WAE v Director-General, Department of Justice and Attorney-General
[2018] QCAT 325
•24 September 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
WAE v Director-General, Department of Justice and Attorney-General [2018] QCAT 325
PARTIES:
WAE
(applicant)v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:
CML272-17
MATTER TYPE:
General administrative review matters
DELIVERED ON:
24 September 2018
HEARING DATE:
22 August 2018
HEARD AT:
Brisbane
DECISION OF:
Member Goodman
ORDERS:
1. The finding of the Director General, Department of Justice and Attorney General that WAE’s case is an “exceptional case” is confirmed.
CATCHWORDS:
BLUE CARD – where negative notice issued following drug use by applicant – where Department of Child Safety intervention
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Working with Children (Risk Management and Screening) Act 2000 (Qld)APPEARANCES & REPRESENTATION:
Applicant:
Mr Collinson of Beaudesert Legal
Respondent:
Mr McCowie
REASONS FOR DECISION
WAE would like to have a Blue Card so that she can continue her previous employment as a child care worker. WAE had most recently been issued with a positive notice (and a Blue Card) by the respondent (“the Department”) on 16 March 2017. After the Department received new information, her eligibility was reassessed and on 16 October 2017, the Department issued a negative notice and WAE’s Blue Card was cancelled. The Department found that WAE’s case was an exceptional case in which it would not be in the best interests of children to issue a positive notice.
WAE has applied to the Tribunal for review of the decision to issue a negative notice. She asks the Tribunal to determine that a positive notice should be issued. That would mean that her Blue Card is reinstated.
This is not an appeal decision, but a review. I am standing in the shoes of the original decision maker and must make the correct and preferable decision[1]. My decision making is governed by the provisions of the Working with Children (Risk Management and Screening) Act 2000 and the Queensland Civil and Administrative Tribunal Act 2009. The paramount consideration for me is the welfare and best interests of children.[2]
[1]S 20(2) Queensland Civil and Administrative Tribunal Act 2009
[2]S6 Working with Children (Risk Management and Screening) Act 2000
WAE has a criminal history consisting only of traffic offences. As she has not been convicted of a “serious offence”, as that term is defined in the legislation, a positive notice must be issued unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for WAE to be issued with a positive notice.[3]
[3]S221 Working with Children (Risk Management and Screening) Act 2000
WAE grew up with her parents and brother in what she describes as a happy and loving household. She was involved with community organisations and played sport for her school. After leaving school, WAE worked in a number of jobs before pursuing her dream to work in childcare. She completed a Certificate III in Child Care and began work in a child care centre in 2003. She had her first child, R, in 2008. Her relationship with R’s father broke down.
In 2010, she entered into a relationship with D. They had a child, Y, in November 2011.
In January 2011, WAE’s brother was diagnosed with cancer. He passed away in July 2012. WAE struggled to cope with her grief. Her relationship with D broke down, and she moved home to live with her parents in 2012.
In 2012 WAE met O and was introduced to drugs, initially amphetamines or “speed”, through associates of O. WAE says that she was curious to try drugs at the time. On an occasion when speed was not available WAE was sold crystal methamphetamine or “ice”. WAE says that she did not initially realise that she had been sold ice, but soon began to use it regularly with O. She moved in to live with O in around 2015.
WAE describes the “devastating” impact which ice had on her life. She says that she was not the same person, and not the same mother when using ice. She had no patience and was cranky all the time. Her main focus was on the drug and she put it before everything else, including her children. WAE states that it was “horrible” and was very difficult to stop.
The Department of Child Safety was notified and conducted an investigation in 2016. WAE advised Child Safety at the time that she had lost her ability to control her anger and had aggressive outbursts towards her partner and children that she could not control. Child Safety records state that WAE “recounted a time when she was under the influence of ice and she continuously punched into her 7 year old son and only ceased when her partner pulled her off him.”. WAE reported that at times she struggled to feed the children due to her and her partner’s ice habit. Child Safety records state that WAE “was unable to determine when the children should not be at home for example when her or her partner are under the influence of ice.”. Records state that WAE “stated that she has physically abused her partner and children, one only 3 years old on a number of occasions”. In a later interview with Child Safety WAE stated that her “kids never went without anything as they were always fed”. She advised that she had hit R once, and would never do it again. She said that it was when she was “coming down” from ice. In relation to the frequency of her drug use, WAE told Child Safety “Started once a month, then became twice a week and then I was using all the time”.
At the hearing, WAE advised the Tribunal that she never used drugs around the children as she always went to her bedroom and locked the door when injecting.
In 2016 the child R was interviewed and advised Child Safety that WAE screamed and yelled all the time. He said that he hid when WAE screamed, swore and yelled. WAE accepts that her children were afraid of living with her when she was using drugs.
Ultimately, Y’s father removed her from WAE’s care and refused to return her. WAE states that this caused her further stress which exacerbated her problem with drugs. WAE’s mother stepped in to care for the children when WAE could not do so safely. From around March 2016 to September 2016 WAE’s eldest child R lived with WAE’s parents.
In September 2016, police were called after WAE was aggressive and abusive towards her mother. No charges were laid, although police applied for a domestic violence order.
WAE states that she has been able to stop using drugs, although it took her some time and a number of attempts during 2016. In January 2106 she found that she didn’t like the person or mother that she had become. She knew that she had to do something to change her life. WAE’s mother supported and advocated for her during her drug dependency and at this time. Despite a lack of available services, she eventually located a support and counselling service that could offer assistance and WAE spoke to the drug counselling service in January 2016. Her counsellor reports in a letter dated 17 April 2018 that WAE was “highly motivated to address her issues.”
WAE attended weekly hour long appointments until October 2016 when she found full time employment in a child care centre. WAE states that she found counselling beneficial. She continued to use drugs while attending counselling but decreased the frequency of drug use until she was able to stop use altogether. She was able to identify triggers which had led to her drug use – her depression, her brother’s death, and important dates that reminded her of her brother. WAE identified strategies which she was able to develop to help her to cease drug use. She keeps her mind busy, does craft activities and stays focused.
WAE identified that full time employment was very beneficial to her as it gave her a purpose, and kept her busy and focused. WAE advised that she had lost employment when her Blue Card was cancelled, but that her employer was holding the job for her in the hope that this application would be successful and she would be able to return to work. I note that the director of the early learning centre has provided a letter dated 1 June 2017 in support of WAE stating that she had known WAE for the better part of 9 months and had “…gotten to know WAE as a hard-working colleague. Over this period, WAE has proven herself over and over again to be a reliable honest hardworking valued team member. WAE has built a kind and loving relationship with the children in her class and within this service…”A colleague provided a further reference stating “WAE was able to build great relationships and bonds with the children and their families… WAE engages in meaningful interactions with the children and is well loved by all the children and their families, she has been a wonderful team member in the kindergarten class. WAE has a kind and caring nature towards the children and supports them in their learning and development through warm friendly interactions.”
WAE states that she has not used drugs since approximately October 2016. She has provided a number of drug test reports which support her claim. I am satisfied that WAE provided evidence to the best of her ability and there is no evidence that would lead me to question her evidence in that regard. I accept that WAE has not used drugs since late 2016.
She continued in a relationship with O until late 2017. Their child M was born mid-2017. She thinks that O stopped using drugs in early 2017 but has never asked him. As far as she is aware, O has never undergone any drug counselling or undertaken drug testing. WAE states that she hasn’t noticed any signs of drug use since early 2017 (such as dilated pupils or sweating). Although three children previously resided in the house, and O has ongoing contact with their child M, WAE has not asked O whether he continues to use drugs.
WAE’s children are now in her care. She describes a loving home life. Since January 2018 she has, for the first time, lived in rental accommodation with just her children. She says, and I accept, that she deeply regrets her involvement in drugs and the effect it had on her family. She states that drugs had a terrible effect on her and the experience was devastating and heartbreaking. She describes herself now as a completely different person.
At the hearing WAE was unable to identify any risks or negative impacts on her children when she cared for them while under the influence of drugs. She advised that the risk arose when she was “coming down” as that was when she was aggressive and angry. She sated that she was “happy” when under the influence, and not a risk to the children.
Curiously, WAE indicated that she had not attended any counselling since October 2016. Her solicitor later produced a letter dated 17 May 2018 from a counsellor stating (in part) that WAE had consulted with him on 17 May 2018 following a referral from her GP. The psychologist states that WAE “was assessed and found to be experiencing symptoms indicative of Adjustment Disorder with Depressed Mood.…WAE has additional therapeutic sessions booked…”. The rest of the letter recounts matters that WAE has told the psychologist. There is no other evidence from the psychologist.
WAE identified that she receives support from her parents and close friends. She says that she is no longer in contact with any past associates who use drugs.
DS, WAE’s mother, provided evidence to the Tribunal. It was clear that DS has been a constant support to WAE through a very difficult time. DS was an impressive witness who provided honest evidence in support of her daughter. DS used all of her resources and has devoted considerable time and energy in helping her daughter and grandchildren though the period of WAE’s drug use. She witnessed WAE’s application to counselling and her improvement over time. DS believes that WAE has done extremely well to get things back on track. She believes that if WAE needs help in the future, she would talk to a family member, friend or psychologist. DS has no concerns regarding WAE’s ability to care for her own or other people’s children.
DS is very proud of WAE. She is very proud that WAE is drug free and has all of her children living with her after a number of very traumatic years. The Tribunal acknowledges that WAE has taken impressive steps to improve her life after a period of drug use. She is to be congratulated for her efforts.
I must determine whether this is an exceptional case in which it would not be in the best interests of children for WAE to be issued with a positive notice. This is decided on the balance of probabilities, and there is no onus on either party to establish that such a case does or does not exist.
I must have regard to the matters set out in legislation[4] and any other relevant matters. So far as the matters set out in the legislation are concerned, I find that:
(a)WAE’s history contains a number of traffic offences;
(b)The offences are not “serious offences”;
(c)The offences span a period from 2007 – 2016;
(d)The traffic offences indicate impulsivity and a lack of regard for safety. That is perhaps not surprising as most of the offences were committed at a time WAE was using large amounts of illicit drugs.
[4]S226 Working with Children Act
In determining whether this is an exceptional case in which it would not be in the best interests of children for WAE to be issued with a positive notice, I have taken into account the legislative requirements, and the particular circumstances of this case. There is some evidence which supports WAE’s application (the protective factors), and some evidence which does not (the risk factors).
I have taken into account the protective factors present in this case. WAE has been drug free for almost two years. She has ended her relationship with O and says that she no longer associates with the people she knew when she was using drugs. She has the support of her mother and friends. Her previous employer has provided evidence that she worked safely and appropriately around children during the period of her employment. WAE deeply regrets her previous involvement with drugs and is committed to a drug free future with her children.
There are numerous risk factors. WAE has a relatively recent history of heavy drug use. During that time she was clearly not able to offer appropriate care for children. WAE has apparently met the criteria for a diagnosis of Adjustment Disorder with Depressed Mood. There is no evidence before the Tribunal as to the symptoms WAE experiences as a result of the condition. There is no evidence as to what, if any, counselling WAE has undertaken since September 2016. The Tribunal did not have the benefit of speaking to any counsellors who have treated WAE.
It is of concern to the Tribunal that WAE was unable to identify that she was a risk to her children when she was under the influence of ice. WAE’s evidence was that the risk only arose when she was “coming down” as that was when she became aggressive. The Tribunal does not accept that is the case.
It is of further concern that even after she ceased drug use WAE continued her relationship with O, and allowed O to have ongoing contact with her three children despite never asking him whether he has himself ceased using drugs.
I am satisfied that WAE has not demonstrated a sufficient understanding of the risks associated with someone under the influence of drugs caring for children. I do not have any expert evidence from a counsellor or psychologist as to WAE’s current mental state, or her progress along the rehabilitation process. While WAE does not wish to return to drug use, she has yet to demonstrate a capacity to remain abstinent over the long term.
A Blue Card is issued unconditionally and would allow WAE to work unsupervised with children across a range of circumstances. In this case there are sufficient risks established on the evidence to satisfy the Tribunal that this is an exceptional case in which it would not be in the best interests of children for WAE to receive a positive notice. The decision under review is confirmed.
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