FW v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 486
•10 December 2015
| CITATION: | FW v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 486 |
| PARTIES: | FW (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML041-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 5 May 2015 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 10 December 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision made on 10 February 2015 to cancel the positive notice and to issue a negative notice is set aside. 2. A positive notice is to be issued to FW. 3. The publication of this matter will occur in a de-identified manner. |
| CATCHWORDS: | CHILDREN-BLUE CARD- exceptional case-where a review sought of cancellation of a positive notice –where person convicted of an offence-where that offence was not categorised as serious-where positive notice was cancelled and a negative notice issued -where evidence of risk factors and protective factors-whether or not in the best interests of children for a positive notice to remain in place. Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 |
APPEARANCES:
| APPLICANT: | FW represented by Meagan Quinn Case Officer with Foster Care Queensland |
| RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Natalie Taylor, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
Background
FW was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) in 2011. Subsequently the Queensland Police Service notified the Commission that FW’s criminal history had changed. After reassessing FW’s eligibility, the Chief Executive Officer of the Public Safety Business Agency, on 10 February 2015, cancelled FW’s positive notice and issued a negative notice.
The Legislation
FW has applied to the Tribunal for a review of that decision pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act).
Under section 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
The Act provides that as FW has no conviction for a serious offence[3] the Chief Executive Officer must issue a positive notice and a blue card unless satisfied his is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.[4]
[3]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.
[4]Ibid s 221.
The Act does not define “exceptional case”. The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FCG said that phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291at [31].
[6]Ibid at [33].
Although the Act does not define “exceptional case” it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].
Any detriment to FW is irrelevant to the Tribunal’s consideration as to whether an exceptional case exists[8] as is any benefit resulting from his having access to children because of particular knowledge, experience or flair[9].
The Evidence
[8]Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.
[9]Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
Criminal History
On 1 January 2014 FW was convicted on two counts of possessing dangerous drugs, possessing utensils or pipes that had been used and possessing/acquiring restricted items, the offences having being committed on 5 November 2013. On all charges no conviction was recorded. He was released upon entering into a $300 recognisance on his own undertaking and to be of good behaviour for six months in relation to the first offence of possessing dangerous drugs and possessing utensils and ordered to participate in a drug diversion programme. On 15 September 2014 FW was convicted of unauthorised dealing with shop goods and possession of a knife in a public place the offences having been committed on 7 August 2014. No conviction was recorded and on all charges he was fined $350.
The police court briefs for the two court appearances were provided to the Tribunal.
The circumstances of the 2013 offences as outlined in the brief were that police executed a search warrant of FW’s residence where he declared the items in his possession: a small amount of chopped cannabis in a glass jar which was concealed in his wardrobe; a small cannabis bud in a clip seal bag in a low drawer unit; a glass vial containing clear liquid concealed in a ceramic piggy bank in a tall drawer unit; a brass smoking pipe and cone piece in a pull out shelf of that unit; and a baton of the type issued to law enforcement agencies in his car. FW made admissions to the ownership, possession and use of the items and was cooperative with police.
FW told police 12 months prior he had been approached by a man at his gym and asked whether he wished to bulk up. The man offered him anabolic steroids and he purchased two vials for $100. He injected one but felt uncomfortable with injecting himself and hid the other vial in the piggy bank and forgot about it.
FW told police he had purchased a bag of cannabis for $20 from a man at the back packers hostel a couple of weeks prior. He said he had bought the pipe from a tobacconist to smoke the cannabis. He told police he had used the cannabis twice a week starting only a couple of weeks earlier and smoked it outside beside the garage. He told them he did this to “chill out” and had last smoked a couple of days ago.
FW told police he had bought the baton from a shop in the main street for $100 because he thought it was cool and kept it in the centre console of his car. He was not asked by staff for identity or proof of employment and did not know it was unlawful to possess it.
FW told police he had been addicted long term to pain killers and other substances as a result of injuries he received in a serious assault on him in 2000[10]. He was a participating member of Narcotics Anonymous and admitted to the difficulty of ceasing his drug addiction.
[10]The police brief stated 2000 when FW was aged only 7 or 8 years old. It was clear from other evidence the injury occurred in 2010.
In relation to the 2014 offences the police brief states FW removed seven packets of poppy seeds to the value of $22.14 from shelves in a store, placed them into a plastic bag containing other items and walked out of the store without purchasing the items. When approached by police, FW attempted to run but was detained and escorted back to the store where he admitted he had not attempted to pay for the items.
Police conducted a search to ensure FW had no further unpaid items and found a switch blade knife tucked into the waist band of his pants. FW told them he had carried the knife with him since 2010 for self defence.
FW in previous submissions to the Public Safety Business Agency and in oral evidence at the hearing said he had stolen that quantity of poppy seeds to make a big batch of muffins which he intended freezing and would then be able to enjoy as a treat. He said he had not ‘eaten anything but two minute noodles for…four or five months’ to save his foster parents spending more on him and had not wanted to ask them for money to buy ingredients. When Miss Taylor suggested that it was common knowledge that the consumption of poppy seeds can produce a hallucinogenic effect FW responded that ‘you’d have to have a lot of poppy seeds to do that’ and he had never “run into it.” He went on to say that he had most of the ingredients needed at home but he had stolen the poppy seeds as they were the most expensive ingredient and he was down to his last couple of dollars.
Life History
FW provided a written statement as well as oral evidence of his personal history. He was born in the United States of America and was 23 years old at the date of the hearing. He described his childhood until the age of ten as normal but said it changed drastically when his parents moved suddenly to New Zealand to avoid prosecution for tax evasion. He said his family did not initially settle down but travelled around in a motor home and he did not attend school. Then his mother had to undergo emergency surgery for a bowel obstruction and she was a changed person after that and reverted to alcoholism.
FW said once he commenced school he was bullied relentlessly because of his nationality. At the same time, his mother had become unpredictable, aggressive and violent.
He described his life as being “well and truly off the rails” by the time he was in year eight with both his mother and father beating him and regularly throwing him out of the house. He said he went without food and was forced to sleep rough.
The family moved to Queensland when he was about 15 and in year ten. He said he discovered marijuana as a way to cope by numbing him. His mother reported him to police when she found a couple of joints. Not long after, he hit back at his father when he went to beat him and his mother then chased him out of the house with a knife.
FW said he then went into foster care with LR and WS whose home he loved immediately. He underwent drug diversion with their support. He described himself as without coping skills or possessions, angry and withdrawn. He said when his parents refused to attend mediation he refused to return home and he has never reunited with them. He said his parents had him placed with another family who treated him badly and he reverted to using marijuana. After a couple of months he was able to return to live with LR and WS.
FW said he continued to use marijuana on and off throughout high school to numb the pain from years of abuse but described the love and support of his foster parents as allowing him to obtain coping skills and begin the process of healing.
FW said that he had loaned money to a fellow student with whom he was friends. When FW said he would go to police if the money was not repaid the friend and two others beat him with an axe handle. FW suffered skull fractures and bleeding to the brain and required emergency surgery. He said he was not expected to survive the surgery but made a full recovery.
FW provided a letter dated 26 March 2015 from Dr Rashed Aziz which stated he was a patient of the practice. The letter stated records indicated FW was not currently medicated for his brain injury sustained in 2010 and had no ongoing complaint regarding the injury.
FW said he became addicted to the pain killers he was prescribed post surgery and he continued to obtain the medication on the internet. He said he realised he needed help and with the support of his foster parents became a member of Narcotics anonymous. He says he has not misused medication since.
An added stressor for FW was his ineligibility to obtain any benefits upon turning 18. He expected the Department of Communities to arrange the necessary changes to his visa but that did not occur. FW said he had held a job for two and a half years, had bought a car and was supporting himself but when he lost that job was without means of support and had to rely on his foster parents. He attended to the visa change himself with the assistance of his foster parents but as there is a two year waiting period after a visa is granted he is still in the position of receiving no income.
FW described the love and support and ongoing mentoring he has received from LR and WS as well as the stability they have provided with accommodation, food and clothing while he has been without income as the reason he has stayed on track. He described his devastation upon being informed that without a Blue card, which he had been required to have since the age of eighteen as a member of a household with other foster children under the age of eighteen, he had to leave the house within 45 minutes of being contacted by the Department of Communities.
In submissions and at the hearing, FW expressed a great deal of frustration with the process required of him in relation to seeking the reinstatement of a Blue card. He described periods of his life as a “living hell” and explained his use of marijuana to help him cope with stress. He described the situation of having to appeal against the decision to issue a negative notice as “unfair” and as “further punishment”.
FW said he understood how his actions could negatively impact on children. He said he was ignorant in relation to weapons laws and explained his need to feel he had some protection in response to the horrific assault against him. He assured the tribunal he would not repeat those offences. He described himself as ashamed about his drug use and said “what it does to you…spiritually and emotionally, it can be very bad to even have those mindsets around children.” However he insisted that no children had actually been harmed by his behaviours as they were not aware of them. He said that the only impact on his foster siblings was not being able to have contact with him as a result of losing his Blue card.
Current Circumstances
FW told the Tribunal he had not consumed alcohol or illegal drugs for eighteen months at the time of the hearing. A copy of a urine drug analysis report dated 27 April 2015 indicated FW tested negative in relation to the presence of opiates, amphetamine type substances, cannabis metabolites, cocaine metabolites, benzodiazepines and methadone metabolites. He said he continued to attend Narcotics Anonymous regularly. He was temporarily living with family friends VT and ST. He said he had enrolled in a Certificate III in Disability as he realised the need to increase his employment prospects. He listed what he said were some of the coping skills he had learnt: talking with his foster parents and trusting them; meditation: exercise; relaxation techniques; gardening and home maintenance; caring for his dog; acceptance of things not always going to plan; knowing that doing the right thing is always the right choice; telling the truth; knowing he is a good person; knowing that support of professionals is there; knowing it’s okay to feel upset or down; not being afraid to ask for help or accept help when it is offered.
FW said he had not ever had the need for counselling as he never felt he was “going crackers”. He said he thought the psychologist he saw to write a report for the hearing “knew what he was talking about”. FW had no plans to seek counselling although he said if the psychologist ‘believes that it might be beneficial down the road then, yes, I might consider it.’
FW submitted the fact he had not resumed drug use despite this being such a challenging time for him showed he had learned to cope without drugs.
Evidence of Psychologist
Gregory Bell, registered psychologist, provided a report dated 30 April 2015 and also gave evidence by telephone.
Mr Bell described FW as cooperative and polite although he showed ‘some level of desperation at his present predicament.’
Mr Bell spent a one hour session with FW and conducted a personality assessment and a personality schema assessment. He concluded that FW does not have any mental disorder although “given a lack of direction and guidance he could be susceptible to mental health challenges in the future, which could result in desperate maladaptive choices.”
As regards the brain injury suffered by FW in 2010, Mr Bell said that although neurological and neuropsychological assessments had shown a total recovery, such assessments do not measure emotional and psycho-social-emotional fallout from such injury.
Mr Bell was of the view that FW’s desire to avoid any future offending was based on his understanding of the seriousness of child safety and a strong desire to get his life back on track. In Mr Bell’s view, FW’s desperation to return to live with his foster family is motivating him to behave in the best interests of children.
Mr Bell said that FW is a very intelligent individual whom he thinks can maintain his emotional strength although Mr Bell thought FW would benefit from psychological therapy. Mr Bell expressed the view that FW had insight into the impact of his behaviours.
Mr Bell said he understood the Blue card system and that a Blue card is fully transferable. Notwithstanding any vulnerabilities of FW, Mr Bell’s evidence was that he offered unequivocal support for FW engaging in any activities available to the holder of a Blue card.
Evidence of Other Witnesses
FW provided written references from a number of witnesses who attended the hearing in person or by telephone.
Lucas Moore is the Queensland Coordinator of the CREATE foundation which represents children and young people with an out-of-home care experience. Ms Quinn said he was called as an expert witness in relation to the impacts of young people transitioning from care out of their primary household before they are ready. His written statement detailed research conducted in this field.
Mr Moore held a degree in journalism but no qualifications in psychology. He outlined his experience in his role with CREATE conducting risk assessments relating to child protection and assessing the risk of harm to children. He had not met FW but had been shown details of his criminal history. He said in his opinion FW was not unsuitable to hold a Blue card.
WS, together with his partner LR, was FW’s foster carer between the ages of 15 to 18. WS expressed the view that as FW had not been convicted of any disqualifying offences he ought not to have lost his Blue card. He explained an understanding of the Blue card system not restricting a Blue card holder to a particular type of contact with children. He expressed the view it was unfair that FW continued to be punished for mistakes in his past. He denied there had been impact on FW’s foster siblings at the time of FW’s offending behaviour.
WS described FW when he first came to live with him as a traumatised child who had been removed from parents who had perpetrated mental, physical and emotional abuse on him. He said that despite the adversity he faced, FW had grown to a mature and responsible young man capable of making a contribution to society. He had read Mr Bell’s report which included a suggestion that FW ‘could be susceptible to mental health challenges in the future, which could result in desperate maladaptive choices.’ WS believed FW will cope with life’s challenges and future adversities.
WS conceded that in the past FW had made bad choices even with the supports available but said he did not think FW would make the same mistakes. He cited his increased maturity and more supports which he identified as himself and LR, VT and ST, Narcotics Anonymous and his doctor. He said he believed that if FW needed psychological counselling in the future he would seek that help.
WS said FW had been frank about what offending had occurred although WS had not read the details of the police brief and was not aware that FW had injected anabolic steroids. He said he thought he had “pills”.
WS supported FW’s contention that he had regularly attended Narcotics Anonymous and that he had been drug free for a substantial period of time. WS echoed FW’s view that as he has not resorted to problematic behaviour even in this stressful time of having to move from his home, he is unlikely in the future to do so. He was adamant that FW would be no risk to children.
LR also said FW had matured greatly over his time in their household and that he was very good with his foster siblings. LR corroborated FW’s contention that he regularly attended Narcotics Anonymous.
Whilst LR’s evidence regarding his knowledge of FW’s drug use was confusing it was apparent that prior to the hearing he was generally aware of the offences committed by him and that LR considered FW had been frank in discussing his drug use with him. LR said he believed FW would seek any assistance he needed in the future to avoid relapsing including psychological counselling if required.
Since receiving a negative notice, FW has been living with ST and VT. VT was too ill to provide oral evidence at the hearing but he had provided a prior written statement.
ST gave evidence by telephone as well as having provided a written statement. She said she was aware of the offences committed by FW but considered him a positive influence on her grandson whom she had left in his care. She also described FW’s positive interactions with his foster siblings. She said she had never had any problem with FW’s behaviour in her home and that he was respectful towards her and her husband and very helpful.
BD has known FW since he first came to live with WS and LR. She also worked with him for a period. She was aware of his difficult background and the offences he had committed. She described FW as interacting well with his foster siblings as well as with her own children, two of whom she said have Asperger syndrome and are not easy to deal with. She described FW as polite and respectful.
BD said in her role as second in charge of Australian Air League she is responsible for a number of staff who are required to hold Blue cards to interact with children. She said she had no doubt that FW is safe to have around children and she would not hesitate to have him on staff at Air League where cadets are as young as eight years of age.
CM said he has worked with WS and LR since October 2013 in his capacity as fostering case worker. He has had regular contact with FW and described him as friendly and willing to engage in conversation. He had observed FW interacting in a positive manner with the children in the household. He said he was aware of offences committed by FW however never observed him to act in a manner dangerous to children.
Submissions on Behalf of FW
Ms Quinn submitted that FW has produced medical evidence that his injury suffered in 2010 has no current impact on him.
She submitted that FW has managed to stay drug free during a period of turmoil which is evidence of strength of character which is a protective factor for his working with children. She submitted that the negative urine test corroborates his assertion he has abstained from taking drugs.
She submitted that the evidence of Mr Bell, while highlighting that FW may need to work on issues arising from his childhood, is that FW is not a risk to children.
Ms Quinn conceded that FW presented at the hearing as belligerent and defensive but that multiple witnesses gave evidence that FW interacts positively and respectfully with them. She submitted that the Tribunal should take into account that he was appearing in the same courthouse where he had to give evidence against his biological parents and against the perpetrators of the violent assault against him. She submitted that affected FW’s ability to interact positively with people in the hearing room and to answer questions to his full capacity.
She conceded that FW showed a lack of insight under pressure at the hearing but that Mr Bell had not found that to be the case when assessing him.
Ms Quinn submitted that a number of witnesses gave evidence of directly observing FW to interact positively with children and had described him as a positive role model. She submitted that both CM and DB who were familiar with the Blue card system and responsible for employing people required to have Blue cards expressed no hesitation for FW to be around children.
Ms Quinn submitted that FW was able to identify a number of strategies to prevent a relapse, including skills learned from Narcotics Anonymous.
She submitted FW has a very robust support structure around him.
Ms Quinn submitted that whilst a Blue card would enable FW to work with children in the community she disputed it allowed him to be a foster carer or to undertake a number of other child related activities because extensive assessment and screening is undertaken prior to an individual engaging in these roles.
Submissions of Blue card Services
Ms Taylor identified a number of protective factors relevant to FW.
(a) That he acknowledged he has made poor life choices and expressed remorse for his offending and the wish to be law abiding in the future.
(b) That FW sought support of Narcotics Anonymous and said he has completed the 12 step rehabilitation programme and continues to attend and seek support on a regular basis.
(c) That FW reports he has ceased using drugs and has been drug free since November 2013.
(d) That FW expressed insight into the triggers for offending behaviour and has strategies to avoid reoffending.
(e) That FW has a stable support network with his foster parents and foster siblings with whom he apparently has a good rapport. Ms Taylor said the support of FW’s foster parents as a protective factor is qualified by the fact their support was available to him at the time of his offending.
(f) FW’s motivation to return to live with his foster family and therefore avoid reoffending.
(g) Witness statements attest to FW’s good character, his work ethic and his positive interaction with his foster siblings and other children with whom he has contact.
Ms Taylor also noted the following risk factors.
(a) That FW’s offending raises concerns about his ability to be an appropriate role model to children and young people.
(b) That FW’s use of cannabis as a way to cope with stress, his addiction to painkillers and that he has injected anabolic steroids raise concern that he is subject to multiple vulnerabilities which impact on his ability to live in a law abiding manner. That he has engaged in long term use of prescription and illegal drugs as a coping mechanism and there is limited evidence that he has addressed the multiple and complex underlying causal factors. Further, the evidence given by FW indicates his drug use was far more extensive than his criminal history reflects. He admitted to using cannabis daily during some periods which Ms Taylor submitted was an indication of the strength of his addiction.
(c) That the report of psychologist Greg Bell supports a conclusion that the vulnerabilities FW has experienced in the past remain to an extent, unresolved. She submitted that in the absence of professional treatment, FW remains highly vulnerable to recidivism.
(d) That Mr Bell notes that formal assessments of FW following his brain injury do not measure “emotional and psycho-social-emotional fallout”. She submitted that in the absence of psychological treatment, the emotional stability of FW has not been determined and that is critical to his ability to provide a consistent, protective and stable environment for children in his care. Ms Taylor noted that Mr Bell had only a one hour session with FW.
(e) That FW’s written submission was that he had been drug free for two years but he was convicted of possessing drugs in November 2013, at most eighteen months prior to the hearing. Whether the correct time frame is eighteen months or two years, Ms Taylor submitted FW has had limited opportunity to demonstrate he can remain drug free and sober on a long term basis.
(f) That FW used drugs whilst residing in the home where foster care was provided to children and intoxication of any kind impairs a person’s ability to provide adequate care and protection for children and young people. Miss Taylor submitted the importance of having appropriately developed insight into harmful behaviours cannot be overstated in an assessment where a negative behaviour has occurred[11].
(g) That particularly considering the recency of offending, FW has not demonstrated on a long term basis he has the ability to safe guard the best interests of children.
[11] Re TAA [2006] QCST 11 at paragraph 97.
Miss Taylor submitted that whilst FW does not seek a Blue card for employment purposes, the broader issues regarding transferability and the unconditional nature of a Blue card must be considered.
In relation to the evidence of witnesses, Ms Taylor submitted they were all very genuine in their affection, close to FW in a personal capacity and support his application for a Blue card. She acknowledged the comments in relation to his good character, the steps he has taken to overcome significant trauma in his life, his level of maturity and his positive interactions with children. However, Ms Taylor submitted there are considerations which may temper the weight given to witness statements.
Ms Taylor asked that limited weight be placed on the evidence of Mr Moore, as any detriment to FW of not having a Blue card[12] nor any benefit to children resulting from his access to children[13] are irrelevant as to whether an exceptional case exists. She submitted that any statements made by Mr Moore as to FW’s suitability to work with children should be treated with caution as Mr Moore had not met FW nor read all the material regarding his offending and drug use.
[12]Chief Executive Officer, Department for Child Protection v Scott op. cit.
[13]Grinrod v Chief Executive Officer, Department for Community Development op. cit.
As regards the evidence of WS and LR Ms Taylor submitted they did not appear to be fully apprised of the nature and extent of FW’s drug offending and it appeared he had not been entirely frank in his discussions with them.
Ms Taylor submitted that BD also appeared not to have full knowledge of the nature and extent of FW’s drug offending.
In summary Ms Taylor submitted FW’s criminal history is a highly significant and relevant consideration as to whether an exceptional case has been established. She said weight should be given to the recency of the offending, the long term nature of his drug use and ongoing concerns raised by Mr Bell regarding unresolved maladaptive coping mechanisms. She submitted that the risk factors had not been mitigated and that FW’s case falls in the category of being exceptional such that it would not be in the best interests of children for him to hold a Blue card and the Tribunal should confirm the decision to issue a negative notice.
Discussion
FW’s demeanour when giving oral evidence, described by his own representative as belligerent and defensive, was of concern to me as illustrating a lack of insight into the impact of his behaviours on children and the seriousness with which an application for the review of a decision to issue a negative notice must be considered. Ms Quinn submitted I should have regard to the fact that FW has given evidence in the same courthouse against his biological parents and against those who assaulted him causing serious injury. I accept those factors could affect FW’s demeanour in the hearing room although some of his written material was similarly indignant towards the process.
WS likewise expressed unhappiness with the process. I understand his protectiveness towards his foster son who has gone through so much but the best interests of children are the paramount consideration for the Tribunal. The impact on FW, no matter how dire, is not a relevant consideration as to whether an exceptional case exists[14].
[14]Chief Executive Officer, Department for Child Protection v Scott op. cit.
Mr Moore’s evidence as to the impact on children leaving care is irrelevant for the same reason. While I note his view that FW would not be unsuitable to work with children, I do not place great weight on his evidence given he has not actually met FW.
I do not place any reliance on the fact that FW seeks a Blue card only to remain a member of his foster household. I agree with the submissions of Ms Taylor in that regard that the unconditional nature of a Blue card must be considered.
I do not accept FW’s explanation for shoplifting seven packets of poppy seeds. I am concerned that he would not be truthful to this Tribunal and his untruthfulness is surprising given his admissions of ongoing drug use. I assume he adopted that implausible explanation in his written statement and felt unable to resile from it. I consider that incident part of an involvement with drug taking that I accept has ceased for a period of eighteen months at the date of hearing.
Whilst the evidence of WS and LR was sometimes confusing as to what they did or did not know of FW’s offending, I do not find that it was the result of FW failing to make full disclosures to them. The details they were not aware of were not significant, for example, that the anabolic steroid was in injectable form, not a pill. Overall I find the evidence of WS and LR to be credible and not rehearsed.
I accept the evidence of FW’s character witnesses as to his positive interactions with children and his respectful manner towards the adults in his life.
I accept the evidence of FW and his witnesses as to the supports he now has in place and his willingness to rely on those. I found FW’s explanation of the strategies he now has in place to cope with stress convincing. I accept his submission that he is highly motivated to avoid behaviour that will risk him being unable to remain in the household of his foster family in the future. I accept his submission that he has not resumed the use of drugs or alcohol at this time of great stress as indicative of a likelihood he will not resume those behaviours in the future.
I am particularly persuaded by the evidence of Mr Bell who is an experienced psychologist. I accept Ms Quinn’s submission that Mr Bell’s suggestion for the need for counselling relates to issues arising from FW’s childhood and a lack of counselling does not result in any risk to children. Although he saw FW for only one session, in that time Mr Bell undertook an appropriate assessment and concluded unequivocally that FW was not a risk to children.
I do not consider that there are risk factors which outweigh the positive factors and I am not satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the negative notice is set aside and a positive notice issued to FW.
Non-publication of Identifying Information
The parties did not make submissions about a non-publication order but the Tribunal has the power to prohibit publication of information that may identify persons appearing before the Tribunal or whom may be affected by the proceeding,[15] including particulars which may reasonably lead to the identification of children. I am satisfied that it is not in the public interest to release identifying information regarding the applicant or his witnesses and the principles of openness and accountability can be achieved by permitting the public access to the details of Blue card matters, the decisions of the Tribunal and the reasons for the decisions. In any event I must have regard to the prohibition on publication provided for in the Child Protection Act 1999 (Qld).[16]
[15]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s66.
[16]s189(1)(b) and (c).
Orders
1. The decision made on 10 February 2015 to cancel the positive notice and to issue a negative notice is set aside.
2. A positive notice is to be issued to FW.
3.The publication of this matter will occur in a de-identified manner.
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