WT v Chief Executive Officer, Public Safety Business Agency
[2014] QCAT 658
•16 December 2014
| CITATION: | WT v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 658 |
| PARTIES: | WT (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML137-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 20 November 2014 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 16 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision made on 23 April 2014 to cancel the positive notice and to issue a negative notice is set aside. 2. A positive notice is to be issued to WT. 3. Publication of any information that would tend to identify WT is prohibited. | ||
| CATCHWORDS: | CHILDREN-BLUECARD - exceptional case -where a review sought of cancellation of a positive notice – where person convicted of an offence - where that offence was not categorised as serious - where positive notice was cancelled and a negative notice issued -where evidence of risk factors and protective factors - whether or not in the best interests of children for a positive notice to remain in place Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 | ||
APPEARANCES:
| APPLICANT: | WT represented herself |
| RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Peter Reid, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
Background
WT was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) on 4 September 2013. On 28 January 2014, the Queensland Police Service notified the Commission that WT’s criminal history had changed. After reassessing WT’s eligibility, the Commissioner (now the Chief Executive Officer of the Public Safety Business Agency), on 23 April 2014, cancelled WT’s positive notice and issued a negative notice.
The Legislation
WT has applied to QCAT for a review of that decision pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act).
Under section 354 of the Act, QCAT can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
QCAT must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
The Act provides that as WT has no conviction for a serious offence[3] the Chief Executive Officer must issue a positive notice and a blue card unless satisfied hers is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.[4]
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.
[4] Ibid s 221.
The Act does not define “exceptional case”. The QCAT Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FCG said that phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
[5]Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291at [31].
[6] Ibid at [33].
Although the Act does not define “exceptional case” it provides guidance as to what QCAT must take into account in deciding whether a case is exceptional. Section 226(2) requires the tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].
The Evidence
WT’s criminal history comprises only the one offence which was committed on 24 February 2013. WT was originally charged on 25 January 2014 with assault occasioning bodily harm. On 13 October 2014 the charge was reduced to one of common assault and WT, that same date, pleaded guilty. She was convicted with no conviction recorded and fined $400.
From the transcript of WT’s plea, it is apparent that the sentencing magistrate accepted the facts of the offence as submitted by WT’s solicitor. These were that the victim of the assault was a then 14 year old girl whose mother was in a relationship with WT’s brother. The girl arrived home late and got into an argument with her mother and stepfather which escalated such that her stepfather, that is WT’s brother phoned their mother and asked for help. WT went to her brother’s home and lifted the girl up, threw her on the couch and sat on her. Her solicitor submitted that WT accepted “that was probably excessive in the circumstances and, in hindsight, she would not have done such a thing.” He said he was instructed that was something WT’s mother did when another of her sons had been aggressive: sit on him to calm him down so he didn’t do any damage to himself or others.
WT’s written material as well as her oral evidence at the hearing, presented this incident in more detail.
WT described her earlier relationship with the complainant girl as good prior to the girl being placed into foster care for 12 months. After returning to the home of her mother and stepfather WT said the complainant was stealing and hanging out with the wrong people. WT described the relationship between her family and the complainant and the complainant’s mother as becoming strained after WT’s mother was awarded custody of the complainant’s three younger half siblings, that is the children of the complainant’s mother and WT’s brother, which she said was due to domestic violence, drug and alcohol abuse and neglect.
WT lived at home with her parents at the time of the offence. On the night of the offence WT said she heard her brother’s phone call to their mother which was on speaker due to her mother recording the call. She said she could hear the complainant “going off” in the background and that her brother sounded extremely upset. She heard the complainant say she would stab or choke him. Both her brother and the complainant’s mother were asking WT’s mother to come and help them because the complainant was out of control.
WT said these type of phone calls had occurred before but had got worse in the past six months. She was concerned that the complainant would do something. She left and rode her bike to her brother’s home no more than a five minute ride. She understood her mother and brother had already called police.
WT said from a block away she could hear the complainant yelling and swearing. She heard the sound of holes being punched in walls and as she got to the driveway, the sound of a window being smashed.
WT’s brother was outside the house and the complainant’s mother at the entry. She told WT to come in. WT said she approached the complainant who started kicking and punching her. WT said she grabbed the complainant’s arms but the complainant fell to the floor and started head butting the concrete floor. She said she picked the complainant up by holding the middle of her upper arms from behind and moved her to the couch. She said the complainant was face down on the couch with her head on a cushion and she sat on the lower part of the complainant’s back. She said she did not apply all her weight and the complainant was able to kick WT’s back her with her heels.
WT said she told the complainant to settle down and reminded her her brothers were sleeping. She said the complainant said she didn’t care and kept swearing non-stop.
WT said she didn’t remember how long it was before police arrived but that she was at her brother’s home that night for around ten to twenty minutes altogether. WT said when police arrived she went to get off the complainant who started “going off” even worse and the police officer asked that WT stay where she was until they handcuffed the complainant.
WT said she spoke to police outside the house for a short time before she left to return home. She said two or three police officers had come inside the house with five or six outside. She had informed them about the complainant’s recent difficult behaviour.
WT said she heard nothing further from police until they attended at her home eleven months after the event when she was arrested and charged after she declined to give a statement. WT said she thought the complainant and her mother hoped that a charge against her might affect the custody order her mother had for the complainant’s mother’s children.
WT’s evidence was that she intended to defend the initial allegations that she had punched the complainant or pulled her hair. She said she eventually obtained approval for legal aid funding but the charge was reduced and she had an opportunity to plead guilty to the lesser charge and have the matter over with. She said she had found it very distressing over the months the matter had dragged on.
At the hearing WT was asked how she could have dealt with the situation differently. She said she didn’t see how she could have avoided taking the actions she did to prevent the complainant hurting herself or others.
WT has been diagnosed with depression and schizophrenia. WT described how in her teens she had experienced low moods and engaged in self harming behaviours. She sometimes heard voices and saw people and shadows. She also experienced anxiety, particularly in social situations, for example attending classes for further study after school. She sought medical intervention and over the years has attended counselling with psychologists and psychiatrists which she said she has found very beneficial together with prescribed medication.
WT provided a letter dated 6 November 2014 from Queensland Health advising she has been a voluntary consumer of Rockhampton Mental Health Services since June 2009, that she presents on a monthly basis for reviews at the Clozapine Clinic, has been compliant with medications and attends all her appointments. The letter stated WT’s mental state has remained stable with no concerns of deterioration.
WT gave evidence that she is reviewed by a psychiatrist three monthly. She has been regularly attending counselling with a psychologist, although as that psychologist has left the area she most recently saw another psychologist at the same practice. Her GP also monitors her mental health as well as her general health.
WT also had suffered epilepsy but said she had not had a seizure for three years and was no longer taking medication for the condition.
WT gave evidence of having a happy childhood and good results at school which she attended to grade twelve. Her study and work history post school has not been so successful with her mental illness clearly having an impact. WT gave evidence that with her mental health now stable she intends to undertake further study to be able to seek employment.
WT gave evidence of her ability to connect with children, particularly those with challenging behaviours or conditions such as autism. WT said that her parents had had to care for six of their grandchildren due to their parents’ inadequate care. As she has resided with her parents she has provided much help with the children which she greatly enjoys.
WT also said she had been involved with the care of a family friend’s premature twins from the time they were aged around six months until they were about two. The twins’ mother was a nurse who worked shifts and the father worked away. WT said she was more or less a live in nanny for that time.
WT’s mother provided a written statement and attended as a witness at the hearing. JT corroborated her daughter’s evidence about the phone call from her brother and the aggressive language, threats and behaviour of the complainant that she heard. JT confirmed the family tensions resulting from her having custody of her son’s three children.
JT confirmed WT’s evidence that her younger brother had ASD and on occasion needed to be physically restrained. She said they were shown techniques by police officers and WT had sometimes assisted. She said she was told it was legal to use such restraint for the safety of her son and those around him.
She said WT had done well at school, made friends and never had teenage behaviours of concern. Of her five children, she was the only one to finish grade twelve and the only one to never “give any grief in any way”.
JT corroborated WT’s evidence regarding her mental health, her willingness to seek help and her current stability. She also spoke of her daughter’s great patience dealing with children, that she had cared for friends’ twins and been very helpful with caring for her nieces and nephews.
JT said her daughter is “not very good now” day to day due to not being able to live at home. That is due to members of the household being required to hold a blue card as one of her grandsons lives with her under a Child Protection Order. She sees her daughter every day though and says WT is never negative to anyone else for what she is going through and that her mental illness have never impacted on the way she deals with children.
JT said WT had asked both the mother of the twins and her long term psychologist for a reference for these proceedings but both had been busy and although very happy to write references in support of her daughter had not done so before the hearing.
WT’s GP provided a letter dated 8 October 2014 stating WT had been a patient of her practice since 2006 and her own patient since 2008. The doctor said WT helped care for the children in the household, bringing them for appointments and she, the doctor had never heard of any violence or aggression by WT even in times of “considerable family stress and illness”. She said she would not be concerned and would encourage WT to be involved in child related employment as she “connects well to children and is very considerate of their needs.”
WT’s doctor also gave evidence at the hearing by phone. She clarified that her knowledge of WT was from her attendance at the practice as well as the extended family rather than home visits. She was aware WT was charged with assault. She corroborated WT’s evidence in relation to her mental illness. She said WT’s presentation varies and she gets quite depressed but generally she is well presented, coherent and able to give a clear history of her reason for the appointment. She confirmed WT is no longer prescribed medication for epilepsy although Clozapine, which she is prescribed for schizophrenia can have a small antiseizure effect.
Discussion
The risk factors which must be acknowledged are WT’s history of mental illnesses, the stress she has felt over the past couple of years as this process has unfolded and the ongoing issues with her siblings and their children.
I accept the evidence that WT’s mental illness has been well managed for some time now and that even when unwell, WT’s illness has not adversely impacted on the children in her life. I am satisfied that her mental illness had no bearing on her being convicted of assault. It is a protective factor that WT has shown a willingness to seek help whenever symptoms of illness have appeared and she has been compliant with medication and followed through with all necessary counselling.
As regards the conviction, Mr Reid submitted while the more serious charge was not sustained, WT still used an unwarranted amount of force and did not act appropriately in dealing with the 14 year old complainant. I think it unfortunate this was not tested in court but the conviction stands. I accept WT’s version of events, particularly the wider context of how the assault occurred. She considers she acted to prevent the complainant hurting herself or others. Significantly, WT has no other criminal history.
I accept that WT’s close relationship with her mother, whom she continues to see daily is a strong protective factor. I accept that WT has been of great assistance to her mother in caring for her grandchildren.
WT became distressed whilst giving evidence in the hearing. I accept that she found the hearing room environment stressful, particularly discussing the deeply private issue of her symptoms of schizophrenia. WT presented as having a gentle and thoughtful demeanour in giving evidence and she was able to articulate her approach with children. I accept she does not become distressed in dealing with children and would act protectively towards children.
I am not satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the negative notice is set aside and a positive notice issued to WT.
I am satisfied it is in the interests of justice that information likely to identify WT and indirectly her family, should be kept confidential and I order publication of that information be prohibited.[8]
[8]Queensland Civil and Administrative Act 2009 (Qld) s 66; Child Protection Act 1999 (Qld) ss 189(1)(a), 194(1)(a).
0
2
4