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?

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Rudd v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 390
Case: [2016] QCAT 390
Decision Date: 25 October 2016

CaseChat Overview and Summary

In the case of Rudd v Chief Executive Officer, Public Safety Business Agency, the applicant, Luci-May Jane Rudd, sought a review of the decision by the Chief Executive Officer of the Public Safety Business Agency to issue her a negative notice, prohibiting her from working with children. This decision followed her application for a ‘Blue Card’ under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing this decision to determine if it would not be in the best interests of children to issue a positive notice, allowing Ms Rudd to obtain a Blue Card.

The central legal issue before the Tribunal was whether Ms Rudd's case was 'exceptional' such that it would not be in the best interests of children to issue her a positive notice. To resolve this, the Tribunal needed to identify and weigh protective factors against risk factors. Protective factors included Ms Rudd's efforts to distance herself from negative influences, the development of support networks, stable accommodation, and her involvement in working with children and people with disabilities. Conversely, risk factors highlighted Ms Rudd's failure to act responsibly, limited insight into the impact of her choices on others, continued living in a residence with illicit substance abuse, and her implication in offences of violence, including failing to assist a victim or report the incident. The Tribunal needed to determine if these risk factors outweighed the protective factors, thereby justifying the negative notice.

The Tribunal concluded that the risk factors significantly outweighed the protective ones, making it not in the best interests of children to issue Ms Rudd a positive notice. The Tribunal found that although Ms Rudd was not convicted of any serious offence and was not a child-related offender, her behaviour and choices presented a substantial risk to children. Notably, Ms Rudd did not show any insight into the impact of her choices on others, continued to live in a residence with illicit substance abuse, and was implicated in offences of violence without helping the victim. These factors, combined with her failure to seek professional support or counselling, led the Tribunal to uphold the decision of the Chief Executive Officer to issue a negative notice.

The Tribunal confirmed the decision of the Chief Executive Officer, Public Safety Business Agency, dated 19 April 2016, to issue Luci-May Jane Rudd a negative notice. This decision means that Ms Rudd is unable to work with children until her circumstances change and the risks she poses to children are adequately mitigated.

Orders

Orders of the court

1. 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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