RLJ v Direct-General, Department of Justice and Attorney-General - [2022] QCAT 137

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RLJ v Direct-General, Department of Justice and Attorney-General [2022] QCAT 137

PARTIES:

RLJ

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML260-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

21 April 2022

HEARING DATE:

13 April 2022

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

1. The decision of the Director General, Department of Justice and Attorney-General that the applicant’s case is an exceptional one within the meaning of s 221 of the Working with Children (Risk Management Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.

2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly these reasons have been deidentified.

CATCHWORDS:

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where applicant issued with negative notice – where criminal history involving assault and drug related offences – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 360, Schedule 2,

Schedule 4 Human Rights Act 2019 (Qld), s 13, s 31, s 58

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Ms Capper

REASONS FOR DECISION

RLJ is employed as a personal support worker. She has applied for a Blue Card so that she is able to work with a wider range of clients.
RLJ is now 31 years of age, and has a criminal history as follows:
(a)22/6/09 – commit public nuisance, contravene direction or requirement – no conviction recorded, fine of $450
(b)26/10/09 – common assault – no conviction recorded, community service 50 hours
(c)29/9/14 – possession dangerous drugs, possess utensils or pipes etc for use – no conviction recorded – recognisance $400, good behaviour period 3 months
(d)23/11/17 – possessing property suspected of having been used in connection with the commission of a drug office – no conviction recorded, fine of $250
(e)27/9/18 – possessing dangerous drugs, possess utensils or pipes etc that had been used – no conviction recorded, probation period 9 months.
RLJ’s application for a Blue Card was refused, and a negative notice issued by the respondent on 8 June 2020. She has applied to this Tribunal for a review of that decision.
In considering the application under the Working with Children (Risk Management and Screening) Act 2000 (Qld), the paramount consideration for the Tribunal is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6, s 360.

As RLJ does not have a conviction for a “serious offence” as that term is defined in the legislation, a positive notice and Blue Card must issue unless the Tribunal is satisfied that this is an exceptional case in which it would not be in the best interests of children for RLJ to be issued with a positive notice.[2]
[2]Ibid s 221.
The Act sets out matters which the Tribunal must take into account in making that determination,[3] but this is not an exhaustive list.
[3]Ibid s 226.
This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would not be in the best interests of children for RLJ to be issued with a positive notice.
A hearing was conducted via video and telephone conference. RLJ attended, and five personal friends provided evidence in support of her application. RLJ’s general practitioner also provided evidence on her behalf.
RLJ evidence is largely unchallenged. She states:
(a)She experienced a tumultuous childhood, raised by her mother who experienced significant health challenges and struggled with abuse of prescription medication;
(b)She left school in grade 9 and worked as a cleaner for a period before moving to live with her brother and his young family and helping them with the care of their baby;
(c)At around 18 years of age, she moved in with friends and was overwhelmed with the responsibilities of managing her life. She began drinking, smoking, and “acting out” and used cannabis from time to time to help cope with anxiety and stress;
(d)In 2009, she learned that a 15 year old friend had been responsible for infecting her young niece with scabies. When she saw this friend at a shopping centre, egged on by her peers, she assaulted her by punching her in the face and head. The assault charges arise out of this incident.
(e)The 2009 incident is the only time she has been involved in a physical altercation. She was immediately remorseful and remains so today, accepting that her behaviour was wrong and unacceptable;
(f)In around 2012, she moved in with her current partner and they welcomed her first child. Tragically, her daughter passed away at three months of age after a sudden illness. RLJ turned to alcohol initially, and then sought professional assistance and was prescribed antidepressants and medication to help her sleep. The medication numbed her and left her unable to function day to day, and unable to help with the care of her partner’s two children who were living with them;
(g)Concerned about the risk of reliance and abuse of prescription medication, RLJ turned again to cannabis, which she used from time to time. Six months after her daughter had passed away, RLJ discovered she was pregnant again. She “selfishly” began to use cannabis again. At the time she felt that she was alone, and was unable to tap into her support network due to her stubbornness and lack of education about the benefits of asking for help. She felt, at the time, that the cannabis helped when she was feeling anxious or stressed. She now acknowledges that it was a bad decision;
(h)Following the birth of her child in 2013, she continued to used cannabis sporadically, particularly when feeling stressed or at times of significant events such as anniversaries or birthdays;
(i)Her twins were born in 2014;
(j)RLJ describes her decision to use cannabis, particularly while pregnant, as selfish, immature, unacceptable, inexcusable, dangerous and wrong. She is clearly very sorry for her actions;
(k)RLJ’s mother died unexpectedly in 2015 and 12 months later her grandmother passed away. RLJ says that she was “lost in grief” and scared to seek professional help due to her mother’s struggles with addiction to prescription medication. She continued to use cannabis from time to time;
(l)Following charges in 2017 and 2018, she finally turned her back on using cannabis and has not used it since, even when faced with the stress of working, raising her young family, a further pregnancy, and these proceedings;
(m)She has been advised that drug counselling was not necessary for her, and that her difficulties related to grief issues. She has developed more positive ways of addressing her ongoing grief;
(n)In 2019, RLJ began working in the care sector as a support worker, caring for people with spinal injuries, which has given her a greater appreciation of life;
(o)Since 2018, she has recognised the importance of opening up and accepting support from her network, including her sister, partner and friends. While they had been available before, she had previously refused to let them help. She has established a good relationship with a regular general practitioner. She trusts her doctor and would accept her recommendations and advice about any referrals needed should she face difficulties in the future. She does not drink or smoke, and is confident that she will be able to maintain abstinence from drugs into the future. She has a stable relationship and a loving family and support network.
RLJ’s sister and friends provided evidence largely in line with RLJ’s. They spoke of her troubled teenage years, her heartache, her regret about her past actions, and her maturity over the years, particularly since her last conviction. They regard her as a kind and caring person who loves children and is committed to her family and friends. They have all witnessed ongoing interactions between RLJ and children and spoke glowingly of RLJ’s devotion to the care of children.
One of the people who RLJ provides support to attended the hearing by telephone. He described RLJ as a compassionate and mature person who he has formed a close relationship with. His family, including his young grandchild, have come to know and trust RLJ and he has the greatest respect for her. He described her as an “exceptional” carer.
RLJ’s general practitioner attended by telephone. She also spoke of a responsible, loving and attentive mother who provided a high level of care and attention to her children. The doctor provided evidence that:
(a)She has treated RLJ since 2019;
(b)RLJ is “very well educated” about stress management and ensuring that she does not take too much on;
(c)She has a special interest in mental health and monitors RLJ when she is attending for treatment of her own or her children’s health care needs. They have an open therapeutic relationship;
(d)Should RLJ require any help or assistance, referrals would be provided as appropriate. No such assistance is currently required, and RLJ is managing very well, including dealing with the stress of the current proceedings;
(e)If RLJ was going to be irresponsible or unpredictable, it would have surfaced by now. In fact, she has always been stable and predictable over the period of their professional relationship.
There was some discrepancy between the evidence of RLJ and that of her doctor, particularly in relation to when the doctor became aware of RLJ’s past criminal history, and the extent to which the doctor has provided psychological support and counselling. I find that RLJ has a supportive, trusting and respectful relationship with her doctor, and that the doctor forms part of the support network which RLJ would turn to should she encounter challenges in the future.
I am not satisfied that RLJ is a violent person. Her witnesses all say that she interacts kindly and respectfully with others, particularly those who are vulnerable. Her client and her employer have provided glowing references attesting to RLJ’s professionalism and care. I accept RLJ’s evidence that the incident of violence in 2009 was out of character, and that she has turned her back on the lifestyle she embraced as a teenager.
The respondent points out that there is some concern that RLJ may return to using drugs. I accept that. On RLJ’s evidence, she has used cannabis from time to time, and more often when faced with significant stress in her life. I do, however, accept her evidence that she has not used cannabis over the last four years, although facing the stressors of working in the care sector, and caring for her family of young children. I note that RLJ is committed to a drug free future.
The respondent submits that caution is warranted due to the lack of independent evidence from an expert witness, particularly regarding the risk of RLJ returning to the use of drugs. I have considered the evidence from RLJ’s doctor that she does not qualify for drug counselling currently as she does not have a current drug abuse issue, and has not had one for a number of years. I have taken into account the evidence from RLJ and her sister and friends that she felt that she did not benefit from pharmaceutical assistance in dealing with her grief but has developed her own processes for dealing with challenges as they arise. I note that RLJ is open to seeking counselling in the future if required.
RLJ impressed the Tribunal as an intelligent and honest person who has made some terrible mistakes in her life. I accept her evidence that her mistakes were not limited to the criminal charges – RLJ says she made “heaps” of poor decisions during her teenage years and early 20s, including the use of cannabis. I accept her description of her actions at the time as stupid, risky, irresponsible and immature. Her actions did place her children at risk. However, RLJ has now established a stable life for herself and her family. She devotes herself at work to the care of vulnerable adults, and in her private life to the care of her children and the children of friends and relatives. She has committed herself to a drug free future and established a support network who she is now comfortable turning to if she needs them. RLJ is to be congratulated for the steps she has taken to turn her life around.
As RLJ has not been convicted of a serious offence, she must be issued with a positive notice unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for RLJ to be issued with a positive notice.
I have taken into account RLJ’s history of criminal convictions, that the offences were not serious offences, that the assault offence was some 13 years ago, and that there have been no drug or other criminal charges over the last four years. I consider that both the assault and drug convictions are relevant to employment involving children. I note that the Court did not record a conviction in relation to any of the criminal matters. I take into account that holders of a Blue Card are not necessarily supervised, and Blue Cards are unconditional and fully transferable.
RLJ’s history of anti-social behaviour is as set out in her criminal history. The legislation provides that a positive notice must issue unless this is an exceptional case. It is not. RLJ had a traumatic upbringing. She left school early and immaturely engaged in behaviour which hurt herself and others, and placed her children in danger. She has grown up. Over the last four years in particular, she has placed the welfare and best interests of children first, and protected children from harm and promoted their wellbeing. She has a range of support strategies in place to assist her to maintain her current stability.
The correct and preferable decision is that this is not an exceptional case in which it would not be in the best interests of children for RLJ to be issued a blue card. I set aside the decision of the Respondent.

NON-PUBLICATION ORDER

The Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows for the making of a non-publication order in particular circumstances.[4] In this case, RLJ has young children and her identification and the public release of highly personal information is not in their best interests. Accordingly, I will issue a non-publication order to prevent such identification in the interests of justice.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.

HUMAN RIGHTS

I have had regard to the Human Rights Act 2019 (Qld). RLJ’s human rights, in particular her rights to a fair hearing and not to be tried or punished more than once were considered, as was the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[5] I am satisfied that this decision is compatible with human rights in accordance with the legislation.[6]
[5]Human Rights Act 2019 (Qld).
[6]s 13 Human Rights Act 2019 (Qld).