TMS v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 340
•23 June 2014
| CITATION: | TMS v Commissioner for Children and Young People and Child Guardian [2014] QCAT 340 |
| PARTIES: | TMS (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML196-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 28 April 2014 |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Ford |
| DELIVERED ON: | 23 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner to issue a negative notice to TMS is confirmed. 2. The Tribunal prohibits the publication of the names of the adult, her referees and of the organisations in the decision relating to application number CML196-13. |
| CATCHWORDS: | BLUE CARD – ISSUE NEGATIVE NOTICE –suitability to work with children – serious offences – multiple offences – whether applicant’s case is exceptional Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 6(1), s 155, s 167, s 220, s 226, s 353 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | TMS C, legal representative L, support worker |
| RESPONDENT: | The Commissioner represented by Ms Louise Keown |
REASONS FOR DECISION
TMS is an indigenous woman who has researched her own culture and wants the opportunity to teach her children and grandchildren about that culture over time. She has many family ties in regional communities in Queensland and in Western Australia.
TMS’ parents were stock workers and they moved to several communities for work with her eight siblings. She did not attend a lot of school due to this lifestyle, thus not learning to read and write.
TMS has a grandson who is currently in the care of the Department of Communities, Disability Services and Child Safety. Her eldest son, aged 26 years old, is the father and currently serving a term in prison. TMS wants a blue card in order to be the kinship carer for her grandson.
TMS has three other children, aged 12, 10 and 7 years old respectively. They live in a share care arrangement between their father, SP, and TMS. Since mid 2013 the time the children have stayed with TMS has increased to “week on week off” care. TMS is currently going through Family Court proceedings to obtain orders that these children live with her.
TMS and SP had a volatile relationship which was marred by domestic violence. She turned to illicit drugs, both using and dealing, to manage the trauma she had experienced through this situation and in her past. TMS was incarcerated between 9 March 2011 and 30 March 2011 and then between June 2011 and July 2012 relating to being convicted for amphetamine offences.
TMS also had an assault charge in 1995. She has no other charges for violence. She also has a fraud conviction in 2003 and one in 2008. Both these offences occurred when TMS was in financial straits.
The conviction for trafficking in dangerous drugs is a serious offence in accordance with the Act. The Commissioner must issue a negative notice to TMS, unless satisfied it is an exceptional case in which it would not harm the best interests of children to issue a positive notice. The Commissioner was not satisfied.
TMS is asking the Tribunal to overturn this decision. She argues that her case is exceptional. She should be granted a blue card.
What are the protective factors in this matter?
TMS has a number of witnesses who support her desire to have a blue card in order for her to be the kinship carer for her grandson. She has made a commitment to this child and struggles to accept that he may remain in the child protection system due to the chaotic lifestyle of both his parents. TMS reports a close and enduring attachment with this little boy.
The Department of Communities, Disability Services and Child Safety have suspended the kinship carer application process, awaiting the outcome of this review hearing. It has a legislative mandate to ensure the safety welfare and best interests of a child are met firstly by indigenous family members where possible.
TMS has garnered a number of people behind her other quest, which is to have her own children live with her full time. Their time with her has increased over the last year and she is confident she will be awarded full custody of them in the Family Court.
TMS has undertaken the required drug screening tests by the Family Court order, with no adverse results.
There is evidence that TMS has committed to rehabilitate herself, to remain drug free and to seek help. She moved from towns to divorce herself from her past influences. She lives in a three bedroom home rented through a community housing group and set up for all of the children.
TMS submitted that in addition to engaging with professional supports, she is no longer in a domestically violent and destructive relationship with the father of her children.
TMS believes she is more confident and focussed in achieving her goals and in training to engage in lawful means of employment.
Her legal representative submitted the professional support networks are voluntary and thus more likely to remain in place after the expiration of her probation order.
It is submitted TMS has been entirely forthcoming about her criminal history to the Commissioner and to her stakeholders. She is not obliged to be under any form of ‘intensive’ supervision, apart from participating in random drug testing at the request of the children’s lawyer in the Family Court proceedings and reporting to her probation officer. She is not obliged to participate in any form of counselling or program.
BH, senior psychologist found TMS
shows no signs of significant problems and behaviours that indicate she is suffering from any personality disorder or mental health condition. Her drug problems are historical … since her release from jail in June 2012, [TMS] has actively engaged in counselling, and to her credit has learned to read and write.
BH considered TMS
shows good insight into her past offending behaviours and takes full responsibility for the choices that she has made and the impact that this has had on herself, her family and her children. She now has better coping skills and is much more aware of the choices that she makes and the way these choices impact on her and others in the future.
Other support workers spoke favourably of TMS’ achievements. MS, a counsellor, reinforced her insight into how much she has lost, her increased capacity to manage day to day life and her close and positive relationship with her grandson.
HR, a disability co-ordinator, spoke of TMS’ dedication to study, to her focus being on her children as the upmost priority. Rather than internalising problems, TMS had a more robust support network plus re-established relationships with family. She knows when to ask for help and is committed to staying drug free. Her voluntary work at the school demonstrates her child focussed endeavours.
TMS is in the final stages of studying for a Diploma of Community Services (Alcohol and Other Drugs and Mental Health). To her lecturer, YM, she has been inspirational. Given her earlier learning difficulties, her performance has been nothing short of remarkable. YM sees her as a valuable asset to the alcohol and drug rehabilitation field upon graduation.
What are the risk factors in this matter?
TMS had struggled for much of her adult life with amphetamine addiction. She had relied on selling illicit drugs to feed her habit. The Commissioner saw these actions as that of a woman who demonstrated no regard for the effects of her activities on the community or directly, or indirectly, on children. Her appropriateness as a role model was put in question.
TMS was ordered onto a probation order for three years. She remains subject to supervision until November 2015. She is also subject to the suspended terms of imprisonment until November 2017.
The Commissioner is concerned that if TMS were to suffer further significant personal stressors she is at risk of relapsing into her prior behaviour. Personal tragedies such as the death of family members and domestic violence had driven her to drug abuse in the past.
The Family Court currently requires TMS to undergo drug testing in order to increase her contact with her children. No such order can be made for a person holding a Blue Card.
There is evidence that drug paraphernalia was found in a child’s bedroom and in open areas for children to see. Whether a child is the applicant’s child is irrelevant asserts the Commissioner. TMS’ assertion that her children were not exposed is not entirely comforting.
The Commissioner is concerned that TMS had little insight into how her behaviour impacted on her children. While she articulated insight into the effects of being in an abusive relationship, her own drug activities and their impacts is not evident.
In the end, the Commissioner could not be satisfied that TMS has the capacity to utilise and to maintain her newly acquired strategies and skills. She would need intensive supervision from her Probation Officer and assistance from a drug rehabilitation service and other services.
The Commissioner is not satisfied that TMS has built up a strong enough support network to assist her when these supervisory requirements are no longer in place. TMS had not demonstrated her case to be exceptional to the Commissioner.
Conclusion
The protective factors have not outweighed the negative factors enough for me to be satisfied that TMS’ case is exceptional. I acknowledge her significant gains since leaving prison in 2012 and working to improve her life. I also acknowledge that she loves her children and her grandson and wants the best for them. Her desire to be the kinship carer for her grandson is admirable.
The legislation is clear however. TMS’ offence of trafficking in dangerous drugs is categorised as a serious offence as defined in the Commission for Children and Young People and Child Guardian Act 2000 (Qld). TMS’ lengthy period of amphetamine use when she had to deal with challenges in her life is a further significant factor.
While TMS is now committed to her children and to her grandson, she had left drug paraphernalia in a child’s bedroom. Even though not her child, her past lack of consideration for exposing children to her drug related actions weighs heavily against her case.
TMS has numerous challenges to meet currently. She is in Family Court proceedings relating to her own children. This involves demonstrating to the Court that she can remain drug free as well as to be the preferred primary carer for her children. This process is not complete.
TMS is completing a course of study which may lead to employment in an area for which she is familiar, drug and alcohol rehabilitation. I commend her resolve to improve her literacy and to gain tertiary level qualifications. Again, this course is yet to be completed.
TMS has also taken on the role of advocate for her grandson. This little boy’s parents have drug problems and lead unstable lifestyles. Again, the child protection proceedings and involvement by the Department is in its early days. There are many challenges TMS would need to face in being the full time kinship carer.
I cannot make a decision to overturn the Commissioner’s negative notice out of concern for this little boy. I must apply the relevant legislation.
TMS remains under the supervision of a probation order through to November 2015. I agree with the Commissioner in that there are currently compliance requirements on TMS. The numerous challenges to test TMS are managed in part by these requirements.
TMS has garnered a number of supports around her, including social housing. This is a positive demonstration of her commitment to change. These supports remain for her to draw upon and it is evident she still feels the need to engage with such services.
TMS currently has many balls in the air. It is still early days with many of the changes and lifestyle choices TMS has made since her release from prison in 2012. TMS’ desire to play a significant role in her grandson’s life could be met through negotiated increased contact arrangements with the Department. TMS’ proceedings in the Family Court are yet to be resolved and the outcomes given due attention and resources.
I am not satisfied TMS has been able to demonstrate an exceptional care in which it would not harm the best interests of children for a positive notice to be issued, at this point in time. I strongly encourage TMS to apply for cancellation of the negative notice in the near future.
The decision of the Commissioner is confirmed.
Non-publication Order
On its own initiative, the Tribunal is able to make a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The Commissioner does not oppose the making of such an order, to the effect that the decision be de-identified.
The Tribunal is satisfied that it is contrary to the public interest to release identifying information regarding the applicant, her family, her referees or the organisations in which she is involved.
The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public access to the details of blue card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.
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