MJ
[2018] QCAT 145
•22 May 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | MJ [2018] QCAT 145 |
| PARTIES: | MJ |
| v | |
| Director-General Department of Justice and Attorney-General | |
APPLICATION NUMBER: | CML146-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 25 January 2018 |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston |
DELIVERED ON: | 22 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Director-General, |
CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where Applicant seeks a review of the decision to issue a negative notice – criminal history where there is an extensive history of convictions for drug offences – whether or not in the best interests of children to issue a positive notice Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 QCA 492 |
APPEARANCES: | |
APPLICANT: | MJ |
RESPONDENT: | The Director-General represented by Government Legal Officer |
REPRESENTATIVES: | |
APPLICANT: | Self -represented |
RESPONDENT: | represented by Iain McCowie Government Legal Officer |
REASONS FOR DECISION
The Applicant, MJ has applied for a review of a decision under the Working with Children (Risk Management and Screening Act) 2000. The Applicant has applied for a positive notice and blue card under the legislation.
On 2 June 2017 after assessing her eligibility, the Respondent issued a Negative Notice under the Legislation.
On 26 June 2017 the Applicant filed an application in the Queensland Civil and Administrative Tribunal to review the Respondent’s decision that the Applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the Applicant to be issued with a positive notice and blue card.
MJ
MJ’s motivation to obtain her blue card is her granddaughter who has been in care. She needs a blue card to apply to be a foster carer.
Her evidence was that: –
a)she had a good childhood and loving parents;
b)at the age of 16, she fell pregnant and had to give up the child for adoption. This was an highly emotional decision and started a downward spiral;
c)she found relief in working hard and socially drifted into the drug culture;
d)she met her husband and things have changed for the better.
Her evidence in relation to her drug habits was as follows: –
a)that she had started using marijuana at the age of 17. The trigger for this behaviour was having to hand her first child up for adoption;
b)her parents were not supportive of her drug habits;
c)she acknowledged that drugs had impacted on her but denied it impacted on her day-to-day functioning;
d)she stated that drug taking in Torquay was a social thing;
e)she raised concerns about the impact of ICE and alcohol in the community which she was living in and the impact these drugs on children in the community;
f)she described how the drugs took away her ambition for life and affected her career prospects;
g)she stated that having a drug conviction made it harder for her to obtain employment;
h)she acknowledged that if she had the choice again she would have lived her life differently;
i)she denied growing marijuana for profit saying that the only way she could afford to access the drug was growing marijuana so that it was always for personal use;
j)she acknowledged that she had made some stupid decisions;
k)she acknowledged convictions in 77, 79, 84, 92 and 95. She stated that in her 30s she was living in Rossvale a remote community where marijuana was readily available;
l)she stated that she regretted wasting much of her life using marijuana;
m)she admitted that her children had been exposed to the use of marijuana and that she had made sure that her grandchildren had not been exposed to the drug;
n)she attended drug screening tests to show she was clear of drugs on: 25/7/17, 30/8/17, and 5/7/17 all of which showed negative results;
o)she admitted that the 1996 penalty which was three-year suspended for four years was a significant penalty;
p)while there was a gap, following the 1996 conviction to 2015 she conceded that she was still using marijuana during this period. She would go to friends places and have a cigarette and if she obtained access to the drug socially she would have a joint;
q)she says that since the 2015 offence she has not been interested in smoking marijuana and has moved on. She obtained help from talking to the Alcohol Tobacco and Other Drugs Agency (ATOD’S). She started to understand the impact the drug was having on her. She learned about the nature and effect of addiction. She developed insight into the harm that marijuana can cause and she became a born-again Christian;
r)she told the Tribunal that on a visit to India her attention was drawn fact that only poor people smoked dope. She noticed that none of the people wanting to get ahead in life smoked marijuana all. She saw that all the young people working in the shops never touched marijuana because their jobs were important;
s)she told the Tribunal she no longer condoned marijuana except where approved for medical use;
t)she had changed her social group to one where no one smoked marijuana.
In relation to the 2015 conviction MJ told the Tribunal: –
a)that her husband had developed cancer and that she had decided to grow marijuana to help him;
b)she conceded that she had become a little depressed at that time and had consumed some of the drug;
c)she confirmed that her own daughter had reported her to the Police but that she did not hold any grudges towards her daughter in relation to this event;
d)she says that going to court and being convicted at her age was highly embarrassing and she made the decision never to smoke again;
e)she acknowledged that a pipe had been found on the top of the bookshelf but that her grandchildren did not have access to it and she had not been smoking marijuana in front of the grandchildren.
MJ told the Tribunal that she had addressed the stressors in her life in the following way: –
a)she takes an active interest in her garden;
b)she does walking and bike riding;
c)she was able to talk about the issues in her life with her husband;
d)she is motivated to make good choices;
e)she is willing to access support through ATOD’s;
f)she has re-found her faith and is practising her life as a Christian; and
g)she has joined a music group that brings much joy to her.
MR – husband
He stated that: –
a)his wife had experienced an epiphany and that she had changed her life around;
b)he had stopped taking drugs 20 years ago and is working in the mining industry where he is regularly drug tested;
c)his wife has used marijuana when she is stressed;
d)we have changed our addresses and moved away from friends who used marijuana and he is supporting his wife through this period;
e)his wife has gone through long periods where she had not smoked marijuana;
f)when he became unwell, she became stressed and that led to the charge in 2015. After she was busted she had an occasional smoke because she was very stressed;
g)she had learned to relax and reduce the stressors she faces. Previously when she was stressed she would just go out and have a cone;
h)he was not aware of the marijuana plants that she was growing as he was living next door and had not seen the marijuana growing in the garden;
i)he repeated when questioned that he did not know she was growing marijuana in her backyard;
j)he was also of the view that marijuana was not a drug that you could get addicted to; and
k)he does not condone the use of marijuana but does not condemn the use either.
Relevant law to be applied by the Tribunal
The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
The decision under review is whether the Applicant’s case is an ‘exceptional case’ in as much as the presumption prescribed by section 225 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ exists.
Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an ‘exceptional case’ exists.
What is an “exceptional case”?
The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
The decision under review was whether the case is an exceptional case such that the presumption prescribed by section 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should be issued to Applicant.
In order to not issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of such, that an ‘exceptional case’ does exist.
The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its “paramount consideration”.[1]
[1]Working with Children Risk Management and Screening Act 2000 s 8.
It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to “any general rule”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[3] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3][2004] QCA 492 at [28].
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, there are exceptional circumstances, which dictate that it would not be in the best interests for children for a blue card to be re-issued.
The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
The Tribunal must be satisfied that this is an exceptional case of harm to children. The onus is on the Brigginshaw standard (on the balance of probabilities) to show that the there is such exceptional case of relating to harm to children.
Director-General, Department of Justice and Attorney-General Submissions
Mr Iain McCowie referred the Tribunal to the Statement of Reasons provided with the decision and his written submissions.
Mr Iain McCowie noted that the object of the Act was to promote and protect the best interests of children.
Mr Iain McCowie submitted that the Western Australian decision of Scott No 2 2008 WACA 171 provided that the negative impact on an Applicant that was not a factor to be taken into account.
The Tribunal must make the correct and preferable decision. There are no serious charges so a blue card should be issued unless an ‘exceptional case’ occurs wherein such a decision would not promote the welfare and best interests of children.
Mr Iain McCowie noted that because none of the charges were serious offences that the presumption was that a positive notice should be issued.
Mr Iain McCowie notes the Applicant’s evidence that the marijuana in 2015 was intended as a potential medical crop addressing her husband’s diagnosis and her husband’s evidence that the applicant uses marijuana to address the stresses in her life. These points suggest that in the absence of stress and adoption of appropriate strategies the applicant should be a low level of risk.
WS from the Department of Communities wrote positively of the Applicant acting protectively towards her granddaughter. There is no indication from the Department’s records of drug use that directly affected the children in her care. However, the Applicant and her husband gave evidence that while their own children were younger that there were periods when the Applicant used marijuana in the presence of her children. The Applicant with her grandchildren shielded them from drug use. This suggests a growing awareness of the effect of drugs. She has demonstrated an interest in her community and not wanting her grandchildren or other children affected by drugs. This importantly demonstrates a degree of insight.
The Applicant was able to produce evidence of supports including a close relationship and positive sibling relationships and a peer social support group. These associations help the Applicant and reduce the risk factors.
The Applicant gave evidence of support informally from ATOD’s when dealing with the difficulties of the daughter’s drug addiction. The Applicant expressed a willingness to seek help and advice when necessary. She has a positive involvement/interaction with the Police in her community. She gave evidence of being proactive in her community and interested in the protection of children. She understands that the welfare of children is paramount in the community.
The Applicant was able to identify the effects of drug taking on a person. The Applicant however denied that taking drugs had an adverse physical or mental effect on her. She did however express a change in attitude indicating that she did not want her granddaughter to use marijuana.
The Applicant in her evidence accepted responsibility for offending and acknowledged that she had done the wrong thing.
The Applicant has adopted positive strategies to address stress. These include walking, bike riding, gardening, and coffee with friends and a music group.
The Respondent sees the principal risk the Applicant’s long history of using drugs started age 17 and continued to do so in 2015. The Applicant gave evidence to Police that the marijuana was for personal use and later suggested that it might have a potential medical use. The Applicant gave evidence that she was still using marijuana in 2015. The other concern is that the Applicant is using marijuana after having engaged with ATOD’s and developed an understanding of the effects of addiction.
There is evidence of the Applicant using drugs presence of children when they were younger. The Applicant needs to be given time to show with the support of her husband and other supports that she can manage the stresses without the use of marijuana. The period of time given her extensive history is too short be satisfied that the risk has been addressed. The Applicant committed drug offences at a mature age and latest events was at age 63.
While a pipe was found on top of, a bookcase the Applicant’s evidence is that it was too high for the grandchildren to access as they were three years old and she was not aware that the pipe had been placed there.
The Respondent submits that balancing the risk and protective factors this is an exceptional case due to the length of drug use and the relatively short period that drug use has ceased. The Respondent is of the view that not enough time has passed to satisfy the Tribunal that the Applicant less likely to return to drugs response to some stressor in her life.
Applicant’s submissions
The Applicant told the Tribunal that for the major part of her children’s lives that she smoked marijuana while they were outside or at night after they had gone to bed.
The Applicant told the Tribunal that at the time of the 2015 conviction, she was trying to protect her granddaughters and her daughter who was angry with her reported her to the Police.
The Applicant stated that she had known many people who had died from drug use. She does not want to contribute to the problem by continuing to use marijuana but rather to be part of a change.
Discussion of evidence
The Applicant has used drugs between the ages of 17 and 63 with convictions of 13 offences. She also gave evidence that she smoked marijuana outside of these convictions demonstrating that the Applicant remains prepared to break the law and use illicit substances for the major part of her life.
The Tribunal agrees with the Respondent’s submission that in the absence of stressors and with the appropriate strategies that the Applicant should be assessed at a low level of risk.
The Tribunal notes that WS from the Department of Communities speaks highly of her acting protectively towards her granddaughter.
The Tribunal accepts the Respondent’s submission that MJ has developed degree of insight into the harm that marijuana use can cause. She has insight in relation to the impacts of marijuana on her own life. She has demonstrated insight into the risk of drug use in her own local community.
The Tribunal agrees with the Respondent that the Applicant has excellent peers and supports including access to ATOD’s.
The Tribunal notes that there are a number of other positive protective factors referred to by the Respondent.
The Tribunal however agrees with the Respondent that it is a concern that after receiving counselling and support from ATOD’s that the Applicant once again offended.
The Tribunal notes that the Applicant used marijuana openly when bringing up her own children.
The Tribunal notes that the Applicant’s husband was surprised that his wife was growing marijuana in the backyard.
The Tribunal is concerned about the lack of evidence of periods of abstinence namely periods without drug use. The periods without the use of drugs appear to be a relatively short period of time. The Tribunal prefers the evidence of the Applicant to that of the husband in this regard.
The Tribunal notes that the Applicant used drugs in response to stressors her life. The Tribunal agrees with the Respondent that a longer period without drug use would be a very positive protective factor.
The Tribunal is satisfied in undertaking this weighting exercise that it has been established on the balance of probabilities that the case against the Applicant is an ‘exceptional case’, which would harm the welfare of children and young people.
The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:
i)her criminal history as a whole;
ii)the balance between risk and protective factors; and
iii)the strategies, which the applicant has put in place to address her offending behaviour.
The Tribunal makes the following findings:
a)the Applicant has 13 convictions for drug offences;
b)the Applicant’s history of drug offences starts at age 17 and continues through to age 63;
c)the Applicant has historically responded to stressors in her life by consuming marijuana.
The Tribunal in the circumstances above does accept Respondent’s position as set out in the Respondent’s Statement of Reasons document and written submissions that the evidence establishes an exceptional case.
The Tribunal is not of the view that the cluster of protective factors outweighs the risk factors.
The Respondent was right to refuse the Applicant at first instance based on the information that was before the Respondent. The Tribunal has had the advantage of much more evidence than was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal do establish an ‘exceptional case.’
The Tribunal would like to see a longer period to show that the Applicant can live her life and manage the stressors in her life without resorting to smoking marijuana. The other piece of information that would be useful to the Tribunal on review would be a report from an appropriately qualified psychologist who assesses the Applicant’s risk to children. This would provide a powerful and independent piece of evidence, which could be quite helpful to Applicant.
Orders
The decision of the Director-General Department of Justice and Attorney- General dated 2 June 2017 to issue a negative notice to MJ is confirmed as the Tribunal finds that there is an exceptional case.
0
2
1