AB v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 394
•29 September 2015
| CITATION: | AB v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 394 |
| PARTIES: | AB (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML060-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 11 September 2015 |
| HEARD AT: | Southport |
| DECISION OF: | Member Joachim |
| DELIVERED ON: | 29 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Public Safety Business Agency to issue a negative notice to AB is set aside and AB is to be issued with a positive notice and blue card. 2. The publication of information that may identify the applicant, her husband or her children is prohibited. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – where applicant received a negative notice – where applicant has charges and convictions for domestic violence offences in 2011 – where applicant had abused alcohol – where applicant has depression and anxiety – where applicant no longer drinks and receives ongoing professional assistance – where applicant has reunited with husband – where stressors have abated - whether case is exceptional. Child Protection Act 1999 (Qld), s 9 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES:
| APPLICANT: | AB represented herself. |
| RESPONDENT: | Public Safety Business Agency represented by Ms N Taylor. |
REASONS FOR DECISION
AB is 46 years old and lives in a regional area of Queensland with her husband and three children, two of whom are of adult age. In recent times AB has been studying to qualify as a nurse.
She applied to the Public Safety Business Agency (‘PSBA’) on 23 July 2014 to be issued with a positive notice and blue card. On 11 February 2015 she was issued with a negative notice under the Working With Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
This means she cannot hold a blue card to work with children. This is required so that she can complete her nursing studies as she is required to participate in practical training potentially involving children. AB seeks a review of this decision so she can complete her studies.
AB has convictions in Western Australia for breaching of police restraining orders in relation to the Restraining Orders Act 1997 (WA) and damaging property. She also has charges which were dismissed for breaching restraining orders, breaching of bail conditions and unlawful assault. These offences occurred on three days in 2011.
They all occurred in the context of a breakdown in the relationship between herself and her husband. The applicant was both charged and convicted of breaching a restraining order by attending the family home, convicted of damaging court paperwork in relation to custody of the children and charged with physically assaulting her husband on two separate occasions. She also sent her husband and children text messages which she was not supposed to do.
The offences heard on 17 April 2012 were all dismissed. In relation to the offences heard 18 May 2012 there were fines of $200 for four of the offences. None of these offences are serious offences under the Working with Children Act.
Consequently AB is entitled to receive a positive notice and blue card unless it is considered hers is an exceptional case such that it would harm the bests interests of children for her to have a positive notice.[1]
[1]Working with Children Act s 221.
The PSBA considered AB’s case was an exceptional one. AB seeks a review of this decision.
The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.[2] The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act. This outlines what I have to consider in deciding if an exceptional case exists.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20.
The purpose of the review is to produce the correct and preferable decision.[3] The Tribunal may:
a) confirm or amend the Agency’s decision;
b) set it aside and substitute its own decision; or
c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.[4]
[3]Ibid.
[4]QCAT Act s 24.
Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working With Children (Risk Management and Screening) Act 2000 (Qld).
Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
In order to issue a positive notice to AB I need to be satisfied on the balance of probabilities bearing in mind the gravity of the consequences involved that an exceptional case does not exist.
AB’s criminal history
AB’s relationship with her husband broke down around March 2011. They were separated from then until December 2011. During that time AB’s husband took out a violence restraint order as AB continued to visit the family home uninvited.
This violence restraint order was breached on a number of occasions. She was subsequently charged and dealt with in a Western Australian Magistrates Court in April and May of 2012.
The police information reveals that AB visited the family home in breach of the order, dumped her husband’s paperwork in a drain, physically assaulted him in the head, sent text messages to her husband and her children, with police assistance removed a motorbike from the family home and assaulted her husband in the car park of a shopping centre after an argument in front of their daughter. These events appeared to occur on 19 August 2011, 10 September 2011 and 7 October 2011.
I note in Agency’s reasons document that a date of 20 August 2011 has also been noted. It appears that this was the date on which AB was charged for offences that occurred on 19 August 2011. A number of the charges were dismissed for want of prosecution, but on the breaches of police orders, AB was fined $200 for four breaches and convicted of damaging property.
The case put by AB
AB provided extensive documentation to the Tribunal outlining her life story. During 2010 and early 2011 she advised she had been under considerable pressure and stress. She had undergone surgery in 2010 to remove lymph nodes from her right armpit, there had been deaths in the family and a suicide of a close friend whilst she was on the phone talking to the friend.
She advised that she was under pressure at work and her husband was working away from home. She was responsible for looking after the three children who at that stage were 8, 14 and 18. She advised that soon after her discharge from hospital in 2010 she started to consume excess alcohol.
As a result of her depression and the breakdown in her marriage she decided to leave the family home as she was concerned about the impact of her anxiety and depression on her children. She entered rehabilitation and counselling.
She continued to have issues during 2011 with drinking and with her depression as she was missing her children. It was during these times that she breached the orders and committed the offences against her husband.
She stopped drinking in November 2011 and has not drunk since. In December 2011 she started to re-establish her relationship with her husband, and in February of 2012 she moved out of her unit back to the family home.
She described her behaviour during the breaches as terrible. She said this was not her and it’s not how she would normally behave. She was medicated, scared and numb. She noted that it was totally out of line and totally out of character.
In relation to the incident that occurred on 19 August 2011 in which she destroyed paperwork and assaulted her husband she said she was intoxicated and on medication for depression and anxiety.
She noted that during this time she had little support as her parents tried to be impartial. She could not remember striking her husband. The children were in bed and were not aware of the incident.
In relation to subsequent text messages which she sent to her husband and children, she stated that she did not say goodbye to her children prior to a suicide attempt.
She acknowledged that the assault of her husband in the car park was not appropriate behaviour and she was aware that her eight year old child was in the car when this occurred. She said at that time she was not under the influence of alcohol and went to the police station at the same time as her husband. She said the incident lasted approximately one minute.
She advised that she has apologised to each child separately for her actions and her drinking during this time. She and her husband decided to sell the family home in Western Australia after they had reconciled and moved to Queensland where they now live on acreage with their three children.
She advised that the blue card refusal had increased her anxiety and depression and she is seeing health professionals to assist her with her depression and anxiety. She had been studying to obtain a nursing qualification so that she could return to work now that the children are older. In order to complete the course she requires a blue card to undertake the practical aspects of her work. She advised that she is currently renovating the family home and if she obtains her blue card she wishes to work in the mental health area and addiction for adults.
She described her network in Perth as being quite large with family and friends and acknowledged she does not have a large network in Queensland.
Her psychiatrist has recently changed her anti-depressant medication and she now feels a lot better. She takes anti-anxiety medication every three days.
She had been seeing a psychologist on a fortnightly basis but now sees him every six weeks. Through this process she has engaged in cognitive behaviour therapy with positive affirmations and she’s learning to stop thinking negatively. She considered that her children were well rounded and do not appear to have been affected by her actions. The younger daughter had seen a counsellor here and in Western Australia. She described the family communication as an open style.
AB acknowledged that she has suffered anxiety and depression but that it was now under control. She does not feel as if the children were harmed. She noted that she had taken herself away so that they wouldn’t be affected by her anxiety and depression in 2011. She advised that the 2015 suicidal ideation was principally a result of messages from her student colleagues about their graduation.
She submitted that an eight week period in her 47 years of life shouldn’t impact upon her receiving a positive notice. She stated she regrets what has happened and that she is a good honest reliable person and is disappointed she is unable to continue her studies.
AB’s husband gave evidence that his wife had changed greatly in the last couple of years regarding the way she dealt with issues and with regards to her excess drinking. He said she has taken ownership of her problems and come to the realisation that she had done wrong, noting a remarkable change.
He stated that AB does not drink anymore, seeks professional help and has a more positive outlook. He described an open relationship with the children who are now 12, 18 and 22 years of age.
He described AB’s behaviour as very much out of character and that she has turned herself around amazingly. He has no concern anymore about her behaviours. He advised he now has a local job and is home more often to give more support in the home. He indicated that he considered his wife has more resilience now and could cope better now than in 2011.
He described her as being very close to her mother with a very good small circle of friends. He noted that the children were affected negatively by the events of 2010 and 2011. He said the children were aware of the problems associated with their mother’s mental health issues. He described it as a horrible time and negative for the children.
He describes his wife’s strengths as being a loving, caring person who helps people and who is a genuine person who is very positive. He described her weakness as her getting upset when trying to deal with the history of the events that unfolded.
AB’s psychiatrist Dr Chan described his involvement with AB since 2014. He said that she had a diagnosis of depression and panic disorder. He regarded her as being of no risk to herself or others. He described how she became upset when she was not given a blue card and had to stop studying. He changed her medication in May and although she described thoughts of suicide in July this passed quickly.
He said that AB has reasonably good understanding of her mental health issues and a good understanding of her medication. He was aware she had been working with a psychologist regarding her coping skills and she now has a far better approach and is more open with her feelings. He said that she seeks help when she needs it and is regular in her appointments.
Erica Begehole is a psychologist who has had a number of sessions with AB. She first saw AB in February of 2015 after she was very upset because of the negative notice. She provided a report to the Tribunal after she had completed six sessions with AB.
She stated she has helped AB come to terms with the decision and her anxiety within a positive behavioural framework, including cognitive behaviour therapy and being aware of how thoughts affect mood. She described her as functioning well and that she now has good problem solving skills and good conflict resolution skills, also noting that she had resolved the suicidal thoughts quickly in July 2015.
Two of AB’s friends HJ and NS gave supportive evidence noting that they had no concerns with AB’s involvement with either their children or grandchildren. They had not seen her intoxicated and had seen her respond appropriately to protect children when horses at the riding club became agitated. In particular JH described her as having good listening skills and always being there to help.
AB’s parents gave evidence noting that their daughter was not thinking properly in 2010 and 2011. They both noticed a very positive change in their daughter. AB’s father noted that his daughter was now more positive talking about the future. He said he had not seen her disturbances in mood or behaviour before the incidents in 2011 and hasn’t seen any disturbance since.
AB’s mother says she speaks to her daughter regularly and is able to tell from her voice how she is going. Her mother described an incident where AB had to intervene when a glass door was broken at her mother’s home. She described how AB handled the situation very calmly, acting well under stress to ensure one of the children who was injured had appropriate treatment and was sent to hospital.
The view of the Public Safety Business Agency
When the Agency considered AB’s application for a blue card the Deputy Chief Executive Officer was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued.
He noted that AB had multiple convictions and charges including two offences of a violent nature committed in a domestic context against her husband, with some of these being committed in the presence of, or directly affecting the couple’s young children placing their physical and emotional wellbeing at risk. He also concluded that AB’s actions of sending text messages communicating a final goodbye before making an attempt to end her life would have caused the parties and in particular the children significant emotional distress.
The Agency was concerned about AB’s mental health resulting with a lack of ability to act protectively for children. The information before the Agency suggested that AB has a propensity to act aggressively to situations of conflict in a domestic setting which is of direct relevance to her eligibility to work with children where situations of conflict may be expected to occur.
The Agency was not convinced that AB’s assertions that she did not understand the conditions of the restraining order was credible. The Agency also noted that even if the children did not directly witness incidents they would have observed the father’s injuries which would have caused them emotional distress.
The Deputy Chief Executive Officer was of the view that there was insufficient evidence before him regarding AB’s coping skills or strategies to manage the stresses in her life. He could not be satisfied that if she were again to be faced with similar life stresses she would not resort to similar behaviour.
The Agency reiterated at the hearing that the concerns for the Agency were the offending and alleged offending, in particular the physical assaults and the removal of material as well as the instability in AB’s mental health. The Agency was also concerned about information in the police material regarding the presence of children.
The Tribunal was urged to consider whether AB had developed sufficient insight into the triggers for her behaviours and the impact on others. In addition to this the Tribunal was asked to consider various risk factors concerning how AB responded to grief, her current consumption of alcohol and how she is dealing with her mental health issues.
Following the evidence the Agency noted, that in making a decision about a person’s eligibility for a blue card, a decision maker must take into account the best interests of children, which is to be paramount and the right of a child to be protected from harm.
The Agency noted that there was a range of protective factors that exist for AB including:
· Her expressing regret for her actions and her desire to move forward in a positive way;
· Her offending and alleged offending being isolated to a period of approximately two months in 2011;
· A level of insight into the triggers for her offending behaviours, citing numerous personal tragedies, life stresses and health difficulties which all occurred within a short period of time;
· Her seeking professional assistance from a psychologist and psychiatrist in managing her mental health;
· Her putting in place protective strategies to reduce the risk of a repetition of her behaviour including support of family and friends, improved communication skills and ongoing engagement with professional assistance;
· AB’s referees speaking positively of her character and the positive changes she has made in her life;
· Her awareness that her behaviour was inappropriate;
· Her seeking professional help for her daughter who recently expressed some depressive thoughts;
· Her abstinence from alcohol.
There are however a number of risk factors submitted by the agency. These include:
· The fact that she has charges and convictions of violence occurring in a domestic context raises concerns about her ability to respond appropriately and in a non-violent manner to situations of stress and conflict;
· Her sending two of her children text messages inferring that she was saying goodbye sent immediately before a suicide attempt thereby placing the children’s emotional wellbeing at significant risk of harm;
· AB’s mental health history and history of problematic alcohol consumption;
· Little reflection in her written material regarding the impact on her behaviours on her children with a tendency to minimise this;
· Her alarming lack of insight into the impact of her behaviour on children;
· Further suicidal thoughts in July 2015;
· A limited support network in Queensland.
The Agency made submissions regarding Dr Chan’s lack of experience in preparing reports in child related employment matters and his not being fully aware of AB’s criminal history. The Agency also referred to the psychologist not being fully aware of the reasons for the decision of the Agency to refuse her a blue card. The Agency also referred to the psychologist’s lack of knowledge in relation to AB’s criminal history.
The Agency suggests that I should consider the weight that I should give to the evidence of the health professionals given the above. It was suggested that the conclusions reached by the psychologist should be tempered because of those matters.
The submissions of the Agency included that the issue of whether AB has appropriate insight into the consequences of her behaviour on children and young people is a significant concern, quoting the case of Re: TAA in the former Children’s Services Commission:[5]
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 dependant on the adults around them having insight into their actions and the likely effect on children.
[5]Re: TAA [2006] QCST 11, at para [97].
The Agency argues that it is well documented that witnessing or being exposed to domestic violence has a detrimental effect on children. The Agency noted that AB’s submissions that her involvement of her children directly in the offending was less than what is reflected in the police material.
The Agency submits however, that even if the children did not directly witness offences they would have observed their father’s injuries which would have caused them emotional distress.
The Agency noted that the Tribunal must consider AB’s eligibility to work in child related employment or conduct a child related business regulated by the Working with Children Act irrespective of whether the applicant intends to engage in such activities at this time, noting that a positive notice of blue card is fully transferrable and unconditional.
In conclusion the Agency submitted that the risk factors identified raised concerns regarding AB’s ability:
· To respond appropriately in a non-violent manner to situations of stress and conflict particularly involving children; and
· To demonstrate stable and appropriate role modelling to children and ultimately remain child focussed and act in the best interests of children.
The Agency submitted that it is an exceptional one such that it would not be the best interest of children and young people for AB to be issued with a positive notice and blue card at this time.
The Agency also argued that I should use the power under s 66 of the QCAT Act to prohibit publication of information that may enable a person affected by the proceedings to be identified. This was argued because it is appropriate for the Tribunal to make an order prohibiting the publication of the names of all children identified in the written material and all other identifying particulars which would reasonably lead to the identification of children including AB’s name and the name of her husband.
The Tribunal’s View
What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the object and intention of the Act.
· That is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing.
There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon.
This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary.
In other words there needs to be a real difference from the usual type of cases. It cannot be one which is regularly encountered. Above all, however, the term exceptional case must be considered in the context of the legislation.
I have to consider the exceptionality of this case in relation to harming the best interests of children. What does harming the best interests of children mean?
The Child Protection Act 1999 (Qld) can provide some guidance in this matter. The definition of harm in s 9 is as follows:
9What is harm
(1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2)It is immaterial how the harm is caused.
(3)Harm can be caused by—
(a)physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
(4)Harm can be caused by—
(a)a single act, omission or circumstance; or
(b)a series or combination of acts, omissions or circumstances.
What does best interest mean? It is obvious that childrens’ best interests are met if they are not subject to any harm including physical, psychological or emotional harm. Their best interests are also served by them being in a safe environment and having appropriate role models.
Best interests of children are also served by them having access to age appropriate education, proper health care, not being subject to or witness to illegal activities including violence and the use of drugs. It also includes encouragement to develop positive relationships with others, assistance in developing a positive self-esteem and establishing positive attachment between a child and suitable adults.
In deciding whether this is an exceptional case I need to take into account s 226 of the Working with Children Act. I have noted AB’s criminal history which includes both charges and convictions. The criminal history does her no credit. The offences were committed at a time when she was under a great deal of stress and was abusing alcohol.
I accept that her behaviour was inappropriate and that it is of relevance to child related employment. She assaulted her husband on two occasions, one of which was in the presence of their young child. Even though the children were not present on the other occasion, the children would have seen the injuries suffered by her husband as a result of the assault. I am of the view that this would have had a negative impact on the children. This does not constitute the behaviour of a person who would be an appropriate role model for children.
I note that the offences are not categorised as serious or disqualifying offences. I also note that the offences were committed over a very small window of time in 2011 with most but not all of a short duration. I note the penalties imposed were relatively minor.
I will also take into account the protective and risk factors following the example in the Commissioner for Children and Young People and Child Guardian v Maher & Anor.[6] I accept the protective factors which are outlined the Agency’s submissions noted above. I do not accept all the risk factors that the agency has submitted. I do not accept that AB has an alarming lack of insight into the impact of her behaviour on her children.
[6][2004] QCA 492.
I accept that AB may not have a full insight into the impact of her behaviour on her children. I am satisfied that AB has developed sufficient insight into her behaviours and the impact on others, that she has adequate strategies to respond to grief, she is no longer consuming alcohol and she is receiving ongoing support for her mental health issues.
I accept AB’s evidence that she did not say goodbye to her children in text messages prior to her suicide attempt.
I need to take into account whether the positive protective factors outweigh the risk factors.
I have come to the view that the protective factors in this case do outweigh the risk factors. Importantly for the Tribunal, AB remains connected to a psychiatrist and a psychologist for ongoing support. She has new strategies and resources for dealing with anxiety and depression. The vast majority of the factors contributing to her 2011 offending have been removed from her life.
Whilst the passage of time is not a determinant in this matter, I am however able to take it into account. I note that there has been no re-offending for four years, and that there is no previous criminal history. This is an important fact, along with the narrow period of offending behaviour.
I have taken the evidence about suicidal thoughts in July 2015 into account. The Agency acknowledged that there had been no maladaptive behaviour as a result. I also note the evidence of the health professionals that this was resolved quickly and appeared directly related to the denial of her positive notice.
In taking all of this into account I have come to the view that AB’s case is not an exceptional one such that it would harm the best interests of children for her to have a positive notice and blue card. I will therefore set aside the agency’s decision and order that AB be issued with a positive notice and blue card.
I accept the Agency’s submissions that this is a matter which warrants an order prohibiting publication of information that could identify the applicant, her husband and particularly her children. There would be no public interest served by the identification of these persons, nor is it in the interests of justice that the children be identified.
I order that the publication of information that may identify the applicant, her husband or her children is prohibited.
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