CITATION:	WJA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 274	

PARTIES:	WJA
(Applicant/Appellant)	
	v	
	Chief Executive Officer,
Public Safety Business Agency
(Respondent)	

APPLICATION NUMBER:	CML001-15	

MATTER TYPE:	Childrens matters	

HEARING DATE:	13 May 2015	

HEARD AT:	Dalby	

DECISION OF:	Member Wood	

DELIVERED ON:	16 June 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	That the Decision of the Commissioner for Children and Young People and Child Guardian made the 28th November 2014 to issue a Negative Notice to the Applicant is confirmed.

2.	That Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of any information that would identify the Applicant or her relatives in this Decision.	

CATCHWORDS:	Childrens matters - application for Removal of Negative Notice – Applicant has lengthy criminal history – none of the offences serious “offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors.

Working With Children (Risk Management & Screen Act) 2000 (Qld) ss 5, 6, 221, 226 & 360 
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

TAA [2006] QCST11
Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28
Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCATA 492	

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Self Represented	

RESPONDENT:	Ms Natalie Taylor, Solicitor
Public Safety Business Agency	

REASONS FOR DECISION

[1]	WJA is a young lady born on the 13th July 1980. She married WD, in March 1999 but has not spoken to him now since December 2013. In December 2013 WJA suffered the “final straw” in her long, chaotic and violent relationship when she was the subject of an incident of Domestic Violence which left her with a ruptured spleen and in hospital for almost a week. Not surprisingly a sentence of imprisonment was imposed for these actions but the offender was released from Prison in August 2014.
[2]	WJA grew up in a regional town and attended local Schools where she was well liked by Teachers and Classmates. She completed Grade 10 and excelled at Touch Football with dedication, hard work and support from families and friends, she represented Queensland at an Under 15 division. 
[3]	On leaving Year 10 in 1995 WJA spent 18 months working at Coles Supermarket and then worked as a Jillaroo on her cousin’s cattle property. WJA met WD at the age of 16 when he was 27 years of age and had recently separated from his partner. WD was raising the 5 children from his previous marriage. Following their marriage the children remained with WJA and WD for about 3 months. WD could not handle them any more and returned the children to live with their Mother.
[4]	WJA had little stability in her married life staying with friends or family and when they did manage to obtain a place of their own due to financial problems it would be short term only. This pattern continued with WJA and WD doing short term seasonal work. WJA throughout this period felt that WD was more interested in the “social side of life” and became involved in playing darts. Ultimately WJA joined him but established that WD was having extra marital affairs and when challenged WD would subject WJA to significant domestic violence. 
[5]	She explained WD’S personality as being one of a controlling person leading to a move in 2003 to a town 1 hour away from WJA’s town of birth which WJA believes was to remove WJA from her family supports. It was at this time that WJA commenced a significant marijuana habit and throughout the course of the relationship used marijuana extensively and amphetamines occasionally. 
[6]	WJA had some paid employed during the period of the marriage including in 2004 in a cleaning service however when WD commenced work with them he stole items from customers of the cleaning service as a result of which both of them lost that employment. WJA worked as a Cleaner at Schools receiving a Blue Card in November 2004. She held this for approximately 4 years. 
[7]	In late 2004 WJA and WD accepted responsibility for the care of three children then aged 6, 3 and 1, who were at that time being cared for by the WJA’s Mother-in-Law pursuant to a long term Guardianship Order. As a result of taking on the care of these children WJA gave up her employment cleaning schools. During this time WD was spending little time at home and WJA was receiving no support from him. At times WD would not be home for weeks but was living his own life including relationships with other women. WD became heavily involved in the drug and criminal scene. 
[8]	In 2007 WD was charged with serious drug related offences following arrest for possession of $20,000.00 worth of drugs in a motel. WJA then in her own words “hit the drugs really bad” after this and arrangements were made by the Department of Child Safety for the children to be taken into the care of WJA’s Mother. 
[9]	WJA subsequently obtained Domestic Violence Orders against WD. WJA has a criminal history consisting of convictions for producing and possessing dangerous drugs and utensils, possession of suspected stolen property and related offences. The criminal history consists of 7 court appearances, the first of which was in February 2002, the last of which was in January 2013. On the 30th November 2011 WJA was sentenced to a period of imprisonment and given an immediate parole release date. In January 2013 WJA was placed on probation for a period of 12 months. It was in undertaking programmes during her probation that WJA started becoming linked with organisations and support services to assist her in recognising the unhealthy relationship that she was in and to address her drug use. Her last admitted drug use was in September 2014 in relation to Marijuana and January 2013 for amphetamines.
[10]	During cross examination WJA recognised that it was wrong to put the children in the situation that she did with the drug use but she says that she “kept it away from them”. WJA would leave the house with WD and leave the children with her Mother in order to engage in drug use. She recognised that the behaviour of herself and WD was inappropriate with the use of vulgar language and violence. She says that when WD was dealing drugs he would do so away from the home. During cross examination however she was not sure of what affect there would be on the children of their knowledge of the drug use but did recognise that they “probably hated me for it”. WJA maintained that she never “did” drugs in front of the children but did smoke Marijuana at the house and never used intravenous drugs in the house and no needles where there. WJA again during cross examination went on to say that she did not think that the children were impaired by drug use but acknowledged the Domestic Violence would have been hard on them. WJA was unable to indicate how they would have been impacted although one of them is “not the perfect kid”.
[11]	Following separation WJA was successful in obtaining work at a local State School. When WJA received the Negative Notice that employment was lost. 
[12]	AL provided a written reference as well as gave oral evidence. AL is the Mental Health Counsellor at a local Health Service and confirmed that she had known WJA for approximately 2 years.
[13]	She noticed vast improvement in the WJA’s self esteem and that WJA was petrified of WD and has no doubt now that the children are safe in  WJA’s care.
[14]	AL’s qualifications and experience are impressive. She has a Bachelor of Psychology and a Diploma in Counselling. She has been a Counsellor for 20 years having worked with Domestic Violence, Rape and in corrections. She had a role in risk assessments for probation and domestic violence but does not have any direct experience in risk assessments for children. AL has experience in child protection given that she works in support for indigenous communities. 
[15]	She first met WJA when she was considering ending her marriage and worked with her to prepare a safe plan for that to occur. AL was aware of the significant Marijuana use to a lesser extent the amphetamine use. AL is aware of the children and only knew that they were subject to a long term guardianship Order after the Blue Card was “knocked back”. AL understood that the Blue Card was refused because of the safety of the children but had not read the reasons document. AL has not observed WJA with the children.
[16]	AL gave evidence about the stages of recovery including recovery from a drug addiction which she expressed as follows:-
a)	Thinking stage;
b)	Trying stage;
c)	Doing stage;
d)	Maintenance. 
She had been working with WJA on relapse prevention and possible triggers. 
AL believes that WJA has insight into the circumstances of the drug use and is ashamed of her criminal behaviour and remorseful. In terms of the normal progression of the recovery process the maintenance stage, which is where WJA is, would last for a period of 12 months. WJA requires ongoing support and is only 4 months into the maintenance stage. She is of the view that WJA is doing well given the stress of the proceedings relating to her Blue Card and the stress of loosing her employment. She recommends that WJA needs to continue developing her self esteem and self worth but feels that she has become a strong person who is motivated to stay off drugs. 
[17]	In terms of a risk of relapse AL made a general observation that people do relapse during the maintenance period but could not say that she would not relapse given the maintenance period usually lasts at least 12 months. 
[18]	During the course of the Counselling WJA has learnt to have control over her and developed internal strength. WJA has developed strategies to avoid drugs including changing her friendship group and now “wants a normal life”.
[19]	When WJA has had moments of weakness she has sought assistance from Counsellors with whom she is well engaged. After loosing her job she felt that she needed some assistance and attended the Health Services where she was prescribed Avanza for depression.
[20]	When asked in cross examination what her triggers for depression was the response was “being sad” and then gave examples as being unable to continue her employment and the issue of the Negative Notice. She becomes withdrawn and in the past has managed it by smoking Marijuana. WJA has also engaged with SB a psychologist. WJA has the benefit of a Domestic Violence Order which will expire at the end of 2015. WJA was able to name a number of people who form her support network and indicated that she was now again playing touch football twice a week with one of her “foster” children. WJA’s current period of stability is the longest in her life.
[21]	WJA also called evidence from CS. CS has known WJA since October 2014 and is employed by a service provider in a support role for kinship carers. She has come to know WJA in the time that she has been supporting the Kinship Carers and has noticed that WJA is very engaged and attentive with the children. One of the children has challenging behaviours and WJA is very positive in dealing with those behaviours. When asked in evidence in chief whether children are safe with her the response was “absolutely”.
[22]	CS’s background is in the area of conducting risk assessments for children and has worked in indigenous communities in the past. She has had significant involvement primarily in juvenile justice. In her dealings with WJA she has not seen anything which would concern her and gave evidence that in her view WJA has developed strategies and skills to cope with trauma and stresses and that she seen situations where WJA could have become agitated but dealt with it calmly and rationally.
[23]	In cross examination she was asked about long term drug use and whether if a Blue Card were issued WJA would be suitable for child related employment including for example as Kinship Carer. CS’s evidence was that there would need to be other checks and balances in place before WJA would be suitable to be a Kinship Carer. She outlined that there would be other processes and child safety would undertake other investigations before allowing that to occur. She felt that a Blue Card was a “first step” in the process of becoming a carer. 
[24]	CS had not seen the Child Safety material but had seen the reasons from the Agency. 
[25]	WJA also called Senior Constable TJ who is a Police Officer who has known WJA since June 2012. She was involved in charges against WJA.
[26]	During the relationship with WD, WJA was down trodden with no confidence, very frightened and uncooperative with Police. The Officer is aware that WD is now out of her life and that WJA is more confident and healthy. The Police are supportive of WJA because of the issues surrounding the Domestic Violence and believes that if it were not for the partner then there would be no drug use or Domestic Violence in her life. WJA has in the witnesses’ view stopped the cycle of domestic violence and confirmed that the domestic violence comprised significant actual psychical violence with obvious injuries requiring hospitalisation including the ruptured spleen, ribs and sexual assaults. When asked where it sat on a scale of 1 to 10 her evidence was that it was 8 to 9. TJ is aware that the children were present during some of the domestic violence. TJ was of the view that WJA would now protect both herself and the children from domestic violence situations.
[27]	TL is WJA’s Sister and had little to do with WJA until the breakdown of her relationship with WD. She feels that WD was responsible for keeping WJA from the family. WJA now attends family events and is well supported and engaged with the family. She has a normal parental relationship and would be offered support if required by the family.
[28]	WJA sought to rely on evidence in the form of a written Report from SB. SB is a Psychologist. His Report dated the 27th April 2015 was admitted as Exhibit 1. The Directions made by this Tribunal on the 16th January 2015 and in particular Direction 10 provided that:-
“Unless the Tribunal otherwise Orders all witnesses who have given witness statements or references must attend the Hearing in person for cross examination.”
[29]	The Report was admitted in to evidence without objection by the Respondent but subject to questions of weight being attached to that statement having regard to the fact that the witness was not available for cross examination. SB in his Report records that in his opinion “WJA is suitable for child related employment”. 
[30]	As little information or background is contained in the Report I am unable to establish what information was provided to SB for the purposes of that Report. Apart from the fact that he has assisted WJA in her treatment of depression and anxiety and provided skills for stress management I have placed little weight on the balance of that Report. 

STATUTORY FRAMEWORK
[31]	WJA lodged an Application with the Commissioner for Children, Young People and Child Guardian to be issued with a Positive Notice and Blue Card. WJA has a criminal history and was invited to make submissions in relation to it. On the 28th November 2014 WJA was issued with a Negative Notice under Working With Children (Risk Management and Screening) Act 2000 (Qld). On the 15th January 2015 WJA lodged an Application to review the Respondent’s Decision.
[32]	In considering the information it had received the agency determined that none of the offences were “serious offences” as that term is defined and that therefore a Positive Notice must issue unless it was satisfied that it was an exceptional case in which would not be in the best interest of the children to be issued with Positive Notice. The Commissioner was of the view that it was an exceptional case and issued the Negative Notice.
[33]	The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case however the Tribunal must exercise its discretion in each case within the parameters of the legislation.
[34]	There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists.
[35]	In the event that WJA was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.
[36]	The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
[37]	In making my Decision I need to take into account the protective and risk factors.

RISK ASSESSMENT
[38]	There are a number of protective factors in this case:-
a)	WJA has since 2012/2013 undertaken formal rehabilitation in relation to drugs, alcohol and escaping the domestic violence cycle. This has occurred through ATODS, ADFQ and counselling with SB and local Health Services.
b)	WJA is estranged from WD and has been so estranged since December 2013. She currently has a Domestic Violence Order in place until November 2015 but has not heard from WD since his release from jail in August 2014.
c)	WJA has the support of her family and extended family in remaining abstinent from drugs and alcohol.
d)	WJA reports remaining abstinent since September 2014 from any illicit drugs and is well engaged with Services to enable that to continue. 
e)	WJA has a good relationship with members of the local branch of the Queensland Police Service. 
f)	Her life has become goal directed and she is intent on obtaining employment and living in a law abiding manner.
g)	WJA has made positive changes in her life in recent years and has reengaged in the community by commencing to play Touch Football again.  
[39]	There are risk factors:-
a)	WJA has a history of the use of Marijuana since 1997, a period of 17 years ending in September 2014 and a 7 year history of amphetamine use including intravenously. 
b)	The formal rehabilitation is not complete in that normally the “maintenance period” for rehabilitation one would expect to be to the order of 12 months, in WJA’s case it is only for a period of 4 months. 
c)	Whilst WJA expresses a determination to avoid illicit drug use the evidence is that the risk of relapse is an ever present one particularly given her recovery is not yet completed.
d)	That on the evidence of CS before WJA would be suitable as a Kinship Carer there would be further “checks and balances” needed to be undertaken before that could occur.
e)	WJA has very limited insight into the effect her behaviour in terms of domestic violence and drug use at home during the course of the relationship had on the children.
f)	WJA has a lengthy criminal history involving possessing and producing dangerous drugs.

APPLICANT’S SUBMISSIONS
[40]	WJA submits that she should be given a Blue Card as part of her rehabilitation process. She identifies employment as being an important step on her road to recovery in addition to being able to continue to live in the residence with two of the children who resided with her and WD during their marriage. 
[41]	WJA submits that she is committed to remaining abstinent from drugs and alcohol and that she would now act protectively of both herself and her children in circumstances of domestic violence. 

RESPONDENT’S SUBMISSION
[42]	The Respondent submits that whilst rehabilitation has been undertaken the risk factors identified in the material raised concerns about the ability of WJA to demonstrate appropriate role modelling to children and to protect them from harm. 
[43]	In essence it is “too soon” in the rehabilitation process for the Tribunal to be satisfied there will not be a return to drug use. The Respondent also submits that a very significant factor is WJA’s lack of insight into the effect her behaviour has had on children.

CONCLUSION
[44]	WJA seeks a Blue Card in order that she can obtain suitable employment. WJA is entitled to have a Blue Card issued to her unless there is an exceptional case as outlined previously in these reasons. I find that she has made genuine and serious attempts to rehabilitate herself. I am also satisfied however that she continued to use marijuana as a means of “escapism”. She did so in circumstances where she now recognises in part that this drug use may well have had an adverse impact on the children. The Tribunal’s emphasis must be on the safety and wellbeing on children as paramount consideration.
[45]	The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. WJA’s rehabilitation is incomplete and in the circumstances there is a risk of a return to drug use.
[46]	Having regard to all of the circumstances I am satisfied that an exceptional case exists in which it would not be in the best interest of children for a Positive Notice to be issued to WJA and confirm the Decision to issue a Negative Notice.

NON PUBLICATION ORDER
[47]	Further the Respondent submits that I should make an Order prohibiting publication of information relating to WJA and her family. WJA and her support network reside in a small regional community publication of identifying material could well be prejudicial to herself and her family. In addition WJA has orders in place pursuant to the Domestic Violence and Family Protection Act 2012 and the publication of information relating to those parties is prohibited. In the circumstances I consider it to be appropriate and Order accordingly.