Thompson v Commission for Children and Young People and Child Guardian
[2010] QCAT 295
•24 March 2010
| CITATION: | Thompson v Commission for Children and Young People and Child Guardian [2010] QCAT 295 |
PARTIES: | Ms Laura Thompson |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CSR249-09 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 24 March 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms T Williams (Presiding Member) Ms S Bothmann(Member) |
| DELIVERED ON: | 24 March 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | A positive notice and blue card be issued forthwith by the Commissioner to Laura Thompson. |
| CATCHWORDS : | Blue card, risk factors are far outweighed by the presence of significant protective factors, applicant does not pose an unacceptable risk of harm to children |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Laura Thompson |
| RESPONDENT: | Commission for Children and Young People and Child Guardian |
Dr Ian Lynagh
Ms Narelle Mullins
Mr Mark Hoppe
Mr Paul Harding
REASONS FOR DECISION
Background to the Application
The applicant in these proceedings was Ms Laura Thompson. She was born on 4 February 1990 and was 20 years old at the time of the hearing.
The applicant required a blue card to:
(a)Continue coaching at Lourdes Hill College in hockey and athletics;
(b)Work as a nanny part time; and
(c)Complete her studies at Southbank Institute of Technology in a Diploma of Sport Development, Certificate IV in Sport Coaching and a Certificate III in Fitness.
On 6 August 2008 the applicant was issued with a positive notice and blue card pursuant to the Commission for Children and Young People and Child Guardian Act 2000 (the ‘Act’).
On 21 October 2008 the applicant was convicted in the Brisbane Magistrates Court for possessing dangerous drugs (on 4 October 2008), namely 28 Methylenedioxymethamphetamine tablets (MDMA) or commonly known as Ecstasy, and two small clip seal bags each containing 0.04 grams of cocaine. The applicant had secreted the drugs inside her vagina in an attempt to avoid detection.
A fine of $750 was imposed and no conviction was recorded.
On 6 October 2008 the Commission was notified by the Queensland Police Service that the applicant’s criminal history had changed and her eligibility to hold a blue card was re-assessed under section 119(1)(b) of the Act.
After Ms Thompson had been given an opportunity to provide submissions to the Commission in relation to her application; on 27 October 2009 the Commissioner delivered her reasons for the decision to cancel a positive notice and Blue Card, and consequently issued a negative notice.
Ms Thompson submitted an application to the Children Services Tribunal to have this decision reviewed. Her application was received on 25 November 2009. This Tribunal ceased to exist on 1 December 2009 and is replaced by the newly formed Queensland Civil and Administrative Tribunal (QCAT). Under the transitional provisions, where no evidence in an application has been heard, QCAT hears matters according to its procedures, but has the same powers and functions as the former Tribunal and QCAT appeal rights apply. This is the situation in this matter.
The Tribunal held a compulsory conference on 18 December 2009 and set the matter down for hearing. On Tuesday, 16 February 2010 a hearing was held into this matter by QCAT. Leave was granted by the Tribunal for the applicant to be legally represented by Paul Byrne of Byrne Legal Group and leave was granted to Geoff Woodberry to appear on behalf of the Commission.
The Law Which Applies in this Matter
In determining a person’s suitability to hold a blue card (and the circumstances under which a positive or negative notice is to be issued) the Commissioner must have regard to section 102 of the Act.
A person may under certain circumstances apply to the former Children Services Tribunal and now QCAT, for a review of the Commissioner’s decision pursuant to section 121 of the Act. The Tribunal is required to make a determination as if it were the Commissioner and is therefore obliged to take into account the same legislative requirements that bind the Commissioner.
In this case Ms Thompson was convicted of an offence categorised under the Act as ‘other than a serious offence’. Therefore pursuant to section 102 of the Act, the Commissioner was required to issue a positive notice unless satisfied the applicant’s was an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
In deciding whether an exceptional case exists, the Commissioner and now the Tribunal must take the following into account as outlined in Section 102A (2) of the Act.
(a) In relation to the commission, or alleged commission, of an offence by the person-
(i)Whether it is a conviction or a charge; and
(ii)Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)When the offence was committed or is alleged to have been committed; and
(iv)The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)In the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 126C, the court’s reasons for its decision;
(b)Anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
The Act does not define what constitutes an exceptional case. Nonetheless the law is now well established – it is a question of fact and degree; and it is a matter of discretion depending on the individual circumstances pertaining to the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.
The focus of the Commission for Children and Young People and Child Guardian Act 2000 is the protection of children. Section 6 outlines the principles for administering the Act; namely it is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that both the Commissioner and now the Tribunal must apply. Section 96 further provides that the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.
The former Children Services Tribunal has previously endorsed principles from the Family Law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards.
In the Tribunal matter of OAA, re [2006] QCST 142, the Tribunal stated at paragraph 41 of its Reasons:
“The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunals’ answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.”
The Issue
The onus is on the Commission to convince the Tribunal that on the balance of probabilities, the applicant’s matter is an exceptional case and it is not in the best interests of children for her to hold a blue card.
Evidence before the Tribunal
The Tribunal received written material from both the applicant and Commission. The applicant also provided witness statements, an expert report and organised the following witnesses to give oral evidence:
(a)Ms Thompson – the applicant;
(b)Dr Ian Lynagh – Psychologist;
(c)Narelle Mullins – Former Principal, Lourdes Hill College;
(d)Louise Mobbs – Secretary/Treasurer, Lourdes Hill College Hockey Club;
(e)Mark Hoppe – Coach, Lourdes Hill College Hockey Club;
(f)Paul Harding – former employer, Harding Richards Lawyers and parent of hockey player formerly coached by Ms Thompson.
The Tribunal had foreseen the applicant’s creditability as an issue in this matter and therefore required her to give evidence under Oath.
Summary of the Applicant’s Case
Once all of the evidence was heard the applicant’s legal representative made oral submissions and provided the Tribunal with a written outline of those submissions. The arguments central to the applicant’s case are as follows.
Ms Thompson was convicted of an offence classified by the Act as “other than a serious offence” and has no other criminal history. The offence did not occur in any way that was related to or in connection with employment, or carrying on a business, that involves or may involve children.
The Tribunal has had the benefit of significantly more evidence available to it than the Commissioner had, when she determined whether or not the applicant’s matter was an exceptional case. The witnesses’ evidence highlighted the presence of significant protective factors in the applicant’s favour. The psychological assessment of Ms Thompson reports of her genuine remorse and the insight gained since undergoing counselling with an alcohol and drug service.
The Commissioner took into account irrelevant considerations when making its decision to issue the applicant with a negative notice:
(a)The fact she had worked for a short period of time in a law firm at the time of the offence;
(b)Speculated that the drugs were internally secreted to evade detection at a concert she was attending later that day;
(c)Speculated, in the absence of evidence, why the applicant was not charged or convicted with trafficking a dangerous drug; and
(d)Improperly had regard to the maximum penalty for possessing certain quantities of MDMA and cocaine (15 years imprisonment), when the Magistrate used discretion to record no conviction and impose a $750 fine.
While giving evidence Ms Thompson’s denied she was intending to transport the drugs to the concert; rather she internally secreted them when the police executed a Search Warrant of her boyfriend’s house, so she could “protect him.”
“He had such a very hard childhood… I thought if I took the blame for it, it would be easier for him… I didn’t think about me, I only thought about him. My parents have given me everything. I felt like I owe him something.” (Ms Thompson, page 5, Psychological Report, prepared by Ian L Lynagh PhD MAPS).
The Commissioner placed undue weight on the applicant’s offence and argued that the offences committed in other cases where a Tribunal held an applicant to be deserving of a positive notice “does not bare (sic) parity”.
The applicant’s youthful age (18 years at the relevant time), her antecedents and the circumstances of the offence do not warrant this matter being categorised as an “exceptional case” pursuant to section 102A of the Act.
Summary of the Commission’s Case
At the conclusion of the evidence the Commission made oral submissions and referred the Tribunal to sections of its written reasons (which gave rise to the Commission’s original decision to cancel Ms Thompson’s positive notice and blue card). The arguments central to the Commission for Children and Young People and Child Guardian’s case are as follows.
The offending occurred two months after the applicant was issued with a positive notice and blue card by the Commission. According to the Commission, this shows a “clear lack of understanding of the behaviour expected of a person who is given the authority of possessing a positive notice…”
The applicant’s offending should not be mitigated on the basis of age and lack of maturity because she was working at a law firm at the time of the offence. The Commission submitted that this would have meant she would “reasonably have had sufficient insight into the health and legal consequences of her own consumption, possession and transportation of illicit drugs...”
The concealment of the drugs inside her vagina demonstrates that the applicant was not naive as to the illegality of possessing dangerous drugs and showed the lengths she was prepared to go to avoid detection.
The applicant is a role model, leader and peer (because of the slight age gap) to many of the young people she coaches. There is a risk the applicant may give children and young people the impression that drug use is acceptable.
Dr Lynagh’s psychological assessment of the applicant reveals she has an Interpersonal Style which is consistent with a person who is:
“characterized by an exceptionally strong need to be accepted by others…(when) is likely to dominate the interactions of such people… (and) may be seen by others as being too caring, trusting and supportive for their own good… (typically avoiding) any conflicts in relationships… (and) reluctant to accept any hint of hostility in themselves…” (Morey p236).
Ms Thompson continues to be in a long term relationship with the boyfriend whose criminal behaviour she was attempting to protect.
The Commission argued Ms Thompson’s offending behaviour “has demonstrated how the existence of protective factors such as support from family and friends, engagement in study and dedication to an activity failed to prevent her from engaging in conduct that is contrary to the best interests of children and young people.”
The applicant’s creditability is questionable. There is conflicting evidence as to whether the drugs were for her personal use or if she intended to carry them into a concert venue for other people; and whether she has insight into her offending behaviour.
However while making oral submissions to the Tribunal, the Commission did concede that “there is a great deal of information which is before the Tribunal which wasn’t before the Commission.” Dr Lynagh’s psychological assessment was cited as an example. It was further submitted that if the Tribunal were of the view the applicant’s evidence was truthful, the Commission’s concerns it had had in relation to insight and remorse would substantially be overcome.
The Tribunal’s View
The Tribunal carefully considered the evidence and the submissions of both parties. In doing so the Tribunal identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The protective factors in favour of Ms Thompson include:
a) A supportive family and stable upbringing;
b) A network of supportive friends who know of the offence;
c) Her involvement with the community as a hockey coach;
d) She is studying and was working part time;
e) She does not have a history of drug consumption;
f) She has been attending the Queensland Government’s Alcohol and Drug Service for counselling;
g) She has no clinically significant personality pathology;
h) She has a healthy lifestyle;
i) There has been no offending behaviour before or since October 2008 (when she was charged with the offence);
j) The nature of the offence was not connected to or relevant to employment (or carrying on a business) that involves or may involve children; and
k) The penalty imposed by the sentencing Magistrate.
The Tribunal accepts the Commission’s submission that a number of these protective factors were in place at the time the offence was committed and should therefore be weighted appropriately.
The risk factors in this matter include the applicant’s:
a) Psychometric profile;
b) Long term relationship with her boyfriend. He is a previously known drug user and currently on probation for an offence he was charged with at the same time as the applicant; and
c) Dishonesty – particularly her decision to secrete the drugs inside her vagina in an attempt to avoid detection by the police.
Notwithstanding the evidence from a number of the witnesses attesting to the applicant’s honest character, Ms Thompson was dishonest in her interactions with the authorities on several occasions, whereby she:
(a)Failed to declare any dangerous drugs in her possession when asked by the police while executing a search warrant of the premises;
(b)Signed and lodged a Change to Contact Details to the Commissioner and advised of a new postal address. The applicant declared that the details provided in this form were true and correct. When giving evidence the applicant admitted she had not changed her place of residence, instead she did not want correspondence from the Commission to be sent home and possibly alerting her parents to her criminal conduct; and
(c)Initially informed the Commissioner for Children and Young People and Child Guardian that the drugs were “for my personal use”, but later maintained she has never used illicit substances.
The Tribunal takes a dim view of Ms Thompson’s dishonesty and it does not reflect well on her character. However the Tribunal does accept her oral evidence and the explanations she gave to explain the dishonesty, in particular that her then legal representative advised her to declare the drugs were for “personal use”.
The Tribunal placed minimal weight on a summarised version of a file note made by an unidentified staff member at the Commission, which purported to record their telephone conversation with the applicant - where she allegedly states the drugs were for a one off music event and “stupidly said she would carry the drugs for other people”. At the hearing the Commission did not produce a witness to verify the authenticity and accuracy of the file note. When questioned about this alleged conversation the applicant’s evidence was that she had said the words: “stupidly decided to take the drugs off the bench”.
The Tribunal dismisses the Commission’s submission that the applicant’s offending should not be mitigated on the basis of age and lack of maturity because she was working at a law firm at the time of the offence and would “reasonably have had sufficient insight into the health and legal consequences of both her own consumption, possession and transportation of illicit drugs...” The evidence of Paul Harding, a partner of the law firm where Ms Thompson worked was that it was a commercial practice and the applicant had no exposure to legal matters involving drugs.
Mr Harding’s evidence also extended to his knowledge of the applicant as his daughter’s hockey coach. When asked by the Tribunal whether he felt comfortable with Ms Thompson coaching and interacting with his daughter (since knowing of her offence) he replied that he and his wife have since been watching the applicant closely to see if she exhibited any signs of being part of the drug culture and there “didn’t appear to be anything to suggest that she was involved.” Therefore they continue to trust Ms Thompson coaching and interacting with their daughter.
The Tribunal was impressed by the level of support provided to the applicant by the various witnesses willing to give evidence and the obvious support from her parents (as evidenced by their role as support persons at the compulsory conference and hearing).
Conclusion
The Tribunal is of the view that the risk factors in this matter are far outweighed by the presence of significant protective factors, and as such the applicant does not pose an unacceptable risk of harm to children. Therefore the Tribunal has concluded that on the balance of probabilities, Ms Thompson’s matter does not constitute an exceptional case such that it would not be in the best interest for the Commissioner of Children and Young People and Child Guardian to issue a positive notice and blue card.
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