks for itself.  This demonstrates a lack of insight into her diagnosed condition.
  5. [44]
    Of further concern is Mrs Kislitsa’s failure to provide a report from the ‘professional counsellor’ she is currently seeing and who she has been seeing for over 12 months.  Mrs Kislitsa was provided with an opportunity to obtain such a report in the Tribunal’s directions issued after the compulsory conference dated 26 September 2018, and again by me at the beginning of the hearing.
  6. [45]
    I was invited to draw the inference that the reason for Ms Kislitsa’s failure to provide such evidence is that it would not be favourable to her.  I draw that inference. Given the apparent intersection between Mrs Kislitsa’s offending and her mental health state, the lack of current evidence in my view represents a significant risk factor.  I have placed considerable weight on this factor in assessing whether an exceptional case exists. 

Conclusion

  1. [46]
    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.
  2. [47]
    I therefore confirm the decision under review.

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.

[3]Working with Children Act, s 360. See also s 6.

[4]Working with Children Act, s 221.

[5]Re FAA [2006] QCST 15, [22].

[6]Working with Children Act, s 226(2)(a).

[7]Working with Children Act, s 226(2)(e).

[8]Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.

[9][2004] QCA 491, [30].

[10]Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 331, [27].

Close

Editorial Notes

  • Published Case Name:

    Ruth Allison Kislitsa v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 87

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    28 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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