Jak v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 248

CITATION:

JAK v Commissioner for Children and Young People and Child Guardian [2014] QCAT 248

PARTIES:	JAK (Applicant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML132-13

MATTER TYPE:

Childrens matters

HEARING DATE:

20 March 2014

HEARD AT:

Hervey Bay

DECISION OF:

Member Quinlivan
Member Lewis

DELIVERED ON:

11 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commissioner to refuse JAK’s application to cancel her negative notice is set aside.

2. The Commissioner is to issue a positive notice and Blue card to the applicant.

3. The Tribunal prohibits the publication of the names of the applicant and the children referred to in these proceedings.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Commissioner’s decision to issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice. NON-PUBLICATION ORDER – where contrary to the public interest to identify names of the applicant and children

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

JAK represented by Carolyn Turner, Solicitor, of Taylor Street Community Legal Service.

RESPONDENT:

Craig Capper representing the Commissioner for Children and Young People and Child Guardian.

REASONS FOR DECISION

JAK is 43 years old. She has a partner, of about 22 years, and they have three children, aged 18, 13 and 8. She had previously held a Blue card, but consequent upon an event in September 2007, the Commissioner for Children and Young People and Child Guardian issued a negative notice in November of that year.
In December 2008 she pleaded guilty in the District Court to three charges of unlawfully, and with intent to injure, causing a noxious thing to be administered to a person, the charges being pursuant to section 323(1) (b) of the Criminal Code as it then stood. She was convicted and sentenced to three years imprisonment, but with an immediate release on parole. We will deal with this matter in detail shortly.
Subsequently JAK enrolled in a Bachelor of Human Services. As part of the requirements for the degree she needed to work with adults who were mentally ill, and for that she needed a Blue card.
In March 2012 she applied to the Commissioner for cancellation of the negative notice, and the issuing of a Blue card.
Her convictions were not for serious offences[1] as defined in the Commission for Young People and Child Guardian Act 2000, and accordingly fell within section 221(1)(c). The Commissioner must therefore issue a positive notice unless he is satisfied that ‘it is an exceptional case in which it would not be in the best interests of children … to issue a positive notice..’.
[1]Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) Schedule 2.
On 4 March 2013 the Acting Commissioner advised that he had decided to refuse JAK’s application. It is from that decision that she has sought a review in accordance with the Act.
The relevant legislative provisions require the Tribunal to hear and decide the matter as a fresh hearing on the merits. It has all the functions of the decision-maker, and the purpose is to produce the correct and preferable decision.[2] The guiding principle is that the welfare and best interests of a child are paramount.[3] Matters that the Commissioner, and the Tribunal, must take into account are those set out in section 226 (2) of the CCYPCG Act, but other matters may also be considered.
[2]Queensland Civil and Administrative Tribunal Act 2009 ss 19, 20.
[3]CCYPCG Act s 360.
The events of September 2007 were preceded by and no doubt were substantially the result of a number of major distressing events in JAK’s life. It is simplest to refer to them chronologically.
In 2007 the applicant’s father had terminal cancer and he died in June that year. She and her partner had been providing support to him and her mother in the months leading up to his death, helping to care for him, shopping for them, providing emotional support for her mother and her children who were watching their grandfather deteriorate. She was also the point of contact and support for her siblings who lived elsewhere. She says she became in effect the head of the family. After her father died, she provided both emotional and practical help to enable her mother to cope.
In April 2007, a close and long-time friend committed suicide. She says this was ‘an incredibly sad and bewildering time’.
At the same time her partner was facing criminal charges and was obliged to travel for court appearances. She says this put a major strain on them and their relationship. In August 2007, as his hearing date approached, after an argument between them, her partner attempted to commit suicide by hanging himself. She says she suspected something was amiss, and followed him out in time to see him tie a noose and hang himself.
She says she screamed, which attracted two male neighbours, she ran inside to get a phone, then back to him where she managed to cut him down while ringing for help. She then attempted CPR while waiting for the ambulance. He survived but she describes having ‘never experienced fear or loneliness on the level that I did that day’.
Also, in August 2007, two months after her father’s death, an uncle with whom she was close died. She was also facing possible eviction from her rented accommodation at this time.
On 17 September 2007, her partner appeared in court on his charges. She was at the court, but she was outside caring for the children when the sentence was handed down. She received a message that he had been sentenced to three years imprisonment. While a parole release date was set that reduced the actual incarceration period to 10 months, apparently she was unaware of this.
On the following day, 18 September, she took the children to school. Later that day she received a letter advising that her licence had been revoked. She spent time attempting to deal with that, and a Centrelink matter, but by the end of the day she was not coping.
That evening she had what she described as a meltdown. It is not necessary to relate all of the incidents of that evening, but it is clear she became agitated and distressed. She telephoned a friend who later described her as mumbling and incoherent.
While she was in the course of preparing dinner, she told the children to get in the car, which was in a garage with the door down. They all got in and JAK told them they would go to sleep there. The children were then aged 12, 7 and 2. She started the car. She was making comments like ‘there is nothing to live for’ and ‘our lives are ruined’. However no attempt was made to pipe exhaust fumes into the car itself. The children were apparently not restrained. The 12 year old got out of the car and said he did not want to die, and opened the garage door. His mother then closed it again. The second child was crying and asking her mother to switch off the engine.
Fortunately, the friend whom she had phoned arrived very soon after that. The garage was full of fumes but no one had lost consciousness or begun coughing, and all were apparently uninjured. JAK returned to the house and served the children their meal. The friend called the ambulance and police.
JAK and the children were taken to hospital, where it was confirmed that the children had no physical injuries. However JAK was taken to the mental health unit, where she remained until 4 October 2007. The children were placed with her sister.
She was initially charged with attempted murder but she had persistently told the police that she did not intend to hurt the children, much less kill them. That charge was later withdrawn and replaced with the charges of unlawfully administering a noxious thing in relation to each child.
The Crown tendered reports from three psychiatrists. The treating psychiatrist diagnosed her as having had a major depressive illness, and that she was deprived of the capacity to control her actions. A second, Dr R, opined that she had a likely major depressive disorder, which impaired but did not deprive her of the relevant capacities for a defence of insanity under section 27 of the Criminal Code. The third did not support the diagnosis of major depression, but thought it was a reaction to psychosocial stressors. Both Crown and Defence submitted the second of these should be accepted, which the sentencing Judge did.
The submissions also referred to JAK having had (prior to the subject events) a very dependent relationship on her partner, and of having had previous depressive episodes.
We also note that addendum reports of November 2007 and January 2008 provided a risk assessment vis-a-vis her caring for her children, assessing it at minimum or very low significance. She resumed full-time care of the children on 23 June 2008.
She was sentenced to three years imprisonment but immediately released on parole. In his sentencing remarks,[4] the Judge noted that the Crown accepted she did not intend to kill or cause serious injury to her children, although she did place their lives in danger.
[4]Transcript Sentence p 3, CCYPCG Report p 62.
The only other criminal history was a charge of possession of drugs and utensils, which the police found when they attended at the house on 18 September. She was dealt with on 3 July 2008 where no conviction was recorded, and she was placed on a $250 good behaviour bond for 4 months. There is no criminal history relating to anything after 18 September 2007.
Relevantly, her history also includes an incident on 7 December 2006. Police were called to her house where she was behaving in a bizarre manner. It was suspected that she was suffering a drug induced psychotic episode. She was taken to hospital and the children were taken into care temporarily, but it seems returned to her the next day. The Department assessed that the children were not at risk of harm.
The Applicant admitted to some recreational use of cannabis and amphetamines, but this seems to have been limited. In her evidence at the hearing, she said she first used cannabis in 2005 or 2006, and amphetamines in 2006. She had used a joint in the week prior to 18 September 2007, but nothing for a long time before that. She said she had not taken any illicit drugs since then.
After her discharge from hospital, JAK saw a clinical counsellor Dr R of Community Mental health. Dr R provided a report (dated 28 May 2012), as well as giving oral evidence at the hearing. She notes that JAK attended for regular sessions from 23 October 2007 until 1 August 2011. The report also records the difficulties JAK had during the period that her children were living away from her, and notes her concern that she could not provide a new home for them. At the same time, her partner was incarcerated. While noting that this was a period of enormous strain and unhappiness, she nonetheless obtained part-time work and volunteered for St Vincent de Paul, and was able to refocus on a future for her family. After a period of contact, the children were placed back with her in June 2008.
In 2009, she undertook and completed a tertiary preparation course, and then enrolled in a Bachelor of Human Services course. Dr R’s report notes that she had passed all her subjects, her results including distinctions and high distinctions.
The report notes that JAK was able to manage her roles of parent, part-time worker and student, even though her partner had obtained qualifications and employment which took him away from home for days at a time. She noted that JAK had matured into a ‘well-balanced and resourceful woman who manages her many responsibilities with good humour and grace’. She also noted her ‘keen and sensitive’ awareness of the difficulties of others.
In oral evidence, she described JAK as very committed, and that she never missed an appointment, she saw a marked improvement in her and noted that she had gained so much more insight from her studies.
The applicant also provided a report by psychologist WK. WK noted that on testing she was within the normal range for depression, anxiety and stress. She noted that JAK was remorseful for her offences, and understood that her behaviour on that day was unacceptable. She considered there were no known risk factors for reoffending, and listed a number of protective factors and preventative strategies she considered present.
JAK gave us a lot of information about her development since the events of 2007, and regarding her coping skills and strategies, both in her written material, and in a very lengthy examination by counsel for the Commissioner. She maintains contact with Dr R every three months, and with her GP, who monitors her medication. She is still on anti-depressants, and while there is a long-term plan to get off these, they are maintained for the moment on the GP’s advice due to the stresses of, for example, these proceedings. She is a member of Carer’s Queensland (she is presently caring for her mother who has mobility issues) through whom she can and does access a counsellor as well as other carers, and she is also in contact with Sun Care, and Wide Bay Women’s Health. If she has issues with say her mother, she can and does tap into the advice, which will help her both to resolve the problem, and as well to ensure she copes with any emotional stress.
She says she has a number of other strategies for handling stress. She makes sure she has time for herself, taking her children to the beach or park, or engaging in other physical activity. She walks the dog, gardens, tends to her hens, or goes for a ride on her motorbike. She volunteers at the children’s tuckshop, and likes to cook. She recognises frustration and while it is still at a low level she works out how best to deal with it.
When pressed by the Respondent about what she would do if the underlying issue was not resolved she said she talks to the person best suited to assist with the matter.
The Applicant also stated that her university studies had helped. Her subjects included communications, psychology, public relations and counselling. In addition, she had completed a number of other courses. It should be noted that while she has been unable to complete the Human Resources degree due to the negative notice, she has switched to another course, which she can complete, although her studies are on hold while she cares for her mother.
In short, JAK says that her life has turned around very substantially since the events of concern. Apart from the matters such as her studies already mentioned, she says her children are well settled and doing well, she is no longer dependent on her partner as she was previously, and he is doing well in his work too. Drugs, limited as they seem to have been previously, are now entirely out of their lives.
The applicant’s case was also supported by several references. One of these was from her sister, Ms K, a school principal, who also gave oral evidence. She said that when she saw JAK soon after the 2007 incident, she was very repentant, she realised very quickly that she had done the wrong thing, and that she didn’t want to do anything to risk her children. She was cooperative and determined to turn things around.
In response to questions by the Respondent’s counsel about what she had seen in the Applicant that would give her confidence she was not a risk, Ms K stated that she saw things like commitment to work, energy, honesty, punctuality and a willingness to seek help if she had any problems. She noted that the Applicant had had stresses and things to deal with, especially in caring for their mother, but that she had dealt with them very well. She noted her positive outlook. She thought she was very reflective of the issues, and confirmed other aspects of protective strategies earlier noted. She hadn’t seen any signs of a relapse or incidents of concern. She noted that JAK was distressed when she was refused a Blue card, but her response was to say, “Well how can I resolve this problem?” rather than give up or look for an escape. She noted JAK’s problem solving ability.
The other referees were friends of about four years standing who spoke highly of the Applicant, and who had seen her with children and entrusted their own children to her care. They spoke of her calmness even when upset or annoyed, and of her relaxed and friendly manner with young people. They had never seen any inappropriate behaviour on her part. While the Respondent suggested these references should be discounted on the basis that they did not state if they were aware of the 2007 incident, the Applicant confirmed at the hearing that they were aware of the circumstances. Neither party called them to give oral evidence.
The Commissioner in his original decision, and in submissions to the Tribunal, referred to what he saw as a number of risk factors and concerns, the principal of which was of course the 2007 offence. The issue here was and is whether if comparable stresses arose again, would the Applicant act in a way that would put the welfare of children at risk? There are a number of aspects to this, which we will deal with in turn.
It was conceded by all that the conduct of the Applicant had the potential for very grave consequences, and involved a major lapse on her part. One of the issues dealt with at length by the Respondent’s counsel might be described as the level of culpability of the Applicant, and its relevance to predicting future conduct. JAK had consistently said that she had no intention of hurting, much less killing her children. On the face of it, this is inconsistent with a guilty plea to a charge, which has intent to cause harm as an element. Her counsel said it might be characterised as a highly misguided cry for help. At the Tribunal hearing, she said she felt shame, that she wanted to run and hide. Mr Capper quizzed her on how she could go from one minute preparing a meal, to the next, putting the children in the car and turning on the motor, within a closed garage. He asks why the son’s statement that he did not want to die did not trigger in her something, which stopped her, and yet at the same time she maintained that there was no intent.
If any answer to this can be arrived at, it presumably lies in the rider in the psychiatrist’s report relied on, that is, that while the Applicant was not deprived of the capacities relevant to a section 27 defence, those capacities were nonetheless impaired. The Commissioner’s reasons where they state that the Court found her capacities were not impaired[5] are in error on this factual issue. The Judge found that they were,[6] in accordance with the submissions of both Prosecution and Defence. Furthermore, the Judge accepted that she did not intend to cause death or “serious” injury.[7]
[5]Reasons [8.4] and [8.9.1], CCYPCG Report pp 122, 124.
[6]Transcript - Sentence page 6.
[7]Ibid, page 3.
Perhaps it is impossible to resolve all of these matters, to roll them into an entirely coherent ball, but in the end, the issue is not that, but to what extent this conduct, taken with all else that we know, is sufficient to constitute an exceptional case where it would not be in the interests of children to issue a positive notice.
The Commissioner suggests that JAK has not demonstrated any significant insight into the triggers for her offending, or the harm caused to her children. In effect these concerns were based on three factors: that the Applicant had not demonstrated insight in her statements, including her comments referred to by Dr R in her report, that her response to the Commissioner was critical of the Commissioner’s Reasons and fails to recognise the seriousness of her offending; and that her comments about being separated from the children, being apparently a criticism of the Department of Child Safety, was seeing herself as the victim.

As to the first of these, any deficiency in her initial application is perhaps explained by her not knowing what was required. However during the course of the Tribunal proceedings, she produced a further statement dated 11 March 2014, in which she stated that she was aware of the impact on the children, that they were scared and confused, and that they should never have been exposed to danger. She notes that she failed them, and regrets that she let them and her partner and herself down. The statement deals with the issue over several paragraphs.
She was questioned about this aspect at the hearing. The Respondent’s counsel suggested he did not see a lot of insight in her statements. She replied with comments consistent with those quoted above. She again stated that she did the wrong thing by them and ‘it would have been hellish for them’. She said she listened and talked to the children if they raised those events. She referred to counselling options available for them, and to counselling they had had.
Other evidence supports the Applicant here. At the District Court proceedings, her counsel referred to expressions of remorse referred to in the psychiatric assessments on risk.[8] Her sister gave similar evidence as noted above. Dr R stated that her deepest regret was that she had frightened the children. The partner spoke of discussions they had both had with the children about the 2007 event.
[8]Exhibit 10 see Transcript p 1-18, CCYPCG Report p 54.
The Commissioner’s submission is also based on the claim that the Applicant’s statements about her intent at the time of the incident suggests she has tried to minimise her responsibility and that when she identifies that her children have suffered no lasting harm, this does not address the impact on the children. We have already addressed the intent issue. JAK, was in our view, simply being comprehensive in her comments on that issue, and on the effects on the children as she was entitled to be. We do not consider that this detracts from her other comments about responsibility, or impact on the children. It was proper that she comment on the physical aspects of that impact.
The Applicant raised another important point here in answer to Mr Capper’s questioning on the issue. She said that she can’t live with the question of the impact on the children every day, that it can be a spur to her to be a better person, but, in effect, if she was to move on then she cannot dwell on it constantly. This seems to us to be entirely reasonable. Insight isn’t lacking simply because it isn’t a matter of constant comment. In fact, there is a “Catch 22” element here: if one does not express regret often or passionately enough, one lacks insight; if one does too much of it, one has failed to move on and is still emotionally fragile. While we are confident Mr Capper did not intend this result, there is none the less that risk in his approach.
The second of the Respondent’s concerns on this issue related to the Applicant’s response to the Commissioner’s original decision. She suggested that the Respondent’s analysis was ‘exaggerated’ and ‘unjust and unfair’. The Respondent thought this criticism failed to demonstrate insight into the Commission’s role in protecting children, or into the risks posed by her behaviour. To evaluate this contest, it is necessary to consider the substantive matters the subject of the criticism.
The Commissioner’s decision had referred to the Department of Child Safety having ‘received numerous notifications concerning the applicant’s treatment of her children … from 2007 to 2012’.[9] In fact the only notifications were the December 2006 incident when the Department assessed the children were not at risk, and the major incident on 18 September 2007. There was a notification in 2012, but that concerned some relatively minor conduct of the partner, where the applicant was not the perpetrator, and had in fact attempted to calm him down. Again the Department decided the children were not at risk, and no action was taken. There were therefore no adverse notifications of the Applicant’s conduct after the September 2007 incident. The Applicant thought this did not demonstrate a “pattern of behaviour” exposing her children to harm. The Respondent accepted at the hearing that the Applicant was alert to the relatedness of the 2006 and 2007 events. If the two incidents in 2006 and 2007 were sufficient to constitute a pattern, it certainly wasn’t a post-2007 pattern.
[9]Reasons, [8.4], CCYPCG Report p 122.
She also thought the reference to drug use should have recognised that there had been none since 2007. She said there was no recognition of this and the fact that she had been on parole and therefore tested for 3 years.
She also felt this emphasis failed to recognise the positive steps she had taken and that the children had been in her care since June 2008 with no issues or complaints from the Department.
If the Applicant’s position was entirely without merit, it might be reasonable to suggest it indicated a lack of insight. However, if it is reasonably arguable (and we consider the Applicant’s position not unreasonable on these points), she should be entitled to challenge the cogency of the Commissioner’s reasoning without that being used as an argument that she therefore lacks insight.
Thirdly, the Respondent suggested that the comments about being separated from her children (in her statement of 11 March 2014) was a criticism of the Department and tended to see herself as the victim. The Applicant denied this was her meaning. On reading the statement, and taking into account the oral testimony, we do not consider the statement can bear the interpretation contended by the Respondent. Rather it seems to be amplifying the Applicant’s understanding of the impacts her actions had on the children. The oral submissions suggest the Respondent may now accept that.
There is a risk in attempting to assess a matter such as insight simply to rely on the particular formula of words used. Such an analysis depends too much on the particular person’s skill with language. (Indeed at one point in cross-examination the Respondent suggested the Applicant knew what terms to use from her studies, and therefore needed to go beyond that.) It is preferable to consider the evidence as a whole. We had the advantage of hearing the Applicant for nearly two hours in the witness box, which the original decision-maker did not. Taking all of the material into account we are satisfied that the Applicant demonstrated a more than appropriate level of insight.
The task of the Tribunal is to consider the circumstances of the offence, and all of the matters referred to in section 226 of the Act, to consider the relevant risk and protective factors, and to determine whether those factors, when considered in the context of the other matters, are sufficient to constitute this an exceptional case where it would not be in the best interests of a child to issue a positive notice.
We have been made aware of the circumstances of the offence and do not need to repeat those. The Applicant placed her children at very considerable risk, and we note the offences to which she pleaded included intent as an element. We take into account however all that has been said at the District Court hearing and note that the Act does not define this as a serious offence. We also note all of the extenuating circumstances, the guilty plea, and the accepted remorse. It is nonetheless of considerable concern.
It should also be considered in the context of the earlier psychotic episode, and a history that includes some earlier depressive episodes.
Apart from these matters, the Respondent referred to other risk factors. We have already dealt with the issue of insight. The use of illicit substances does not appear to us to be a matter of continuing concern, she having been entirely abstinent since the 2007 incident. While the care for her ageing mother was suggested as a risk factor, all the evidence suggests she is handling that very well, she is accessing the help and resources needed for that role, and understands what needs to be done. In fact her ability to manage that well is in her favour. The partner’s earlier troubles are on the evidence in the past, and he has established himself in a good job. Their relationship does not seem to be a risk factor.
We accept the Respondent’s submission that the passage of time of itself does not establish an exceptional case, nor detract from the seriousness of an offence. Nonetheless it is relevant in assessing the positive or protective factors.
In this regard, a major factor is the rehabilitation undertaken by the Applicant. She was assessed at very low risk and reunited with her children well before her court hearing. On release from hospital, she sought out counselling on her own initiative, and there has been a long and sustained period of professional help. She continues to stay in touch with her counsellor and works with her GP on her mental health. She works with other counselling professionals in her carer’s role.
Her gaining tertiary entrance qualifications and then her progress on her degree courses demonstrate a commitment to improvement, and an ability to manage time and stress. She also benefits from the content of her subjects, which are relevant to her issues. She has engaged with the community, both in part-time work and as a volunteer.
The Applicant also demonstrated a good understanding of the triggers and warning signs for stress, and had a comprehensive suite of strategies for managing any stress. Her family is well settled and supportive, she no longer has the dependency on her partner, and as mentioned above, she has shown that she handles stress well.
We note the reservations of the Respondent regarding the evidence of the psychologist WK. We accept that the assessment has limitations, but taken with the other evidence, the information is uniformly consistent with a positive assessment of the Applicant.
We accept the Applicant’s solicitor’s submission that she has made great changes for the better in the period since 2007 and is very much a different person. In summary, we are satisfied that the changes the Applicant has made in her life since 2007 are exemplary and are sufficient to outweigh any lingering risk factors. We therefore find that this is not an exceptional case in which it would not be in the interests of a child to issue a positive notice. We will order that a positive notice be issued.
The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as the applicant and her children to be identified in circumstances where it would not be in the interests of justice to identify their names.
The Tribunal is satisfied that there is no public interest served by disclosing the applicant’s name in circumstances where disclosure of her name would identify her children. The Tribunal therefore prohibits the publication of the names of the applicant and her children.
The Orders we make are as follows:
1)    The decision of the Commissioner to refuse JAK’s application to cancel her negative notice is set aside.
2)    The Commissioner is to issue a positive notice and Blue card to the applicant.
3)    The Tribunal prohibits the publication of the names of the applicant and the children referred to in these proceedings.