EBK v Director-General, Department of Justice and Attorney-General [2024] QCAT 212

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: EBK v Director-General, Department of Justice and Attorney-General [2024] QCAT 212 PARTIES: EBK (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML233-21 MATTER TYPE: Childrens matters DELIVERED ON: 17 May 2024 HEARING DATE: 4 October 2023 HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. The publication of the name of the Applicant, her family, and witnesses, other than to the parties to the proceeding; or material filed in these proceedings, other than as referred to in these Reasons; is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION IN LEGISLATION – OTHER MATTERS – BLUE CARD – application to review a negative notice – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance – where the applicant had committed offences out of character in the context of alcohol use in an abusive domestic relationship -- 1 of 10 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: C. Davis (Legal Officer) REASONS FOR DECISION [1] EBK is a female in her 50s. The Director-General, Department of Justice and Attorney-General (‘the Department’) issued EBK with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) on 18 June 2021. [2] EBK filed an application to review the decision of the Department that her case was an ‘exceptional case’ in which it would not be the best interests of children for her to hold a blue card. [3] The application was heard at an oral hearing on 4 October 2023, and the parties filed written copies of their oral closing submissions thereafter. The Department’s Reasons [4] The Department noted in its reasons for the decision to issue a negative notice that EBK had been convicted of an offence other than a serious offence as defined in the Act, as follows: Court Date Offence Order Townsville Magistrates Court 04/08/2020 Assault Police Officer (on 30/09/2019) Conduct causing a public nuisance (on 05/05/2020) On all charges: No conviction recorded Recognisance: $300 Good behaviour period: 6 months [5] The charge of assaulting a police officer arose from an incident on 30 September 2019. The police brief of facts stated that: Police attended an apartment at 10:30pm in relation to a disturbance, and upon arrival observed broken glass and blood on the kitchen floor; that the police separated two parties; and whilst police were speaking with the other person EBK became ‘super agitated’ and began yelling at police, and pointed her finger directly in an officer’s face, who told her to take her finger out of -- 2 of 10 -- 3 his face and sit down on a couch; that EBK responded with an obscenity to the officer, and pushed him with both hands onto his chest; and that she was then pushed back into a nearby couch and was arrested.1 [6] The charge of conduct causing a public nuisance arose from an incident on 5 May 2020. The police brief of facts stated that: at 12:40am on 5 May 2020, EBK was transported to a hospital by police officers on an Emergency Examination Authority; began to abuse medical staff for asking her to move to a waiting room, using obscenities; that she attempted to bite a member of the security staff and continued to use offensive language whilst name-calling the medical staff; that she was released from the hospital at 2:50am and intercepted by police, whom she attempted to run away from, and was subsequently arrested for public nuisance.2 [7] The reasons of the Department (which were written in June 2021) noted that ‘The applicant was recently convicted of ‘assault police officer’ and ‘conduct causing a public nuisance’ whereby she demonstrated aggressive, violent and antisocial behaviour’, and expressed that:3 The applicant’s police information as a whole raises concerns regarding her ability to exercise restraint particularly when faced with situations of conflict whilst under the influence of alcohol and/or (prescription) drugs. [8] The reasons also noted that a mental health assessment undertaken by a court liaison service subsequent to the May 2020 offending did not result in indication of major mental illness, but expressed that concerns were held in relation to the applicant’s mood and personal stressors, and expressed that:4 While mental health issues do not preclude a person from obtaining a blue card, the possibility that such issues may manifest if not effectively managed on an ongoing basis and trigger further offending behaviour, is a risk factor when assessing a person’s eligibility to hold a blue card. [9] The Department concluded that on the information before it, it was satisfied that issuing a blue card to the applicant was not in the best interests of children and young people ‘at this time’.5 Evidence of EBK and her witnesses at the hearing EBK [10] EBK gave evidence that she was working in health-related employment as a consultant at the time of the hearing. [11] She referred to the offence of ‘assault police’ in 2019, and recognised that she did assault the police officer, but not in a physical manner, and only by pointing a finger, and denied that she pushed the officer with both hands on his chest. [12] She said that at the time of the offences, she was in an abusive relationship with her partner at the time who was a former police officer and corrections officer. 1 Reasons for the decision to issue a negative notice, 18 June 2021, [3.1.1]. 2 Ibid, [3.1.2]. 3 Ibid, [6]. 4 Ibid, [6]. 5 Ibid, [6]. -- 3 of 10 -- 4 [13] She said that she has seen video of the incident and accepts that her behaviour was inappropriate, but that she was under the influence of alcohol and prescription medication at the time, which was not usual for her then or since. She said that the incident occurred in the context of an argument she was having with her partner in which he had said ‘some fairly horrible things’ to her and suggested that she ‘jump off the building’. She said that she is remorseful for the situation and agreed that she did swear and was abusive. [14] EBK said that she rarely drinks now, and will have an occasional drink at a wedding or birthday. She said that she has strategies to manage drinking now, and is aware of the risks of drinking, and surrounds herself with people who know her history of drinking. ND [15] ND said that she had known EBK since 2017, and remained in regular contact with her, meeting up 3 to 6 times a month. She said that she and her partner, and EBK and her partner, had been on holidays together in the past 12 months; and that she had met EBK’s daughter about half a dozen times, and that EBK and her daughter interacted easily together. [16] She said that she knew EBK as a colleague in the health field and that if ‘if I was looking for someone to employ, I would put her on’. [17] She said that EBK has changed her life, and now has a partner who supports her. [18] She said that she knew EBK’s former partner, and observed that EBK seemed to have to get his permission to say anything, or answer questions, and that he ‘seemed to have control over her’. She said that EBK’s new partner is completely different. [19] She said that she had seen EBK drink alcohol at a New Year’s Eve party at the end of 2018, when her ex-partner was ‘still on the scene’. [20] She said that EBK’s behaviour had changed since her ex-partner left; that EBK is now happier and stronger than ever; and she does not believe that EBK has behaved violently or aggressively in the last five years. NNU [21] NNU is a colleague and friend of EBK. She said that EBK was in a ‘bad place’ at the time of the offences, but that she had ‘come out the other side’ and is a well-educated person who has devoted her life to welfare. [22] NNU said that EBK’s ex-partner had ‘come on the scene’ fairly quickly after EBK’s 30-year marriage had ended, and that she saw the change after he moved in to live with EBK. She described the relationship as ‘a rebound’ and that it came about a few weeks after EBK’s marriage had collapsed. [23] She said that she had stayed with EBK and her ex-partner for two weeks, and observed that the ex-partner had problems with alcohol, that she never met him sober ‘a single day’, and that he would be filling EBK’s glass constantly; that EBK was drinking a lot of alcohol then, and becoming drunk; and that she had never known EBK to be so manipulated, and that her ex-partner didn’t want anyone around ‘without him controlling the narrative’. -- 4 of 10 -- 5 [24] She said that in the past four years her conversations with EBK had been happy, and not ‘the horrors’ EBK was going through with her ex-partner in the 12-month period she was with him. [25] She said that she had seen EBK in a professional role, and described her as friendly, caring, compassionate, and a warm person. Psychologist’s Report [26] A report by BC, a clinical psychologist, dated 15 March 2022, was filed.6 BC noted that her report was made for the purposes of these proceedings. [27] EBK advised that BC was unavailable to give evidence, and to be available for cross examination, at the hearing due to work commitments. [28] BC noted that she saw EBK for six sessions from 1 May 2019 to 8 August 2019 under a mental health care plan, and subsequently on 23 July 2020, 20 August 2020 and 24 February 2022. [29] BC was provided with a copy of the Reasons of the Department, and addressed specific questions that were provided to her. [30] BC noted that the nature of EBK’s prior relationship was one which was ‘undermining of (EBK) needs for affiliation and her vulnerability in being alone after a 30 year marriage and in furthering her sense of alienation from her family and work roles’.7 [31] As to the extent to which the BK had insight into her offending behaviours and their impact on society, the victim(s) and any children associated with her, BC noted that EBK reported a range of emotions and sense of realisation of the nature of her relationship and her behaviours as a consequence of excessive alcohol and medication use and interpersonal conflict. BC noted that EBK at no time denied the events or her actions, and appears completely aware of the consequences of her actions.8 [32] As to what risk factors or triggers, if any, continue to be present which would contribute to risk of further offending behaviours; BC noted that there had been no further incidents of any of the behaviours. She described EBK’s presentation to therapy in 2019 as that she was ‘experiencing heightened stress and emotional dysregulation in the context of change and alienation’, which was further exacerbated by her excessive use of alcohol, her partner’s undermining behaviours towards her, and heightened emotional expression between them.9 [33] As to what protective factors, if any, are present to reduce the risk of further offending behaviours; BC noted that EBK has ceased contact with her ex-partner, and has taken full responsibility for her behaviour, pleading guilty and accepting consequences in the form of financial, reputational and personal costs; and has the support of her current partner, and reports good relationships with her children, friends and colleagues.10 [34] As to what preventative strategies, if any, EBK uses to reduce her risk of further offending; BC noted that EBK reported stability in her relationships and living 6 Clinical Psychologist Report, 15 March 2022, (Exhibit 10). 7 Ibid, P. 2. 8 Ibid, P. 2-3. 9 Ibid, P. 3. 10 Ibid, P. 3. -- 5 of 10 -- 6 environment, and consistent health behaviours which include running, healthy eating, minimal use of alcohol, and she is no longer using prescription-based pain medications.11 [35] The conclusion reached by BC is comprehensive, and is as follows:12 Central to (EBK) stability is supportive and connective relationships. (EBK) sense of alienation from her role as a wife and mother created some vulnerability in her choice of partner and lifestyle. There were multiple stressors in the relationship which resulted in conflict and in police intervention. (EBK) instability of mood and resultant behaviours were encapsulated in a volatile and coercive relationship. Subsequently (EBK) has found her sense of identity and taken responsibility for behaviours and interactions. In my clinical judgement where there are ongoing vulnerabilities for (EBK) self esteem and worth, they are buffered with her good social and family support. Being able to work effectively in an industry that she is familiar and skilled in will provide further grounding for her value and her ongoing stability and good judgement. Sentencing Remarks [36] The sentencing remarks of the Magistrate who heard the criminal matters on 4 August 2020 have been provided. Her Honour related the events, and then gave her decision as follows: But you are (in her 50s) years of age; you come before the court with no prior history. Clearly, this does appear to be out of character for you. It seems to be coupled with a difficult relationship and alcohol abuse. You have since taken charge of your life and addressing those issues. I have had regard to the references tendered. You are seeing a clinical psychologist, and I also have regard to the reference by Mr (blank) where he has outlined your professional circumstances in that you assist in training for a development and social services in the disability sector and first-aid training, and you are a (qualification) working in the mental health. I also have regard to your letter of apology, and clearly, you regret and are extremely remorseful for this conduct. There has been nothing since that offending, and it is more towards the lower end of the scale in seriousness and unexpected – unlikely that you are going to return before the court. I am satisfied it is appropriate to release you upon your entering into recognisance in the sum of $300 to be of good behaviour for six months. No convictions are recorded. Submissions of the Department [37] The Department provided substantial submissions prior to the commencement of the hearing (29 pages) which canvassed the applicable law and discussed the applicant’s material in detail. [38] Those submissions noted that EBK suggested that her past actions were attributable to being in a toxic relationship, which she was no longer in, and has a strong support system, and has managed her relationship with alcohol and prescription medication; 11 Ibid, P. 4. 12 Ibid, P. 4. -- 6 of 10 -- 7 but submitted that the Tribunal should ‘exercise caution’ in accepting those suggestions ‘at face value’13 on the bases that: (a) The material before the Tribunal raises questions about the veracity and reliability of (EBK’s) evidence which, in turn, raises questions about the veracity and reliability of her claims.14 (b) There is limited probative evidence that corroborates or supports (EBK’s) claims.15 (c) (EBK) had not outlined any strategies that she has in place to refrain from misusing alcohol and prescription drugs in the future; and in the Department’s view, this reflects poorly on an evaluation of her ability to refrain from misusing substances in the future.16 (d) Overall the Department submits that, in the absence of probative evidence supporting (EBK’s) claims and demonstrating that the concerns and issues arising from a material been addressed, the Tribunal would not be satisfied that is in the best interests of children for (EBK) to be issued a blue card.17 [39] In its closing submissions the Department acknowledged the positive comments made by EBK’s witnesses at the hearing, and various protective matters in EBK’s favour.18 [40] The Department submitted that notwithstanding those matters, however, it has three main concerns that arise from the evidence relating to EBK’s behaviour, insight, and whether the risk is addressed and the risk factors arising from the evidence. [41] As to EBK’s behaviour, the Department submitted that her behaviour on 30 September 2019 was directed at police, and demonstrated a lack of restraint in regard to the police undertaking the duties; and that her behaviour on 5 May 2020 was of such an offensive and threatening nature that hospital staff had to call a ‘code grey’; and that she was of mature age and a blue-card holder at the time.19 [42] As to EBK’s insight, the Department noted that EBK maintained a position that was at odds with the sentencing remarks and police brief of facts; and that this is relevant in that she did not accept what occurred in the offences which she pleaded guilty to.20 [43] As to addressing risk factors, the Department submitted that because some of EBK’s witnesses were unable to be cross-examined, it is unclear to what extent they are aware of the majority of the reasons of the Department, and it is therefore unknown if they would continue to support her if they had known; and because the psychologist BC did not give evidence at the hearing, it was unclear whether she was aware of EBK’s alleged history of self-harming or reporting suicidal ideation. 13 Respondent’s outline of submissions, 23 August 2023, [99]. 14 Ibid, [101]. 15 Ibid, [102]. 16 Ibid, [103]. 17 Ibid, [104]. 18 Respondent’s oral closing submissions, 4 October 2023, p 1. 19 Ibid, p 1. 20 Ibid, p 1-2. -- 7 of 10 -- 8 [44] The Department submitted that having regard to these concerns, and the paramount principle of the welfare and best interests of children, that it is not in the best interests of children for EBK to be issued a blue card at this time. Submissions of EBK [45] EBK made final submissions in which she identified in detail the documents constituting her evidence, and made reference to several of them.21 [46] In relation to her insight into her offending, she submitted as follows:22 I acknowledge my offending on the 30 September 2019 and 5 May 2020 at the time of the incidents, I had an issue with alcohol and prescription drugs, and I reacted aggressively in situations of conflict. I am extremely remorseful for my actions and appalled by my behaviour. Following the incident with the police officers in September 2019, I attended the (blank) police station the very next day 1 October 2019 and apologised for my behaviour. Following the incident at the hospital in May 2020, I wrote an apology letter to (blank) Hospital, as I realised my actions were inappropriate I also saw my psychologist (BC) for support and started to move forward with my life. [47] In relation to her consumption of drugs and alcohol, she submitted as follows:23 I acknowledge at the time the incidents I had an issue with alcohol and prescription medications, and this was linked to my aggressive behaviour resulted in poor judgement. As noted above, following my offences I ended the relationship with (blank) on 5 May 2020. I then significantly reduced my alcohol and prescription medication intake and have recovered from this dependency. I no longer take prescription drugs as I have recovered from my mental health problems and am able to manage my neck pain via non-prescription medication pain management methods and a healthy lifestyle. I see my psychologist when I recognise the need to keep on the right path and I have a mental health plan in place if I feel like I am relapsing. I can manage my alcohol consumption responsibly and no longer binge drink. [48] In relation to reference to her having suicidal ideation, she submitted as follows:24 I was suffering from mental health problems at the time because of a domestic violence relationship, grief and loss over my 30 year relationship with my children’s father and the loss of my mother. [49] She concluded in her submissions that she wanted ‘to continue to live a healthy life and return to work in the community sector’, and that her mental health was stable, and she can now identify risk factors to prevent her previous negative behaviours.25 21 Final submission/statement of EBK dated 4 October 2023. 22 Ibid, [38(a)]. 23 Ibid, [38(b)]. 24 Ibid, [38(c)]. 25 Ibid, [45]. -- 8 of 10 -- 9 Discussion [50] The pattern of EBK’s life falls into a number of clearly identifiable stages: (a) In the first stage, she worked as a professional in the community services sector for over 35 years; and had a marriage and a full family life with her children for 30 years. (b) In the next stage, she experienced the upset of the breakdown of her marriage, and entered into a relationship with a man a very short time after the breakdown of her marriage, which proved to be a very unhappy and unhealthy relationship, which led her to abuse of alcohol and prescription medication. (c) Her upset emotional state, and abuse of alcohol and prescription medication, led her to act out in aggressive ways towards police and hospital staff. (d) In the next stage, she ended her relationship with that man, obtained medical professional help, ceased her abuse of alcohol and prescription medication, and rebuilt her life. (e) She now wishes to proceed to the next stage of her life in which she is in a stable relationship with a supportive man, has rebuilt her relationships with her family, and wishes to resume her work and community services. [51] There are discrepancies between EBK’s recollection of the events, and the police brief. I do not place importance upon those discrepancies. It has to be recognised that the offences occurred at a time of great emotional upset for EBK, and that she was under the influence of alcohol and prescription drugs at the time, so it is unsurprising that her recollection may be incomplete or inaccurate. [52] The important factor in relation to the offences is that EBK acknowledges overall that they occurred and that she behaved wrongly. [53] EBK provided expert health professional evidence in the form of a report from her psychologist BC. [54] Whilst BC was unable to be cross-examined on her report, the description she gives of EBK’s presentation is consistent with the evidence of EBK, and of the other witnesses for EBK. [55] The assessment made by BC is based on her observations after multiple direct sessions with EBK, and is a concise and clearly expressed assessment. Notwithstanding that the evidence of BC was not tested by cross-examination, I accept her expert opinion, noting that it is not contradicted by any other evidence. [56] I accept that EBK has demonstrated insight into her offending, and has sought appropriate health professional assistance and advice, and has acted in accordance with that advice, and has changed her relationship with alcohol and prescription medication. [57] I note the comments of the sentencing Magistrate, who was clearly satisfied that there was little or no likelihood of EBK re-offending. [58] The actions of EBK in seeking health professional advice, and taking charge of her life, and discontinuing the abuse of alcohol and prescription medication, since that time, reinforce the conclusion of the sentencing Magistrate. -- 9 of 10 -- 10 [59] The only offences which EK has been involved in throughout her entire life are those offences in 2019 and 2020, which occurred in the context of the abuse of alcohol and prescription medication. It therefore follows that in the absence of that context, no concern arises as to her offending. [60] I do not consider that there is any evidence of, or significant risk, that EBK is likely to resume the abuse of alcohol or prescription medication. [61] There being no appreciable likelihood of EBK again abusing the use of alcohol or prescription medicines, or behaving in an aggressive and uncontrolled manner, there is consequently no concern that arises that EBK may present an inappropriate role model for children, or constitute a danger to children. [62] Section 221 of the Act provides as follows: (1) The chief executive must issue a working with children clearance to the person if the chief executive – (a) is not aware of any relevant information about the person; or (b) is not required to issue a negative notice to the person under subsection (2). (2) The chief executive must issue a negative notice to the person if the chief executive – (a) is aware of relevant information about the person; and (b) is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person. [63] I am not satisfied that this is an exceptional case, as referred to in Section 221(2) of the Act, and a working with children clearance should therefore issue to EBK pursuant to section 221(1) of the Act. [64] I order that: The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. Non-publication order [65] EBK requested at the conclusion of the hearing that a non-publication order be made in this matter. The Department has no objection to such an order. [66] EBK has rebuilt her life, and I consider that publication of her identity, or that of her witnesses, would endanger her physical or mental health, and not be in the public interest, and consider it appropriate that I make a non-publication order, and have de- identified names and information in these Reasons accordingly. [67] I order that: The publication of the name of the Applicant, her family, and witnesses, other than to the parties to the proceeding; or material filed in these proceedings, other than as referred to in these Reasons; is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 10 of 10 --