SME v Director-General, Department of Justice and Attorney-General

[2018] QCAT 334

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SME v Director-General, Department of Justice and Attorney-General [2018] QCAT 334

PARTIES:

SME
(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML054-18

MATTER TYPE:

Children’s matters

DELIVERED ON:

27 September 2018

HEARING DATE:

10 September 2018

HEARD AT:

Brisbane

DECISION OF:

Member Clifford

ORDERS:

1.   The decision of the respondent to issue a negative notice to the applicant dated 12 February 2018 is confirmed.

2.   Other than the parties to this proceeding, publication is prohibited of any information which may identify the applicant, or any relevant child.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QCAT – application for review of decision – where respondent issued a negative notice for a blue card – where non-serious offence – whether an exceptional case

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of decision – where respondent issued a negative notice for a blue card – where non-serious offence – whether an exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Working with Children (Risk Management and Screening) Act 2000 (Qld)

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

APPEARANCES & REPRESENTATION:

Applicant:

SME – self-represented

Respondent:

Ms N. Taylor, Senior Legal Officer

REASONS FOR DECISION

1. SME is a 42 year-old woman who applied for a Blue Card so that she could attend her daughter’s primary school and volunteer in the tuck shop. SME has a conviction for possessing dangerous drugs (ICE) dated 27 November 2012 and a conviction for possession of utensils or pipe dated 1 March 2016. SME has a history of illicit drug use spanning an 8-year period concurrent with an abusive and controlling relationship. Child Safety has been involved in her family’s life over the years. SME’s two youngest children, age 8 and 3 years, live with her full-time. SME’s eldest daughter age 18 years has lived with her maternal grandmother since her early years. SME has a Protection Order in place against her former partner. SME states she has been ‘clean’ from drugs for over 2 years.

2. The respondent issued a negative notice in relation to SME’s application by notice dated 12 February 2018 and SME sought review of the decision with the Tribunal.

   Legal framework

3. The Working with Children Act prescribes reviewable decisions, outlines whom may apply for review and what the Tribunal may or may not do in relation to the review.[1] The Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that the Tribunal may either confirm the decision or set it aside. [2]

   [1]Working with Children (Risk Management and Screening)Act, 2000 sections 353 and 354.

   [2]Queensland Civil and Administrative Act 2009, sections 17 - 24.

4. When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]  

   [3]Op.cit, Working with Children Act, sections 6 and 360.

5. The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records, if any, are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice.

6. The Working with Children Act does not define exceptional case, however, the Queensland Court of Appeal in the matter of Maher & Anor,[4] provided guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case, and accepted that looking at protective and risk factors was one way of deciding if a case is exceptional. The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.[5]

   [4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

   [5]Op.cit, Maher case and Working with Children Act, section 226 (2).

   Material/evidence/considerations

7. SME provided the application with attachments, including letters dated 28 April 2015, 9 June 2015 and 31 May 2016 from the Department of Child Safety advising that assessments into concerns were unsubstantiated, personal story dated 22 March 2018 and statement dated 2 July 2018 with attachments, including GP Mental Health Plans. SME also provided an email of support dated 18 March 2018 from BA who worked in the tuck shop with her and is now a friend. BA attended the hearing via telephone to give evidence. SME attended the hearing via video-link, she was given the opportunity to respond to all material, make opening and closing submissions, SME was cross-examined by the respondent and she had an opportunity ask questions.

8. The respondent provided full statement of reasons, (referred to as BCS1-37) Auscript transcripts of proceedings, (BSC 38-42), Notice to Produce documents regarding domestic violence applications (NTP 1-116) and Child Safety documents (NTP 117 – 341). The respondent cross-examined SME and her witness BA, and provided final oral and written submissions.

9. It is uncontested SME has two convictions for non-serious offences according to the Working with Children Act.  In accordance with section 221 of that law SME should therefore be issued with a positive notice unless hers is an exceptional case, in which it would not be in the best interest of children for her to be issued a positive notice.

10. The Tribunal notes no information or reports[6] have been received concerning SME under sections 318, 319, 335, 337 or 338 of the Working with Children Act, but notes that SME was firstly convicted in November 2012 for possession of a dangerous drug (crystal amphetamine/ice) in an amount consistent with personal use. SME was later convicted for Possession of utensils or pipe, (water pipe/bong) in March 2016.  SME pleaded guilty to both matters. In 2012 she was fined $500.00 with No Conviction Recorded, and in 2016 she was fined $350.00 with Conviction recorded. Whilst not indicated in the Auscript transcripts of proceeding, in response to this proceeding, SME stated that in relation to the 2012 offence she took the rapt for her then partner out of fear, and in relation to the 2016 offence she stated that she has never smoked ‘weed’ and that the ‘bong’ was left by associates of her former partner.  

    [6]Op.cit, Working with Children Act section 226 (2).

11. Whilst these offences are of the non-serious type, drug misuse is relevant to employment that involves or may involve children given the very negative impact drug misuse by adults may have on children’s own decision-making, their overall well-being and sense of security.

12. Along with these offences, whilst denying that she was addicted to ICE based on the self-reporting of abstinence during a number of times SME left her partner, SME admits to an eight year period of near daily methamphetamine/ice use, that she reports was always injected by her partner. SME now testifies that she has been ‘clean’ for nearly two and a half years, achieved through ‘cold turkey’ and self-determination.  SME in essence attributes her drug-use to her former partner’s extremely controlling and abusive behaviour.

13. SME left her partner around March 2016 and moved location. SME testified at hearing that she had just been granted a ‘no contact’ Protection Order against him in regards to herself and the two children of the relationship. SME testified that she has undertaken crisis counselling and an eight-week training course (Shark Cage Certificate) in relation to abusive relationships, and has put in place mental health plans for herself and young daughter.

14. SME reported that she has not relapsed since she moved location and was strong in her determination not to relapse. SME reported that when she first moved location the new neighbours were drug users and so she sought, and was given, a transfer from that neighbourhood by the Department of Housing.

15. The Child Safety documents are indicative of SME’s stated lifestyle. Between 2008-2016 notifiers raised concerns about drug use, adults fighting with children present, and children looking neglected and unkempt. The Tribunal notes that SME’s partner’s other 2 children were living with at the house for a short time during this period and they formed part of some of the Child Safety reports.  Whilst SME denies absolutely some of the concerns raised about her children or the extent of fighting, and relies on the unsubstantiated assessments by Child Safety, SME admitted to using ice during pregnancy and breastfeeding, and describes the period following the birth of her son in March 2015 as a low-point in her life.

16. SME testified that she has a network of friends now who support her, including BA who gave evidence. SME stated she did not request attendance from counsellors or other friends because she did not want to put them out because they are very busy and they would be working.

17. BA testified she has known SME now for around 2 ½ years. They first met at the tuck-shop and are now friends. BA testified that she has heard SME’s story and understood she was ‘clean,’ celebrating milestones and receiving counselling. BA testified SME seeks advice from other mothers. BA testified SME was a valued member who always turned up for the roster and was honest and caring. BA had ‘absolutely no concerns’ about SME working with children.

18. SME had estranged relationships with her parents, sisters and now 18-year old daughter for the duration of her relationship with her former partner. SME reports she has sought to reconnect with her mother and her eldest daughter. She testified that she now has regular on-line contact with her daughter, and has had some initial contact with her mother who is unwell. SME advised her father died some years earlier.

19. SME submitted that she is not the same person referred to in the Child Safety documents; SME submitted that she is drug-free and firm in her belief that she will not relapse with drugs. , SME submitted that meditation, exercise and listening to music, keeps her anxiety at bay. SME submitted she has support with new friends and has counselling. SME submitted that as her two youngest children are in her full care, and they attend school and swim and play tennis, she is not a risk to children. SME submitted she has moved location and has a Protective Order in place to prevent contact by her former abusive partner. SME submitted that she plans to apply for full custody of her children in the future through the family court. SME submitted that she would not have applied for a Blue Card if she thought she was a danger to children.

20. The respondent acknowledged that SME has put some protective factors in place, including a strong demonstrated desire to be drug-free, undertaken counselling and training about abusive relationships and has extricated herself from a dysfunctional one. The respondent also acknowledged that Child Safety has noted SME’s past willingness to address concerns when raised and that BA was a supportive witness. However, the respondent submitted that SME’s drug offences coupled with a longstanding history of drug use and a limited insight into the subtle impacts of drug use on children raises real risk factors. The respondent submitted these risks were not fully addressed as a counsellor nor health professional provided any detailed report or appeared as witnesses at the hearing. In particular the respondent submitted SME had limited insight and lacked a comprehensive insight into the impacts drug use has on children. The respondent submitted SME is in the early stages of recovery, remains vulnerable and has had a relatively short period of abstinence in light of the long history of drug use. The respondent submitted SME’s case is an exceptional case in that it would not be in the best interest of children for her to be issued with a positive notice.

21. At hearing SME presented as a strong-willed person, determined not to relapse into drug use and a person in the early stages of making formal legal arrangements around protection, contact and custody issues concerning her two youngest children aged 8 and 3 years, herself and their father.  These are good protective factors. It is also a positive sign that SME has undertaken counselling, gained new and supportive friends and made early inroads to repair past family relationships.

22. However, whilst the Tribunal accepts on the one hand that it is often difficult for an applicant to request busy professionals or working friends to attend legal proceedings to support them, on the other hand it raises concerns SME’s determination to get through difficult matters on her own, in part, demonstrates a less willing attitude to seek help and support to the level required given her very turbulent history. This approach adds to the risk factors around potential relapse.

23. The Tribunal accepts that as SME’s two young children are in her full-time care, is indicative of experienced Child Safety Officers positive views about her ability and willingness to care for and protect her children, this has to be contextualised with the broader application of a Blue Card which relates to working with children generally and is not limited to a specific job.

24. The Tribunal shares the concerns of the respondent about SME in relation to the depth of insight SME has into the impact her drug use had on the well-being of her own children specifically, and children in general.  Whilst the Tribunal accepts SME broadly understands drugs have negative impacts on children and society, SME gave little recognition to the impact her own drug use had on her children, even after admitting she used ICE during pregnancy and breast-feeding. And whilst the Tribunal accepts SME may have been in a controlling and abusive relationship, SME was less open about her contribution to any lasting effects of drug use has had on the well-being of her children.

25. Moreover, whilst SME has been self-declared drug-free for 2 ½ years, it is the Tribunal’s view, and a concern expressed by the respondent, that this is a relatively short period given the long eight year period during which SME used methamphetamine by injection on a near daily basis. This adds to the risk of relapse particularly when coupled with the other concerns discussed above.  And whilst the Tribunal acknowledges and applauds SME’s new beginnings of a drug-free life, and a more stable and safer environment for herself and her children, her situation represents early days of change against a long-standing history of significant drug-use and involvement with Police and Child Safety services.  These circumstances make SME‘s case exceptional.

26. SME may apply for the negative notice to be cancelled 2 years after the original decision. If SME remains drug-free and has developed deeper insight, and has supportive professional documentation attesting to such, she should have a much stronger application to put before the respondent.

    Decision/s

27. In consideration of all the circumstances, the Tribunal is satisfied SME’s is an exceptional case in that it would not in the best interest of children for SME to be issued with a positive notice. Accordingly the Tribunal confirms the decision of the respondent dated 12 February 2018 and so orders.

28. Given various documentation was provided to the Tribunal under a Notice to Produce, including confidential and sensitive Child Safety material, the Tribunal proposed continuing the non-publication order that has been in place. The respondent agreed with the proposal.  In the circumstances, the Tribunal orders that, other than the parties to this proceeding, publication is prohibited of any information which may identify the applicant or any relevant child.