MTC v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 121
| CITATION: | MTC v Commissioner for Children and Young People and Child Guardian [2014] QCAT 121 |
| PARTIES: | MTC (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML100-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 20 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Rogers |
| DELIVERED ON: | 2 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner to issue MTC with a negative notice is confirmed. 2. The application by the Commissioner for an order prohibiting publication of identifying material is granted. |
| CATCHWORDS: | CHILDREN’S MATTERS – BLUECARD – REVIEW OF DECISION TO ISSUE NEGATIVE NOTICE – where Commission issued a negative notice - where biological children removed from care of applicant – whether case is exceptional Child Protection Act 1999 (Qld) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MTC appeared in person |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Louisa Keown |
REASONS FOR DECISION
In December 2012 the applicant was enrolled in a Diploma of Community Services with Eager Bees Early Learning Centre. Because the course involved job placements with children Eager Bees lodged a student blue card application with the Commission for Children and Young People and Child Guardian.
The Commissioner refused the application for a positive notice and issued a negative notice, providing reasons, on 6 May 2013. The applicant filed an application for a review of that decision with the Tribunal on 12 June 2013. She is seeking to have the decision set aside and a positive notice to issue.
At the hearing the applicant gave frank, considered and detailed responses to questions arising from the material that had been filed. She has had a difficult life. She was subjected to abuse and dislocation in her early childhood, left home to fend for herself as a young teenager and has faced many physical, emotional and relationship challenges as an adult.
The applicant says she is positive and strong and has learnt a lot from her experiences, which are now past history. She has developed protective strategies through counselling. She is striving to improve her prospects of employment through further training. She would like to work as a court support person with children of Aboriginal descent. She is committed to maintaining a positive relationship with her two daughters who are in care and providing a good home for her son who lives with her.
The applicant is to be commended for her efforts to bring herself to the point she has now reached. She has demonstrated strength and persistence and is striving to develop an awareness of the consequences of her life decisions. However I have decided that this is an exceptional case where it would not be in the best interests of children to issue a positive notice.
The Commission for Children, Young People and Child Guardian Act 2000 (Qld) creates a regime to ensure only suitable persons work with children in an employed or volunteer capacity. The guiding principle in administering the Act is that the welfare and best interests of a child are paramount (s 6). When deciding whether a person is a suitable person to work with children the paramount consideration is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing (s 155).
On application for a blue card an examination is made of the criminal history of the applicant. Where a person has a charge or conviction for an offence other than a serious offence, I must issue a positive notice unless satisfied that it is an exceptional case in which it would not be in the best interests of children to issue a positive notice (s 221). The applicant has been convicted of an offence other than a serious offence.
The CCYPCG Act sets out criteria which must be considered when determining whether there is an exceptional case (s 226) however the term itself is not defined and is a matter of discretion in each case. That discretion must be exercised within the parameters of the guiding principles of the Act.
I will now give consideration to the criteria of s 226.
Whether the offence is a conviction or a charge
The applicant has a number of convictions. A charge of stealing is mentioned in 1989 (when she was 14) but the balance of the charges and convictions occurred when she was an adult between 2003 and 2010. These relate to possessing and producing dangerous drugs and implements on 2003, a number of convictions for dishonesty in 2005 and a conviction for an assault occasioning actual bodily harm in 2006. There is a further conviction for producing dangerous drugs in 2010.
Whether the offence is a serious offence and if it is, whether it is a disqualifying offence
The offences are not serious or disqualifying offences under the Act.
When the offences were committed
The offences of concern were committed between 2003 and 2010.
The nature of the offence and its relevance to employment or carrying on a business that may involve children.
In 2003 the applicant admitted to smoking cannabis in her home. At that time she had living with four children aged 1 year to 9 years. In 2010, she was convicted of producing cannabis when she had her son living with her. She stated she had not consumed drugs since 2005, she was looking after the cannabis plants for another person and her son would not have been aware of what the plants were.
Commenting on the assault charge the applicant said she injured her partner during a fight. He had hit her and injured her eye and she had hit back. She said her son could not see the argument but admits he could have heard it.
In the case of a conviction – the penalty imposed and the Court’s reasons for its decision
The penalties imposed were fines and one good behaviour bond of 12 months.
Balance of s 226 factors
No further material was received relating to this section
Further evidence
In addition to the evidence I must consider under s 226 there is further information I may give weight to. In her oral evidence the applicant expanded on her written statements, other information provided and the material obtained by the Commissioner from the Department of Community Services in New South Wales. She addressed the circumstances of her drug use, mental health, exposure to domestic violence, her daughters’ placement in care, and her current situation.
Statement of the Applicant
In her written statement the applicant said[1] she first used cannabis at 12 years of age. She had been to four high schools in her first year of secondary schooling because her Mum moved around a lot. She left home at 13 years and lived on the streets. She supported herself by prostitution. A boyfriend’s family took her in and that was a good time for about three years. She had her first daughter when she was 15. The child’s father’s family cared for her. At age 17 the applicant completed her secondary schooling and received a scholarship to La Trobe University.
[1]Statement of MTC dated 5 September 2012 revised 6 September 2013. This statement is relied on for paragraphs 18-22.
In 1997 she said she started a relationship with BB and helped him care for his two daughters. She had their first child in 2000 and their second child in January 2002. They were married in October 2002. In 2000 the applicant was diagnosed with Lupus and in 2002, just after the birth of her third child, she suffered a mild heart attack. She says she smoked pot a little to help with pain and scar tissue.
The applicant states that BB became violent in May 2003 once they moved to Victoria. She left him in March 2004 and, having nowhere to go, she moved in with DH who had offered her a place. She had not known him long. In June 2004 her two daughters were removed from her care temporarily due to insufficient housing and concerns about her housemate, DH. She says he introduced her to amphetamines to deal with the loss of her children after they were removed and she was not taking amphetamines before that. A few weeks later DH took his own life and she continued her drug use. She said she was a novice user but acknowledged she was spending $150 a day on drugs for a short period in 2004.
The applicant reunited with her husband in 2004. He was ‘heavy on amphetamines’. Her fourth child N, who still lives with the applicant, was born in June 2005. In late 2006 she says BB kicked her head, so she is now partially deaf and completely blind on her right side. She lashed back and as a result was charged with assault. She separated from BB following this incident.
The applicant states the last time she smoked cannabis, or had any illegal drugs, was in September 2005.
In 2006 the applicant started a relationship with a new partner who was wonderful to her and her son. She was minding the plants for this person when she was convicted of possession in 2010. She knew it was wrong to have the plants in her possession. That relationship ended in 2011.
The applicant said she attempted to have her daughters returned to her care in 2007 but was told by the Judge it was too early and she had to have a stable place for them to live. She then prepared material for a further application in 2012-2013 but this application did not proceed because she was not granted Legal Aid.
In support of her application the applicant provided the following material.
Report Dr Bettesworth dated 18 April 2006
Drug screening results dated 26 July 2007, 10 August 2007 and 29 October 2007
Report Dr Bruning dated 10 December 2007
Report Dr Petchkovsky dated 1 February 2008
Reference Ainsley Warner Employment Consultant Undated but appears 2013
Reference Tiffany Pratt dated 10 July 2013
Reference Donna O’Leary dated 2 August 2013
Affidavit of the applicant (prepared for Children’s Court application but not filed) dated 1 February 2013 with annexures.
Statement dated 5th September 2012 revised 6 September 2013.
Oral evidence of the applicant
The Commissioner’s representative led the applicant through her material.
Annexure D to the affidavit indicated the applicant attended a drug education and relapse prevention program in 2012. When asked why she went to a drug counsellor in 2012 she said her solicitor thought it might help in her bid to have her daughters returned to her care. She stated she had not used any illegal drugs since 2005. The applicant was then taken to the documents from the Department of Child Safety in NSW. When referred to the notes of Elizabeth Carter from 2007, which said she had taken drugs 6 months earlier, she said that was not right, it was 18 months earlier. When told there were a lot of mentions referring her to drug counselling she again denied that had happened and said drug use was not a problem after 2005.
The applicant was taken to the circumstances surrounding her children’s removal in June 2004 and the subsequent care orders. She accepted the Departments actions were warranted as she was not able to look after the children at that time. She denied she was using drugs when the Departmental Officers removed her children but said she had an attack of epilepsy brought on by stress.
When asked why the children had not been returned to her care and why she was still restricted to supervised contact for two days a term for four hours each day the applicant said she did not know why that was necessary. She believed in 2004-2005 it was because she had returned to her ex-husband and he was not considered a safe person for her or her children to be with. However her son was born in 2005 and he was not removed from her care at that time or subsequently.
The applicant finally separated from her ex-husband in 2006, following the incidence of violence which resulted in her being charged with assault. She says she had a number of other partners but they were not involved in contact. One partner came to look after her son while she spent time with the girls. There were initial concerns about what she discussed with the girls but the applicant said she has not done that since the beginning. When her attention was drawn to the letters preceding contact, setting out the behaviour expected of her, she said they were standard template documents and that she was not experiencing difficulties with contact. She is now working with the girl’s new support workers at Challenge and is hopeful she will be able to have some unsupervised contact shortly.
Commenting on her experience with domestic violence the applicant says that in the past she did experience domestic violence, which resulted in her sustaining serious injuries. She protected the children when they saw her injuries by saying she had walked into a door and made sure they did not actually witness the violence, though they could have heard the arguments. She says she now recognises the harm domestic violence can cause to children and has strategies in place to protect children in her care. She would not stay in a violent relationship now as she has done in the past. She said that recently she met a man who was starting to become violent and she left him. She will not expose herself to that again.
When asked about her mental health the applicant said she was diagnosed with postnatal depression with episodes of postnatal psychosis in 2002. She had a relapse in 2003 when it was “pretty bad”. In 2004 she was diagnosed with bi-polar but she says that was a mistaken diagnosis. The medication made her feel strange. She says when she was in hospital having her son in 2005 she was taken off the bi-polar medication and has been well since that time. She said she has no issues now and no medication. She spoke about the strategies she uses to deal with difficulties now.
The applicant was referred to the reports of Dr Bettesworth and Dr Petchovsky, which she had provided to the Tribunal to support her application for review. She accepted that she was not fully frank with Dr Bettesworth when she spoke to her about the domestic violence she had experienced because she was still living with her husband BB and knew he would read the report. She was hopeful their relationship would continue. She said Dr Petchovsky took his statements from Dr Bettesworth report and she did tell him there had been violence.
Commenting on her present circumstances the applicant said she is good now. She has a close friend network. She has a job network support worker. She is close to her Mum and an aunt on her father’s side. Her son has been diagnosed with Asperger’s syndrome and she gets information from the Aspergers Parents Connect website. She speaks to a counsellor but that is not for her, it is to give her strategies to parent her son. The applicant said she doesn’t need support, things are harmonious and she is happy with the way life is going. She now has the ability to cry and not keep things bottled in.
The applicant said she needs the blue card to do the things she always wanted to do. She is now in the right frame of mind to give support and guidance to youths. The Commissioner is relying on old information and in the last 4-5 years she has bettered herself.
Submissions of the Commissioner
The submissions by the Commissioner identified the issues raised and said concerns were held about the applicant’s ability to put the needs of children ahead of her own, continued ongoing inappropriate relationships and ongoing drug and mental health issues. Reference was made to the applicant not being frank in her self reporting to her doctors and refers to the comments by the Judge in her 2007 application for the return of the children to her care that indicate the applicant was untruthful in a number of areas.
It was submitted that the Witness Statements or references are reflective of the applicant’s loving and committed relationship with her son however they are written by people who have only known her for a short time and it is not clear how much these witnesses are aware of the applicant’s past difficulties. The witnesses were not available to give evidence so these questions could be clarified.
Reference was made to the lack of a psychological report notwithstanding the recommendation of the Tribunal that a report be provided.
In particular it is submitted that the applicant has minimised the extent of her drug abuse issues, her mental health issues and the reasons for her ongoing supervised contact with her daughters. It is said these behaviours show limited insight into her circumstances and raise the possibility of reoffending. This is of particular concern where “The granting of a positive notice will give the applicant access to the children of Queensland in a range of regulated child-related activities including foster care and homestay”[2]
[2]Submissions of Respondent dated 7 March 2014 para 79.
The Commissioner acknowledges the Departmental material from New South Wales ends in 2009 and has no explanation for the lack of current material.
Application was made by the Commissioner for an Order prohibiting the publication of any information that would identify or may lead to the identification of a child pursuant to section 66 of the QCAT Act and section 189(1)(a) of the Child Protection Act 1999 (Qld) on the basis the material may identify a child who has been subject to an investigation of an allegation of the risk of harm.
Discussion of the evidence
The applicant’s criminal history is concerning. It is not the behaviour of a young person. She was 27 at the time of her first adult offence in 2003. Many of the offences arose in the context of dysfunctional relationships. I accept the applicant’s evidence that the assault charge arose from a violent relationship.
As late as 2010 she was prepared to engage in criminal activity to assist her partner at that time even though she states she knew it was wrong. Her son was living with her and exposed to an environment where drugs were accepted even though on her evidence he would not have known what the plants were. Although the applicant says she has now changed, her past history of being prepared to put her relationship ahead of her obligation to refrain from criminal behaviour, which occurred in 2010, suggests this could occur again.
The applicant’s response to question relating to her mental health, domestic violence and the circumstances of her children remaining in care all display a willingness to minimise those situations. She frequently denied evidence or called it a mistake. Her emphasis on remaining positive suggests this may be part of her strategy to approach the future with confidence. However failing to acknowledge the seriousness of her past situations suggests she may be prepared to overlook signals pointing to danger in the future if that is necessary to maintain a relationship.
The applicant is concerned that she is being repunished for her past mistakes because the Commissioner is relying on old evidence and she has now changed. It is my responsibility to make my decision with the paramount consideration of protecting children from harm. Any hardship or prejudice suffered by the applicant as a result of a negative notice must give way to this consideration.
A positive notice comes would allow the applicant to work with children in her own home, not just in an environment where she is supported and supervised. Consideration must therefore be given to whether the applicant has the capacity to exercise responsible decision making which would protect children in her care from harm and promote their wellbeing in this hypothetical situation and I find that she has not.
The evidence has not been helpful. There was no explanation why the last material received from the department in New South Wales is now five years old. More up to date information would have resulted in less conjecture.
Similarly, the applicant relied on old evidence. I have given little weight to the references she provided because the witnesses were not available for cross-examination. Their brief statements did not identify what information they had about the applicant’s past history and they therefore cannot be relied on to predict her capacity to protect children from harm in the future. Relying on her previous behaviour when self reporting, I am not able to be satisfied the applicant did give her witnesses a full and frank summation of her past life.
I have given little weight to the old reports of Dr Bettesworth and Dr Petchovsky. Partly because they have been challenged on the basis of the accuracy of the history they were given. More importantly these reports do not assist me form a view of the applicant’s current situation. She says she is not experiencing mental health difficulties but given the seriousness of her condition in the past I cannot accept that assertion without some corroborative evidence from a mental health professional.
I accept that neither party bears an onus of proof in this application[3] however each party, if they want to be successful does have the responsibility to provide evidence which assists the Tribunal to arrive at a decision.
[3]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
In the absence of recent medical reports, recent reports from the Department in New South Wales and the opportunity to speak with witnesses I am dependent on the facts presented.
a. There was a history of domestic violence which the applicant was subjected to for a period of time and I am not satisfied she accepts what is necessary for the protection of children in her care. Particularly in circumstances where this could impact on a relationship.
b. There was a history of drug use and the applicant states she has not used drugs since 2005. She believes drugs in the house would have had no impact on the children in her care.
c. There is a criminal history over a period of years when she did have children in her care.
d. Her daughters remain in care. While in she has adequately explained the circumstances of their removal, I am not satisfied with the evidence about the why they remain in care.
e. There is evidence that the applicant has had mental health issues in the past. She has explained these by the circumstances at the time and a misdiagnosis. She has dismissed concerns raised by the Department up to 2009. She says she is well and not needing treatment. In the absence of medical evidence I am not able to form a view about the current state of her mental health.
I am required to be satisfied on a balance of probability that there is an exceptional case, in which it would not be in the best interests of children to issue a positive notice. I have considered the evidence available and formed the view this is an exceptional case.
The Commissioner has sought an order under s 66 of the QCAT Act restricting publication. This application involves material about children in care and it would be an interference with their privacy if information was released which would allow them to be identified. I am satisfied this Order should be made.
I make the following orders:
1. The decision of the Commissioner to issue MTC with a negative notice is confirmed.
2. The application by the Commissioner for an order prohibiting publication of identifying material is granted.
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