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PML v Director-General, Department of Justice and Attorney-General[2019] QCAT 88

PML v Director-General, Department of Justice and Attorney-General[2019] QCAT 88

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88

PARTIES:

PML

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML274-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 April 2019

HEARING DATE:

31 August 2018

HEARD AT:

Townsville

DECISION OF:

Member Allen

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that PML’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and the decision is that there is no exceptional case in respect of PML.
  2. The entire file in respect of this application is confidential and I make a non-publication order in accordance with s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and no information may be published which could identify the applicant, PML or any person associated with her and in particular the children for whom she was kin carer.

CATCHWORDS:

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 – where applicant had conviction for drug offences – where information from Child Protection agency of substantiated harm – whether exceptional case in which it would be not in the best interests of children to issue a positive notice

Child Protection Act 1999 (Qld), s 140A, s 189

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 156, s 188, s 220, s 226 s 353, s 354, s 360

Chief Executive Officer, Department of Child Protection v Scott No. 2 2008 WA SCA 17

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

Commissioner for Children and Young People v Storrs [2011] QCATA 28

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

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr J. Mallory, Solicitor of the Aboriginal & Torres Strait Islander Legal Service

Respondent:

Ms C. Borger, In-House Government Legal Officer

REASONS FOR DECISION

  1. [1]
    PML is 56 years old and has been a kin carer for some of her grandchildren for a number of years. To be eligible to be a kin carer PML was required to have a positive notice[1] (Blue Card) under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). She was first issued with a Blue Card on 4 September 2008, which was renewed several times. Her eligibility for a Blue Card was reassessed after her police information changed and the Blue Card was continued in 2012. She applied to renew her Blue Card and a further Blue Card was issued on 9 December 2013. The latest application to renew her Blue Card was made on 19 October 2016 and during the assessment process further information was obtained from the Department of Communities, Child Safety and Disability Services (Child Safety), which had not previously been considered.
  2. [2]
    The decision of the Department was to issue PML with a negative notice[2] following its consideration of her application in light of both her criminal history and the information from Child Safety and she was unable to renew her Blue Card. The negative notice signifies that an application for a prescribed notice has been rejected. PML had not been convicted of any serious offences, so her application was determined in accordance with s 221 of the WWC Act. A negative notice must issue if 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.[3] PML has applied to the Tribunal for a review of that decision. The decision under review here is whether or not there is an exceptional case for PML because that decision resulted in her being issued with a negative notice.[4]

The Law

  1. [3]
    The Tribunal in its review jurisdiction stands in the shoes of the decision maker and must make the correct and preferable decision[5] based on a fresh hearing on the merits.[6] The Tribunal must apply the law and may perform the functions conferred under the WWC Act and the QCAT Act as modified by the WWC Act.[7] The role of the Department is to assist the Tribunal to make its decision, and part of that process is to provide the Tribunal with its reasons for decision and any documents or thing in its possession or control, that may be relevant to the Tribunal’s review of the decision.[8] The object of the WWC Act is to promote and protect the rights, interests and well-being of children in Queensland through a scheme, to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so.[9] The Tribunal when reviewing a decision under the WWC Act must do so under the principle that, the welfare and best interests of a child are paramount.[10]
  2. [4]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency[11] set out the relevant principles in regard to what is an exceptional case and the approach to these review decisions as follows:

‘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. [5]
    In determining whether there is an exceptional case the Tribunal must do on the balance of probabilities, bearing in mind the gravity of the consequences involves.[12]Neither party bears the onus in determining whether an exceptional case exists.[13]
  2. [6]
    In Chief Executive Officer, Department of Child Protection v Scott No. 2 2008 (WA) SCA 171, Buss J observed with reference to comparable legislation:

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. [7]
    In the words of Buss J in Scott, the Act is only intended to benefit children insofar as it is intended to protect them.
  2. [8]
    The WWC Act also sets out matters that the Tribunal must have regard to where PML has been convicted of or charged with an offence generally.[14] That is relevant in regards to any offence, whether it is a conviction or a charge; when the offence was committed or is alleged to have been committed; the nature of the offence and its relevance to employment, that involves or may involve children; 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, the courts reasons for its decision; 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.

The Material and Evidence

  1. [9]
    The Department obtained PML’s criminal history which is extensive and dates back to 1987 as follows:
    1. (a)
      1987, obscene language convicted and fined $20;
    2. (b)
      1989, obscene language convicted and fined $20;
    3. (c)
      1992, forgery and uttering (2 charges) convicted with a $500 recognisance and 12 months good behaviour, subject to probation officer for that period, restitution $368.75;
    4. (d)
      1993, council parking offence with a $60.60 fine;
    5. (e)
      1995, granting and revocation of a fine option order in regard to a traffic offence;
    6. (f)
      1995, assaults occasioning bodily harm convicted $300 recognisance and 12 months’ good behaviour. The police brief stated that the complainant said that there was no reason for the action taken by PML. PML said there had been a dispute between her and the complainant about damage caused by the complainant’s children to PML’s clothesline and that PML had lost her temper, when the complainant said she was going to the police in regard to PML stalking her. PML admitted that she had punched the complainant and that was wrong and she had no right to do it. PML stated at the hearing that she was not proud of that offence and that she actively teaches her grandchildren to not partake in violent behaviours;
    7. (g)
      20 March 1997, possession of dangerous drug convicted fined $300 and possession thing for use in connection with smoking dangerous drug convicted fined $240. The police brief states that PML’s executed a search warrant at PML’s house and a small quantity of green leaf material (2 grams) and three metal cones which appeared to have been sued for smoking cannabis were found. PML and her husband admitted that they occupied the room and PML admitted that the material and cones were hers. She later declined the opportunity to be formally interviewed. At the hearing she stated that she took the wrap for the young kids living in the house;
    8. (h)
      1 August 1997, possession of a pipe used in connection with smoking dangerous drugs convicted and fined $300 and possession of dangerous drugs, convicted and fined $450. The police brief states police executed a search warrant at the house and found a plastic bag and pipe in PML’s handbag. PML claimed ownership of the bag however stated that she knew nothing about its contents. She agreed to accompany police to the police station however declined the opportunity to be interviewed. The plastic bag contained a pipe and approximately two grams of green leafy material;
    9. (i)
      1998, fine option orders were issued in regard to the 1997 offences and a speeding offence and council parking offence;
    10. (j)
      2002, permitting use of place (between 1 July 2002 and 30 August 2002) convicted and fined $250. The police brief states that police attended the offence address in relation to other matters. Whilst there police located two cannabis plants approximately 20 centimetres in height beside a shed in the back yard. Located in a cupboard in the bedroom was aplastic drink bottle that had been converted to a smoking utensil. This utensil had been used and smelt strongly of burnt cannabis. PML was the occupier of the residence. She stated she did not own the property however continued to say that the two plants belonged to her husband who did not live there but visited regularly. PML stated that the bong belonged to her daughter’s boyfriend. PML stated that she would attend at the police station to provide a statement. She later attended the station with her grandchild and declined to complete the statement, however, stated that she wanted to come back on another day. Arrangements were made for her to return. PML failed to keep this appointment. Police later attended PML’s residence and she declined to provide a statement in relation to the ownership of the items. PML stated at the hearing that the property subject to the offence belonged to PS1 and her partner and that she dealt with it by removing PS1 from the property; and
    11. (k)
      2012, on 14 February 2012 possessing dangerous drugs and possessing utensils or pipes etc. that had been used - convicted on all charges and fined $300. The police brief states that police from the drug squad executed a search warrant in relation to offences against the Drugs Misuse Act 1986 (Qld). Upon arrival police located three adults including PML. All three were asked if they wished to declare any items prior to police commencing a search. PML declared to police that there was a bucket in the laundry. It was clarified that PML was referring to a bucket bong. During a search of the residence police located a plastic water pipe (bong) in the laundry, sitting in a large bucket in the wash basin. The water pipe was heavily stained with green residue and had a stench of burnt cannabis. A search of a kitchen cupboard alongside the kitchen sick also revealed a small amount of green plant material. This was located inside a small clip seal bag. Approximately one gram of the green plant material was concealed in the form of an alfoil stick. Police spoke with PML several days later, she declined the opportunity to participate in an electronic record of interview on legal advice. At the hearing PML accepted responsibility for these charges.
  2. [10]
    The Department noted that that all offences were previously taken into account in the assessments of PML’s eligibility to hold a Blue Card. The Department has provided further information in regard to the assault and drug offences which is set out above.
  3. [11]
    The Department made a request to Child Safety on 21 December 2016 for a summary of ‘substantiated notifications, matters of concern and investigations and assessments relating to PML’. Child Safety responded on 21 January 2017 and provided a table of information to assist the Department, this information had not previously been requested by the Department or independently provided by Child Safety. It was noted in the covering letter that there were several historical events in Child Safety’s Integrated Client Management System in relation to PML, being a person responsible for substantiated harm to children recorded prior to 2008. It was also noted that the information was disclosed in accordance with s 187(3)(c)(i) of the Child Protection Act 1999 (Qld) (‘CP Act’) and a request was made to consider obligations imposed under s 188 of the CP Act, in relation to the disclosure of this information to other persons. As noted above, this information had not been disclosed in previous assessments of PMLs eligibility to hold a Blue Card. I note that there is provision in
    s 140A of the CP Act for Child Safety to advise the Department if it amends, suspends or cancels a person’s certificate of approval (disciplinary action) and believes that it may be relevant to the functions of the Department. The Department may request further details and those details are prescribed in s 140A(5). The information provided to the Department must not identify a particular child.
  4. [12]
    The information provided by Child Safety was as follows:
    1. (a)
      6 July 2010 - That PML treated one child in her care differently than the other children such that, she pulled the child’s hair and physically disciplined this child. PML kept drugs in the household and hid them when the Department visited. PML’s partner had sexually assaulted children. PML’s partner visited her residence; additional concerns received on 29 July 2010 alleging PML and her partner fought often and the fights involved threatening harm. PML and her partner would get drunk together and this occurred in front of the children. One of the children was allegedly hurt on the arm by PML’s partner. The types of harm were physical harm, emotional harm, neglect and sexual abuse.
    2. (b)
      Child Safety found that the children in the household had not suffered significant harm of a detrimental nature. However, the children were at unacceptable risk of harm due to the following factors:
      1. PML minimised and denied the concerns and offered inconsistent explanations;
      2. the children had unsupervised contact with PML’s partner and this posed a significant risk to their safety;
      3. the relationship between PML and her partner was characterised by domestic violence which occurred in front of the children prompting them on at least one occasion to have to hide behind a fence in order to remain safe;
      4. PML and her partner become intoxicated regularly and fought each other as a result; and
      5. PML stated her disciplinary strategy included growling at the children.

The outcome was substantiated – breach of standards, risk of physical harm caused by neglect and risk of emotional harm.

  1. (c)
    26 May 2011 - PML had been discussing inappropriate topics with the children in her care such as:
    1. child protection information pertaining to the children;
    2. there was animal urine and faeces in the children’s bedrooms and on their clothes;
    3. domestic and family violence occurred in the household in front of the children and was having a negative effect on all family members;
    4. the household was overcrowded;
    5. there was strong smell of cannabis throughout the home;
    6. PML had made threats towards her biological child and was highly agitated and verbally aggressive;
    7. PML was not managing one of the children’s behaviour and the child’s behaviour had become violent and threatening;
    8. PML strongly resisted staff from Child Safety entering her residence; and
    9. PML was not honest with staff of Child Safety and service support staff.

On 31 May 2011 additional concerns were raised: two of the children were suffering from medical conditions resulting in boils on their body and bleeding in the pubic area, these children had shared beds with the other children in PML’s care. The types of harm were physical harm, emotional harm and neglect.

  1. [13]
    Child Safety found evidence indicating that physical harm had occurred to four of the five children in PML’s care due to the following:
    1. (a)
      Each of the four children having untreated medical conditions resulting from neglect such as: severe ear infection, deep itchy and untreated wounds on the toes and groin area, a mass of warts on the shoulder blades, a barking cough, weeping school sores, worm infestations that caused a hard protruding large stomach, blister like formation on one of the children’s testicles and scabies with active mites in the skin;
    2. (b)
      The five children slept in the one bed increasing the risk of cross-infection, PML did not seek medical treatment and failed to take the children to a doctor, when advised of the conditions present on the children, PML sated ‘I will put some cream on it’.
    3. (c)
      PML applied a cream that was not prescribed for them, one of the children was hospitalised for emergency surgery due to having large untreated boils on his leg that caused a fever due to infection, PML failed to notice the poor health of the children.
    4. (d)
      All children were removed from the care of PML as a result of the physical harm, in addition to the neglect, PML had used ‘rejecting’ communication to two of the children, failed to maintain appropriate and positive relationships with the children’s family, and was unable to address the family violence existing in the household, three of the five children were returned to PML’s care upon the completion of the investigation as it was assessed those children had a strong bond with her.
    5. (e)
      PML advised that having one less child may allow her to provide more appropriate level of care. PML also agreed to participating in and adhering to an action plan to address the concerns.
  2. [14]
    PML’s response to the concerns raised by Child Safety was as follows:
    1. (a)
      6 July 2010 – when these concerns were raised the Department had placed her grandchildren in other care until they investigated. The concerns were raised by the children’s mother as a vendetta against her. She does not single out one child: ‘all my grandchildren are treated the same and I have not physically disciplined this child at all. No drugs were in the home and I have no need to hide it from the Department as it was never there. My ex-partner was charged on Sexual assault with a minor when he was younger, if he ever did come to the home, he was never left alone with the children, since these investigations her ex has never been back into my home, none of the children were hurt by my ex, as he had no reason to discipline them at all.’ At the hearing PML confirmed the above and said that while PG may have been in the house in 2009 he was not in 2010.
    2. (b)
      26 May 2011 – ‘I do not discuss inappropriate topics with the children; I just don’t lie to them about what the Department says and do. There was no evidence of animal faeces in the children’s bedrooms. The house was overcrowded and I asked the Department for a letter from them so I could go for a bigger place, which I did. I am now in a 4 bedroom home. I have never stopped the Department from entering our home at all. I have always tried to be as honest and let the Department and Support workers know of any changes or if anything arise at all.’ At the hearing PML confirmed the above and denied that there was animal urine and faeces in the children’s bedrooms and that the house smelled of cannabis.
    3. (c)
      31 May 2011 – ‘when the children were taken from my care the children were all in good health. The children were in care a week before they were taken to the doctors with boils on their body. When children are taken into care they can become unwell as of the way they get taken, the children can break out from nerves. The Department was quite aware of the situation in my home, but they were not sharing beds all the time. The oldest boy had his own room shared by his little brother in the cot; the middle boy was in a toddler bed with his sisters who had single beds of their own. They now have rooms of their own.’ At the hearing PML stated that her recollection was that the children contracted the medical conditions one week after they were removed from her care.
  3. [15]
    The Department had also received complaint information in relation to PML on
    25 June 2009 which was similar to that provided to Child Safety. These allegations were referred to the Queensland Police Service. Child Safety noted that that there was a long history of engagement with PML’s family by them.
  4. [16]
    PML made oral submissions to the Department that she required a Blue Card to be a kinship carer. She had care of her grandchildren. She had held a Blue Card twice since 2011. In relation to the information from Child Safety she said, ‘A lot of this is hearsay, they were hearsay, and they’ve been substantiated as hearsay’.
  5. [17]
    PML provided a life history for the purpose of the hearing as well as filing an affidavit with her application. PML early life was marked by her being looked after by her grandparents as a result of her mother’s poor health. This was characterised by strict discipline and she said that she had feelings of resentment that she was not able to live with her own family. When she did finally return to live with her family, she was subject to excessive punishment and her mother died soon after she returned home. PML was interested in sports and was a state representative in Vigaro.
  6. [18]
    PML formed a relationship with PG who had issues with drugs and alcohol and was violent. Her family did not approve of PG and that caused a rift between her and them. She became pregnant to PG and he then went to jail for 2 ½ years. When he left jail he came to live with her and she became subject to domestic violence. Through PG she began to use cannabis and found that it provided her with some relief. She had three children to PG being PC, PS1 and PS2. PC alleged that his father had sexually assaulted him and he brought that to the attention of the police. PPC changes his story and blamed an Uncle and PG was acquitted of the charges. PML said it was many years before she could get PG out of her life with domestic violence orders and the assistance of the police. She said that there has been tragedy in his family and she still maintains some contact with him, though due to the concerns held by her and Child Safety he does not contact with his grandchildren who are in her care. PML said that she was also subject to sexual abuse as a child. She had a strong emotional reaction to the abuse of PC as she was not able to protect him from the alleged abuse.
  7. [19]
    Both of her older children PC and PS1 got into trouble through drug and property offences and ended up in youth detention.
  8. [20]
    In 2001, PS1 had a son D1 and as PS1 wasn’t grown up yet she told PML she couldn’t cope and asked her to look after D1. She says her two oldest children were breaking her heart by being involved in criminal activities. After her first child was born PS1 got involved with another man, who was 12 years older than her and heavily into drugs. She had two girls, T1 in 2003 and JG in 2004. Child Safety contacted her in 2004 saying they had her granddaughters and requesting that she pick them up. She now had D1, T1 and JG living with her. PS1 continued to be in and out of jail and had another child, JB in 2007.
  9. [21]
    Child Safety put the children on orders. PML’s life got harder as PC got 7 ½ years in jail as a repeat offender. PS1 had two more boys, D2 in 2009 and TB in 2011. PML ended up with the 5 of PS1’s children. One day PS1 and PC had an argument at her house which she believed she protected the children from, because she didn’t stick up for PS1. At that time she says PS1 went and made allegations about her and the whole 5 children were taken. PML states she went through QCAT and had the three eldest grandchildren back in her care with things she had to comply with, which she says she did.
  10. [22]
    In 2007, PS2 had a child and she was still living at home and was a great help with all of the children as she had a Blue Card. Child Safety told PG at that time that he was no longer allowed to come where the children were, she says finally he might listen and stay away from us.
  11. [23]
    PML says she got the three grandchildren involved in activities such as, sport for D1 and JG and singing for TG. That they have strived at school and got good marks. JG has just had her braces removed. PML says she has put her whole life into these three children, something their mother couldn’t give them and they have grown into beautiful respectful children.
  12. [24]
    PML notes that when her own children were growing up she did all the wrong things, like having PG around with the violence towards her as well as her two eldest children, and not speaking to her family for over 30 years now because of PG with how he treated us. The drugs, the alcohol she says she is so sorry she ever tried them. She says on reflection her childhood has a lot to do with the way she is today and will not allow her experience to ruin her grandchildren’s lives.
  13. [25]
    PML says that for the past 6 to 7 years she has been able to look back on her life and has started thinking of the future with her grandchildren, she has given up the marijuana and alcohol for around 7 years now. She has made a big change by moving into a bigger home for the grandchildren and has moved into a 4 bedroom and entertainment room house 4 years ago after living in Department Housing for 16 years.
  14. [26]
    PML also described the effect of the removal of her Blue Card. That it had taken a toll on her granddaughters and they were devastated when they were told they had to leave her house. She had always been there morning and night for years, happy to see them of an afternoon after school, to see how their day was at school, to go into the privacy of their own rooms, as well as having home cooked meals. She described the girls as being miserable in their placements. Though there were now contact arrangements in place, so that they could have dinner with her a couple of nights per week. She also described that D1 had self-placed with her and would not go with the Department and he is supposed to be checked on by the Department each week but they don’t.
  15. [27]
    She identifies that her relationships with her family, her children, and ex-husband are not the best. She recognises the signs of depression and anxiety and will not allow her grandchildren to be neglected in the same way that she was as a child.
  16. [28]
    She stated that she was looked into when she applied for the Blue Card 13 years ago, and it took approximately 8 months to be approved but Blue Card gave it to her. She has always been honest with her application, she has put down all her charges she had up to 2004. She always received her Blue Card, renewing it every two years and never had a problem till October 2017 when they revoked it.
  17. [29]
    The application for review notes that one of the concerns raised by Blue Card was that PML had not adhered to the action plan prepared with Child Safety, when three of the children were returned to her care. The action plan is exhibited in PML’s affidavit and certificates and an action plan report are also exhibited to the affidavit which are said to confirm that the action plan was complied with.
  18. [30]
    The action plan report exhibited to PML’s affidavit is based on a visit on 20 September 2011. There are five pages of item contained in the action plan. Of the items, the ones that had not been attended to as at that date included, placement agreement to be developed with D1, JG and T1 and this item involved other stakeholders; PML to attend Evolve foster care training at next available opportunity and this had not occurred as a result of the trainer being unavailable. There were also several items that required action to be taken by child safety staff, which had not yet been attended to including, referral of some of the children for grief and loss counselling and a letter of support to the Department to find the family adequate housing.
  19. [31]
    PML provided copies of certificates in respect of some training including:
    1. (a)
      A certificate of attendance at the 2015 junior student challenge for the Aboriginal and Torres Strait Islander aspirations program;
    2. (b)
      Transforming care - the meaning and practice of trauma informed care 26 - 29 March 2012 for the completion of four modules in training;
    3. (c)
      Statement of achievement for quality care: foster care training preservice four modules on 9 September 2010; and
    4. (d)
      Kinship carer assessment report.
  20. [32]
    In addition to the previous training that PML was involved in, she had enrolled in a six-session course in exploring anger with women on 14 March 2018.
  21. [33]
    PML provided copies of Medicare health assessments for the children. T1’s assessment showed that the only additional current health issues she had was in regard to a wound dressing. D1’s health assessment indicated that he was a smoker and that he should stop smoking, otherwise there were no issues. PJ’s health assessment indicated that she had eczema.
  22. [34]
    PML also provided a copy of a Kinship carer assessment by SD of TAIHS dated
    28 October 2009, which concluded that she was appropriate and suitable to act as carer for the five grandchildren. It noted that, SH1 supported her mother being carer for her children. It also noted that SH2 lives with and supports her mother with caring for SH1’s children. The assessment concluded that PML is able to provide a safe, loving and protective environment.
  23. [35]
    There were statements provided in support of PML from family friends, health professionals, her children and grandchildren. All of these statements supported that she was a positive role model for the grandchildren and had not exhibited any behaviour that could be identified as putting children at risk. D1 provided evidence to the Tribunal, without the parties, as he is a child in accordance with s 365 of the WWC Act. DI supported PML saying that: she has done nothing but sacrifice for him and his mother would not have been able to provide the things he has such as school, love and care; and that he feels safe at home and that his sisters were struggling.
  24. [36]
    PS2 was questioned in regard to her own Child Safety history which was obtained by the Department under a notice to produce. She acknowledged that she had been issued with a negative notice in 2013 and she had to move out of PML’s house. She said that she had done something silly and was charged with possession of marijuana, which was corrected to supply. She said it had only being going on for a couple of days or weeks. She acknowledged that this was occurring in the house with the children in it, but said they were not exposed to it, though the drugs were kept at those. She said that she did not know the other female who was being referred to in text messages about drugs. She said she had changed her life and was there emotionally and financially for her mother. She stated that it was amazing the love PML gave the children, that they never stole, never touched drugs, they went to school. She stated that PML protected the children by calling the police including, in regards to her sister PS1 though there were no domestic violence orders. She said she had not seen her father PG for some years. In regards to an allegation that PG had been at the house and had contact with D1 she said that this was a mistake and it was one of her Uncles and they are all usually referred to as grandfather. In regards to the incident where PS1 came to the house and self-harmed, she said that PS1 was told to leave, the house was locked and the police called as she was on ice. Another incident where it was alleged the children had to eat at her house as there was no food at PML’s house was raised. PS2 said this was due to PML’s fridge having broken down. She said that they had put up with too much anti-social behaviour in the past and they had knowledge now.
  25. [37]
    There is a report from Russ Fraser, mental health social worker, dated 31 May 2018. Mr Fraser conducted a clinical interview and used the personality assessment inventory (‘PAI’), inventory of altered self-capacities and Paulhus deception scales and set out the results of those assessments in his report. Mr Fraser has worked with PML since the 1990s to 2014 as a family support worker. He clarified at the hearing that he had only seen PML about three times in the last four to five years. He notes that he was provided with a copy of the director of Justice and Attorney-General statement of reasons for the decision to issue a negative notice. The report addresses the matters set out in direction five of the Tribunal’s directions of 9 May 2018. The report notes PML’s family history as set out above and states that she continued to use marijuana as she perceived her life to be out of control. The regular use of marijuana became habitual up until about 6 to 7 years ago when a series of events provided PML with the motivation to change her lifestyle. PML reported that she does not use marijuana and has refocused her energies onto providing care for her grandchildren and regaining her independence from a history of abusive relationships. At the hearing, Mr Fraser stated that despite PML’s drug offending in 2012, after the return of the children, that she was making progressive changes in her life.
  26. [38]
    Mr Fraser considered the extent to which PML has insight into her offending behaviours and its impact on society, the victims and any children associated with PML. He concluded that, throughout the clinical interview and from impressions gained over several years of infrequent family support and therapeutic contact, PML presents as being a person who has insight into the impact of the use of drugs and violence on herself and those around her, but felt trapped in an abusive relationship. The entrapment was compounded by being made responsible to manage the families need in the context of poverty. PML was also without the access to stable emotional and psychological support from her family of origin. PML reported seeing firsthand the effects of offending behaviours and drug use had on her two eldest children. PML accepted responsibility for her part in this along with recognising the impact that their father’s behaviour had on these children and on herself. PML reported that as she became the primary caregiver for her daughter’s children, and has become determined to provide them a more stable home environment than had been afforded previously. This meant securing more suitable accommodation and in an environment that was less problematic. PML was also able to free herself of the controlling influence of her estranged partner, through using the authorities to assist her to manage his compliance to domestic violence orders. PML reported that he is no longer welcome in her home. PML reported that her change has been reinforced by the way that her three grandchildren, who she has had care for most of their lives had developed into responsible motivated young people.
  27. [39]
    Mr Fraser considered what risk factors, or triggers, if any continue to be present which could contribute to a risk of further offending behaviours. He concluded that PML remains vulnerable to the dynamics of her past social and relational environment returning. However, the steps that she has taken and the time lapse that has occurred would suggest that PML is committed to maintaining a positive change. PML also indicated that her youngest daughter who lives close by her current residence, has become a welcomed opportunity for mutual emotional and friendship support. At the hearing Mr Fraser stated that, he had no knowledge of PS2’s involvement in any antisocial behaviour. PML reported that she can reflect on her parenting of her youngest daughter to see that somehow, she was not as adversely affected by the behaviours of her father and older sibling as she was maturing. PML reported that she remains committed to ensuring that the influence of her estranged partner and her older adult children do not impact on her sense of well-being. At the hearing, Mr Fraser noted that he would be concerned if there had been further instances of domestic violence in PML’s home since 2012, given the effect of domestic violence on children is difficult and problematic. He said that he saw PML as having increased her strength to manage the domestic violence.
  28. [40]
    Mr Fraser considered what protective factors, if any, are present to reduce the risk of future offending behaviours? He concluded that PML reported that she has engaged with counselling and emotional support from the women’s centre. PML reported that she has found this to be very helpful. PML also indicated that she has obtained a referral to see a mental health professional through her general practitioner which she also will access. PML knows that she can access my services on an as required basis to supplement what she is already accessing. PML reported that she has developed a network of friends that she believes she can rely on. PML has suggested that she is receiving positive reinforcement from her grandchildren through seeing and experiencing their academic and sporting successes and their cooperative nature with her and other respectful adults.
  29. [41]
    Mr Fraser considered what preventative strategies, if any, does PML use to reduce the risk of future offending behaviours? He concluded that PML reports that she is proactive in seeking assistance and to being protective of her grandchildren. PML also reported that she is diligent in seeking and following through with medical appointments regarding her health concerns. PML indicated that she continues to work towards maintaining a peaceful and structured home environment that emphasises respect for each other. PML indicated that she is committed to maintain a drug-free home and reports no intention to return to her previous lifestyle. PML indicated that she intends to maintain a commitment to her stance towards her estranged partner not being welcome to her home and/or having contact with her. He stated at the hearing that when PC leaves prison, she will support him but his behaviours would not be tolerated at the house.
  30. [42]
    Mr Fraser summarised his assessment of PML as follows:

PML identifies as being a kinship carer of her grandchildren since early in their life. PML also reported a long history of living with the effects of childhood ill-health, sexual abuse and a sense of abandonment. At the age of 17 just after returning to live with her parents and siblings on a permanent basis her mother passed away. At this time, PML had begun employment and was entering a relationship, which became long lasting but abusive and subject to drug and alcohol use. PML had three children to this relationship. During the stressors of maintaining this relationship, PML reported that at the encouragement of her now estranged partner she started to use marijuana, which then became a regular coping strategy. PML indicated that she found it difficult to separate from this relationship due to her estranged partner not accepting her decision. PML reported that whenever she moved he would find her and move in. PML indicated that she no longer uses marijuana and is committed to providing consistent care for her grandchildren. With assistance, PML reported that she has been able to exclude the influences of her estranged partner from her life. PML reported that she has secured different accommodation and has been able to restructure her life to be the parent to her grandchildren that she was not able to easily do to our own children [sic] because of the effect of domestic violence in the context of poverty. It is recommended that PML be considered as a suitable candidate to have her blue card status restored.

  1. [43]
    At the hearing, Mr Fraser confirmed that he saw PML as being of low or no danger to children and had no intent to harm children. He noted that PML only requires the Blue Card to care for her grandchildren and she has no intention of offering her services to the general community. However, if she were to use her Blue Card more broadly she would need to be committed that she had the capacity to not be a risk to children and that would be a question to be considered at the relevant time.
  2. [44]
    The Public Guardian provided a letter to the Department on 7 December 2017 in advocating for the children D1, T1 and DG. The Public Guardian notes the history of the care that PML provided to the children and that they had lived with her essentially their entire lives. The Public Guardian also notes that there were no current standards of care concerns in relation to PML, and that the sole basis of the young people being removed from PML’s care was the issue of the negative notice. They have reviewed the material that is now before QCAT and considered that there is a strong case for QCAT to overturn the decision to issue a negative notice. They encouraged Blue Card services to review all of the material in this matter, to assess the risk to these children as well as assess what is in their best interests. They noted PML’s criminal history and that there were no entries whatsoever since 2012. PML was issued a Blue Card after the last entry, on 9 December 2013. The only new information used in used in the decision to issue the negative notice appears to be some concerns from 2010 and 2011. Child Safety removed the children and investigated these concerns at the time. The children were then returned to PML’s care. PML engaged in an action plan to address the concerns raised, including support from TAIHS and attending counselling through Relationships Australia. This information is attached to the QCAT review application filed by PML. As a result of her actions in addressing the concerns, Child Safety assessed that it was safe to return the children to PML’s care in 2011. Importantly, no further care concerns have been raised since 2011. The Public Guardian notes that D1 has self-placed back with PML as he wants to live with PML. The two girls, T1 and JG, have also expressed that they want to return to live with PML as soon as possible.
  3. [45]
    The Tribunal made directions on 27 February 2018 which resulted in the Office of the Public Guardian filing submissions as child advocate for D1, T1 and JG. Those submissions filed on 8 May 2018 confirmed that the children wanted to return to be cared for by PML and felt safe in the house with her.
  4. [46]
    At the hearing PML was asked for her response to a letter drafted by the manager of PML’s local Child Safety service centre. This letter is included in the notice to produce materials filed by Child Safety at NTP 1115-1116, a portion of the letter was read out to her which stated:

These children are strong achievers and have been very stable in the care of their grandmother. They have been destabilised and the schooling disrupted by the series of events that began with the issue of the negative notice. They both continue to express their emotional responses to their current situation and it is believed that it will only be a matter of time before they choose to self-place back with their grandmother. PML was asked if she felt that this statement from Child Safety was an endorsement of the hard work and protective qualities of the care of her grandchildren.

  1. [47]
    PML agreed that this was an endorsement. I note that the letter makes the point that the information used to issue the negative notice was not new information, and that the decision to not issue a Blue Card to PML failed to consider a number of factors, including that, ongoing carer assessments are completed by licensed carer support agencies at each renewal phase for kinship carers. These are comprehensive detailed assessments. PML has been through a number of assessments every two years which have all withstood Child Safety’s scrutiny even taking into consideration PML’s criminal history and departmental history. The most recent assessment was signed on 31 March 2016. The standard of care assessments referenced in the report are from 2011 and at that time it was deemed suitable for the children to remain in the care of PML. Since this time, there have been no concerns raised suggesting that PML has not been meeting the standards of care.
  2. [48]
    PML was also cross-examined in regards to the incident in 2015, when PS1 attended at her house and the police were called. She said that she locked the doors and called the police and that in future she would ensure that PS1 understood that she could only attend the house under Child Safety supervision. If  PS1 did attend she would be asked to leave and the police would be called if necessary. PML confirmed that there were no current domestic violence orders but she would pursue one if needed. PML also spoke of the extensive counselling she had engaged in to help herself and to keep care of her grandchildren. PML confirmed that she has a good relationship with PS2 who acts as her driver and that she currently has daily contact with her grandchildren to assist them in accessing school and providing them dinner. PML also gave an example of a child she fostered many years ago, who still remains in contact with her as an example of how she is a good carer.
  3. [49]
    The applicant filed submissions on 7 September 2018, some of these are dealt with above in regard to the legislation and comments in regard to witnesses. The submissions question the probity of the notice to produce material from Child Safety on the basis that it represented hearsay as no representative of Child Safety, who was responsible for the material was called to at the hearing of the review to clarify the material. Nor was it put directly to PML in breach of the rule in Browne v Dunn; in terms of evidence which is to be used to contradict a witness must be put to the witness to enable them to answer the allegation. It was further raised that while the material speaks of matters causing ‘substantiated physical harm’, there is none of the usual evidence in support of such a finding such as, medical reports. The finding is therefore unsupported by any documentary evidence and cannot logically be considered a historical risk factor and is therefore irrelevant as current risk factor.

Comparative cases

  1. [50]
    In the submissions PML relies on a comparative case of MWL v Chief Executive, Public Safety Business Agency 2015 QCAT 370. The comparisons in this case include:
    1. (a)
      MWL would de-escalate conflict by walking away and avoiding any further confrontation a health professional suggested MWL had no psychiatric issues which would affect his eligibility for a Blue Card;
    2. (b)
      MWL had a history of drug charges but that his last drug offence was not for the last six years;
    3. (c)
      if necessary MWL would have access to counsellors to deal with stress issues; and
    4. (d)
      MWL would only allow contact between his children and a dangerous family member if such contact was supervised.

The Tribunal ultimately concluded that MWL was not an exceptional case. In considering the facts of the applicant’s case there are many similarities between her and the case of MW L which would affirm the position that hers is not an exceptional case.

  1. [51]
    It was also submitted that the consideration of drug use, and whether it constituted an exceptional case, was considered in Hamilton v The Chief Executive Officer, Public Safety Business Agency 2015 QCAT 92. I note that the decision of the Tribunal in Hamilton was overturned on appeal, Chief Executive Officer, Public Safety Business Agency v Hamilton [2016] QCATA 106.
  2. [52]
    The Department submitted that that an ordinary reading of the WWC Act dictates that each case must be considered on its own unique set of facts, without regard to the merits or otherwise of the comparatively small number of cases which have come before the tribunal. The approach submitted by the respondent has significant support in case law, including Blue Card matters previously considered by the tribunal and the appeal Tribunal and cited the decision of the Tribunal in Commissioner for Children and Young People and Child Guardian v Lister (No 2) 2011 QCATA 87. I agree that while the principles upon which a review application may be dealt with can be elicited from previous cases each review decision must be based upon a consideration of its own facts to determine whether it meets the criteria for an exceptional case or not.
  3. [53]
    The Department’s submissions go into the detail of matters set out in the notice to produce material. While this material was field on 4 May 2018, the Department did not at any stage outline to PML prior to the hearing which parts of the material it would be seeking to rely upon to give PML an opportunity to respond properly to the material. At the hearing I indicated that I would only be interested in material that represented substantiated concerns and I note that those matters were set out in the summary provided by Child Safety to the Department. I concur with the submissions made on behalf of PML that where the rule in Browne v Dunn has not been satisfied by putting the material to PML, then I will not take that material into account. The further submissions on behalf of PML indicate which material should not be relied upon and I have determined not to rely on that material in the making of this decision. I consider that to do otherwise would be to deny PML procedural fairness. Therefore where she has not been cross-examined on material, it will not be considered by me.

Risk and Protective factors

  1. [54]
    It was submitted on behalf of PML that the protective factors in this matter far outweigh negative factors. Such balancing of protective factors with negative factors is a recognised approach Mackinnon v The Chief Executive, Public Safety Business Agency 2015 QCAT 136. Risk factors outlined by PML include the following:
    1. (a)
      The various convictions on PML’s criminal record, the most serious of which include an assault conviction and drug convictions in the 1990s and a drug conviction 2012; and
    2. (b)
      A history of domestic violence in the applicant’s family and challenging behaviours of members of the family that must be controlled.
  2. [55]
    The Department in its submissions after setting out its concerns in regard to PML and in particular matters ascertained from the notice to produce material set out the following risk factors
    1. (a)
      PML continues to minimise her historic drug abuse and her involvement in drug possession and drug supply offending in the family home. PML was said to have given evidence that her drug offending occurred out of sight of the children, and because the children were left in her care by Child Safety after the 2012 offending, that the behaviour was excusable. I note that PML was never charged with drug supply.
    2. (b)
      PML has not outlined the strategies she will employ to protect children in her care from adults who have anti-social behaviours, substance abuse issues and who continue to offend. During the hearing, PML gave evidence that there are now lockable doors on her home and she would call police if she had trouble with her children PC and PS1 when they are released from prison, however there are no domestic violence orders in place in relation to relatives of concern.
    3. (c)
      PML continues to have difficulty managing her emotions around children. This refers to material in the notice to produce material which was not dealt with at the hearing and will not be taken into account.
    4. (d)
      PML continues to appear to have difficulty managing stressful situation and conflict in her home. Future conflict is not unlikely given the continued involvement of her daughter PS1 with drugs and incarceration and family’s entrenched historic domestic violence. This is a repeat of 48(b) and will not be considered separately.
    5. (e)
      PML minimises her involvement in the substantiated harm events leading to the removal of the children from her care by the Department in 2011, for instance in oral evidence she denied her repeated involvement with PG in 2010, denied any domestic violence had occurred in front of the children, asserted her honesty with Child Safety, and denied any health concerns with the children while in PML’s care despite the children being reported as having significant issues.
    6. (f)
      PML minimises Child Safety intervention after 2011, particularly in relation to standards not being met for the children in PML’s care as recently as 2015 with PML continuing to allow the children to be exposed to domestic violence incidents.
    7. (g)
      PML’s repeated allowing of her ex-partner PG, who has an extensive criminal history, to come to her home including in 2017. This was discussed at the hearing and PS2 asserted that it is not PG but one of his brothers.
    8. (h)
      PML states her youngest daughter PS2 is a support to her and has assisted her to care for the children, however PML has not addressed her daughter’s own criminal history (which occurred while she was residing with PML and the children), suggesting PML may also be minimising those behaviours. It was made clear at the hearing that when PS2 lost her Blue Card in 2013 and subsequently her carer approval that she left PML’s house as a result.
    9. (i)
      Reported incidents which indicate the children have covered for PML knowing she may get in trouble with Child Safety, an example given where there reportedly no food in the house. This was explained by PS2 at the house as referring to a time when PML’s fridge was not working.
    10. (j)
      PML has only recently been placed on the waiting list for a 12-hour course ‘exploring Anger with Women’ through Centacare, and gave oral evidence that she has not started the course
  3. [56]
    Protective factors outlined by PML include the following:
    1. (a)
      The convictions attributed to PML in the 1990s are historical and unreflective of PMLs current character.
    2. (b)
      The 2012 drug conviction was minor (involving only 1 g of cannabis) and led to PML immediately and comprehensively addressing the problem and any future problems that could arise from drug use.
    3. (c)
      There is no ongoing violence or drug use in PML’s life.
    4. (d)
      PML’s most recent conviction was six years ago.
    5. (e)
      The domestic violence concerns in PML’s family have been comprehensively addressed and PML has outlined strategies and plans in place to prevent the perpetrators of this domestic violence from re-engaging in their behaviours.
    6. (f)
      PML has engaged in, and enrolled in, a large variety of counselling and other courses to assist her.
    7. (g)
      PML has successfully protected her grandchildren from ongoing or potential domestic violence.
    8. (h)
      PML has provided extensive examples of how she cares for children (including foster children) and provides caring and safe environments for them to live in.
    9. (i)
      PML has expressed, and justified, her enthusiasm to care for children and to devote substantial energy and time in her life to care for her grandchildren.
    10. (j)
      PML’s grandchildren have all provided submissions endorsing the applicant as a caregiver of high standard and express their feelings of safety in her care.
    11. (k)
      Practically all concerns expressed in material from of Child safety have been dispelled by PML and witnesses who appeared for her.
    12. (l)
      PML has supplied a significant amount of letters of support and endorsement from a variety of people who attest to the applicant being safe to children.
  4. [57]
    Protective factors were outlined by the Department as follows:
    1. (a)
      After investigating substantiated findings of harm against the children in PML’s care, Child Safety returned three out of five children to PML given their strong attachment to PML.
    2. (b)
      PML working with Child Safety with respect to participating in and adhering to an action plan to address Child Safety’s concerns, and the children remained with PML until the negative notice issued to her.
    3. (c)
      PML has provided references from 10 people, including her grandchildren, who speak positively of the care she has provided to the children.
    4. (d)
      PML appears to have taken steps to prevent her ex-partner from attending her home, though there is conflicting material on this point.
    5. (e)
      PML has reportedly engaged with counselling and emotional support, and has been referred to a mental health professional, though it is unclear whether she has seen a mental health professional and how long she has accessed counselling.
    6. (f)
      Overall, the children have a strong attachment to PML, appear to be doing well at school and prefer living with PML.
  5. [58]
    The submissions on behalf of PML were that the protective factors far outweigh the negative factors.
  6. [59]
    The Department submits that while the objects of the two agencies, Child Safety and the Department are similar, the test applied by Child Safety under the CP Act with respect to children in need of protection within the family environment is for a different purpose to the test applied by the Department with respect to the screening of persons employed in particular employment or carrying on particular businesses. To dismiss the circumstances and behaviours surrounding the decisions made by Departmental officers applying the CP Act as being irrelevant (to the consideration of an Applicant’s past conduct in the context of the broader employment screening) fails to acknowledge that the welfare and best interests of children can be harmed without amounting to the level of significant harm. The perils of applying another agency’s principles to interpret the phrase ‘exceptional case’ under the WWC Act has been acknowledged by the Tribunal, Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 292. It was held in that case at [33] that the phrase is to be read in the particular context of the legislation to which it occurs. The proper approach to it is that, with respect adopted by Phillipides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.
  7. [60]
    The Department further submitted that the object, purpose and nature of the decisions enshrined in the Act support a precautionary approach to decision making on Blue Card matters. Apart from the inherent impossibility of predicting future risk with certainty, the Act is premised on past behaviour being an indicator of future behaviour and allows for precautionary action even if it is not demonstrated that a person’s criminal offending is not directly child related. The Department further submits a positive notice is unconditional and fully transferrable and that the holder of a Blue Card is allowed unsupervised and unfettered access to children in a range of regulated activities.
  8. [61]
    The Department concludes that the risk factors identified in the proceeding render the case an exceptional case such that it would not be in the best interests of children and young people for PML to be issued with a positive notice and a Blue Card.

Discussion

  1. [62]
    PML has had a difficult life being subject to domestic violence part of the legacy of which is that two of her children have long criminal histories including incarceration that she has a history of mainly drug offences, she says as a result of the effects of the drug making her feel good. As a result of the inability of her daughter, PS1 to care appropriately for her own children PML became kin carer at one stage for 5 of them while living in a three bedroom house. To enable her care for her grandchildren she is required to have a Blue Card and she was able up to the last time she applied for renewal of her Blue Card obtain a renewal. This meant that during this period PML’s criminal history itself was not seen as creating an exceptional case such that she should be issued with a negative notice. The last time though the Department sought information from Child Safety in regard to substantiated notifications, matters of concern and investigations and assessment for PML and it was this material, when taken together with PML’s criminal history, which was said to lead to the determination that this was an exceptional case. For the purpose of the review application, the Department also sought to rely on extensive material obtained from Child Safety under notices to produce.
  2. [63]
    WI can see that while PML’s criminal history in and of itself will not be seen as an exceptional case as it was minor and personal use. It is clear though that use of marijuana and the issues that were raised in the initial material from Child Safety show that PML was not at the time caring properly for the children in her care having regard to the medical issues that the children had and the lack of control of access by persons such as PG who was a person of concern having regard to his alleged sexual abuse but also the domestic violence issues that existed between home and PML. If at that time in 2011 Child Safety had have cancelled PML’s certificate of approval and that had been referred to the Department in accordance with s 140A of the CP Act then it would be likely that PML would have been issued with a negative notice and that would have ensured that would not be able to obtain employment with children and this protecting children from risk.
  3. [64]
    Instead of taking that approach Child Safety removed the children for a period of time and entered an action plan with PML to which I am satisfied on the evidence that PML complied with and three of the five children were returned to her and she was able to obtain a bigger house for them. I do not disagree with the Department that PML has a tendency to minimise the matters which were substantiated in 2011. That is not to deny that all parties including the Department accept that the children that were in her care until the negative notice was issued were, have a strong attachment to PML, appear to be doing well at school and prefer living with PML.
  4. [65]
    In 2012 PML was subject to a further drug charge as was her daughter PS2 who was living with her at the time and assisting with the care of the children being a holder of her own Blue Card. PS2 was convicted of supply offences and her Blue Card was removed. At that time her entitlement to a Blue Card was reviewed and no action was taken by the Department. I was not made aware of what action Child Safety may have taken in regard to this offence but it clear from the evidence of PML, PS2 and is supported by that of Mr Russ Fraser that PML following that conviction underwent counselling and has stopped using drugs and no longer tolerates them on her premises.
  5. [66]
    The major risk factors for PML appear to be the potential for exposure of children in her care and particularly those for whom she is kin carer or foster carer of to domestic violence as a result of her children, PS2 and PC attending her premises. Both of them are currently incarcerated and the Department considered that it was an issue that there were no domestic violence orders in place. I agree with the submissions on behalf of PML that it will only be when they are back in the community and pose a threat that there would be an opportunity to make such an application. The Department does not consider that the action taken by PML in 2015 when PS2 presented in a drug-affected state at the premises after self-harming was sufficient to protect the children and I note that D1 may have been exposed to his mother with bloodied wrists. The action taken of locking the house and calling the police which resulted in PS2 being subject to charges, though, I consider to be appropriately protecting children. In the same way that when PC told PML that his father PG was sexually abusing him, she contacted police.
  6. [67]
    The evidence shows that, since 2012, PML has taken the steps necessary to deal with the drug and domestic violence issues which had and would put children in her care at risk. That is not to say that the possibility of a domestic violence situation arising has been abated, but I am satisfied that she has appropriate strategies measures to deal with them in place. She has the support of many people as evidenced by the material that was filed on her behalf and she has attended relevant courses to and counselling to equip her to deal with the issues as evidenced by the courses she has attended and the change in her attitude and capability is supported by Mr Russ Fraser.
  7. [68]
    The Department submitted that the Tribunal should take a precautionary approach but instead it is asking the Tribunal to rely on material mainly from some years ago to justify the conclusion that PML is an exceptional case. The current material shows the children in her care are now doing well and that can only be as a result of the care that she is providing them. Her continuation as there care was supported by the Public Guardian on behalf of the children following interviews with them and the manager of Child Safety. While I must accept that a Blue Card is transferrable, it is a fact in this case that PML must have a Blue Card to be able to care for her grandchildren and that is the primary reason that she wishes to have it reinstated. PML will always be supervised by Child Safety as a carer and if there were to be future issues I am satisfied that this supervision would instead be a protective mechanism.
  8. [69]
    I am satisfied for the above reasons that on the balance of probabilities the protective factors in respect of PML outweigh the risk factors and that the decision of the Department that PML’s case is exceptional within the meaning of s 221(2) of the WWC Act is set aside and the decision is that there is no exceptional case in respect of PML.
  9. [70]
    There has been some controversy about the effect of the Tribunal’s decision on review where the decision is that there is no exceptional case. The Department has a practice of requiring the applicant to make a further application having regard to the time period that has elapsed since the original application was made and the possibility that the applicants criminal history for example may have changed. Be that as may, this is a merits review of the decision of the Department in respect of the original application and the Tribunal stands in the shoes of the Department. Therefore when the Tribunal makes its decision the role of the Department must be to finalise the original application in accordance with the Tribunal’s decision. Where the decision is that there is no exceptional case then s 221(1) mandates that the Chief Executive must issue a positive notice.
  10. [71]
    Much of the material that has been filed in this application in particular the material filed as a result of the notice to produce identifies children who are subject to guardianship under the CP Act and in accordance with s 189 of that Act there identity and all information in which may identify should be confidential. I therefore make a confidentiality order under s 66 of the QCAT Act that the entire file in respect of this application is confidential and no information may be published which could identify the applicant, PML or any person associated with her in particular the children for whom she was kin carer.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 17; Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, s 188, Schedule 1, type 14.

[2]WWC Act, s 220(b).

[3]WWC Act, s 221(2).

[4]Ibid s 353 and s 354.

[5]QCAT Act s 20(1).

[6]Ibid s 20(2).

[7]Ibid s 19.

[8]Ibid s 21.

[9]WWC Act s 5.

[10]WWC Act s 360.

[11][2016] QCAT 210, [8].

[12]Commissioner for Children and Young People v Maher & Anor [2004] QCA 492.

[13]Commissioner for Children and Young People v Storrs [2011] QCATA 28

[14]WWC Act s 226.

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Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 88

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    05 Apr 2019

Appeal Status

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