CK v Director-General, Department of Justice and Attorney-General [2024] QCAT 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CK v Director-General, Department of Justice and Attorney-General [2024] QCAT 8 PARTIES: CK (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML321-22 MATTER TYPE: Childrens matters DELIVERED ON: 5 January 2024 HEARING DATE: 17 August 2023 HEARD AT: Brisbane DECISION OF: Member Goodman ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – General administrative review – Blue Card – where negative notice issued – whether an exceptional case – where convicted of an offence other than a ‘serious offence’ Human Rights Act 2019 (Qld) Working With Children (Risk Management and Screening) Act 2000 (Qld) APPEARANCES & REPRESENTATION: Applicant: Self-Represented Respondent: Mr McNeill REASONS FOR DECISION [1] The applicant previously held a Blue Card. On 10 January 2022, the applicant appeared in court on a charge of contravention of a domestic violence order. She was convicted and fined $200. -- 1 of 12 -- 2 [2] After being notified of the change in the applicant’s police details, the respondent issued a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC’). The negative notice means that the Applicant cannot be issued with a Blue Card. She has applied to this Tribunal to review that decision. [3] The applicant is now 38 years of age, and has a criminal history as follows: (a) 11 April 2011 Southport Magistrates Court – Assault or obstruct police officer x 5 on 29 January 2011 – no conviction recorded. Fined $2,000; (b) 20 August 2012 Southport Magistrates court – Breach of temporary domestic violence order on 25 February 2012 – discharged; (c) 3 March 2016 Ringwood Magistrates Court (Vic) – recklessly causing injury, unlawful assault – struck out and withdrawn; (d) 7 June 2016 Southport Magistrates Court – serious assault person over 60 and evade fare on 19 September 2015 – no evidence to offer; (e) 10 January 2022 Southport Magistrate Court – contravention of domestic violence order – no conviction recorded. Fined $200. [4] In considering the application under the WWC, the paramount consideration for the Tribunal is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. [5] The applicant has not been convicted of a “serious offence” as defined in the legislation. Accordingly, a positive notice must be issued unless the Tribunal is satisfied that this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice.1 [6] The Act sets out matters which the Tribunal must take into account in making that determination,2 but this is not an exhaustive list. [7] This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. [8] An in-person hearing was conducted, and the applicant attended and provided evidence in support of her application. I also have the benefit of the written material filed by the parties. [9] The respondent submits that the Tribunal should be satisfied that this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice because: (a) The applicant has a history of engaging in a pattern of aggressive, harassing, and violent behaviour, and (b) There is insufficient evidence to be satisfied that the applicant: (i) has addressed the triggers to her behaviour; 1 WWC Act, s 221. 2 Ibid, ss 226, 228. -- 2 of 12 -- 3 (ii) has developed meaningful insight; and (iii) is able to demonstrate restraint in stressful situations. [10] Much of the evidence relates to the applicant’s relationship with her now ex-partner. He will be referred to as F. [11] I have relied on the oral evidence presented at the hearing, and the written evidence which the parties have identified that they seek to rely upon. THE PROTECTIONS ORDERS ISSUED 9 NOVEMBER 2021 [12] On 9 November 2021, a Protection Order was issued naming the applicant as the aggrieved and F as the respondent to the Order. On the same date, a Protection Order was issued naming the applicant as the respondent and F as the aggrieved to the Order. The orders were made by consent without admission and were for two years. [13] The Protection Orders were sought by the Police, who were called following an altercation between the applicant and F after they had been drinking. While the accounts of the parties vary, it is clear that the parties were involved in an angry exchange which culminated in the applicant biting F and him kicking her bedroom door in. The applicant had a blood lip although the parties disagreed as to how that had happened. The police record that they were unable to identify who the “main aggressor” was, and sought and were granted orders against both the applicant and F. CONTRAVENTION OF THE PROTECTION ORDER [14] The Court Brief prepared by the Police states that early one morning in December 2021, the applicant entered F’s home and entered his bedroom where he was sleeping with another woman. She took photos and videos and yelled abuse, waking them up. After being asked “numerous times”, she left, throwing a photograph album out of the window. [15] The applicant was charged with contravention of the Protection Order. The Transcript of the proceedings in the Magistrates Court on 10 January 2022 is in evidence. It reveals that: (a) The applicant advised the Court that: (i) she had a key to the house and that she and F had not broken up at that time; (ii) she was yelling and using the photograph album to show the other woman that she was in a relationship with F as he was denying that he knew her; (iii) she got very emotional and left; (iv) she had begun seeing a new psychologist and now recognised the relationship was one of domestic violence; and (v) she worked in community services. (b) The magistrate was under the impression that the applicant worked as a social worker. The magistrate recommended no further contact between the applicant and F and that she obtained counselling. The magistrate stated “…the further you stay away from him the better…otherwise…it will only cause you more grief”. -- 3 of 12 -- 4 THE APPLICANT’S EVIDENCE [16] The applicant provided written and oral evidence at the Tribunal hearing that: (a) She wishes to obtain a Blue Card to work in Youth Services; (b) She had a difficult upbringing and witnessed domestic violence in her childhood home. She married her husband when she was young (20 or 21) after meeting him when she was 17 or 18 years old; (c) She is “fully accountable” for her 2011 conviction for biting a police officer, which was alcohol-driven and happened after she argued with her ex-husband and had gone out drinking. She felt that the police mistreated her, and she bit them at the scene and also outside the police station. She says her behaviour was atrocious – “it was terrible and I should not have done it”; (d) In 2013 she told the respondent that she “no longer drinks” but now concedes that she continued to drink alcohol after that time; (e) In relation to the 2015 charge of serious assault person over 60 and evade fare – she was involved in an argument with a taxi driver who refused to return a deposit she had paid. She denies assaulting him. Ultimately the charges were withdrawn; (f) In relation to the charges of recklessly causing injury and unlawful assault – an incident occurred in February 2015. She was at an event with her mother and became very intoxicated and began pushing another patron and ultimately became involved in a scuffle with crowd controllers when it is alleged that she bit one. She was not thinking clearly due to alcohol. An adult should not behave like that; (g) She met F in 2018 and formed a romantic relationship with him in 2019. The relationship was marked by drama and was a rollercoaster. She did not recognise a pattern of domestic violence until she attended a counsellor who recommended further resources she could access; (h) When the Protection Orders were made, she had bitten F on that night. She lied to the police to protect F, and did not disclose the extent of his abuse of her (including not showing photographs and videos to the police) because she was too scared to; (i) The charge in relation to contravention of the Protection Order arose when she found F in bed with another woman. She believed that she was still in a relationship with him at the time, and also when she appeared in Court; (j) During 2022, her mental health declined, and her family stayed with her for a number of weeks as F kept showing up where she was. She did not report him for breaching the Protection Order; (k) She was subjected to significant and ongoing abuse during her relationship with F and was scared and blamed herself for much of what happened to her; (l) After F moved overseas, she “finally gained the courage to block him on everything”; -- 4 of 12 -- 5 (m) She has now had a lot of therapy to understand the type of people she had been attracting. She should have gone to counselling earlier to deal with issues arising out of growing up in a violent home environment; (n) While there have been “some issues” in her past, she has done a lot of work on herself to better herself and so it is “not fair to take into account matters that have been stood down by the court and no charges were made”; (o) She used to be an aggressive person, but that started to change after she broke up with F. A lot of her past behaviour was alcohol induced and due to not addressing her own mental health issues and getting help; (p) She has done a lot of self-reflection on why she has chosen her past partners and realised that she had become accustomed to being treated poorly and she created a “trauma bond” with F; (q) Counsellors and psychologists have advised her that she was in a narcissistic abuse relationship and that she was “suffering from Stockholm syndrome”; (r) She continues to attend counselling and follows a number of relevant support pages online. She is now able to self-regulate and has developed healthy coping strategies and engages in healthy activities. As a result, she is better at avoiding fight or flight mode and doesn’t respond to aggression with aggression. For example, if confronted with a road rage incident she disengages and does not scream back as she would have done previously; (s) She used to bottle things up and followed her parents’ behaviour or deal with issues with alcohol. Now, however, she uses breath work, breaks from technology, training, reading, journalling, meditation, and being aware of triggers (such as someone raising their voice); (t) While she is not abstinent from alcohol currently, she is also not drinking when in a bad headspace, which is what led to things escalating previously. She is not sure if she was addicted to alcohol but was certainly in a bad habit with her drinking. She has now spoken to counsellors and psychologists and been educated about alcohol consumption; (u) She is aware of the kind of person she was previously attracting, and that her “inner child work needed to be done” and works on this daily and works daily on ways to resolve personal conflict. She states “I do believe I won’t be attracting the types of people I have allowed in my life moving forward”; (v) She has never committed any offence that would harm a child or young person. She loves what she does for work and is good at it. F has already taken so much from her, making her lose her job, which is what he threatened to do. She always does what is best for the child and would never put a child in danger; (w) She is very embarrassed about the whole situation and is completely heartbroken to lose her Blue Card; (x) She is now in a good stable relationship and has a good job and a good life. Her life is no longer one of chaos and drama. She is able to recognise what a good relationship is. She has developed a sense of self-worth. If things were to start to unravel, she would rely on her support network, rather than drinking to cope with stress; -- 5 of 12 -- 6 (y) She continues to see her psychologist and has a support network consisting primarily of her parents, friend, partner and workmates. She spends time with her dog and has a structured routine; (z) She has encountered difficult situations at work where she has been subjected to aggression by clients and is able to redirect and distract them before the situation escalates; and (aa) She accepts that she has engaged in unacceptable behaviour in the past but is now a changed person. REFERENCES [17] The applicant provided written references from friends who: (a) describe her as kind, loyal, honest, passionate, consistent, determined, and generous, and who attest to her skills and devotion to caring for children; (b) acknowledge that the applicant has made some poor choices in her personal life and was subjected to intense abuse, but point out that there have never been any issues in her work life; and (c) state that the breach of the Protection Order was a lack of judgement due to multiple occasions of emotional and physical abuse which wore her down. COUNSELLING AND SUPPORT [18] The applicant provided evidence that she attended counselling through her employment on three occasions in August and September 2022. [19] A Domestic Violence Prevention Centre has been providing support to the applicant through counselling, advocacy, referrals and safety planning and risk assessment. They provided copies of their records which show: (a) The applicant contacted them on 20 December 2021 seeking help and support; (b) The applicant referred to a relationship with F of about a year and a half, and outlined stalking, physically abusive, controlling and manipulative behaviours which he had engaged in. She was unsure whether she was still in a relationship with him; (c) On 18 January 2021, the applicant advised that she had spent the weekend on holiday with her former partner and had been physically and verbally abused; (d) The next contact from the applicant seems to have occurred on 21 March 2022 when she indicated she was free to talk the following day. It seems that the service was unable to make contact, however, until 13 April 2022, when the applicant confirmed that she had continued to see F and had fallen pregnant; (e) The applicant advised that F was a “nightmare” and was being nasty and abusive. The applicant was provided with information regarding the cycle of violence, and she advised that she was seeing a psychologist; (f) In April and May 2022, the applicant advised that she had continued to have contact with F who continued to threaten her with leaving to move overseas. He let himself into her house, although he did not have keys; -- 6 of 12 -- 7 (g) Unfortunately, the pregnancy did not proceed. F continued to come to the applicant’s home and followed her in the neighbourhood; (h) During mid-2022, the applicant continued her relationship with F; (i) F left Australia in around July / August 2022. THE RESPONDENT’S SUBMISSIONS [20] In determining whether this is an “exceptional case”, the Tribunal must: (a) Consider the mandatory factors under s 226(2) and s 228(2) of the WWC Act; (b) Consider other relevant factors; and (c) Give proper consideration to human rights. [21] The Tribunal should be satisfied, on the balance of probabilities and bearing in mind the gravity of consequences involved, that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a Blue Card. [22] Relevantly,3 the applicant has convictions for assault or obstruct police officer (5) and contravention of a domestic violence order. These are not defined as “serious offences”. There are also a number of finalised charges. [23] The offences were committed in 2011 and 2021. [24] The applicant’s offending and domestic violence information raises concerns about her ability to exercise restraint, utilise appropriate judgement, engage in appropriate conflict resolution and respond to personal and relationship stressors in a rational, law-abiding manner without aggression. The information casts doubt on her ability to exercise self-control and good judgement in the future, particularly if she is affected by alcohol or another substance. [25] Children are entitled to be cared for by adults who do not engage in unlawful, violent or anti-social behaviour. [26] Information regarding the applicant’s domestic violence history is “other relevant information” which should be considered by the Tribunal.4 (a) The applicant was named as the respondent in temporary protection orders in 2012 and 2021, and a final protection order in 2021. The orders relate to two separate aggrieved persons, suggesting the applicant’s behaviour was not confined to one relationship; (b) The recency of the 2021 behaviour raises concerns; (c) The domestic violence information reflects poorly on the applicant’s ability to act protectively and in the best interests of children and young people in her care as it raises concerns that the applicant may lack restraint and appropriate conflict resolution skills, and respond violently to situations of conflict, and suggests that her domestically violent behaviour is more extensive than just the entries in her criminal history. 3 Ibid, s 226(2). 4 Ibid, s 228(2). -- 7 of 12 -- 8 [27] During the hearing, the applicant expressed varying degrees of insight into her offending behaviour. For example, she gave evidence that she bit police officers in 2011 and was fully accountable, felt terrible and should not have done it. However, she also minimised her role in the offending, instead referring to the police hurting her. [28] Alcohol is a common contributing factor to the applicant’s offending and other behaviours of concern. This was conceded by the applicant at the hearing. The applicant provided evidence that her mindset had changed during 2022 and that she had taken steps to reduce her alcohol consumption. The respondent, however, continues to hold concerns given the relatively recent changes, and that the applicant continues to consume alcohol despite being aware that it has contributed to her offending and alleged offending. [29] Insufficient time has passed for the applicant to show that she has addressed the triggers to her alcohol misuse, taken sufficient steps to ensure that she does not misuse alcohol during difficult or stressful times, developed appropriate conflict resolution and stress management skills to resolve situations of stress and / or conflict in a calm and non-violent way (particularly if consuming alcohol), and is able to utilise the strategies she has learned in counselling to prevent further offending and / or other behaviours of concerns. [30] The Tribunal should take into account that a Blue Card is transferable – if the applicant is granted a Blue Card she is able to work with children of any age, gender or vulnerability. Further, the Blue Card is not able to be issued with conditions. [31] A number of human rights are relevant to this decision. In particular, every child has the right to the protection that is needed by the child, and is in the child’s best interests, because of being a child.5 [32] A decision to confirm the decision under review is compatible with human rights because any limit on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC. [33] The applicant’s conduct suggests a person who has a tendency to respond to stressors in a maladaptive way, including through the abuse of alcohol, and subsequent aggressive, threatening and violent behaviour. The use of alcohol and the nature of her relationships appear to be triggers to the applicant’s criminal behaviour and other behaviours of concern. Any changes to these triggers are relatively recent and further time is needed to accurately ensure the applicant’s long-term resolve to break from the behaviours of the past. THE APPLICANT’S SUBMISSIONS [34] She has expressed remorse and acknowledges that there is no excuse for her behaviour when she assaulted police officers. [35] While all offences ought to be considered, it is “imprudent to infer that matters for which a person has been demonstrably wrongly accused ought to be considered or that 5 Human Rights Act 2019 (Qld), s 26(2). -- 8 of 12 -- 9 the consideration ought to oust the presumption of innocence where the evidence has not been subject to scrutiny”. [36] Any contention that her criminal history shows a pattern of offending should be rejected. The Tribunal is only able to find that there is a “known pattern of a victim of domestic violence abuse”, and “the applicant has submitted that she sees a psychologist and is working through her patterns and triggers as a victim of domestic violence”. [37] The applicant has not been convicted of an offence that relates or refers to children. There is no accusation that involves children or for which children were present. [38] Since 2013, when the applicant was first provided with a Blue Card, she has repeatedly and consistently demonstrated her suitability to hold such clearance during her employment. [39] On each occasion the applicant was convicted, the offending was considered sufficiently minor to warrant a “no conviction recorded”. The 2011 and 2022 comments of the magistrates, as below, should be taken into account: (a) I have taken into account that you have pleaded guilty at an early opportunity…that you are genuinely remorseful for what you have done…and…this is out of character for you; (b) To your credit, you sought some counselling for your actions; and (c) You are a social worker… [40] The Magistrate “was desirous that the conviction ought not affect the applicant’s work as a social worker or as a blue card holder”. [41] The Tribunal ought to attribute little to no weight to historic charges due to their age and the demonstration of good character while holding a Blue Card since their entry to the applicant’s record; [42] The charge relating to serious assault of a person over 60 and evading a fare was a “false police report in respect of a traumatic incident of which the applicant was a victim” and the Tribunal should place no weight on the charge; [43] The only relevant charge is the contravention of a domestic violence order in 2021. “The facts, matters and circumstances of her most recent charge are and have been explained by evidence given by the applicant as a victim of domestic violence and the psychological effects of a reluctant female complainant”. [44] Domestic violence is “a complex area” and the Tribunal should find that “precedent and accepted understandings of domestic violence are complex, if not impossible, to apply to any set of facts”. [45] The applicant has been receiving weekly treatment by a psychologist “to understand the patterns of behaviours that have historically drawn her into relationships characterised by domestic violence”. This “includes introspection and reflection upon her childhood, which was marred by domestic violence”. [46] The applicant’s “historical trauma draws her to social work and provides her with unique insights and empathy”. -- 9 of 12 -- 10 [47] The conviction which resulted from the contravention of the order was “non-violent”. The applicant “was in a significantly traumatic event” having “discovered infidelity in her relationship” but did not react with physical violence or aggression toward the aggrieved or the female involved. [48] It is not appropriate to infer that being a victim of domestic violence reflects poorly on her ability to act protectively regarding the children in her care. [49] The applicant has a “demonstrable career” in which she has not presented a risk of harm to any child or children. [50] While the applicant has a history of being a victim and purported aggressor of domestic violence, there is no conclusive evidence suggesting that the risk persists. [51] The applicant has shown remorse for the potential impact of her actions. [52] The applicant is currently in a relationship with no characteristics of domestic violence. [53] The applicant has provided extensive evidence regarding the measures which she has taken and the progress she has made. [54] The majority of the offending is some 7-12 years in the past. [55] Some weight is given by the respondent to “the repeated mechanism of defence / attack employed by the applicant, being biting”. The applicant is remorseful for her actions. She does, however, differentiate the risk of biting as being “an instinctive response to stress, an inability to exercise restraint or self-control or utilise appropriate judgement and as a reaction to a perceived threat and risk by person larger and more physically capable of dominating a person, which is unlikely to be a risk for a child with the applicant”. [56] Biting could be “said to be an evolutionary response”. Each time the applicant has engaged in biting she has been being restrained by a male or males significantly larger than herself. It has not been a reaction to stress or frustration but instead can be placed in the broader context of an altercation in which she was at a significant physical disadvantage. Accordingly, there is no risk of the applicant biting a child in the course of her employment. [57] The applicant has demonstrated her abilities in her role in social work for the last decade without incident. THE DECISION OF THE TRIBUNAL [58] There are a number of the applicant’s submissions which I have difficulties with. In particular: (a) there was no evidence in the material or in the oral evidence at the hearing to support the submission that the applicant is a qualified social worker. It seems that some confusion has arisen due to a comment made by a Magistrate in one of the applicant’s court appearances. To the extent that the submissions refer to her work as a social worker I have disregarded them; (b) it is not protective to suggest that the applicant only bites males larger than she is. There is no particular expert evidence that is the case. In any event, it is not difficult to conceive of a situation where the applicant may be confronted with a situation involving a person under 18 who is physically larger than she is; -- 10 of 12 -- 11 (c) the impact of the applicant’s evidence that she is seeing a psychologist and is developing skills to avoid violent behaviour in the future is reduced due to the lack of the treating or forensic psychologist being available to provide evidence to the Tribunal regarding any diagnosis, treatment, and prognosis; (d) the strength of the applicant’s evidence that she is currently involved in a respectful long-term relationship is reduced in circumstances where her current partner has not provided evidence, and where the applicant herself has described previously being untruthful to the police and the court regarding the violence perpetrated by F; and (e) it seems that the relationship with her former partner ended when he left Australia to travel overseas. The strength of her resolve in permanently ending the relationship has not been tested as he had not returned to live in Australia at the time of the hearing. [59] I accept the respondent’s submissions in regard to the factors in s 226 and s 228 of the legislation. [60] I accept that the offences and the other information provided are relevant to employment that involves children as they are incidents during which the applicant physically and verbally lashed out aggressively at different people over a number of years when challenged. On the applicant’s evidence, that has been during periods of high personal stress and when she is drinking alcohol. She continues to drink alcohol, albeit, she says, at a lower rate than previously. It is highly likely that she will experience periods of high personal stress in the future. That is part of life. There is no independent or expert evidence to support her claim that she has now developed the tools to deal with that stress without resorting to violent behaviour. She has not demonstrated an extended period of pro-social behaviour. [61] On balance, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a Blue Card. The decision under review is confirmed. HUMAN RIGHTS ACT [62] In making this decision, I have given proper consideration to relevant human rights under the Human Rights Act 2019 (Qld). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.6 [63] A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the HRA,7 and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. 6 Ibid, s 58. 7 Ibid, ss 8, 13. -- 11 of 12 -- 12 [64] To give proper consideration to a human right, I identified the human rights that may be affected by this process and decision, and considered whether this decision would be compatible with human rights.8 [65] I consider the following human rights are potentially impacted through this process and by this decision: (a) s 15 – right to recognition and equality before the law (b) s 25 – privacy and reputation (c) s 26 – protection of families and children (d) s 31 – fair hearing (e) s 34 – right not to be tried or punished more than once [66] I am satisfied that the rights of the applicant to a fair hearing have not been limited. The application has been determined by a competent, impartial, and independent tribunal after a fair hearing. The parties are being advised of the reasons for the decision. The applicant is recognised and provided with equality before the law. Her privacy and reputation are protected. The decision affords protection to children. The decision does not punish the applicant twice for her history – this is an entirely different process. There is no limit on the applicant’s human rights. Accordingly, the process and decision are compatible with the applicant’s human rights.9 [67] In any event, the WWC states that it is to be administered under the principles that the safety and best interest of a child are paramount, and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. [68] The Tribunal may make a decision not compatible with human rights if it could not reasonably have made a different decision because of a statutory provision.10 In the event that this decision does impact on the applicant’s human rights, I am satisfied that I am able to lawfully make this decision because of the provisions of the WWC. [69] This decision is compatible with human rights. 8 Ibid, s 58(5). 9 Ibid, s 8. 10 Ibid, s 58(2). -- 12 of 12 --