Jennifer Mountford v Chief Executive Officer, Public Safety Business Agency - [2014] QCAT 485

CITATION:

Jennifer Mountford v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 485

PARTIES:	Jennifer Mountford (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML224-13

MATTER TYPE:

Childrens Matter

HEARING DATE:

15 August 2014

HEARD AT:

Southport

DECISION OF:

Member Dooley

DELIVERED ON:

19 September 2014

DELIVERED AT:

Southport

ORDERS MADE:

1. The decision of the Chief Executive to refuse the Application to cancel the negative notice is set aside.

2. The Chief Executive is to issue a positive notice and a Blue Card to the Applicant.

CATCHWORDS:

Blue Card – refusal to cancel negative notice – suitability to work with children – prior offences – whether Applicant’s case is exceptional.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Jennifer Mountford represented herself

RESPONDENT:

Louisa Keown represented the Chief Executive Officer

REASONS FOR DECISION

The Applicant applied for a Blue Card because in her words ‘I want to help people especially the homeless or people with eating disorders as this matter is close to my heart as I lost my twin sister to this. Without this Blue Card being approved it will basically render the last year or so of studying useless and my ability to work in the community services field will be practically impossible’.
As part of the employment screening process, a check was undertaken with the Police service and this disclosed a 1997 charge of possession of a weapon and 2004 conviction for enter or in dwelling with intent to commit indictable offence and grievous bodily harm (28/5/2002). A Nolle Prosequi was entered for the charge of robbery with actual violence - wound or use personal violence while armed (also on 28/5/2002). With respect to the possession of a weapon charge the Applicant gave evidence that she was 19 years at the time and worked at night. She had been given the small knife by her boyfriend for self-defence. She said she had never used it and was unaware at the time that it was an offence.
The Applicant was a 23 year old woman at the time of the 2002 offences and worked in Surfers Paradise in a nightclub. The Applicant was convicted of these offences after the trial Judge was satisfied that the Applicant procured her de facto partner to approach the Complainant to extract money she claimed he owed her and had persistently failed to pay. The Applicant claimed the Complainant owed her $30,000.00 and the Complainant said it was $3,000.00. There was evidence of telephone threats made by the Applicant and relied upon by the Police as part of their case.
The Applicant made a threat that she would send “two blokes” around to speak to him about it. Subsequently that night two unidentified intruders broke into the Complainants house where the offence of grievous bodily harm occurred.
Interestingly, the Applicant gave evidence at the Tribunal hearing that the intruders were never identified or charged. It is part of the Police case that the Applicant was not present at the time of the offending. The Applicant’s role as set out in the charges was to procure the offenders to carry out the offences. The Complainant sustained two broken legs, a broken arm and numerous open wounds all over his body. The Complainant required two surgeries and was confined to a wheelchair for a period of time. A substantial compensation order has been made against the Applicant for some $70,500.00.
The Applicant gave evidence that she did make the alleged phone attendances on the Complainant and that she contacted her de facto and another work colleague (who were in the security business) to convey her concerns and to complain about the situation with the outstanding money. The Applicant, at the time of the offences and again before the Tribunal claims the identity of the offenders is unknown to her and that they acted on their own initiative. She states that she was shocked by the extent of the injuries suffered by the Complainant.
The Applicant initially pleaded not guilty. The matter went to trial but a mistrial occurred and at the commencement of the new trial the Applicant pleaded guilty after receiving advice from her legal representatives that she would not go to gaol but that she would be convicted. Of course the Tribunal cannot go behind the fact that she pleaded guilty and was convicted.
The Applicant was sentenced in 2004 to imprisonment for three years, suspended for five years. This required the Applicant to be of good behaviour for five years without further convictions.
This offending occurred some 14 years ago and subsequent to this the Applicant has not been charged with any further offences. Of course the passage of time alone is not determinative of an exceptional case.
The then, Commissioner for Children & Young People & Child Guardian made a decision that this serious offending and the risk factors raised by the Police information outweighed the material provided by the Applicant.
The Commissioner correctly states that the paramount consideration in making an employment screening decision is a child’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.
The Commissioner was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to the Applicant.
This Tribunal must consider the relevant legislation. This Tribunal must have consideration for all the available evidence and weigh up the risk factors against the protective factors, including the Applicant’s insight and that of her witnesses into past behaviours and present circumstances. The standard of proof is on the balance of probabilities. Any hardship suffered by the Applicant in not having a Blue Card is not a relevant consideration.
This Tribunal has considered the risk factors as set out in the evidence and shown by the Applicant’s past offending. The Tribunal must also consider any protective factors which became evident in the evidence before the Tribunal.
The Applicant has given evidence that she ceased working in nightclubs in Surfers Paradise since these events. She states that ‘I have led a very quiet and stable life’. She is now the mother of two children and has been employed in a permanent part time position with a petrol station for the past 5 years.
The Applicant volunteers for community groups and has been studying for a diploma in community services.
The Applicant has provided several personal references.
The Applicant gave evidence of a difficult childhood in which she left home early after years of domestic abuse. The Applicant has since reached out to her Father. Her Father has provided a reference. She now has a good relationship with both her parents.
The Applicant gave evidence that alcohol was a factor in the offences in 2002. She stated that she has attended an eight month live-in rehabilitation programme for alcohol from August 2007 to February 2008. She stated that she had attended AA but voluntarily felt she needed more. The course at Goldbridge encouraged her to confront her emotions and learn new behaviours. Toni Eachus provided a reference and gave evidence. She was the coordinator for the programme and spoke highly of the Applicant. The Applicant stated that her drinking is now under control and she still attends AA meetings.
The Applicant gave evidence of seeing Dr Ashton, psychologist in 2012/13 as a result of workplace bullying by her boss at the service station she works at. Dr Ashton assisted her to become more assertive and she is now able to get along well with her boss. She is continuing to see Dr Ashton three times per year as she feels it is helpful. Dr Ashton prepared a report and gave evidence at the Tribunal. He gave evidence that the Applicant did not minimise her criminal history and showed remorse and dislike for what happened. He states that she has worked through childhood issues, forgiven her parents and re-engaged with them. He gave evidence of her well looked after children and her generally positive attitude. When asked if she was a risk to children he stated that there were “no red flags”.
Maria Pau also gave a reference and evidence before the Tribunal. Ms Pau is the director of coaching with substance and has been training the Applicant since last year as a recovery coach to help people with addictions and mental health issues. She has no concerns regarding her interactions with children.
Jason McDonald from St. Vincent de Paul gave a reference and evidence at the Tribunal. The Applicant was on student placement at the homeless shelter and worked well as a volunteer. He stated that she worked very well with families and children.
The Applicant also completed a Positive Parenting course in 2009.
The Applicant in her final submission expressed remorse and sorrow for her previous actions.
CONCLUSION
This Tribunal is not satisfied that this is an exceptional case and thus that the Applicant be refused her Application to cancel the negative notice.
While acknowledging the Chief Executive’s concerns, the evidence challenges these concerns substantially.
The Applicant’s witnesses were highly credible and set out the tremendous steps she has taken to turn her life around.
It is now some fourteen years since the Applicant turned her life around and she been consistent in her endeavours over this time.
The protective factors in this case appear to outweigh the negative factors.
The decision of the Chief Executive to refuse the Applicant’s application to cancel the negative notice is set aside and the Chief Executive is to issue a positive notice and a Blue Card to the Applicant.