Mer v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 447
•18 November 2015
| CITATION: | MER v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 447 |
| PARTIES: | MER (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML210-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 10 November 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 18 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | APPLICATION FOR REVIEW – BLUE CARD – NEGATIVE NOTICE – whether exceptional case – whether not in best interests of children to issue Blue Card - where protective factors include severing of deleterious and volatile relationship with former partner, undergoing counselling, developing stable accommodation and support networks, undertaking intervention programs and commencing university studies –where deleterious and volatile relationship with former partner was major contributing factor to children’s emotional turmoil and learning difficulties – where applicant’s resilience to forceful personalities is key risk factor - where applicant allowed former partner to move back in - where former partner continued to abuse applicant and children – where children not properly protected – where applicant needs more time to appreciate situations of risk for children and resilience to manipulation to ensure their interests are paramount Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Commissioner for Children and Young People and Child Guardian v. Maher & Anor Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Ms MER appeared in person
RESPONDENT: Ms Natalie Taylor, Advocacy Officer, appeared for the Chief Executive Officer, Public Safety Business Agency
REASONS FOR DECISION
Non-publication order
The Tribunal considers that it is the interests of Ms MER’s children and in the interests of justice that an order is made to prohibit the publication of any information in these proceedings that could identify the children in any way.[1] This order extends to material on the Tribunal file and the names of the applicant and family members. Neither party objected to this.
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.
Accordingly, these reasons are published in a de-identified format.
What is this Application about?
Ms MER has come a long way. Despite being through traumatic times, she is putting the past behind her as she seeks to build a solid and stable life for her and her two young children.
Ms MER applied for a Blue Card on 2 January 2015 so she can work in nursing. However, on 3 July 2015 the Chief Executive Officer of the Public Safety Business Agency issued Ms MER with a ‘negative notice’. This means that Ms MER cannot obtain a Blue Card to work in certain types of employment and volunteer work.[2]
[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 156 and
Schedule 1.
Ms MER wants the Tribunal to review the Chief Executive’s decision. Because Ms MER is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.[3]
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.
In reviewing the Chief Executive’s decision that Ms MER’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for Ms McPherson to obtain a Blue Card.[4] To determine this, I must identify and balance protective factors with risk factors.[5]
[4] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[5] Commissioner for Children and Young People and Child Guardian v. Maher & Anor
[2004] QCA 492.
Ms MER is not required to show any error by the Chief Executive: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[6]
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
Is it not in the best interests of children to issue a Blue Card to Ms MER?
Because a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to Ms MER.[7]
[7] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6(a), 360.
Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[8]
[8] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(b).
What protective factors favour issuing a Blue Card to Ms MER?
The most positive turning event in Ms MER’s life would appear to be the severing of the deleterious and volatile relationship with the father of her children in 2013. Her efforts in the short period since are considerable, given all she has been through. She has undergone counselling,[9] developed stable accommodation and strong support networks,[10] undertaken intervention programs for both herself and her children,[11] commenced university studies and maintained a drug-free lifestyle.
[9] Reference of CJ, Counsellor, dated 28 July 2015.
[10] Reference of LP, Child and Family Intervention Worker, dated 28 July 2015.
[11] Reference of LP, Child and Family Intervention Worker, dated 28 July 2015 and
Reference of HJ, Occupational Therapist, dated 20 July 2015.
Ms MER states that her frank disclosure of her past substance abuse to her children’s paediatrician shows she now has insight. Certainly, she has been actively seeking positive activities for her children[12] that should help distance them from past traumas.
[12] Reference of LP, Child and Family Intervention Worker, dated 28 July 2015.
Her long-term General Practitioner, Dr BA has been treating Ms MER for 10 years. Dr BA has full knowledge of Ms MER’s former substance abuse and notes that she has been drug free since 2007. Dr BA considers that Ms MER is now “physically and mentally 100%”, is “100% suited to employment in areas associated with children” and her past history “gives her great understanding of the challenges that life brings to today’s children”.[13]
[13] Report of Dr BA dated 9 September 2015.
Her more recent General Practitioner, Dr SC also considers that Ms MER is able to safely and responsibly work with young children.[14]
[14] Report of Dr SC dated 9 November 2015.
Ms MER has therefore made good progress in confronting and addressing her difficult past.
What key risk factors prevent issuing a Blue Card to Ms MER?
I am not satisfied that Ms MER’s history of substance abuse is itself sufficient to deny her a Blue Card.[15] Her most recent drug-related offence occurred more than five years ago in 2008, which until the return of her former partner seemed to be a catalyst for Ms MER turning her life around for the better.
[15] CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [53].
Ms MER acknowledged that her former partner is a “primary offending trigger” that led to her drug use.[16] However, her deleterious and volatile relationship with him would also appear to be a major contributor to her children’s emotional turmoil and learning difficulties.[17]
[16] Personal History dated 6 October 2015.
[17] Report of Dr TU, Community Youth and Child Health Services dated 8 April 2014;
Affidavit of MER sworn 5 March 2014 at paragraph 35.
Ms MER’s former partner has not been a positive influence and her recent history with him indicates her resilience to forceful and abusive personalities is a key risk factor. Despite being drug free since 2007 and divorcing her former partner in 2009, in August 2013 Ms MER “felt she could not refuse” him to move back into her house.[18] Sadly, like many cases involving physical and emotional abuse, once he moved back in, Ms MER’s former partner continued to severely abuse Ms MER and her children.[19]
[18] Affidavit of MER sworn 5 March 2014.
[19] Affidavit of MER sworn 5 March 2014.
Although Ms MER had in the past applied for protection orders against her former partner, on this occasion it was only when he was imprisoned for unrelated matters that Ms MER was able to apply for protection orders.[20]
[20] Affidavit of MER sworn 5 March 2014.
Ms MER has acknowledged that her former partner manipulated her to move back in.[21] Understandably, she explained that she did not report him to the police or ask him to leave to “keep the peace”. However, this means that her children were not properly protected.[22] Although Dr BA and Dr SC report about Ms MER’s general suitability to work with children, their evidence did not address Ms MER’s ability to implement strategies to deal with her ex-partner and protect the well-being of her and her children under stress.[23]
[21] Affidavit of MER sworn 5 March 2014.
[22] JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251 at [47].
[23] JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251 at [48].
Ms CJ has been counselling Ms MER and gave evidence that Ms MER has recently developed boundaries and strategies to assist her when dealing with her former partner. For example, when Ms MER confronted her former partner recently over the telephone about his communications with the children, she used a business-like manner.
Ms CJ was an impressive witness who has clearly worked closely with Ms MER to help get the lives of her and her children back on track. However, Ms MER has only had around two years since the severing of her relationship with her former partner to demonstrate her resistance to his abuse, for the welfare of her and her children.
Ms MER previously allowed her former partner to move back in after a longer period of four years. Her former partner is also incarcerated and she has had no face-to-face contact with him since October 2013. Upon his imminent release, she will be confronted with arranging access to their children. She has therefore not yet had the opportunity to apply her coping strategies in a real-life situation to protect her children’s interests.
Because of this, I cannot be satisfied that after this short period she would be able to resist the impact of a person with a forceful personality in the workplace if needed to protect children.[24] Ms MER has made considerable progress and the evidence is that she would work well with children. However, her resilience to overbearing personalities is yet to be tested.
[24] JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251 at [50].
This suggests that she needs some more time to show she appreciates situations of risk for children and is sufficiently resilient to ensure their interests are paramount.
Is this an ‘exceptional case’ to not issue a Blue Card to Ms MER?
Ms MER and her children have been the victims of domestic violence and now appear to be heading in the right direction. Ms MER is taking steps to build a brighter future for both her and her children.
However, by allowing her former partner to move in again as recently as late 2013, Ms MER unnecessarily placed her children at risk by exposing them to more violence and trauma.
Children depend on adults to have insight into their actions and their likely effect.[25] The law requires that in considering whether to allow a person a Blue Card, the interests of children must take priority over an applicant’s interests. Ms MER needs some more time to demonstrate her ability to always act in the best interests of children – even when confronted by extreme emotions of others and dealing with her own emotions in response.
[25] Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [49],
citing with approval Re TAA [2006] QCST 11.
This means that unfortunately for Ms MER, issuing her with a positive notice at this time is not in the best interests of children. Ms MER’s case is exceptional because her recent inability to protect her children from a vulnerable situation is a risk factor that presently outweighs the protective factors.
I therefore consider that Ms MER needs some more time to apply her coping strategies in real-life situations and thereby gain the community’s trust for her to be authorised to work with children.
Conclusion
Because Ms MER’s case is ‘exceptional’, it prevents issuing her with a Blue Card at this time.
The correct and preferable decision is therefore to confirm the decision of the Chief Executive Officer, Public Safety Business Agency on 3 July 2015 to issue Ms MER a negative notice.
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