FMK v Chief Executive Public Safety Business Agency

CITATION:	FMK v Chief Executive Public Safety Business Agency [2016] QCAT 391
PARTIES:	FMK (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)
APPLICATION NUMBER:	CML101-16
MATTER TYPE:	Childrens matters
HEARING DATE:	6 September 2016
HEARD AT:	Brisbane
DECISION OF:	Member Guthrie
DELIVERED ON:	24 October 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of the Chief Executive Officer, Public Safety Business Agency that there is an exceptional case for FMK under s 221(2) of the Working with Children (Risk Management and Screening Act 2000 (Qld), is set aside and a new decision is substituted that there is not an exceptional case for FMK. *2. The publication of the applicant’s name and the name of any witness who shares her surname is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act* 2009 (Qld).** 3. The order of the Tribunal made 8 August 2016 is continued prohibiting the publication of documents concerning FMK’s participation in a rehabilitation program save as was necessary for the parties to engage in and progress these proceedings.
CATCHWORDS:	GENERAL ADMINISTRATIVE REVIEW – BLUE CARD – EXCEPTIONAL CASE – where no serious offences – where extensive history of fraud related offences – where history of prescription drug abuse - where intensive drug rehabilitation order made – where participation in rehabilitation – whether exceptional case in all the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 21, 24, 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 167, 221, 226, 318, 319, 337, 338, 353, 360, Schedule 7 Re FAA [2006] QCST 15
APPEARANCES:
APPLICANT:	FMK represented herself.
RESPONDENT:	Mr J Thompson, in house Counsel, Public Safety Business Agency

REASONS FOR DECISION

FMK was working as a dental assistant when she made a Blue Card application under the Working with Children (Risk Management and Screening Act 2000 (Qld) (‘the Act’). She requires a Blue Card to continue in her employment and understands that she may require one to volunteer at her son’s school.
On 8 April 2016, the Chief Executive Officer decided that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to FMK. That meant that a Blue Card could not be issued to FMK.

What is the reviewable decision?

FMK applied to the Tribunal for review of the chief executive’s decision. Pursuant to s 353 of the Act, the reviewable decision about FMK is the decision of the chief executive that there is an exceptional case for FMK because the chief executive issued a negative notice to her.

The Tribunal’s conduct of a review of a reviewable decision

In exercising the tribunal’s review jurisdiction, it must apply the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Act as that is the legislation under which the reviewable decision was made. The Tribunal has all the functions of the decision maker for the reviewable decision being reviewed.[1] The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[2]
[1]QCAT Act s 19.
[2]QCAT Act s 20.
The functions or essentially the orders the Tribunal can make in determining a review are set out in s 24 of the QCAT Act.

The evidence

In determining this review, I have considered the documents lodged by the chief executive in accordance with s 21(2) of the QCAT Act. I have also considered the documentary evidence tendered at the hearing by both parties. Those documents included certain of the documents obtained by the Tribunal through a notice to produce issued to a rehabilitation service that FMK attended between 16 October 2009 and early 2012.
I have also taken into account the oral evidence given at the hearing by FMK, FMK’s former partner, her brother, registered psychologist, Dr Steve Morgan and former colleagues at her most recent place of employment.

The relevant legislative provisions

The object of the Act is to promote and protect the rights, interests and wellbeing of children in Queensland. The paramount consideration in an employment screening decision made under the Act is the welfare and best interests of the child. The Act is also to be administered under the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing[3].
[3]The Act s 6.
As FMK has been convicted for an offence other than a ‘serious offence’ as defined in the Act, the chief executive must issue a positive notice to FMK unless the chief executive is satisfied that 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 in which case the chief executive must issue a negative notice to FMK.[4] It is for me to decide whether or not there is an exceptional case for FMK.
[4]The Act s 221.
The term, ‘exceptional case’ is not defined in the Act. Whether a case is exceptional is a matter of discretion to be determined by considering the circumstances of each individual case and having regard to the particular matters set out in s 226(2) of the Act. Section 226(2) provides:
(2) The chief executive must have regard to the following—
(a)in relation to the commission, or alleged commission, of an offence by the person—
(i)whether it is a conviction or a charge; and
(ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)when the offence was committed or is alleged to have been committed; and
(iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)    in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357,
the court’s reasons for its decision;
(b) any information about the person given to the chief executive under section 318 or 319;
(c)     any report about the person’s mental health given to the chief executive under section 335;
(d) any information about the person given to the chief executive under section 337 or 338;
(e)            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.
In reliance on a line of authority in these types of cases, what constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
[5]Re FAA [2006] QCST 15 at [22].
The central focus of the Act is the protection of children. I agree with the reasoning of the Queensland Children’s Services Tribunal in Re FAA that in applying the Act it is not intended that such application impose additional punishment on a person who has a criminal history. Rather, it is intended to put gates around employment to protect children from harm.[6]
[6]Re FAA [2006] QCST 15 at [29], citing the second reading speech Commissioner for Young Children and Young People Bill p.4391.

Discussion of the evidence and findings of fact

It is common ground that FMK has a lengthy criminal history. She has not, however, been convicted of any serious offences as defined in the Act.[7]
[7]The Act, s 3, Schedule 7, s 167.
FMK has been convicted on over 100 charges dating between 1990 (when she was a minor) and 2013. FMK is now 42 years of age. She has been sentenced on about 22 occasions. The offences are mostly fraud related offences. There have also been breaches of a parole order, bail undertakings and stealing offences. Most of the offending behaviour has occurred at FMK’s places of employment over the years, mostly dental practices. Usually, she obtained the credit card details of patients of the practice and then used them to purchase items for herself.
FMK accepts her criminal history and in her evidence did not attempt to downplay them in any way. She said that she had spent the majority of her adult life looking over her shoulder waiting for the police to arrive at her door. I formally find that FMK’s criminal history is as set out in the relevant court briefs and check results report.[8]
[8]Exhibit 1, 004-010, 047-083 (inclusive).
I also find that she plead guilty to charges on all occasions. Her most recent conviction was in 2013 in relation to eight charges of fraud and stealing occurring in the period April 2011 to June 2013. She says she completed her parole on 21 October 2015.
FMK reports a history of sexual abuse as a child which she kept from her family for many years. She also reports an abusive relationship with her partner when she was aged 18 through to 26 years. She reports that she abused prescription medication during this time. She said she commenced taking the medication following an accident in her teens. Her partner was an alcoholic and a gambling addict. FMK also conceded that she had a gambling addiction and in fact gambled to raise the money to comply with the restitution order made in 1996 in the amount of $6,890.95.
There is also no dispute and I find that on 20 August 2009, FMK was assessed as drug dependent and suitable to undertake an Intensive Drug Rehabilitation Order[9].
[9]Exhibit 2.
FMK explained that she applied to the Drug Court to attend rehabilitation rather than return to jail. By then she had had her first child who was only two years old and she thought the Intensive Drug Rehabilitation Order was a means to return to the community sooner.
FMK admitted she had once tried speed in 2002. She admitted that she had taken amphetamines, Xanax, had always taken Duramine for weight loss, and Dolacet, but that she had exaggerated her drug use in the Drug Court proceedings. FMK said that during her parole period she remained drug free and was regularly drug tested.
A letter from the relevant rehabilitation service dated 25 July 2016 confirms that FMK was a client of the service from 20 October 2009 to 1 October 2010. The letter states that the program is an intensive alcohol and other drug treatment program designed to provide opportunities for its clients to develop skills and insights required to live their lives free of the dependence of alcohol and other drugs.[10]
[10]Exhibit 3.
Further, the letter states that the treatment process at the service includes three main foci:
·       Exploration and challenging of attitudes and behaviours that have contributed and maintain substance dependence;
·       Development of various life skills such as communication, assertiveness and problem solving skills;
·       Developing responsibility to self and others through required job functions that are essential to maintain a therapeutic community of 28 residents.
In addition, there is an optional semi-structured transition to community program that can last between three and 12 months depending on the client’s needs. This is designed to provide support whilst transitioning back into society and may include engagement in TAFE, employment and volunteering, as well as reunification with family. FMK completed both the residential phase of treatment and the transition to community program during her stay at the service.
FMK gave evidence that she took longer to complete the rehabilitation course than she had anticipated. She said it was a much harder option than jail in the end as ‘you are forced to confront yourself’. She said that the program involved strict routine, therapy, dobbing on one another (which would not happen in jail), admitting fault and accepting responsibility. She said she learned that she had to be accountable for her actions. She learned that she had been responsible for matters affecting her child, the destruction of her first marriage, that secrets were damaging and that she had not asked for help when she should have. She said at the end of her stay she was a lot clearer on where she had gone wrong.
FMK said that during her stay at the service she had drug testing every week and only one false positive result had been returned. I have before me the pathology reports of the screens taken during her stay with the service which are consistent with her evidence.[11] I find that during the period of her participation in rehabilitation FMK did not test positive for any drugs.
[11]Exhibit 6.
FMK said that after four months at the service she had moved to phase three and then she was found to be colluding with another resident and not taking the program seriously. FMK said that they were going to discharge her back to Court. The alternative was to start all over again and that was what she did. FMK accepts that at that time there were issues with which she was continuing to struggle. She was focussed on her young son but she was also committed to fighting his father for custody of the child. At that time, she thought her former husband had taken their child from her. She completed the program after 14 months. FMK’s evidence regarding her participation in the rehabilitation service’s program is consistent with the records obtained from the service. I find that she participated and completed the course as stated by the service and reflected in the records provided by the service.[12]
[12]Exhibits 3, 5, 6, 7, 8.
FMK gave evidence that she has not taken excessive doses of any prescription drug medication since she completed the intensive rehabilitation program. She also said that she no longer has a gambling addiction and has not for some time.
FMK said that her offending behaviour was linked mostly to selfishness and greed, rather than financial issues.
FMK acknowledged that even after her treatment at the rehabilitation service she continued to offend. She explained that she offended to assist someone she had met in jail and whom she felt she could not cross. However, since that time she has not committed any further offences and she has completed her parole order. FMK plans to marry in December. She now has two children, having had a second child with her current partner. She is looking forward to the future. She had a job that she enjoyed at a dental practice until the decision to issue her with a negative notice.
The father of FMK’s first child spoke to the Tribunal about the difficult period during their marriage. He was completely unware until the police attended at their home that FMK had committed any offences. They had been able to pay their bills and he thought they had a good relationship and life. He ended the relationship about a week after discovering the truth. The period during which he decided to pursue custody of their child was very difficult. However, he said that they had come through that, had participated in a family mediation and FMK moved closer to where he and their son were living. He said that he and FMK are now good friends. They have coffee and are able to laugh together. Their son is happy. He acknowledged FMK’s current partner and that his son now has a step-brother with whom he is close.
FMK’s former husband attributed her past offending, to ‘wanting to keep up with the Jones’ and living above her means. He does not consider that she currently lives in such a way and considers she is now an honest person. He has no concerns about her interacting with children and does not believe she would harm a child. He also said that if anything were to happen to him FMK would do a fine job of raising their son.
FMK’s offending behaviour and the evidence of her former partner that he did not know that she was purchasing items using stolen credit card details or taking excessive doses of prescription medication until the police knocked on their door, indicates that FMK has, at least in the past, been able to successfully deceive even those close to her. As a result, I approached FMK’s evidence with caution. I asked her why I should now believe her when she had such a history of deceitful behaviour, managing to fool even those who thought they were closest to her.
FMK responded that now others would know if something was happening. Her life is no longer a secret. Her neighbours know her past. Everyone is helping her. She had her youngest son in custody with her for a year and this was something she would never want to happen again. It meant that her partner could not be with their child. She said she had been selfish.
FMK said her mother knows everything and they are very close. She now has friends. She has her neighbours and has friendships with the parents of her older son’s friends. She does not want to go back to jail. She said she could not do it to herself or her family. She no longer has to look over her shoulder because she doesn’t have anything to hide now. All of her past offending has caught up with her and been dealt with by the courts. She said she was sick of doing things because of what others told her to do.
FMK also gave evidence that her father has had to be admitted to a nursing home and that had brought her family closer together. She said she had openly discussed her sexual abuse with her family. While she attended just one session at Annerley sexual assault clinic, she did not consider that she needed any further consultations in relation to that because of the openness with which the subject had been dealt with in her family.
FMK’s brother gave evidence about his lack of knowledge about the realities of his sister’s life during the periods of her offending. In contrast, he said that the familial relationships are now close and supportive. He also spoke of the family working together to find the best accommodation for their father.
I put to FMK the information from the health referral to the rehabilitation service dated 20 August 2009,[13] which referred to her mother indicating that she had bipolar disorder and also referenced depression. FMK responded that when she was 18 years old she was taking prescription drugs which impacted her moods. Her mother took her to a psychiatrist who diagnosed bipolar disorder. However, she said she had lied to the psychiatrist about the medication she was taking. She took Zoloft for one month as prescribed by the psychiatrist.
[13]Exhibit 2.
FMK agreed she had a bad memory at times, as reported by her first husband, but in response to my questions, said that her memory deficits had not impacted her work, or her ability to care for her children. She said it was not uncommon for someone in prison to be depressed, but she does not take any anti-depressive medication at the current time, and she had not been recently diagnosed with depression.
I have also considered the evidence of Dr Steve Morgan. Dr Morgan informed the Tribunal of his qualifications and areas of expertise. He has extensive expertise in the area of forensic psychology. He acknowledged the concerns expressed by the chief executive that, as he had treated FMK, he might not be regarded as an objective and independent expert.
Dr Morgan saw FMK on only three occasions in the context of a period of parole. His report states that FMK was referred to him for psychological treatment by her general practitioner on 30 December 2014. Her referral was also facilitated by the relevant office of probation and parole. Dr Morgan’s report states that the basis of the referral and specific aim of intervention had been to support her within the context of concluding a Parole Order in March 2015.[14]
[14]Exhibit 11.
I consider that Dr Morgan gave his evidence in a frank manner and did not engage in any debate with the chief executive when his independence was questioned. He highlighted his treatment sessions without attempting to advocate on behalf of FMK. I accept that the opinions he has expressed were based on his assessment of FMK in those treatment sessions. I have formed the view that his evidence can be accepted as objectively given.

Dr Morgan said that he was not provided with FMK’s complete criminal history, when she was referred to him but his report acknowledged fraud convictions. He said that she told him she had been convicted of four fraud related matters. He was aware that she had been incarcerated for a lengthy period of time at least once. He was aware that to some extent there had been drug abuse. He said that they had tried to work on the dominant concern. There was a discussion around the prescription drugs and she told him that she had attended the rehabilitation service in 2010. However, he focussed on the repetitive fraudulent behaviour and did not consider the prescription drug issue to be a pressing concern.
FMK had been referred to Dr Morgan for six sessions in total but attended only three. Dr Morgan said FMK was not required to attend all six sessions. She told him that she wanted to focus on her family and getting back into employment. He said that while he liked people to come back he was not alarmed when she did not return. He considered her to be committed to intervention. She was, at that time, 40 years old, in a stable relationship, had her son and was much more mature. She was motivated to avoid risk situations and focus on her son.
Dr Morgan considered the protective factors to be the stability of her current relationship, her devotion to her son and the rehabilitation that she had gone through, as well as her maturity. He said that in forming that view he was aware that she had continued to offend after she was admitted to the rehabilitation service and that was part of the reason for the referral by the corrections officers. He said that in their sessions they had discussed the basis of the fraud behaviour and identified certain triggers:
·       Selfishness;
·       Impulsivity;
·       Living beyond her means;
·       Opportunity; and
·       Feeling isolated.
He said that the key risk factors indicated why it was so important for her to have a stable relationship and to work on her budgeting. He had also noted that her partner of three and a half years was the dominant financial manager, and she was also at that time looking for the support of her mother to manage her finances. He had told her that it was important that she build her ability to manage her finances in case her relationship broke down.
Until her application the subject of this review was rejected, FMK had been working as a dental assistant in a dental practice. A number of her colleagues from that practice provided references and gave oral evidence at the hearing. They all indicated that they were aware of her offending. Some knew more details than others. Some knew that the offences were matters of fraud and had occurred in her place of work in other dental practices. Despite that, they all spoke highly of her and wanted her to return to work there. They had based their opinions on their observations of her at work. Some were aware of her personal circumstances in the past, such as prior sexual abuse and an abusive relationship with one of her previous partners.
They regarded her as highly professional and considered her to be good with patients, particularly children. They said she was caring, genuine and had a good way with people. They also spoke highly of her clinical skills and professionalism.
Ms White indicated that she was not concerned that FMK would re-offend or place a child at harm. She said that in the past other people had affected FMK’s choices and behaviours. She said, having gone through this process, and having involved a number of her work mates, FMK would not want to let down the people who have assisted her. She said that FMK had, in the past, put her faith in people who did not have her best interests at heart, but now she has a good bunch of friends around her and has the support of her family, which in the past had not been so good, but was now close. Ms White said that FMK’s mother comes in to see her on her days off. FMK has a positive relationship with her children. Ms White said she would have no hesitation trusting FMK with her own children. She said that FMK said that she would not do any reception work. FMK said this was not only to avoid temptation, but also to ensure that if anything untoward were to happen she would not be blamed.
I have also considered the evidence of the dentist from the dental practice where FMK had been working. In response to questioning, she said that she had never suspected that FMK had ever been under the influence of drugs at work, and she considered that she would notice if FMK exhibited any such behaviour.
I consider it also worth noting that FMK’s support person was another member of staff from the dental practice and was present for all of FMK’s evidence.
FMK said that the following matters, similarly to what was expressed by Ms White, would prevent her from returning to her previous behaviour:
a)    Her partner;
b)    Her children;
c)    Her supportive family, including her brother and her mother.
FMK said she keeps the prepared relapse prevention plan that she showed to Dr Morgan[15] by her bed as a constant reminder of what she must do. She said that she would not now be influenced by others as she has far too much to lose. She said she would not put herself in a position where she had any opportunity to take money. She is trying to make amends for what she has done wrong. She is ashamed of her past but, at the same time, she believes that her past has made her a stronger person. She said her father would visit her in jail but now ‘does not even know who I am’. She sees that as a reason to continue on her current path.
[15]Exhibit 17.
Assessment of FMK’s evidence
I consider that FMK gave her evidence in an open manner. Many of her personal circumstances would have been difficult for her to recount but she did not shy away from any questions. At times she said she was unable to recall details of certain offences but I regarded that to be due not to any attempt to avoid answering the question or giving relevant evidence but to a genuine inability to recall. I do not consider that surprising given the length of her criminal history both in time period and number of offences. She was able to analyse and articulate reasons for her behaviour and acknowledged the pain she had caused to her family by her conduct. I considered that her evidence showed insight.
Her evidence regarding her attendance at the rehabilitation service was consistent with the records from that service relied upon by the parties. Her evidence regarding the positive changes in her life in recent times was also consistent with the evidence of those who gave evidence on her behalf, her work colleagues, brother and former husband. Dr Morgan’s impressions of FMK were also consistent with her evidence that drug use and her former sexual abuse were not matters which were of concern during the period of her parole. I have reached the conclusion that FMK’s evidence was truthfully given.
I find that FMK has a previous history of prescription drug abuse. I find she has a previous history of a gambling addiction. I also find that FMK has sought treatment in the form of rehabilitation for the drug abuse and that the gambling addiction was disclosed as part of the referral to the rehabilitation service. I also find that FMK has had three sessions with Dr Morgan. Based on Dr Morgan’s evidence I find that past drug abuse, the impact of prior sexual abuse and a past gambling addiction were not matters of concern at the time of his consultations with him. Consistently with FMK’s evidence which is somewhat supported by the evidence of Dr Morgan, I accept that FMK’s previous drug abuse, gambling addiction and her experience of sexual abuse have not been, since her engagement in the rehabilitation service and are not currently, matters of concern.
Further, based on her evidence and that of her brother, former partner, former work colleagues and Dr Morgan, I find that there have been positive changes to her personal circumstances in recent times including:
a)    the growth and strengthening of her familial support network
b)    the continued support of her current partner
c)    her involvement in the life of her first child
d)    the support of her former husband
e)    the friendship, support (both professional and personal) and respect (both professional and personal) FMK has from friends and work colleagues
f)     that she has openly shared her past criminal conduct with friends, neighbours, family and colleagues
g)    she obtained employment.
I also find based on FMK’s evidence that she has positive future plans to resecure employment, marry her current partner, the father of her second child and to be more involved in the school life of her first child.
I also accept her evidence that she continues to refer to the relapse prevention plan.
In addition, I accept and find that FMK does not currently require treatment in line with a current psychiatric diagnosis.

Application of the law and reasons

I have made assessments of the evidence and findings of fact under the heading “Discussion of the evidence” to which I must apply the law.
In deciding whether or not there is an exceptional case for FMK in which it would not be in the best interests of children for the chief executive to issue a positive notice, I must have regard to the matters set out in s 226(2). The chief executive did not seek a report on FMK’s mental health under s 335 of the Act. There is no information before me that was given to the chief executive under s 318, 319, 337 or 338 of the Act.
Turning then to a consideration of the other matters in s 226.

Whether the offence is a conviction or a charge?

In this case FMK’’s criminal history contains convictions for over 100 fraud and other offences. She has had numerous convictions and her most recent parole order was finalised no later than October 2015. The fact that they are all convictions means they are of more concern than charges as elements of the relevant offences must be accepted to have been proved.

Whether the offence is a serious offence?

None of the offences recorded in FMK’s criminal history are defined as serious offences. This weighs against reaching the conclusion that there is an exceptional case for FMK.

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

FMK’s criminal history spans a lengthy period through to fairly recent times.
There has been recent offending and the offending has been ongoing in nature over almost half her life.
I have weighed the ongoing nature of her criminal activity and the recency of the offending, in determining whether or not there is an exceptional case for FMK.

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

The nature of the offences are such that they did not involve children. The offences have little relevance to the employment or carrying on of a business that involves or may involve children in so far as the safety of children is concerned. I acknowledge that in her most recent period of incarceration one of her children was incarcerated with her. However, I do not consider that is evidence that a child has been harmed. The child was very young and it was obviously considered by the relevant authorities that it was appropriate that she care for him in jail.
It might be argued that FMK’s criminal history is such that she is not a good role model for children. However, I do not consider that that is the type of harm the Act seeks to prevent. There is nothing before me that would support a finding that FMK has ever sought to coerce, persuade or influence others to engage in criminal behaviour.
Her repeated pattern of deception and dishonesty does raise concerns about her ability to make appropriate decisions and her social behaviour. However, the nature of the offences themselves did not cause harm to a child. There is no evidence that her decision making is otherwise impaired. There is no evidence that when caring for children she has made decisions which have put them at risk of harm.
Of more concern in my view is the intensive drug rehabilitation order that was made in 2009. I have found that FMK was addicted to prescription medication. However, I have also found that that is not an ongoing concern. Further, I have found that her past history of a gambling addiction is also no longer of concern.
She has completed rehabilitation and some sessions with Dr Morgan. FMK has prepared and refers regularly to her relapse prevention plan in so far as her offending behaviour is concerned.
In relation to her offending behaviour, I accept Dr Morgan’s evidence regarding the protective factors in this case: the stability of her current relationship, her devotion to her children and the rehabilitation that she has undertaken, as well as her maturity. Importantly, FMK recognises the importance of those factors in her life. FMK also referred to the support of her mother and brother as important to her. I consider that that is also a protective factor. Her desire to maintain strong familial, social and professional relationships is in my view a strong motivation for FMK not to reoffend.
I accept the following triggers for her offending behaviour were identified by Dr Morgan with FMK:
·       Selfishness;
·       Impulsivity;
·       Living beyond her means;
·       Opportunity; and
·       Feeling isolated.
I also accept that FMK has made positive changes in her life in an attempt to eliminate those triggers. She has recounted her past to family, friends and colleagues. She has sought employment. She has acknowledged her past selfish behaviour and acknowledged the distress it caused to those close to her. FMK has insight into her past behaviour. She maintains close and regular contact with her support network.

In the case of conviction: the penalty imposed by the Court, and if it is decided not to impose an imprisonment order for the offence or decided not to make a disqualification order under s 357 the Courts reasons for its decision

FMK’s offending has attracted penalties ranging from fines, restitution orders, probation orders and multiple imprisonment orders, including a four year suspended imprisonment sentence due to an intensive drug rehabilitation order. All of those penalties are linked to offences which are not in any way related to children, or the care of children. I do not have before me any of the sentencing remarks of the courts that convicted FMK so that I do not know what matters the court considered in passing sentence.

Other relevant matters

I accept that the many and varied penalties imposed on FMK by the courts have in the past failed to deter her from reoffending. FMK acknowledged that even after her treatment at the rehabilitation service she reoffended. However, she complied with her parole order and in that context had sessions with Dr Morgan. There have been no further charges since 2013. I have also accepted the positive changes she has made in recent times and her positive future plans. FMK is looking forward to the future. She has the support of family, friends and colleagues to maintain her current path.
In my view, FMK’s behaviour has caused harm to adult family members and the victims of her crimes. However, there is no compelling evidence that it has caused any harm to a child. Based on her evidence, and that of her former partner, her son is a happy and well adjusted child who is doing well. Whilst I had concerns that FMK’s criminal history showed a talent for lies and deceit, I accept that her life is now considerably different to that at the time of her offending. Time has passed, she has matured, secured employment and developed supportive professional and social relationships with her colleagues. She has been open with her colleagues and others in her life about her criminal history.
FMK has unburdened herself from her lies and secrets. She has found that despite doing this, family and friends have rallied to support her. I agree with Ms White that FMK would not want to let them down.

Conclusion

Weighing all of the matters in s 226 and the other circumstances I have discussed, I have reached the conclusion that there is not an exceptional case for FMK in which it would not be in the best interests of children for a positive notice to issue to her. I therefore set aside the reviewable decision and substitute a new decision that there is not an exceptional case for FMK.

Non-publication order

The chief executive submits that a non-publication order should be made to protect the identity of FMK’s children. It was submitted that the only way that could be assured was for FMK’s name to be withheld from publication. I accept that submission. I order that the publication of the name of the applicant and any witnesses who share her surname in connection with these reasons is prohibited other than to the parties to the proceeding. That order is made pursuant to s 66(1)(a) of the QCAT Act.
On 8 August 2016, I ordered that, pursuant to s 66(1)(a) of the QCAT Act, publication of all documents concerning the participation by FMK in the rehabilitation program was prohibited, save as was necessary for the parties to engage in and progress the hearing. I continue that order. I do so as the records which were obtained via a notice to produce issued by the Tribunal contain personal information concerning FMK’s health. I do not consider it to be in the interest of justice for such inherently private information to be published to third parties.

[2016] QCAT 391

24 October 2016