SAJ
[2013] QCAT 705
•29 November 2013
| CITATION: | SAJ [2013] QCAT 705 |
| PARTIES: | SAJ (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML107-13 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 29 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Murray Member Quinlivan |
| DELIVERED ON: | 29 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Commissioner’s decision is set aside and a positive notice and Blue Card is to be issued to the applicant. 2. The Tribunal prohibits the publication of the names of the applicant, the child and non-expert witnesses. |
| CATCHWORDS: | REVIEW JURISDICTION - BLUECARD – where conviction of offence is other than serious offences – issues of mental health – whether an exceptional case – factors in determining whether an exceptional case Commission for Children, Young People and Child Guardian Act 2000 ss 221, 226 Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24, 66 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | SAJ |
| RESPONDENT: | Ms Louisa Keown representing the Commissioner for Children and Young People and Child Guardian |
REASONS FOR DECISION
The applicant (SAJ) lodged an application for a Blue Card. On 13 May 2013 the Commissioner for Children and Young People and Child Guardian (the Commissioner) refused her application on the basis of her criminal history and mental health concerns. Subsequently SAJ sought orders from the Tribunal to have the Commissioner’s decision set aside and a positive notice and Blue Card issued.
Background to the offences
SAJ has criminal history that includes four convictions for serious assault of a police officer when she was 16 and 18 years of age. She has convictions for property and nuisance related offences. She has a charge for breach of an order – no evidence was offered.
The police brief shows that in June 2005 SAJ was convicted of three counts of ‘serious assault-assault/resist/obstruct police officer/person acting in aid of police officer’. The circumstances were that SAJ was 16 years of age at the time. Police were called at 7am to a residence to a domestic violence incident. Police spoke with SAJ and her boyfriend and they decided that no incident had occurred. While speaking with the occupants officers observed SAJ to be affected by drugs or alcohol and she had self-harmed with cuts on her wrists. She became hysterical and ran away from the officers and couldn’t be calmed. The police officers believed she was suffering from a mental illness and took her to hospital for an examination under the Mental Health Act. SAJ struggled with the officers and refused to go to hospital. She was handcuffed and restrained. While in the police car she spat into two officers’ faces. Both officers needed to undergo blood tests to ensure they hadn’t contracted any diseases from SAJ.
SAJ attended a police interview with her mother as an independent person in relation to these events. She made admissions about obstructing officers and spitting on one of them. She said she was drunk at the time, suffering from depression and that she didn’t have a mental illness. She appeared in the Brisbane Children’s Court. SAJ was convicted and sentenced to a six month probation period with no conviction recorded.
The police brief indicates that in 2007 when SAJ was 18 years old at the time, police were called to a residence where a young woman was being attended to by Queensland Ambulance Officers. SAJ had been performing CPR on the young woman and she called an ambulance. Paramedics asked her to leave the scene while they treated the patient and she refused to leave. Police officers were called and they observed SAJ to be highly distressed and hysterical. The young woman subsequently died. SAJ became aggressive and had to be physically restrained by police. While in the police car she spat in the face of one of the officers. SAJ told officers that she was HIV positive and had Hepatitis C.
SAJ was charged and convicted in relation to these events 12 months later in August 2008 of ‘serious assault/resist/obstruct police officer/person acting in aid of police officer’. SAJ was sentenced to nine months probation with no conviction recorded.
In addition to these convictions SAJ also has the following offences and convictions:
· 5 May 2006 appearance in the Children’s Court for unauthorised dealing with shop goods – no conviction recorded good behaviour bond 6 months. Wilful damage to property which is part of a school/education centre – no conviction recorded probation 6 months.
· 21 November 2006 appearance in the Magistrates Court for wilful destruction to property without consent and thereby caused a loss of $250 or less and contravening a direction or requirement – one penalty imposed. No conviction recorded fined $300 and restitution $84.
· 24 April 2007 appearance in the Magistrates Court for committing public nuisance – on all charges no conviction recorded and fined $250.
· 29 April 2008 appearance in the Magistrates Court for breach of an order – no evidence to offer.
The Applicant’s Case for a Positive Notice
SAJ is currently 24 years of age. She has a little boy who is nearly 3 years old. She lives with her new partner C who attended as her support person at the QCAT Hearing.
SAJ is a nursing student, enrolled in January 2012. The practical component of the course requires her to have a Blue Card to work on placement in acute, community mental health or aged care facilities.
SAJ’s long term goal is to graduate as an enrolled nurse, undertake studies to become a Registered Nurse and gain entry to study medicine.
BV – SAJ’s mother
SAJ’s mother, BV was a teenager when she gave birth to SAJ and for the first five years she raised her on her own. BV then met her current partner and they had a daughter together. BV said SAJ’s father has not been in her life and SAJ has suffered this loss. BV gave evidence that SAJ struggled with a mental illness in her childhood. At 13 years of age BV realised how serious this was and took her to a psychologist. She said SAJ was misdiagnosed with depression and was treated with antidepressants. At high school she was bullied and began to spiral deeper into a depressive state and began to self harm and BV was unable to assist her.
BV spoke candidly and expressed her sadness about these years and blamed herself in part for SAJ’s troubled years. She said it was difficult as a young single mother and later on she wasn’t able to get the right sort of help for SAJ. She said SAJ moved away from home and had a troubled life and eventually moved to live in Port Douglas.
Since her return, their relationship has continued to improve. They are now very close. She said there was nothing she wouldn’t do for SAJ and her little boy, who she sees very regularly. She said SAJ is stable; a great mother and very committed to her studies and the people with whom she works and cares for.
SAJ’s evidence
SAJ left home at 15 years of age, she didn’t have stable accommodation for a period of time, living briefly with friends, sleeping rough and involved in abusive relationships with young men.
In 2005 when SAJ was 16 years old she was involved in an abusive and unstable relationship and this was when the first three offences of assault/resist/obstruct police occurred. She said she was in an erratic state and unable to control her emotions. She was drinking alcohol and self harming.
In 2007 SAJ was still living in unstable and volatile accommodation and relationships. In the second incident where she was charged with assault/resist/obstruct police, SAJ had gone to her friend’s unit as she was concerned she was involved in drugs and not answering her phone. Her friend was unconscious when SAJ arrived. She telephoned for an ambulance and performed CPR on her friend. SAJ was highly agitated and distressed and she hindered officers trying to treat the young woman. Paramedics called police officers to assist. Officers restrained SAJ where she struggled and spat in their faces. She told them she was HIV positive and had Hepatitis C. SAJ’s friend died of a drug overdose.
SAJ was charged and convicted in 2008 in relation to this event. At the time she was in an abusive relationship and dealing with the death of her friend. She told the Tribunal she was suffering from an undiagnosed mental illness and living in a ‘crazy making environment’ in which she surrounded herself with volatile relationships and environments that exacerbated her mental health. She said she felt herself spiralling with no ability to deal with the conflict and stress. She said her partner was drinking a lot of alcohol and police were often called to arguments that led to him assaulting SAJ.
On one occasion SAJ and her partner were arguing. She was angry with him over a pornographic DVD he was watching and she allegedly broke the DVD player. Police came to the residence. Her evidence to the Tribunal was that her partner told police SAJ assaulted him and because of her past behaviour towards police they accepted his story.
SAJ said she had no support at that time to help her to leave the relationship or to contest a Domestic Violence Order he had taken out against her or allegations she had breached the order.
In 2008 SAJ moved to live in Port Douglas and found work in aged care facilities. During this period she began to form relationships with co-workers and facility residents and her passion for aged care began to develop. She ended her abusive relationship and has never had any further contact with her ex-partner.
SAJ returned to Brisbane with a strong desire to become a nurse and a determination to care for others, particularly in aged care.
She worked at two facilities in north Brisbane where she has gained experience and developed strong friendships. So much so, that co-workers formed a support network for SAJ when she was pregnant so she could continue to work 80 hours per fortnight.
In 2010 SAJ gave birth to her son who is now nearly 3 years old. She told the Tribunal that words can’t describe the love she has for her son and that he is the most positive influence in her life. All of SAJ’s witnesses told the Tribunal that she is a wonderful mother and this shows in her boy who is described as a sunny, happy and chatty little fellow with a very strong and positive attachment to his mother.
SAJ began to realise that her mental illness was more than depression. She was determined to get well and she researched her symptoms and thought she may have a personality disorder. She then searched for suitable health professionals to diagnose her suspicions and to treat her.
Mr Lyndon Barei – clinical and counselling psychologist
SAJ consulted Lyndon Barei a clinical and counselling psychologist in Brisbane. He diagnosed her with Borderline Personality Disorder. Mr Barei specialises in Dialectical Behaviour Therapy (DBT) that addresses the issues of self-harm, depression and alcohol abuse in Borderline Personality Disorders.
Mr Barei explained at length to the Tribunal his diagnosis and the affects and symptoms of this disorder. He offered SAJ an intensive course over six months that required one to one counselling and group work. She was aware the treatment would be long, intense and expensive.
SAJ made a solid commitment to treatment and borrowed money from her grandparents to attend. She commenced the course in January 2013. Mr Barei gave evidence that the decision to commence the comprehensive course was not taken lightly by SAJ. Aside from the substantial cost of $8,000 it involved committing to six months of weekly individual therapy of one hour, weekly skills group training of 2.5 hours, after hours use of phone coaching and the completion of a daily diary and weekly homework sheets.
SAJ attended every session apart from one when her son needed her to stay with him on a particular evening. Mr Barei said the course was like undertaking a University subject.
SAJ said the DBT therapy has changed her life. She was able to clearly articulate the components of the course and how she applies this on a daily basis. In addition she takes medication for her illness. She talked about the triggers and the signs that she now recognises and the strategies she puts in place to regulate her emotions, manage conflict, better tolerate distress and frustration and relate interpersonally on a day to day basis.
Mr Barei said SAJ completed the course in August 2013 and applied herself well to the program. He confirmed that she has significantly improved in her capacity to regulate her emotions.
Mr Barei believed that the six month course has been sufficient for SAJ, he did not believe there was a need for her to return for a further course but she would always be welcome to do so. She remains in contact with him and is well maintaining her post-treatment regime.
Mr Barei was well aware of the Blue Card system and the paramount consideration of the best interests of children that underpin it. He was confident SAJ can well manage her mental health and stress that may face her in the future. He had no concerns about her working with children and young people. He said that if he, his nieces, nephews or Goddaughter were to go to hospital he would be very happy for SAJ to treat him or the children. He said he had no qualms whatsoever.
Dr Elizabeth Tindle – clinical psychologist and lecturer
Dr Elizabeth Tindle is a psychologist in private practice for 38 years and a lecturer at QUT. She said that SAJ has consulted her on and off since she was 15 years of age. Over the years she has seen SAJ as a very troubled adolescent in deep pain and trying to deal with it alone. She saw SAJ struggle in abusive relationships where alcohol and drugs were around her and at a young age she saw her close friend die of a drug overdose. She thought most of the issues for SAJ were environmental; she needed care and support that was not available to her at this young and vulnerable age.
Dr Tindle said SAJ has recovered well from this childhood and teenage trauma and matured into a very responsible person with deep empathy to help others. She said she has studied conscientiously and is a caring and loving parent with a strong bond with her little boy. She said she is gentle and patient with a young child’s many demands, she said she successfully breastfed him and developed a beautiful bond and attachment to him. She said SAJ worked, studied and attended an intensive therapy course in order to make herself well and to exceed as a professional to contribute to society.
Dr Tindle was well aware of the Blue Card regime and strongly supported it and SAJ’s efforts to obtain a Blue Card.
SAJ provided statements from referees including PD, a Nurse Educator and teacher to SAJ. She didn’t give oral evidence to the Tribunal but in her statement she stated that SAJ has quick intelligence and gained top marks in her class. She stated she is courteous and considerate of others at all times. She has insight into her stress reactions that has enabled her to deal with those stressors without impacting on her teachers or colleagues.
Ms Melinda Berezovsky – clinical psychologist expert evidence
SAJ consulted Melinda Berezovsky, clinical psychologist from the Park Road Group as an expert witness. She saw SAJ on one occasion. She conducted an assessment of SAJ’s current mental state and considered other medical records made available to her. SAJ provided Ms Berezovsky with copies of police documents. She told the Tribunal that SAJ was deeply regretful about spitting on the police officers and thought her behaviour was driven by severe shock. She told her she would never in her right mind treat a police officer in that way and can only account for her behaviour in that she was very distressed she lost control of her emotions and behaviour. She told Ms Berezovsky she understands that her actions significantly affected the police officers and for that she is very sorry and wishes that she had not done that to them.
Ms Berezovsky said SAJ is taking antidepressant medication and is compliant with this. Ms Berezovsky spoke highly of Mr Barei and his success in administering DBT and its positive affects on SAJ. She said he operates the program consistently with research outcomes and findings from international studies and evaluations.
Ms Berezovsky found SAJ to be a reliable historian with insight into her mental health and her offending behaviour in her teenage years. She was confident that SAJ manages her stress well with a good understanding of potential relapse and appropriate strategies to minimise this.
Ms Berezovsky said that SAJ has never been suicidal and her self harming behaviour has not been in front of anyone and has ceased. She thought this behaviour commenced as a maladaptive coping strategy to deal with childhood trauma and rejection. She found she has engaged in the best treatment for her problematic behaviour and emotional regulation.
Ms Berezovsky had no concerns for SAJ as a parent. She said the father of SAJ’s child has no contact with them however his extended family had regular contact with them. She said SAJ is currently in a new relationship with a young man and SAJ told her he is emotionally stable, no history of drug abuse or violence against others. He is the brother of SAJ’s girlfriend.
Ms Berezovsky found SAJ’s scores in the Beck Depression and Anxiety Inventories were within the minimal ranges indicating she was not experiencing any significant level or pattern of depressive systems or anxiety symptoms. She reported as a non-smoker, drinks alcohol occasionally at social events and does not take any illicit drugs.
Ms Berezovsky did not consider that SAJ would be a risk working with children or young adults. She thought that SAJ has considerable insight into her offending and the affects of her mental illness, possibly better than the average person given her commitment to her treatment. Ms Berezovsky did not have any concerns about SAJ being a suitable person to hold a Blue Card.
Mrs YG – long term family friend
Mrs YG is the mother of a long term girlfriend of SAJ. The girls have been friends since kindergarten. YG is also the CEO of the McIntyre Program which provides horse riding for people with disabilities. She spoke of SAJ’s troubled teenage years and said that from time to time SAJ lived with them. She said they were a ‘boring family with boring rules and day to day routine’. She found SAJ to thrive in this environment.
She said SAJ had a ‘complete meltdown which was a cry for help’ when she was involved in a violent relationship, suffering from a mental illness and found herself charged with offences.
YG spoke of how SAJ has turned her life around.
SAJ’s family home was inundated in the floods. About 18 months later the house burnt down while the family was at the Gold Coast for the day celebrating SAJ’s birthday. She said that SAJ coped with the tragedy very well, she organised a rental property for her family, clothes and furniture.
YG said she has seen maturity and determination in SAJ wanting to create a better life for herself and her son and she has never been afraid to do the hard yards and do what is necessary to get there.
She said she is a beautiful mother, a hard worker with much empathy for others. She feels that she can draw on her life experiences and life skills and she has learnt a great deal and can give so much to others.
SAJ told the Tribunal she deeply regretted and is remorseful for her behaviour towards the police. She said she is mortified to think that she acted this way. She said she can only imagine how the officers would have felt about being spat on and then told she had HIV Aids and Hepatitis C. She spoke of the officers by name and expressed how worrying it would have been for them and their families having to be tested for these diseases and waiting for results.
She spoke candidly about her mental illness and the steps she has taken and worked hard to be well and be the very best mother she can be for her son and to be the very best health professional she can be to care for others. She said her dedication is relentless in improving her mental health and working to improve the lives of those in aged care. She is very committed to ongoing appropriate treatment for herself.
She gave examples to the Tribunal of when she has been under a lot of stress and how she has put the strategies in place to cope. She said just prior to commencing the DBT in late in 2012 she felt the early signs that she was not coping. After trying some strategies she admitted herself to hospital. As she was a young single mother the hospital made contact with Child Safety Services. Officers did not consider a notification was necessary and referred her to the Referral for Active Intervention (RAI) program for family support. SAJ said the RAI service had been magnificent for her and helped her to get back on her feet. Her case officer wrote a reference for her praising the way SAJ was willing to engage with the service, was consistent with appointments and very willing to work in all areas of support needs. She stated SAJ has grown and matured during the time she has worked with her, she is a strong and determined loving mother working hard for a better life for herself and her son.
SAJ said she would like the Commissioner’s decision set aside and a positive notice be issued as she believed she had addressed the triggers that gave rise to her offending. She said she understands the serious nature of her offending and is very remorseful for her actions. She said she has stabilised her mental health concerns and can provide a safe environment for children, which protects them from harm and promotes their wellbeing.
In her final submissions she said she understood the need for rigour in assessing suitable people to hold Blue Cards. She said she would want the same rigour applied to anyone caring for her own son. She said the decision must be in the best interests of children and if the Tribunal decided not to set aside the Commissioner’s decision she accepted that and had a “Plan B”. She has applied to undertake a diploma in Nutrition and in two years she would reapply for a Blue Card. She has a long term plan to study medicine and understands there are many pathways to achieving this goal.
Why the Commissioner says the Applicant should not have a Positive Notice
The Commissioner reiterated that 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. It is to this consideration that all others must yield.
The Commissioner outlined sections 221(1) and 221(2) of the Act that provide that where the applicant has been convicted for an offence other than a serious offence, he must issue a positive notice unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice to the applicant.
The Applicant’s criminal history as a whole raised significant concerns for the Commissioner regarding her ability to judge appropriate behaviour and respond to situations in a non-violent manner. The police information shows that SAJ had anger management issues in the past and was unable to restrain her behaviour particularly in difficult or stressful situations.
The Commissioner was also concerned about SAJ’s mental health issues that contributed to her behaviour and self harming in the past.
The Commissioner relied upon the former Children’s Services Tribunal’s (CST) decision of Re TAA. While the CST identified insight into the consequences of the offending behaviour as a protective factor, conversely the Commissioner found the failure to demonstrate insight may be considered a risk factor. Re TAA [2006] QCST 11 at [97] where the Tribunal stated:
An issue of insight into the harm caused in these incidents is a critical matter for the tribunal. The tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.
In the Commissioner’s Reasons, he raised concerns about whether SAJ had insight into the current status of her mental health, the triggers and symptoms and the need, willingness and preparedness to engage with ongoing treatments.
After hearing all of the evidence, the Commissioner’s representative acknowledged that SAJ has made positive and significant changes in her life and shown a lot of initiatives that she had herself instigated and undertaken. She also acknowledged that SAJ demonstrated she has undergone good treatment with positive outcomes for her. Ms Keown said these are commendable steps, particularly her commitment to complete her treatment, the way she applied herself to her studies and cared for her son at the same time.
Ms Keown said the three health practitioners who gave evidence were highly regarded and were satisfied that SAJ was appropriate to hold a Blue Card. However, Ms Keown’s reservations included SAJ’s ability to maintain her improved health conditions, to comply with her post-treatment regime and whether enough time has passed to test how well she copes with stressful situations.
Is the Applicant’s case exceptional?
The role of the Tribunal is to decide the matter afresh and take all reasonable steps to ensure that it has all relevant material before it. For example the Tribunal can consider evidence of remorse and insight into the offending behaviour which was otherwise unavailable or not fully known by the Commissioner at the time of considering his decision. It may consider any new evidence and in doing so, can affirm the original decision, amend the original decision or set that decision aside and substitute its own decision[1].
[1]QCAT Act ss 20 and 24.
The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children. Further, the decision is guided by the right of children to be cared for in a way that they are protected from harm and that promotes their well-being[2].
[2]CCYPCG Act ss 155 and 360.
The standard of proof on which the Tribunal must be satisfied is the balance of probabilities. However, there is no onus of proof on either the applicant or the respondent. [3]
[3]McDonald v Director General of Social Security [1984] FCA 57.
The Tribunal accepts that when considering if this is an ‘exceptional case’ ‘(t)he proper approach to it is… to consider its application in each particular case, unhampered by any special meaning or interpretation’.[4]
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
The Commission Act does not define the meaning of ‘exceptional case’. Section 226 of the Act requires the Commissioner or Tribunal, on review, to have regard to certain factors in determining whether an ‘exceptional case’ exists including the nature of the offences. The factors prescribed under s 226 of the Commission Act are not exhaustive and include any factors ‘reasonably considered’ relevant to the ‘assessment’ of the person.[5]
[5]Ibid s 226(2)(e). See Philippides J in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [42].
The Tribunal notes the decision of Philippides J in Maher[6], where the Tribunal considered the risk and protective factors. The approach of Philippides J and endorsed in FGC’s case[7] is that there is no test or general rule in the exercise of discretion to determine what is an exceptional case.
[6]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[7]Commissioner for Children and Young People and Child Guardian v FGC (2011) QCATA 291.
Should SAJ be granted a Blue Card?
After the benefit of considering all evidence available to the Tribunal Ms Keown acknowledged the positive changes in SAJ’s life. However she remained concerned about her ability to maintain her improved health conditions, comply with her post-treatment regime and whether enough time has passed to test how well she copes with stressful situations. Would these concerns amount to an exceptional case in that it would not be in the best interests of children and young people to issue SAJ with a positive notice and Blue Card?
There have been six years since SAJ offended. At the time she committed the offences she was a young troubled teenager between the ages of 16 and 18 years. She was disconnected from her family, living in an abusive relationship and struggling with an undiagnosed and untreated mental illness.
The triggers that precipitated her offending have been reduced if not ameliorated through a number of factors including maturity. Her insight into her lifestyle as a teenager and her mental illness has led her to seeking treatment to become well and to make better choices in her life. She has a stable home, she is a mother, and she has a loving and secure relationship with her family and a new partner, C. SAJ has received successful treatment for her mental illness. She is achieving top marks in her nursing studies and plans to study medicine. She appears to be managing these responsibilities very well.
She has shown significant insight into and deep remorse about her offending and the affects of her behaviour towards the police officers, how her lifestyle and behaviour was linked to her emotional dysregulation, a symptom of Borderline Personality Disorder. This insight, remorse and management of her mental illness were confirmed by her referees including her mother and three psychologists and SAJ herself.
These are strong protective factors.
She has shown great determination to understand and manage her mental illness and help herself to become well. She is an impressive young woman who is achieving her goals and contributing well to people in aged care with whom she is currently working. She is passionate about assisting and making a difference to them. She is optimistic about her future.
There is a great deal of confidence in SAJ from her treating psychologist and her referees that she can manage her health and cope well in stressful situations.
The Tribunal has found SAJ to be an impressive and extraordinary young woman. After considering all of these factors it has come to the view that this not an ‘exceptional case’ where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to SAJ.
The Tribunal orders that the Commissioner’s decision be set aside and a positive notice and Blue Card are issued to SAJ.
The Tribunal makes a non-publication order pursuant to s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 with respect to the name of the applicant, the child and the non-expert witnesses.
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