Rudd v Chief Executive Officer, Public Safety Business Agency

[2016] QCAT 390

CITATION: Rudd v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 390

PARTIES:	Luci-May Jane Rudd (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER: CML126-16

MATTER TYPE: Childrens matters

HEARING DATE: 13 September 2016

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 25 October 2016

DELIVERED AT: Brisbane

ORDERS MADE:

The decision of the Chief Executive Officer, Public Safety Business Agency on 19 April 2016 to issue Luci-May Jane Rudd a negative notice is confirmed.

CATCHWORDS:

APPLICATION FOR REVIEW – BLUE CARD – NEGATIVE NOTICE – whether exceptional case – whether not in best interests of children to issue positive notice

PROTECTIVE FACTORS - where protective factors included ceasing negative influences, developing support networks, stable accommodation and working with children and people with disabilities – where applicant well regarded by those who placed children in her care – where no offences child related or committed in presence of children

RISK FACTORS - where applicant did not act responsibly and showed limited insight into impact of choices on others - where applicant continued to live in residence with illicit substance abuse – where applicant implicated in offences of violence – where applicant did not help victim either during or after assault, including not reporting incident to police or ambulance – where applicant did not mention any impact on victim during hearing - where no evidence of counselling or support from health professionals to address responses to potentially stressful situations

EXCEPTIONAL CASE - where applicant’s failure to intervene and limited insight into her actions undermines confidence in her ability to protect children in potentially stressful or threatening situations

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 221, s 226, s 360, Schedule 1

Aplin v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 218
Commissioner for Children and Young People and Child Guardian v. Maher & Anor
[2004] QCA 492
CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219
Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293
JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251

Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
Pritchard v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25
Re TAA [2006] QCST 11
Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257

APPEARANCES and REPRESENTATION (if any):

APPLICANT:  Ms Luci-May Rudd appeared in person

RESPONDENT:                 Ms Anna Sargood, Lawyer, appeared for the Chief Executive Officer, Public Safety Business Agency

REASONS FOR DECISION

What is this Application about?

1. Working with children carries with it the utmost responsibility. It includes helping and protecting children, especially when faced with threatening situations.

2. Luci-May Rudd applied for a ‘Blue Card’ to work with children. However, on 19 April 2016 the Chief Executive Officer of the Public Safety Business Agency issued Ms Rudd with a ‘negative notice’. This means that Ms Rudd is unable to work with children.[1]

   [1]        Working with Children (Risk Management and Screening) Act 2000 (Qld) s 156,

   Schedule 1.

3. Ms Rudd wants the Tribunal to review the Chief Executive’s decision. Because Ms Rudd 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’.[2]

   [2]        Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.

4. In reviewing the Chief Executive’s decision that Ms Rudd’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 Rudd to obtain a Blue Card.[3] To determine this, I must identify and balance protective factors with risk factors.[4]

   [3]        Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.

   [4]        Commissioner for Children and Young People and Child Guardian v. Maher & Anor

   [2004] QCA 492.

5. Ms Rudd 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.[5]

   [5]        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 Rudd?

1. 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 Rudd.[6]

   [6]        Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(a), s 360.

2. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]

   [7]        Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(b).

What protective factors favour issuing a Blue Card to Ms Rudd?

1. Ms Rudd is a 30 year old mother making efforts to get her life on track. She needs to keep working to help finance her regular visits to her daughter in Tasmania. She has a strong relationship with her daughter and an amicable relationship with her daughter’s father. She appears to have mainly removed herself from negative influences in her life and developed support networks. She has been living in stable accommodation for almost three years.

2. In recent years, Ms Rudd has developed an interest in working with children and persons with disabilities. She is studying for a dual Diploma in disability and community support. Her ultimate aim is to become a nurse and occupational therapist. She worked as a live-in nanny to two children for two years and then as a personal carer for a quadriplegic gentleman and a gentleman with cerebral palsy. She performed these roles without incident or any reports of physical violence or abuse of those in her care.

3. Ms Rudd also provided three positive written character references from persons who did not attend the hearing and were therefore not available for cross-examination, reducing their weight.[8] However, three other witnesses did attend the hearing in person or by telephone, attesting positively to Ms Rudd’s character. All referees attested to Ms Rudd being reliable and trustworthy with children.

   [8]        Statutory Declaration of Sandy Gray sworn 9 May 2014 and email dated 28 July 2016;

   Reference of Jodie Kay dated 15 September 2016; Reference of Michelle Hopkins dated 17 September 2015.

4. Unfortunately, although Ms Rudd’s referees all referred to part of her offence history, they were unclear on the extent.  Certainly, witnesses who attended the hearing confirmed they had not seen police statements and the Chief Executive’s Statement of Reasons.[9] None of Ms Rudd’s referees appeared to be aware of the extent of Ms Rudd’s involvement with an incident relating to the most serious charge of robbery. This reduces the significance of their evidence.

   [9]        Reasons for the decision to issue a negative notice dated 19 April 2016.

5. Regardless, their evidence does suggest that Ms Rudd is well regarded by those who have placed children in her care and she does have a support network.

6. Although Ms Rudd has a criminal history, none of the offences is child related or committed in the presence of children.

What key risk factors prevent issuing a Blue Card to Ms Rudd?

1. The primary concern is Ms Rudd not acting responsibly and her limited insight into the potential impacts of her choices on others.

2. Ms Rudd attributed her drug convictions in 2013 to “poor choices with accommodation”. In her closing submissions filed after the hearing, Ms Rudd claimed that because she worked locally she remained “whilst doing everything reasonably possible to relocate myself”, without further detail.  

3. Unfortunately for Ms Rudd, the Tribunal cannot go beyond the convictions and must accept them as they are.[10] Even on Ms Rudd’s evidence, she continued to live in the residence despite at least being aware of illicit substance use.

   [10]        Pritchard v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 at

   [36], citing with approval Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293 at [19]; Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 at [37].

4. During the hearing, Ms Rudd acknowledged that persons are not capable of caring for children while under the influence of drugs or alcohol. She has also undertaken drug diversion. However, Ms Rudd did not express any understanding or insight into how her behaviour might be perceived by a child. Adult behaviours can harm children even when not directed towards them:

   It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[11]

   [11]        CW v. Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [61] and

   [67].

5. Moreover, Ms Rudd has been involved with no fewer than two incidents of violence since 2013. In one incident, Ms Rudd is alleged to have thrown an ashtray in a dispute with her former partner. Ms Rudd denied this but did make admissions to the allegations leading to the charge. She said she was feeling emotional at the time due to family court proceedings. This does raise concerns about Ms Rudd’s ability to properly deal with conflict.

6. The more serious incident occurred in 2014, when Ms Rudd was implicated in luring a gentleman into being robbed and bashed by two male co-offenders. Ms Rudd was ultimately discharged without conviction and maintained that she did not know her co-offenders or their intentions – despite residing with and recognising at least one of them by name.

7. Ms Rudd said that she arranged to meet the victim to sell him six ‘iPhones’.  The police report referred to her carrying two tins wrapped in white paper to make them look like ‘iPhones’, but during the hearing Ms Rudd claimed that she was using the tins to “keep lizards”.

8. Ms Rudd said that she was aware of the violence but did not stay. She said that as the co-offenders punched, she grabbed her bag and “up and left”. The bashing only stopped when another male approached and yelled “Stop, stop”.

9. Tellingly, Ms Rudd did nothing to stop or help the victim from being brutally bashed. According to Ms Rudd, she saw one punch and immediately left the scene because she was scared. However, this does not explain why Ms Rudd did not call for help – either while at the scene or when she left.

10. There is no evidence that Ms Rudd was being threatened or restrained – she left the scene of her own volition. Ms Rudd did not report the assault to police once she was in the relative safety of her own home, some 500 metres away. Instead, she said she “turned a blind eye” for three or four hours - until the police questioned her after being called by other witnesses.

11. During the hearing, Ms Rudd said she did not call police because she did not believe she could be much help and did not know how to explain the situation, despite admitting that she could have provided some description of the assailants. On further questioning, Ms Rudd said that she knew her house was not one to call police from. When pressed further, she said she had not thought about calling police and the incident did not occur at her home. Ms Rudd also said she did not think to call an ambulance.

12. In her closing submissions filed after the hearing, Ms Rudd submitted that had she had training and education from her line of work around conflict resolution and correct communication skills to assist in problem solving, she would have better dealt with the situation.

13. The Tribunal is of the view that reporting the incident did not require training, but is a matter of instinctive human response to help someone in need. Even on her own version of events, Ms Rudd saw the start of the attack, sufficient for her to flee. She knew an innocent person was in trouble. Tellingly, during the hearing Ms Rudd said she would still not telephone police – even now.

14. Ms Rudd’s failure to help or intervene in a threatening situation undermines confidence in her ability to protect children in similar situations. Even if I accept Ms Rudd’s claim that she was too scared to act, this means that she placed her own fear ahead of others more vulnerable[12] - despite no suggestion of any danger to her.

    [12]        JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251 at [47].

15. When asked about the incident during the hearing, Ms Rudd said that upon reflection, she would be more cautious about on-line sales and where she met people. However, Ms Rudd but made no mention of the victim in her response and whether or how she would act any differently if confronted with a similar situation. She did not accept that the victim was outnumbered. Her response lacked insight.

16. During the hearing, Ms Rudd said that she uses strategies to deal with stressful situations including to stop and assess the situation. She also articulated specific examples and strategies to address stress on a daily basis, as part of her written closing submissions filed after the hearing. However, Ms Rudd gave no evidence during the hearing on how she would handle conflict in a domestic setting. She has also not undertaken any counselling or support from health professionals to address her responses to potentially stressful situations.[13]

    [13]        Aplin v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 218 at

    [57].

17. At this time, the Tribunal cannot be confident that Ms Rudd would act first to protect children in her care when faced with a potentially stressful situation. 

Is this an ‘exceptional case’ to not issue a Blue Card to Ms Rudd?

1. 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. Regardless of whether Ms Rudd had any legal obligation to report the incident, those who work with children must act responsibly – particularly in stressful or threatening situations. Ms Rudd did not do this: she did nothing to help a person whom she had arranged to meet from being bashed by two men, one of whom had a connection with her.

2. Although Ms Rudd’s referees attested to her general suitability to work with children, they did not address her ability to act and protect children in potentially stressful or threatening situations.[14] None expressed any knowledge of her actions during the 2014 assault.

   [14]        JA v. Chief Executive, Public Safety Business Agency [2015] QCAT 251 at [48] – [50].

3. During the hearing, rather than reflect on the victim of the 2014 assault and her own involvement, Ms Rudd expressed frustration at being questioned at length about it. She queried why she felt she was being questioned more than police questioning at the time. A person’s behaviour takes on greater magnitude when viewed in the context of protecting children. Children depend on adults to have insight into their actions and their likely effect.[15] Violence is abhorrent and children must be protected from it at all times.

   [15]        Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [49],

   citing with approval Re TAA [2006] QCST 11.

4. A person working with children cannot run away from a stressful situation. Moreover, being aware of how a person’s acts and a failure to act impacts others means the person is less likely to repeat the behaviour, when subjected to similar stressors.[16] The community rightly expects those working with children to have the deepest understanding of this, as children depend on adults to have insight into their actions and their likely effect.[17]

   [16]        Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [36],

   citing with approval Drinkwater v. Commission for Children and Young People and

   Child Guardian [2010] QCAT 293 at [19]; Stitt v. Chief Executive Officer Public safety

   Business Agency [2015] QCAT 257 at [37].

   [17]        Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [36],

   citing with approval Drinkwater v. Commission for Children and Young People and

   Child Guardian [2010] QCAT 293 at [19]; Stitt v. Chief Executive Officer Public safety

   Business Agency [2015] QCAT 257 at [37].

5. The evidence is that Ms Rudd does not act responsibly when others around her are faced with harm and she still lacks sufficient insight into the impacts of her choices on those more vulnerable than her.

6. Issuing Ms Rudd with a positive notice is not in the best interests of children. Ms Rudd’s case is exceptional because her failure to intervene and limited insight into her actions undermines confidence in her ability to protect children in potentially stressful or threatening situations.

7. Unfortunately for Ms Rudd at this time, these risk factors outweigh the protective factors.

Conclusion

1. Because her case is ‘exceptional’, the correct and preferable decision is to confirm the decision of the Chief Executive Officer, Public Safety Business Agency on 9 April 2016 to issue Ms Rudd a negative notice.