CDC v Director-General, Department of Justice and Attorney-General [2021] QCAT 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CDC v Director-General, Department of Justice and Attorney-General [2021] QCAT 112 PARTIES: CDC (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML434-19 MATTER TYPE: Childrens matters DELIVERED ON: 30 March 2021 HEARING DATE: 9 December 2020 HEARD AT: Brisbane DECISION OF: Member McDonnell ORDERS: The Tribunal confirms the decision of the Director- General, Department of Justice and Attorney- General made on 4 November 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Tribunal prohibits publication of information which may enable identification of the applicant, witnesses, any child and any complainant. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has criminal history of drug related and violent offending – where not categorised as serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – recency of applicant’s offending – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – -- 1 of 11 -- 2 application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, s 580 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Re TAA [2006] QCST 11 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: G Yates, Legal Officer REASONS FOR DECISION Background CDC, a 39 year old woman, applied for a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable her to complete the practical components of her nursing diploma. She has previously held a blue card. Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.1 The chief executive was satisfied the case was exceptional within the meaning of the WWC Act. The respondent issued a negative notice on 4 November 2019. CDC seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act. CDC is not a disqualified person2 and sought review of the decision within the prescribed period. 3 CDC had not made arrangements for her witnesses to be available to give evidence. Despite this, and difficulties CDC experienced during the hearing accessing the 1 WWC Act, s 221(2). 2 Ibid, s 169 (at the time). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’). -- 2 of 11 -- 3 documents, she did not wish to seek an adjournment, instead wishing to proceed with the scheduled hearing. During the hearing the applicant experienced difficulty viewing Exhibit 10. She was offered a brief adjournment to enable this to be resolved but declined. The review is to be decided in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.4 The purpose of the review is to produce the correct and preferable decision,5 on the evidence and according to law. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.6 The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.7 The principles under which the WWC Act is to be administered are: (a) the welfare and best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.8 It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.9 For the present purposes, a working with children clearance must be issued unless I am satisfied it is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued.10 The term ‘exceptional case’ is not defined in the WWC Act. What might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to: …the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.11 The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.12 As these proceedings were commenced on 4 December 2019 prior to the commencement of the Human Rights Act 2019 (Qld), the provisions of that legislation do not apply to this review.13 4 QCAT Act, s 19(a). 5 Ibid, s 20. 6 WWC Act, s 360. 7 Ibid, s 5. 8 Ibid, s 6. 9 As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh). 10 WWC Act, s 221. 11 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22]. 12 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. 13 Human Rights Act 2019 (Qld), s 108. -- 3 of 11 -- 4 Consideration of s 226(2) of the WWC Act In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’14 The matters listed in s 226(2) of the WWC Act are addressed below. Whether the offence is a conviction or a charge The applicant’s criminal history reveals that the applicant has: (a) Charges for each of the offences of engage in disorderly conduct, abusive language, possess prohibited substance (cannabis) and refuse to state source of supply. The charges were finalised on 5 September 1997, and the applicant was admonished and discharged; (b) Convictions for the offences of possess prohibited substance, possess smoking implement, possess part prohibited substance and use prohibited substance. On 2 March 1999 the applicant was sentenced to be of good behaviour for 18 months; (c) One charge for hinder conveyance. On 25 June 2009 the charge was dismissed with no evidence offered; (d) On 7 July 2009, convictions were recorded for the offences of threaten police officer, possess controlled plants or its products (minor offence) and fail to appear; (e) One charge for wilful damage – domestic violence offence. The charge was finalised on 30 October 2016 with no evidence offered; (f) Two convictions for dangerous operation of a vehicle - domestic violence offence and one conviction for contravention of a domestic violence order in relation to an incident which occurred on 15 March 2017. On 1 June 2017, the applicant was sentenced to probation for 18 months and she was disqualified from driving for six months. On the same date she was also convicted for breach of bail condition. Upon CDC’s application, on 22 June 2017, the probation order was revoked and she was resentenced and fined $1,000. Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence None of the charges or convictions on the applicant’s criminal history are serious offences15 or disqualifying offences16 under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card. 14 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42]. 15 WWC Act, Schedule 2. 16 Ibid, Schedule 4. -- 4 of 11 -- 5 When the offence was committed or is alleged to have been committed CDC’s offending and alleged offending occurred in 1997, 1999, 2009, 2016 and 2017. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children CDC has been charged with and convicted of a number of drug related offences. The details of these offences are unknown to me. In 2009, while in police custody for the purpose of a breath analysis CDC became hostile towards police, thrashing her arms and fists about and threatened a police officer and his family.17 The police brief18 indicates that on 15 March 2017, CDC and her ex-partner, JJ, had a verbal argument. Later that day they met and arranged to exchange property at a park near JJ’s parent’s home. They met at the park and CDC remained in her vehicle with her child. After an exchange of items, JJ attempted to leave. CDC endeavoured to block JJ’s path with her car. CDC drove the car, mounting the footpath and ramming the vehicle into JJ. She reversed the vehicle and continued to yell abuse at him. JJ continued to return to his parent’s home. CDC accelerated the car towards JJ ramming him with the front of her vehicle pinning him against a walkway structure. As she drove off she continued to yell abuse at JJ. JJ filmed much of the incident on his mobile phone. A domestic violence protection order was in effect at the time, naming CDC as the respondent and her ex-partner, JJ, as the aggrieved. The police court brief of facts says that CDC denied breaching the DVO but made full admissions to striking her ex-partner with her motor vehicle, saying she was provoked by JJ. The applicant pleaded guilty to the charges. Those engaged in child related employment must act in a controlled and rational manner. CDC’s offending behaviour is inconsistent with the behaviour expected of a holder of a working with children clearance. In the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision [23] The summary of penalties imposed on CDC in respect of each offence are set out above. [24] In relation to the dangerous operation of a vehicle - domestic violence offence, the Magistrate said that the only appropriate sentence was a term of imprisonment but that as the complainant was not injured and due to CDC’s personal circumstances the Magistrate convicted the applicant and sentenced her to 18 months’ jail, wholly suspending the operational period.19 The personal circumstances to which regard was had included her early guilty pleas, her health, her son’s health and that she had no criminal history. The reason the probation order was revoked, and CDC was resentenced with a fine being imposed, are unknown to me. 17 Ex 9, BCS63. 18 Ex 9, BCS20. 19 Ex 9, BCS58. -- 5 of 11 -- 6 Any information about the person given to the chief executive under sections 318, 319, 335, 337 or 338 of the WWC Act or section 138ZG of the Disability Services Act 2006 No information was given under these sections. Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below. What does CDC say about her offending conduct? CDC said she had a typical childhood but did some ‘silly things’ and made some poor decisions which caused her to lose her licence for drink driving. CDC said that she is opposed to drugs and that the 1997 and 1999 possession charges are on her criminal history because she took the blame for her then partner. CDC said she ceased using cannabis in 2001 when she was pregnant. In relation to the 2009 conviction, she said that she probably did not smoke cannabis but took the blame for someone else who did and that she was associating with people who used cannabis at that time. I cannot now accept a version of events that is inconsistent with the convictions. CDC’s most recent drug offending occurred in excess of 11 years ago and there was no evidence to suggest that CDC still uses illicit substances. However, it is of concern that CDC minimises her offending conduct, as it suggests that she is unaware of the impact of this type of behaviour on others. CDC said she had always wanted to be a nurse, initially commencing nursing and midwifery studies after high school, but did not complete her studies. She was in a long-term stable relationship when she and her family relocated to Queensland. They had a son who, as a result of a serious illness, now has significant health issues. The stress of caring for a seriously ill child resulted in the breakdown of the long-term relationship. Her partner returned interstate, while she and her children remained in Queensland. Caring for her son reignited her desire to be a nurse. She recommenced her nursing studies but ceased when she was unable to obtain a blue card. She entered a relationship with JJ. She described the relationship as toxic. It was a violent relationship which she said lasted two and a half years. She said that while she was pregnant with their son, JJ pushed her. She made a complaint and obtained a restraining order. CDC said that despite the DVO, JJ continued to harass her and her family. Scared and stressed, she retaliated, resulting in the criminal convictions. CDC said that the information contained in the police brief was inaccurate. CDC acknowledged she and JJ had a verbal argument, she left, probably taking her son to day care, and returned in her car. CDC denied there was a child with her at the time she hit JJ with the car. She said she was assaulted by JJ, mounted the footpath in the vehicle and drove off, telling the Tribunal that while she may have brushed past JJ, she did not hit anyone with the car. This is inconsistent with the police brief, including her admissions to police,20 her guilty plea and remarks made by the Magistrate at 20 Ex 9, BCS20. -- 6 of 11 -- 7 sentencing.21 CDC was legally represented at sentencing. I cannot now accept a version of events which is inconsistent with the convictions. That CDC minimised her offending conduct is of concern. What has changed for CDC since her offending conduct? Following this incident CDC returned to her family in her country of origin where her fourth child was born. There she attended two counselling sessions, which she said helped her to gain insight into her feelings. She expressed remorse and shame for her actions.22 CDC said she has experienced emotional growth since her offending and is now career orientated. She has worked in disability services and palliative care and wishes to pursue nursing studies. CDC’s commitment to the pursuit of her studies is a protective factor. CDC provided a brief medical certificate23 from a GP which said that CDC had seen a psychiatrist who indicated she was not suffering from a mental illness, that CDC had insight into the offending behaviour, that her children were a protective factor and as she was no longer in an abusive relationship there was a low risk of her reoffending. As this witness was not available for cross examination I afford limited weight to this evidence. CDC described the relationship with JJ as ‘on and off’. Initially CDC said it ended in 2016 but later acknowledged that they were together in March 2017 and then reconciled again for about a month in December 2017. She did not believe the relationship lasted until May 2018 which JJ told police it did, when he was seeking the 2018 DVO.24 In January 2020,25 CDC claimed she has not been in contact with JJ for three years, and that while JJ contacted her four times over 2020 she did not reply. However, it is clear from the material that she has had contact with him in that time. In June 2018 police sought a protection order naming JJ as the aggrieved and CDC as the respondent. The grounds refer to conduct by CDC in May and June 2018 including: (a) ‘abusive and derogatory’ messages and ‘threatening or emotionally controlling and manipulative messages’ from CDC to JJ which police observed to be on JJ’s telephone;26 and (b) allegations that CDC was harassing JJ in a store, which allegations were supported by CCTV footage examined by police.27 Further, in April 2019 CDC obtained a reference from JJ for the purposes of her blue card application. In this statement JJ states that CDC is a great mother to their child, suggesting that he is familiar with her parenting of their child. 21 Ex 9, BCS57 to BCS60. 22 Ex 1. 23 Ex 8. 24 Ex 10, NTP46. 25 Ex 1. 26 Ex 10, NTP46. 27 Ex 10, NTP47. -- 7 of 11 -- 8 It is not clear that CDC has removed herself from this volatile relationship. This is a risk factor for CDC. MC, CDC’s mother, gave evidence that CDC was in a very volatile relationship for about 10 months and the relationship ended before the child of the relationship was born. This is inconsistent with CDC’s evidence. MC had limited knowledge of her daughter’s offending behaviour, saying CDC had not done anything ‘over the top’ and that she had read something her daughter had sent to her which she thought was ridiculous and sounded worse than it was. Due to her limited knowledge of CDC’s offending and the relationship I afford limited weight to this evidence. CDC provided character references to the Tribunal. One of the witnesses spoke of CDC’s offending behaviour as being out of desperation, as she was endeavouring to leave a controlling and abusive relationship.28 This was unable to be explored as the witness was not available for cross examination. The witnesses made positive statements about CDC’s professional qualities in the workplace.29 A number of them told the Tribunal that CDC was a loving and nurturing mother and would be an asset working with children and the vulnerable in the community.30 I do not doubt CDC’s commitment to quality care and her desire to pursue a career in nursing. However, the evidence of these witnesses was given with, at best, limited knowledge of CDC’s offending behaviour and the respondent’s reasons. As these witnesses were not available for cross examination, their evidence was not tested. In the circumstances I afford this evidence limited weight. There was limited evidence available regarding CDC’s support network and I consider this a risk factor for CDC. Is the applicant remorseful for her offending conduct and has she developed insight? The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA: The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.31 CDC disputes some of the facts leading to her conviction. However, it is not for the Tribunal to go behind the fact of the conviction, nor accept a different version of events. She said she has insight – that she is now aware she was in a toxic relationship and is also aware of the impact it had on her. However, it is not apparent to the Tribunal that the applicant has developed genuine insight into the harm, or potential harm, caused by her unlawful and violent offending. Similarly, the Tribunal is not able to reach a finding that she has insight into the impact that such behaviour would have on 28 Ex 9, BCS7. 29 Ex 3 and Ex 4. 30 Ex 9, BCS7. 31 [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. -- 8 of 11 -- 9 vulnerable persons in need of protection. Nor does a consideration of the evidence support a finding that the applicant is genuinely remorseful for her offending behaviour. Other relevant considerations Child safety material CDC is the mother of four children. The respondent expressed concerns about an issue raised with Child Safety in May 2017 which indicated that CDC refused medical treatment for one of her children. CDC said that she was not refusing treatment for her child but rather was seeking to ensure that a doctor unfamiliar with her child provided the treatment in a manner which, in her experience, her child would tolerate. She explained that the hospital accepted that she wanted treatment for her child. I accept this explanation for the report. Alleged domestic violence The 2016 application for a DVO naming JJ as the aggrieved and CDC as the respondent indicates that CDC refused to leave JJ’s address, used a shovel to break the windscreen of JJ’s vehicle and had made false allegations of misconduct to the employer of another person. JJ’s version of events was supported by neighbours.32 A DVO naming CDC as the respondent was made in 2018 following JJ’s report that CDC was harassing him in a shop, made threats to JJ and his family, made allegations to JJ’s employer in an attempt to discredit him and sent hundreds of messages and made thousands of telephone calls to JJ. The police observed a number of texts on JJ’s mobile telephone that were ‘threatening or emotionally controlling and manipulative in nature.’33 Text messages indicate that CDC was using their son as a pawn to manipulate JJ.34 CCTV footage viewed by police supported JJ’s version of events in relation to the events which occurred in the shop.35 CDC’s evidence about the making of this DVO was inconsistent. CDC said she was out of the country, so the order was made in her absence. However, when taken to the documents36 which indicated that she was in court and consented (without admission) to the DVO, she accepted she must have been present. CDC claimed that everything contained in the paperwork in support of the order was incorrect. CDC said one of the text messages set out in the application sounded like something she would say but denied sending the others or could not recall sending them. She suggested that JJ could have been sending the messages to himself to set her up, as he had access to both accounts. In particular, she denied sending messages threatening the health and safety of her son to provoke JJ. I find on balance that CDC’s conduct as set out outlined in the applications for the 2016 and 2018 protection orders occurred. In this regard the material indicates that enquiries by the police corroborated the events described by JJ. 32 Ex 10, NTP81. 33 Ex 10, NTP41. 34 Ex 10, NTP41-NTP42. 35 Ex 10, NTP47. 36 Ex 10, NTP31. -- 9 of 11 -- 10 This DVO naming CDC as the respondent and JJ as the aggrieved remains in place until July 2023. This is a risk factor for CDC. JJ provided a statement for the respondent’s consideration. He said no one else was in the vehicle at the relevant time and that CDC used the car to get away from him as he was a horrible partner who was hurting her, and she is a great mother to their son.37 As JJ was not available for cross examination his evidence could not be tested. Accordingly, I afford no weight to this evidence. CDC asserted that the relationship with JJ was toxic. I accept that CDC was in a violent domestic relationship and was the victim of domestic violence. Further, I acknowledge the complex nature of violent domestic relationships. Based on the material CDC has perpetrated domestic violence as recently as 2018. Is this an exceptional case? In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.38 The question to be determined is whether, in exercising its discretion, the Tribunal considers it is an exceptional case in which it would not be in the best interests of children to issue a working with children clearance. The Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business. There is limited evidence that CDC has distanced herself from JJ. While she said she has not been in contact with him for three years, the evidence is to the contrary. The 2009 threat to a police officer, CDC’s violent and threatening conduct in 2017 resulting in the convictions and her 2018 conduct leading to the DVO suggest that CDC has a tendency to resort to threatening and violent behaviour in situations of conflict. I accept that some of this behaviour occurred in the context of a domestically violent relationship. However, in the absence of evidence regarding the steps she has taken to address this behaviour and to distance herself from the relationship, this is a significant risk factor for CDC. In view of the violent and threatening nature of CDC’s offending, CDC’s minimisation of her conduct, and having regard to the risk and protective factors discussed above, I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. I am satisfied that the correct and preferable decision is that CDC’s case is an exceptional case under s 221(2) of the WWC Act. Non-publication The Tribunal does not propose to identify the witnesses before the Tribunal as to do so could lead to the identification of CDC. Identification of CDC would be contrary 37 Ex 9, BCS48. 38 WWC Act, s 360. -- 10 of 11 -- 11 to the Direction of the President of the Tribunal prohibiting publication of information that may identify a victim of domestic and family violence.39 Pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, any complainant, any witnesses appearing for the applicant and any relevant child. Accordingly, these reasons have been de-identified. Orders The Tribunal confirms the decision of the Director-General, Department of Justice and Attorney-General made on 4 November 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Tribunal prohibits publication of information which may enable identification of the applicant, witnesses, any child and any complainant. 39 Direction dated 30 April 2020 pursuant to s 172(2)(b) of the QCAT Act. -- 11 of 11 --