Kew v Commisisoner for Children Young People and Child Guardian
[2013] QCAT 413
•24 July 2013
| CITATION: | KEW v Commisisoner for Children Young People and Child Guardian [2013] QCAT 413 |
| PARTIES: | KEW (Applicant) |
| v | |
| Commisisoner for Children Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML001-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 19 July 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Louise Mc Donald, Presiding Member Graham Quinliven, Member |
| DELIVERED ON: | 24 July 2013 |
| DELIVERED AT: | Maroochydore |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice is set aside, and a positive notice is issued forthwith to KEW. 2. The Tribunal prohibits the publication of the names of the children of the applicant, the mother, father and maternal grandmother of the children and all other information which would identify the children in this application number CML001-13. |
| CATCHWORDS: | CHILDRENS MATTERS – blue card - non serious offence - Whether an Exceptional case exists - Suitability to work with children |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | KEW |
| RESPONDENT: | Georgina Thomas |
REASONS FOR DECISION
KEW applied for a blue card in order to continue her employment with a local school as a cleaner. The Commissioner issued a negative notice, finding that due to her extensive criminal history involving drug related charges and convictions and offences of dishonesty, together with her child protection history, her case was considered an exceptional case in which it would not be in the best interests of children to issue a blue card.
This criminal history reflected extensive charges and convictions committed or allegedly committed from 1994 to 2004. KEW, now aged 35 was aged between 18 and 28 during the period of these offences. Since 2004, there have been no entries on her criminal record. The Commissioner cites a child protection history exposing her children to drugs and the risk of physical harm and neglect in 2004, and an incidence of domestic violence in front of her children 8 February 2011 as a further indication that this case was exceptional.
KEW sought review of the Commissioner’s decision arguing that she had ceased drug use in 2004 and turned her life around completely.
She presented oral evidence to the Tribunal about her history and current lifestyle, and drew upon her mother and partner of 13 years to give witness to her transformation.
KEW indicated that she had commenced taking drugs at a young age, possibly at 10 years, under the influence of her brother’s peers, but began using on a daily basis when she was 18 years old. From age 19 to approximately 28 she injected amphetamines on a daily basis, increasing her use shortly after the birth of her first child. During those times she was heavily networked in the drug scene. In December 2004, the police, and subsequently Child Safety raided her home and accused her of having an active amphetamine lab. Child Safety determined that the children had been emotionally harmed due to exposure to drugs and were at risk of physical harm and neglect due to the parent’s drug use. The Department of Child Safety removed the children from her and her partner’s care.
KEW identified the removal of her children from her care as the critical factor in turning her life away from drugs. She gave evidence that she never took drugs from that day on, and has remained “clean” for the subsequent 8 years. She obtained drug counselling support from ATODS, offering practical suggestions to deal with cravings, and finding healthy alternatives in her lifestyle. Urine tests while receiving counselling in 2005 identify her as drug free, and counselling records consistently demonstrate her abstinence.
The Department of Child Safety returned the children shortly after 10 months on the basis that she was no longer exposing the children to drugs.
KEW gave evidence that she had completely dissociated herself from her networks that used drugs, and while she sees some people from her past life in the street, and acknowledges them, she does not re-engage with them. She has surrounded herself with supports from her family, including her partner and mother, and applied herself to her children.
KEW spoke of subsequent trauma in her life with the death of her toddler son, and indicated that she had withstood the risk of returning to her drug use in the depths of her loss. Given she has been tested so strongly at that time, she claimed that she is assured she will not return to a lifestyle involving drugs. She gave evidence to the Tribunal that she does not have the inclination to do drugs any longer. She reflected that she has a very happy life now and she would not want to risk losing what she has built. In particular this involves a happy relationship with her partner and children.
She reflected upon her dishonesty offences which supported her drug habits as now making her sick and “disgusting” her. She expressed strong regret about this.
She reflected upon other drug users without judgement, and expressed a compassion for them that perhaps “they could not get away… some don’t have the support.”
Upon questioning about the impact that her lifestyle had on the children at the time, she acknowledged that children should not be exposed to such a lifestyle. She admitted she did not take them to the park a lot, but felt she had met their needs by way feeding them, clothing them, and hugging them. She did not consider the children had been exposed to risks during those times, and denied running an active drug lab, or exposing the children to risks because of this. She indicated that syringes were always kept secure, and the reports of uncapped syringes and dog faeces on the floor were inaccurate.
She described the domestic violence incident in 2011 as a one-off, and acknowledged that both she and her partner have utilised strategies from an Anger Management course to deal with heated emotions and conflict. She indicated awareness of the children’s emotional needs in this form of conflict.
She engaged the support of her General Practitioner to assist her to conquer her drug habit, and has consistently turned to her for support at difficult times. She has acted upon her advice and referrals, and maintains contact as needed. The Tribunal notes an open letter from Dr Stevenson dated 2 March 2012. The Tribunal accepts it was unable to test the depth of Dr Stevenson’s knowledge of the offence history, but accepts that there is evidence that there is an active supportive professional relationship upon whom the applicant relies.
In support of her case, KEW relied on the evidence of her two witnesses DB, KEW’s partner of 13 years and father to her children, stepfather to the eldest child and her mother BW.
DB described KEW as a changed woman, having changed from a “naughty girl”, to a “lovely lady who supports her kids”. He indicated that they had shared the drug lifestyle together, the loss of their children, the death of their son, and the undertaking to change their lifestyle to maintain their children in their care.
Throughout this transformation he saw KEW providing for her children and herself in ways she didn’t during the times of drug use, She was feeding them all better and providing for their needs on a daily basis. Physically, in his view, she had transformed, looking healthier. He confirmed that neither he nor KEW had used drugs since December 2004. He described a strong relationship, and referred to them being “joined.”
He indicated that he had attended anger management in 2005 of his own initiative as part of the changes he needed to make in his own lifestyle. He indicated that he takes time to calm down before discussing contentious issues. He described the recorded domestic violence incident as a one off following the death of their son, and regretted its occurrence in front of the children.
He provided a picture of himself as a long term employee in a stable secure job as a supervisor with a staff of nine workers. He indicated that he is held up by his employer to younger employees as an example of how to get one’s life together. His evidence suggested to the Tribunal that he has become a responsible adult, and this feeds into KEW’s evidence to suggest a stable home environment and long term supportive relationship devoid of drugs. He confirmed that the couple’s personal network had intentionally changed to avoid continuation of drug use.
Ms BW, the applicant’s mother also provided evidence, which supported her daughter’s departure from drugs as a result of losing her children’s care temporarily.
She identified that her daughter had been drawn to drugs as a result of family issues, peer pressure, and that those people she saw as “losers”. In those days she indicated KEW was gaunt, skinny, and could not hold down a job, nor was she interested in obtaining one. She describes her daughter now having a normal life, with friends outside the drug scene, and while she sees some from time to time, she does not associate with them. She was confident her daughter had left drugs behind, based on her knowledge of her daughter and her presentation. She considered that if there would have been a time she may have been drawn to return it would have been at the death of her son, but she did not, and in fact had become a stronger person.
BW indicated her pride that her daughter was able to apply her self, and follow through with employment and further gave the example of challenging the Commissioner’s decision which involved continuing through the review process as evidence of her transformation, and contrasting it with an inability to handle such things in days of drug use. She was convinced that the 10 month timeframe to return the children to her care suggested that the Department was confident that she was able to care for the children drug free.
She denied that the applicant has harmed her own children, claiming that they did not witness the drug use, and that while drug use had impacted upon the children’s care they had not missed out on anything. She thought however, since becoming drug free, she had become a better mother by being more available to the children, taking them places and doing more with them.
The Commissioner questions the independence and objectivity of the evidence from the applicant’s mother and son. They suggest the mother’s evidence minimises the harm done to the applicants own children as a result of drug use. Further, they submit that while the applicant appears to have turned her life away from drugs, the applicant demonstrated a lack of insight into the harms that her drug lifestyle caused her children and that is of itself a risk factor.
The Commissioner however, acknowledged that the evidence led suggested that KEW had demonstrated significant changes and had a strong supportive relationship, and further that she was committed to maintaining a drug free lifestyle. They accepted that the incident of domestic violence had been an isolated incident, and that strategies had been embraced to deal with stress and conflict.
The Commissioner expressed concern that the applicant had been unwilling to fully acknowledge that she was unable to meet her children’s full range of needs, including emotional security and to provide a range of opportunities for them. Further, the Commissioner submitted little weight could be afforded to the multiple character references which were unable to be tested under cross examination.
The legal framework in which the issue of exceptional case must be determined requires, firstly consideration of factors pertaining to the offence outlined at s 226(2) of the Commissioner for Children and Young People and Child Guardian Act 2000,[1] (hereafter the Act).
[1] Schedule 7.
KEW has convictions for offences including possessing dangerous drugs (in 26 October 1998) possessing utensils (and failure to properly disclose needles and syringes). In that instance the used syringes had been in her handbag.
There are charges for offences of dishonesty including stealing, and she has convictions for fraud, and receiving. When the Police raided her home and asserted that an amphetamine lab had been operated from the home in which she raised the children, multiple charges were laid. Ultimately as a result of a plea by her co-accused, no evidence to offer was led against the charges of failure to take reasonable precautions in respect of needle of syringe possession of property having been acquired for the purpose of committing a drug offence, producing dangerous drugs, possessing dangerous drugs. Arising from this incident, she was convicted for possession of a dangerous drug, possession of utensils or pipes etc that had been used.
Having regard to section 226 none of the offences for which the applicant was convicted or charged are serious offences or disqualifying offences under the Act. There are convictions for drug possession offences, breach of bail conditions and fraud which have attracted minor penalties.
The charge relating to the drug lab, as well as a number of offences of dishonesty have been dismissed with no evidence to offer. The offences themselves do not directly relate to children but suggest a pattern of high risk behaviour which would potentially place children at risk of neglect, and offer a very poor role model. The Commissioner asserts the nature of the offences raise “serious questions about her eligibility to work with children.”
The other factors relied upon by the Commissioner show a child protection history with substantiated harm and risk of harm to the applicants own children. In particular the Commissioner asserts that her conduct demonstrated inadequate judgement and an inability to provide a safe environment for children in her care. The Commissioner pointed to the high risks to her own children from the operational lab, the health risks from the inhalation of fumes and risks from volatile chemicals in the children’s home, as well exposure to uncapped syringes. The police brief also refers to the applicant fleeing from them and leaving her two small children behind.
Section 226(2) of the Act also requires consideration of when these offences were committed. It is apparent that there has been considerable passage of time since the last offence in 2004. The earlier of these offences were committed in 1994, when she was she was 18 years old. She is now 35 years old with no offences since she was 27 years old.
The penalties imposed in the applicant’s convictions are largely fines, with the exception of the conviction for stealing wherein an 18 month period of probation was ordered. She asserts this offence related to selling stolen goods at the behest of her then boyfriend. She indicated that she was 19 at time. This is the most serious penalty on her record, suggesting that the drug possession convictions were reasonably minor.
The case of Commissioner for Children and Child Guardian v Maherand Anor[2] (Maher’s case) also suggests that exceptional cases must be determined on a case by case basis, as a matter of discretion, and suggests a process of weighing risk and protective factors.
[2] [2004] QCA 492.
More recent judicial comments on risk under the NSW equivalent protective legislation relate to whether that risk is real and appreciable. This approach has been adopted in recent cases before this Tribunal.
In determining whether an exceptional case exists, the principle that the welfare and best interests of children is the paramount consideration, “to which all others yield”.[3]
[3] Ibid.
Risk and Protective Factors
The Tribunal accepts that there is a degree of minimisation by the applicant about her drug lifestyle and its likely impact upon the children and that may be relative to the degree of awareness KEW had at the time, when she used amphetamines daily. KEW was noted to say, “I know how it affected my kids, I just can’t find the words.” The Tribunal is of the view that communicating insight requires the language skills to represent this clearly. Irrespective of this, the Tribunal is satisfied that KEW demonstrates by her current lifestyle that she has undergone a transformation and that this change demonstrates non-verbally the insight she cannot find the words to articulate. Her current lifestyle itself is a declaration of remorse. She clearly has been deterred from using drugs as a result of the removal of her children from care, and this has been the incentive to maintain a drug free lifestyle. She has no criminal records, since the last incident arising in December 2004. She has sought to maintain employment as a cleaner, and plans to work as a parent-helper in the school, assisting in reading activities.
Moreover, the Tribunal finds that a real and appreciable risk to children does not exist. The evidence suggests that she has a strong and stable relationship with her partner, and healthy relationships with family. She has demonstrated a willingness to turn to professional supports such as counsellors and her doctor, and continues to maintain professional support from her GP. Her willingness to consult these networks and pursue and integrate the support she has gained appears to be a key factor in the positive transformation in her life.
The Tribunal notes the evidence of her witnesses is not independent or impartial however, both witnesses had intimate knowledge of the applicant’s lifestyle before and after 2004. The Tribunal places weight on this accordingly. The witnesses confirm that she has been drug free for over 8 years and disconnected from the drug network. Little weight is afforded to character references that have been untested. However, the applicant’s own testimony was so genuinely communicated that the Tribunal has no doubt in the veracity of her statements.
Based on these factors, the Tribunal has undertaken the process of balancing the risk and protective factors, as outlined in the Maher case. The Tribunal in this instance considers that the protective factors considerably outweigh the risk presented by the applicant’s minimisation of the harm caused to her own children by her former lifestyle. Applying the principle of the paramount interests of children, the weight of the evidence suggests that this is not a case where it is not in the best interests of children to issue a blue card. The Tribunal finds that this is not an exceptional case. None of the offences in the applicant’s criminal history are serious offences, and therefore a positive notice for a blue card must issue.
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