Hij v Public Safety Business Agency
[2014] QCAT 503
•8 October 2014
| CITATION: | HIJ v Public Safety Business Agency [2014] QCAT 503 |
| PARTIES: | HIJ (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML119-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 25 September 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 8 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision made on 30 May 2014 to cancel the positive notice and to issue a negative notice is set aside. 2. The positive notice given to HIJ remains current. 3. Publication of any information that would tend to identify HIJ is prohibited. | |
| CATCHWORDS: | CHILDREN – BLUE CARD - where person doing volunteer work at a school had held a positive notice – where that person had been convicted of an offence – where that offence was not categorised as a serious offence – where the positive notice was cancelled and a negative notice issued preventing that person from working with children EXCEPTIONAL CASE – where review sought of cancellation of positive notice – where evidence of risk factors and protective factors – whether not in the best interests of children for a positive notice to remain in place Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 237(1) and (2), 354 and 360 Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 | |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | HIJ appeared on her own behalf |
| RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Louisa Keown, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
HIJ pleaded guilty to an offence that she had committed in a public place when she was intoxicated. No conviction was recorded and she was fined $150.00. HIJ has no other criminal convictions and has not been charged at any other time with any criminal offence.
HIJ had held a positive notice for working with children, referred to as a blue card, as she works as a volunteer as the stationery shop convenor at a school and she also works in the school tuckshop on a regular basis. Her positive notice was cancelled by the Commissioner for Children and Young People and Child Guardian on 30 May 2014 (now the Chief Executive of the Public Safety Business Agency) as a result of the outcome of the police charge.
The Commissioner had issued a negative notice which prevents HIJ from working in her roles at the school. HIJ has sought a review of the decision to cancel her positive notice and to issue her with a negative notice.
Under section 354 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) QCAT can review a decision to cancel a positive notice and to issue a negative notice. The Act specifically provides that in a review the welfare and best interests of a child are paramount.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
QCAT must decide the review in accordance with the Working with Children Act and by way of a fresh hearing on the merits of the case.[2] This means that the tribunal must apply the law as set out in that Act and must come to the correct and preferable decision on the evidence available to the tribunal. The tribunal is not restricted to making findings that the former Commissioner made any errors in the decision under review but rather the tribunal makes a decision afresh on whether HIJ’s positive notice should be cancelled.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
The starting point is sections 237(1) and (2) and 221 of the Working with Children Act. When considering whether to cancel a positive notice, the tribunal must apply the law set out in section 221. Under that section, even though the applicant has been convicted of an offence, a positive notice can be issued to the applicant, and more relevantly her positive notice would not be cancelled unless the tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because the offence of which she was convicted is not a serious offence.
The Working with Children Act does not define what is meant by the words "exceptional case". Relevant authorities can provide assistance in determining how to decide if the facts of a case give rise to an exceptional case. In Commissioner for Children and Young People and Child Guardian v FCG the QCAT Appeal Tribunal stated that phrases such as "exceptional case" must be considered in the context of the legislation which contains them, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect.[3]
[3]CCYPCG v FCG [2011] QCATA 291 at [31].
The Appeal Tribunal stated that the term "exceptional case" is a term of common use in everyday language. It should be applied in each particular case, unhampered by any special meaning or interpretation.[4]
[4]Ibid at [33].
The Act does, however, provide some guidance as to what the tribunal must take into account when deciding whether or not an exceptional case has arisen. Section 226(2) requires QCAT to consider the conviction that HIJ has incurred, 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 that is reasonably relevant to an assessment of the applicant for child related employed.
The evidence before the tribunal as to the nature of the actions which constituted the offence is not disputed. HIJ’s conduct went far beyond what would be acceptable behaviour in a public place and would have been upsetting to those persons, including children, who may have witnessed her behaviour.
HIJ has given evidence, which was not disputed, that she was intoxicated at the time of the offence. She gave evidence that she started drinking alcohol regularly from about 2007 when her father died and she spent an increasing amount of time supporting her mother whose health was failing. HIJ’s husband was diagnosed with a serious illness shortly afterwards and he underwent some six months of treatment which was successful.
These personal and family issues had placed a strain on the relationship between HIJ and her husband. Their goals from their marriage started to diverge and meaningful communication became more difficult.
HIJ started to have a couple of glasses of wine to unwind after a busy day but her husband rarely drank. HIJ found that her drinking became a daily event and by 2009 she realised she was drinking more than was safe to do. She realised that she did not want to lose her marriage and she sought professional assistance with her drinking.
She attended counselling with a psychologist over three or four months and she stopped drinking for about 18 months. She acted on advice to lead a healthier lifestyle and to deal squarely with those issues facing her in her life. She found things to do of an evening to replace the habit of reaching for alcohol as a means of unwinding at home.
HIJ gave evidence that she relapsed back into drinking alcohol regularly in about 2012. In late 2013 she again sought professional assistance with her drinking. She consulted a counsellor and her local doctor who prescribed some medication that reduced the desire for alcohol. She had been on the medication for about a week prior to the incident that resulted in the offence.
HIJ told the tribunal that she was mortified by her actions and by having a conviction for an offence. The experience and the serious consequences on her life and family are in her daily thoughts. She has come to the realisation that she cannot drink any alcohol and she has had none since the incident in question. She remained on the medication for about a month after the incident but as it is not long term medication, she told the tribunal that there is no need for her to take the drug any longer.
She is not currently having any counselling but she would be willing to seek professional assistance again should she feel the need for this type of support. HIJ told the tribunal that she has implemented strategies to avoid resorting to alcohol. She is actively leading a healthy lifestyle. She engages in yoga and she goes walking about five times a week. She engages in activities at home to occupy her in the evenings and at night and she finds activities to do with her husband. She has insight into the issues that had caused disharmony in her life. She regularly meets up with friends and talks to them about any problems in her life. She no longer looks to alcohol to avoid her problems or to deal with any stress in her life.
HIJ’s evidence was supported by a report from a forensic psychologist, Kerrilee Hollows prepared after a clinical interview on 16 August 2014. The report and the opinions of the psychologist were not contradicted by any other evidence from a professional witness. I found the facts and opinions set out in the report to be cogent and directly relevant to the issues to be decided in this review.
According to the report, HIJ has been in a relationship with her husband for over 27 years. She has four children who have a sound relationship with her. The report refers to a strained relationship between HIJ and her husband as they have become increasingly more distant from each other. HIJ has a university degree and worked as a software developer for about 14 years before she ceased work to have her family.
The report revealed that HIJ has over the years been involved in a variety of voluntary work and at the time of the offence, she was assisting at her son’s school. HIJ had reported that volunteering was a very important part of her life as it made her feel appreciated and good about herself. She had no criminal history prior to 2013.
The psychologist used a combination of behavioural observations, psychometric measures and information gathering techniques to understand the factors that resulted in HIJ’s offending behaviour and her ongoing risk to children and youth. The results of psychometric testing revealed the absence of major mental health symptoms or personality deficits.
Ms Hollows reported that the pathway to HIJ’s offending was comprised of a complex combination of cognitive, emotional and social factors. The history of alcohol abuse was the most obvious and prominent factor. However an extensive history of marital problems appears to have contributed indirectly to her offending behaviour due to her poorly developed self –concept and low levels of self-esteem. On a background of significant life stressors, marital discourse and isolation, she perceived herself as incompetent and unable to manage effectively her roles within the family. In response to persistent low mood and feelings of hopelessness, she attempted to avoid these feelings by using alcohol.
The use of alcohol served to numb HIJ emotionally but also impaired her regulatory processes and resulted in a disinhibited state at the time of the offence. Ms Hollows reported that HIJ has a good insight into the impact that her behaviour has on children and she could demonstrate an understanding about the inappropriateness of her behaviour and was able to identify specific examples of how her behaviour might have short and long term consequences for a child. Ms Hollows stated that HIJ was able to identify her pathway to offending and the factors that had contributed to that behaviour. Ms Hollows reported that HIJ was remorseful and was highly ashamed of her actions.
One reservation that Ms Hollows made was contained in the comment that she considered that HIJ’s insight into the extent to which she is impacted by her alcohol abuse remains underdeveloped. At the hearing HIJ disagreed with that comment and asserted that she does understand the full impact of her drinking on her life and behaviour. The presence of this insight is the main factor involved in her total abstinence from alcohol on an ongoing basis.
Ms Hollows also commented that abstinence is a suitable strategy for reducing the risk of re-engaging in unacceptable behaviour but she queried whether HIJ could cope with problematic situations and mood management without formal support.
Overall Ms Hollows expressed the opinion that HIJ is suitable to engage in child related employment and that she does not present as a direct risk to children as a result of her behaviour which was the subject of the offence. Ms Hollows did consider that HIJ has a history of alcohol abuse that would require ongoing psychological intervention in order to appropriately manage the risk of her abusing alcohol in the future. That intervention should focus on developing skills for problem solving, reasoning and decision making as well as specific treatment for substance abuse.
HIJ was questioned at the hearing about this recommendation by Ms Hollows. HIJ stated that she considers she does not need psychological intervention at the current time but would not rule out the need in the future. She stated that the pain of recalling what she had done was still so mortifying to her that she would not want to take any risk of recurrence. She states that any relapse associated with using alcohol again would have a dire impact on her marriage and on her life.
Evidence was given by work colleagues of HIJ. CD and EF are the Tuckshop convenors at the school where HIJ works. Between them, they work alongside HIJ nearly every day of the school term. They both spoke very highly of HIJ’s dedication and skills in her roles at the school. They were aware of the offence in general terms and that it had taken place in association with the use of alcohol. They had not witnessed anything in HIJ’s manner or behaviour to raise any concerns about her actions and she always appeared calm and in control when under stress. They wanted HIJ to return to her roles at the school.
Evidence was also given by GH, an office holder of the Parents and Citizens Association at the school where HIJ works. GH has known HIJ for about five years. She described HIJ as a reliable and hardworking person who has had a number of responsible roles at the school. GH stated that HIJ is highly regarded in the whole school community and it would be a great loss should HIJ not be allowed to work at the school. GH was aware of the offence and that it had occurred in association with the use of alcohol. She stated that there had been no indication that HIJ had had any alcohol use issues and that she always appeared happy and willing to work. GH supported HIJ being able to return to work at the school.
In determining whether the positive notice should have been cancelled, the tribunal must, as required by section 226, consider the offence and the circumstances that had led to that offence. It was not disputed that this was an isolated incident which had occurred in the absence of any prior patterns of socially unacceptable behaviour by HIJ. The penalty imposed by the court and the lack of a recorded conviction support a finding that the incident was out of character for HIJ.
Alcohol use was a major factor in the incident. HIJ’s evidence was clear: she had a history of heavy alcohol usage between 2007 and 2013 although she had ceased drinking or at least had reduced her alcohol intake for some 18 months during that period. She is aware that her use of alcohol was unsafe and she has been totally abstinent for over nine months. She intends to remain abstinent as a safety strategy going forward.
Is this an exceptional case? Would it not be in the best interests of children for a positive notice to remain in place? To answer these questions, the tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances which render the case an exceptional one that would support the cancellation of the positive notice.[5]
[5]In Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28] the Court of Appeal approved of this approach.
The risk factors inherent in leaving the positive notice in place were identified by the Chief Executive’s representative at the hearing. The public and disinhibited nature of the offending behaviour exposed children to embarrassment and to confronting sexualised behaviour. The behaviour would have been confusing for children as it transgressed the barriers between normal and aberrant public behaviour by an adult. A person working with children should be sensitive to the harm that such behaviour may have on a young and impressionable mind.
The behaviour was triggered by excessive alcohol use on a background of longstanding heavy alcohol use and marital disharmony. HIJ had recognised in 2009 that her drinking had reached unsafe levels, she had taken action to remedy that issue but she had relapsed back to unsafe levels of drinking by 2012. The evidence from her expert witness, Ms Hollows, stated that abstinence alone was not enough: professional assistance would be required to address effectively the remaining underlying issues of low self-esteem and to develop a more robust self-concept in her life.
The offending behaviour was recent. The success of the strategies of abstinence and leading a healthy lifestyle is not yet assured given that HIJ has a history of relapsing into heavy alcohol use after a period of abstinence. The strategies are partly dependant on HIJ being able to distract herself from the temptation of alcohol use to avoid problems in her life. There is a possibility that she is not effectively dealing with the problems that remain in her life but rather she is just avoiding them.
Holding a positive notice enables a person to work in a variety of settings with children. The transferability aspects of a positive notice would enable HIJ to work not only in a school setting but also in a less public setting such as in her home with children. If she should relapse into an episode of excessive alcohol use, a repeat of behaviour lacking in regulation and control would tend to place children at risk when no other adult was present.
However the evidence before the tribunal identified protective factors that could reduce or eliminate those risks. The offending behaviour was an aberration. Despite some five years of heavy alcohol use within the period from 2007 to 2013, HIJ had never acted at any other time in a manner that gave rise to a risk of harm to children. The evidence from her work colleagues revealed that she had never demonstrated any at risk behaviour when working at the school and her issues with alcohol came as a surprising revelation to her colleagues. She was calm under stress and she had earned admiration for her hardworking and reliable traits.
HIJ had demonstrated genuine remorse for her actions. Her evidence was entirely credible that she thought about her actions with abhorrence every day and regretted the impact that excessive use of alcohol had had on her life on that particular day and generally on her marriage and family life. The thought of incurring further personal ignominy and causing some greater rift in her marriage has resulted in her total abstinence from alcohol.
She sought professional assistance and has accepted that avoiding difficult personal issues in her life is not the solution. She has insight and she has taken control of the strategies to keep her healthy and happy in herself. She exercises regularly, she has found activities to keep her busy at nights, she has a supportive network of friends with whom she can talk through issues in her life and she is taking steps to do more activities with her husband. She is willing to access professional assistance again although definite arrangements have not been made at the present time.
Ms Hollows found that HIJ has no mental health or personality issues that would impact negatively on her behaviour. Ms Hollows expressed the opinion that HIJ is suitable to engage in child related employment and that she does not present as a direct risk to children as a result of her behaviour which was the subject of the offence.
If the tribunal were to decide that the cancellation of the positive notice was the correct and preferable decision, an exceptional case would have to be established that it was not in the best interests of children for the positive notice to remain in place as the conviction in HIJ’s case is not itself a sufficient cause for cancellation. The best interests of children are promoted when persons working with them are unlikely to expose them to harm. The risk that HIJ would engage in a recurrence of behaviour that could harm children is low. That risk arises from the presence of some unresolved personal issues in HIJ’s life as identified by Ms Hollows that could lead to a relapse of problem drinking.
However I am satisfied that that risk is adequately moderated by the presence of protective factors already set out in these reasons: her abstinence from alcohol, her insight into the triggers for her offending behaviour and for her misuse of alcohol, her insight into the harm of relapsing into unsafe drinking levels, her remorse for her behaviour, her proactive strategies to live a healthier lifestyle, the presence of a supportive network of friends and her willingness to seek further professional assistance to maintain her strategies.
I am satisfied that circumstances do not exist in this case to make a finding that the best interests of children will be promoted by cancelling HIJ’s blue card. The isolated incident of offending behaviour, triggered by the misuse of alcohol, does not render the circumstances of this case into an exceptional case to warrant cancellation of the positive notice. A person can make mistakes and still be fit and safe to work with children: what is important are the lessons learned from the mistakes and how strategies are put into place to reduce the likelihood that similar mistakes will be made in the future. I am satisfied that HIJ has made the right choices since the offending incident so that the interests of children are promoted and safeguarded.
HIJ was frank in her evidence and circumstances of her offending behaviour are set out fully in the documents produced into evidence. Her son is at the school where she works. It is in the interests of justice that information likely to identify HIJ, and indirectly her family, is kept confidential and an order is made prohibiting publication of that information.
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