WJK v Public Safety Business Agency
[2015] QCAT 150
•14 May 2015
| CITATION: | WJK v Public Safety Business Agency [2015] QCAT 150 |
| PARTIES: | WJK (Applicant) |
| v | |
| Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML233-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 1 April 2015 |
| HEARD AT: | Charters Towers |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 14 May 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the Public Safety Business Agency dated 17 October 2014 to issue a negative notice to WJK is set aside and the Tribunal directs that a positive notice be issued. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where change in criminal history NON-PUBLICATION – where interests of justice to withhold names of children from publication Working with Children (Risk Management and Screening) Act 2000 s 261, s 266 |
APPEARANCES:
| APPLICANT: | WJK |
| RESPONDENT: | Natalie Taylor in-house Counsel for the Public Safety Business Agency |
REPRESENTATIVES:
| APPLICANT: | Mr Wayne Pennell of counsel instructed by Catherine Pereira, Aboriginal and Torres Strait Women's Legal Service North Queensland Inc. |
| RESPONDENT: | Natalie Taylor, in-house Counsel for the Public Safety Business Agency |
REASONS FOR DECISION
Background
The Applicant was issued with a positive notice and blue card on 14 December 2012.
Blue Card Services were notified subsequently by the Queensland Police Service that the Applicant’s police information had changed. The Applicant’s eligibility was reassessed.
On 17 October 2014 the Applicant was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000.
On 27 November 2014, the Applicant lodged an application to review the Respondent’s decision that the Applicant's case was an ‘exceptional case’ in which it would not be in the best interests of children to continue holding a positive notice and blue card.
WJK
WJK is a Gudjula Aboriginal woman. Her mother was a Gudjula woman from Charters Towers and her father was a non-indigenous man from Dalby.
Both of her parents came from two parent families and were followers of the church. Her mother was a Baptist and her father attended the Uniting Church. She was brought up in the Baptist religion.
Her parents divorced when she was two years old and she was raised by her father.
WJK was born with partial spina bifida. She has undertaken a number of operations and procedures for this condition. This included at age 4 a urostomy. A “stoma” was inserted, which provided a pouch to collect her urine. This appliance has to be changed every second day, or when a leakage occurs. When she was growing up her father provided this care for her. As she got older, the blue nurses helped her to change the stoma, and then she learnt to provide self-care.
WJK does not have any biological children, but has been involved in caring for family members and other children most of her adult life. In addition to family members, she helped care for other children in the community and for a short time when she was in her twenties she cared for the children of her second partner. She has been an approved foster carer since 2007. She had her niece TP in her care since she was 18 months old. This child is the child of her brother. This child was removed from her care because of the decision to cancel her blue card.
The Respondent has raised issues from the records of the Department of Communities, Child Safety and Disability Services (the Department). The first of these issues was a matter of concern on 12 August 2009. This involved an incident where an argument took place in WJK's residence which led to a stereo been damaged when it slid of a cabinet. WJK recognised that such incidents are not in the best interests of children and with the Department (Child Safety) direction and guidance addressed the issues arising out of the incident by undertaking the following steps:
a) engaged in an Anger Management course;
b) engaged in a ‘responsible drinking’ course;
c) undertook a refresher foster care training;
d) the Department monitored her care through visits.
The second matter that arose on 1 December 2009 related to the use of chilli in the mouth of a child to punish the child for swearing. It was a practice common for aboriginal families to use chilli as a punishment for swearing. WJK attended a meeting with the Department and Recognised Entity in relation to the incident. WJK recognises that this was not appropriate for a child and that positive guidance messages are more appropriate.
The third issue, which occurred on 11 May 2012, related to allowing her niece KS to have unsupervised contact with her child in circumstances where the Department had only approved supervised contact. She was under pressure from the child's mother to allow contact but after hearing that the father had unsupervised contact recognised that this was not appropriate and ceased allowing unsupervised contact after this event.
WJK says that she tried to work with the Department to meet appropriate standards of care as she values her involvement with caring for children.
On 4 October 2013, she attended the funeral for her cousin brother CV. This was the seventh funeral that she had attended for the year. Prior to going to the Wake, she arranged for the one of the children in her care to go to her sister, WR and for TP to be cared for by the mother of a school friend. She consumed alcohol for several hours and then realised that her stoma needed to be changed and she was very uncomfortable.
She drove her car home, which she recognises that she should not have done so under the influence of alcohol. The decision to drive was motivated by her extreme discomfort and she recognises this was a wrong decision. She acknowledges that her judgement was affected by alcohol combined with her discomfort and the need to change the stoma. The police followed her home because they had observed her driving with her lights on high beam.
When she arrived home, she went to relieve her stoma but the police attempted to stop her to provide a sample of breath and she resisted and struggled. In relation to the events of driving under the influence, she was fined and lost her licence for 12 months.
In relation to the events of “assault/obstruct police”, while she did not assault police her conduct was obstructive. She feels a lot of shame and recognises that her conduct in driving home was dangerous and that she had committed a number of offences for what she was convicted and punished.
In relation to her alcohol consumption, she has recognised through counselling the patterns of alcohol use in the past and decided to cease drinking. She has ceased drinking on 16 July 2014.
WJK has told the Tribunal that she has learnt lessons from her past conduct and would never again repeat the conduct that led to the charges and the decision to cancel her blue card.
PJ
PJ is a clinical and developmental psychologist. She was commissioned to conduct an assessment of WJK. PJ did not have the opportunity to observe or assess how the Applicant interacted with children, or observe and assess the level of care for the children.
PJ reported that WJK was ashamed of driving under the influence and showed insight into how the loss of the licence has impacted upon the routine of the children.
PJ in discussing the risk factors and protective factors commented on the Applicant’s past behaviour with regard to alcohol and the fact that she had the responsibility for organising funerals and Wakes that followed.
PJ in relation to the grieving process commented on WJK having never properly grieved for the loss of her father and when faced with another death those feelings of loss were reactivated and she retreated into the favoured coping strategy of alcohol use. The Applicant now has insight into the grieving process and PJ considers that the Applicant’s counselling and progress that she has made with the grief was actually protective.
PJ in summarising her report said that it was her judgement that the Applicant has made positive progress in addressing the dynamic risk factors and has been alcohol free since 16 July 2014.
PJ under cross-examination was asked whether she was prepared to give her unequivocal support for the Applicant. Her response was that she thought the Applicant would be in a better position in another six months. She was of the view that the Applicant could look after children but she had some reservations and believes that the Applicant would be in a better position to do so in the near future within 6 to 12 months. She said that ‘it is a process and she has made progress’ however the ‘risks are not going to go away in six months’.
The Tribunal notes that ceasing alcohol is a positive step and understands that 12 months or 18 months abstinence is a more powerful evidence than 9 months of changed lifestyle.
BS
BS is an Alcohol and Drugs Councillor at Lives Lived Well. She has known the adult for a period of two years.
BS told the Tribunal that WJK on her own initiative had been seeing her on a professional basis in the period 2012 to 2013. BS told the Tribunal that WJK had made positive progress and changes in her life. WJK has identified that a major trigger to her concerned alcohol at the Wakes following the funerals that she has attended. She has decided to avoid high-risk situations again and has committed to only funerals of close family members and to put her needs first.
BS explained that the treatment involved education and case planning with a focus on working with stressors, triggers and refusal strategies as well as cognitive behavioural therapy, alternatives in defusing strong thoughts and stressful situations. She reported that the Applicant has made significant progress and was more confident in herself. BS told the Tribunal that the Applicant had made ‘amazing progress’ since attending the counselling sessions and she had witnessed positive progress in the applicant such as changes to the ‘way she deals with stressful situations’.
BS when cross-examined by the Respondent about WJK’s alcohol use stated that the Applicant had maintained sobriety for nine months. She told the Tribunal that WJK has a relapse prevention plan and attends monthly counselling sessions or whenever she feels the need to come in and talk. She expressed the view that the Applicant was well on the road to ceasing alcohol use.
BS’ evidence was that the Applicant had shown genuine remorse for her past behaviour and is now making positive changes in her life so that she can continue to move forward without generating any further problems.
JS
JS is the Acting Community Services Manager of Townsville Aboriginal and Torres Strait Islander Corporation for Health Service (TAIHS) Foster and Kinship Service.
JS has known WJK since 2010 having engaged with her in a professional capacity through her work. She has in the course of her duties visited WJK’s home and has also reviewed reports by other workers for the purposes of an assessment of WJK’s suitability to be a foster carer. She has found the applicant to be willing to work with Child Safety and the reports she has received on the applicant from workers are consistent with the positive assessment of her suitability.
JS stated that the Applicant fulfilled her role as a foster carer by maintaining appropriate standards of care. She has observed the Applicant interacting with children in her care and has observed first-hand the excellent rapport she has built with the children. The children always present clean, well dressed and happy and relaxed in the applicant's care. Her observations of the interactions between the applicant and the children were that the applicant always had a quiet disposition, never raised her voice and she had good child management skills. She has also provided her observations that one of her strengths being that she had strong family, cultural and community connections.
HJ
HJ is the coordinator at Jupiter Mossman Night Shelter. She has known the applicant for a number of years having worked with her on the Charters Towers Community Justice Group.
HJ provided to the tribunal positive comments about the applicant’s character and her interaction with children. She told the Tribunal that WJK was a well-respected member of the community in Charters Towers. She went on to say that the applicant was a very humble person who is stable, confident and committed in her life. She has never known the applicant to be an aggressive person.
HJ has witnessed the Applicant with the children in the home, the workplace and community events. She has only positive comments to make about the applicant's ability to care for children.
What is an “exceptional case”?
The Working with Children (Risk Management and Screening) Act 2000 (the Agency Act) does not define the meaning of an “exceptional case”. Section 226 of the Agency Act refers to certain factors that the Chief Executive must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Chief Executive reasonably considers relevant to the assessment of the person.
The object of the Agency Act is to ‘promote and protect rights, interests and wellbeing of children and young people in Queensland’. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009, in determining whether an exceptional case exists, ensure that (a) the welfare and best interests of a child are paramount; and (b) every child is entitled to be cared for in a way that protects the child from harm and promotes child well-being.[1]
[1]Formerly named Commissioner for Children and Young People and Child Guardian Act 2000, s 155 (see s 6 of the Act).
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[3] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3][2004] QCA 492 at [28].
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
The Tribunal is of the view that there is a range of protective factors that do minimise risk factors. The protective factors include:
a) a good family upbringing;
b) positive school experience;
c) active in cultural activities;
d) periods of employment and positive contributions to society;
e) demonstrated ability to learn from mistakes and change the way she lives;
f) insight into the effect of her actions on the best interests and welfare of children;
g) has taken steps when she knew she was going to be affected by alcohol following a funeral to place children in overnight care with appropriate adults so children not adversely affected;
h) has made major life changes including ceasing consumption of alcohol;
i) expressed remorse and embarrassment for past mistakes;
j) does not have an extensive criminal record;
k) has a track record of looking after the children in her care very well;
l) has made mistakes for example making a child eat chilli for swearing but has changed with the support of Child Safety to use other strategies;
m) after the incident with the stereo being smashed she has not allowed her friends to stay in her residence so that there can be no disputes in the household;
n) shows a pattern of changing to the requirements of Child Safety;
o) has undertaking rehabilitation including Triple P Parenting Program and Anger Management;
p) has developed a relapse prevention plan that she has implemented to prevent relapse.
The Tribunal notes that none of WJK’s offences are deemed “serious offences” under the legislation so that the Tribunal needs to be satisfied that it is an exceptional case that WJK should not be given a blue card.
While WJK’s most recent offence is not a “serious offence”, it is of concern to the community of obstructing Police. The Tribunal takes the view that WJK’s offence is at the lower end of the scale for such offences. The inference can be made by the Court ordering: “No conviction recorded and Fined $200’. The Court clearly thought that WJK’s offence was a minor matter.
WJK has previously held a blue card for approximately eight years having been issued with a blue card on 27 October 2006.
WJK explained in relation to her breach of a domestic violence order in 2004 that she came home from work to find all the food had gone and her partner was drinking with his friends. She was very upset and acknowledged she had acted as alleged. She ended the relationship and left town after these incidents. She acknowledged that she could have handled things differently.
The Tribunal accepts the evidence of BS that WJK has made positive progress and changes in her life. That she has gained insights into the stressors in her life and developed strategies to live a more appropriate lifestyle. BS talked about the “amazing progress” that WJK had made in her life.
The Applicant has shown the ability to grow. She has engaged in rehabilitation and education and put the skills into practice. She undertook Anger Management, a responsible drinking course, and undertook a refresher foster care training.
BS, JS and HJ all spoke highly of her character. The Tribunal accepts their evidence of her good character. They have known her for two or more years and are in an excellent position to attest to her character.
WJK has talked about the way she has matured.
The fact is that WJK is aware that she will need to abstain from drinking alcohol. She has developed a relapse prevention plan to ensure that she does not drink alcohol.
PJ’s judgement
is that [WJK] has made positive progress in addressing dynamic risk factors. She has acknowledged the role alcohol has played in her life and taken steps to change. She has been alcohol free since 16 July 2014 and has ensured that her home is an alcohol free zone. [WJK] now has good insight into her grief for her father and is in the process of dealing with that in a constructive manner. While her grief remained hidden and suppressed, the risks with alcohol were significant and I think that the process she is undergoing through counselling is both protective and preventative. Her counselling is also addressing her low self - confidence and subsequent vulnerability to pressure from friends and or relatives. She seems more able to focus on long-term goals and not fall victim to the pressure.
PJ qualified her report by saying that WJK was only part way through the process of rehabilitation. She would like to see WJK abstinent for a further period of 6 to 12 months. The tribunal notes that WJK initiated the alcohol abstinence programme and has made great progress in abstaining from alcohol by using her relapse prevention plan to prevent a relapse. The evidence of BS is that she is well on the road to permanent abstinence from alcohol.
The Respondent has relied on material from Child Safety. The tribunal takes the view that little weight should be attached to this material. JS in her evidence talked very positively regarding the care which WJK provided to the children in her care. She also talked about the positive relationship that WJK had with her own organisation and with Child Safety. The only reason why the child in her care was removed was because WJK’s positive notice had been cancelled. The Tribunal has addressed some of the specific issues that were raised by the Respondent in the hearing. The Tribunal is satisfied on the evidence presented that the child would not have been removed except for the cancellation of the positive notice. The inference that can be drawn from this is that WJK was making a positive contribution to the best interests of children.
The Department has a set of standards of care and its own processes for supervising children in care. This is a case where the Recognised Entity is supporting the quality of care that has been provided by the applicant and is clearly supporting the granting of a positive notice. The inference that can be drawn from this position is that the Department is fully aware of the applicant’s history and has remained supportive of the applicant as a foster carer.
The Tribunal agrees with the Respondent that the importance of having appropriately developed insight into harmful behaviour cannot be overstated in assessment where such a history of negative behaviour exists. This was recognised by the former Children's Services Tribunal in the published decision of Re TAA [2006] QCST 11. At paragraph [97] the Tribunal stated:
The 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 re-offend 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.
There is evidence that WJK’s has insight into her actions and she is remorseful for her behaviour. This comes from BS, PJ and from WJK herself.
The Tribunal is of the view that there is a range of risk factors. The risk factors include:
a) consumption of alcohol;
b) situational things such as funerals and wakes;
c) social pressure applied by friends and relatives;
d) her own low self-confidence and subsequent vulnerability to those pressures.
The Tribunal is satisfied that all these matters have been addressed by the steps that WJK has undertaken to rehabilitate her life. WJK may not be finished with the steps that she is taking however she has made substantial progress.
The Tribunal is of the view that the protective factors outweigh the risk factors in this case.
The Tribunal is satisfied for the reasons stated that the positive protective factors outweigh the risk factors. This is not an exceptional case where due to the risk factors that exist it would not be in the best interests of children for the Tribunal to overturn the decision of the Chief Executive of the Public Safety Business Agency. The Tribunal overturns the decision of the Agency and directs that a positive notice and blue card be issued to the Applicant.
The Tribunal was also of the view that a non-publication order was appropriate so that identifying details of the children who have been in the care of the Applicant are withheld from the public. The Tribunal was satisfied that it was in the interests of justice that a non-publication order should be made so that these children are not unnecessarily harmed by any publication of the details of this proceeding.
The Tribunal however would strongly recommend to WJK that:
a) she abstains from consuming alcohol;
b) she continues to engage with her support network;
c) she continues to use the skills and strategies that she learnt out of the alcohol management course and Anger Management program she undertook; and
d) she continues to receive counselling.
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