DTH v Director-General, Department of Justice and Attorney-General [2021] QCAT 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DTH v Director-General, Department of Justice and Attorney-General [2021] QCAT 107 PARTIES: DTH (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO: CML355-18 MATTER TYPE: Childrens matters DELIVERED ON: 24 March 2021 HEARING DATE: 29 January 2021 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 5 October 2018 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 the complainants. 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 convictions for assault – 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 – application of -- 1 of 11 -- 2 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, Schedule 7 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 DTH, a 46-year-old woman, was issued with a blue card and positive notice on 10 March 2017. As a result of a change in her police information the respondent reassessed DTH’s eligibility to continue to hold 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 decided to cancel DTH’s positive notice and issue a negative notice. DTH seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act. DTH is not a disqualified person and having received notice of the decision on 29 October 2018, sought review of the decision within the prescribed period. I am required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Working with Children 1 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2) (‘WWC Act’). -- 2 of 11 -- 3 (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).2 The purpose of this review is to produce the correct and preferable decision,3 on the evidence before me 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.4 The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.5 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.6 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.7 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.8 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.9 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.10 The Human Rights Act 2019 (Qld) commenced on 1 January 2020. As these proceedings were commenced on 26 November 2018, prior to the commencement of the Act, the provisions of that legislation do not apply in this review. 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 I 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 2 QCAT Act, s 19(a). 3 Ibid, s 20. 4 WWC Act, s 360. 5 WWC Act, s 5. 6 Ibid, s 6. 7 As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh). 8 WWC Act, s 221. 9 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22]. 10 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. -- 3 of 11 -- 4 specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’11 These matters are addressed below. Whether the offence is a conviction or a charge DTH has two convictions for assault occasioning actual bodily harm (DV) and a conviction for stalk/intimidate intend fear physical etc harm (domestic) and, for the purposes of the WWC Act,12 a conviction for common assault. She also has a charge for threaten injury to person with intent to commit indictable offence. Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence None of the offences or alleged offences on DTH’s criminal history are serious offences13 or disqualifying offences14 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 working with children clearance. When the offence was committed or is alleged to have been committed DTH’s offending and alleged offending occurred in 2010 and 2017. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children DTH’s convictions are for offences relating to violent, abusive and intimidating behaviour in 2010 and 2017. The police material indicates that on 10 March 2010 DTH arranged for an acquaintance (the victim) to accompany her to meet with a bank manager to assist the applicant to obtain a bank loan.15 The meeting did not take place as intended and was rescheduled to the following day. The victim was sitting at a coffee shop when DTH approached him. She took hold of the victim by his shirt collar and yelled at him and shook him for approximately five minutes. DTH yelled ‘I need my loan tomorrow, if not, I will kill you and I will kill your daughter’ and ‘[d]on’t sleep in your house tonight, I will kill you. If I don’t kill you I will send someone to fix you up’.16 DTH scratched the victim during the incident. Police material indicates that the victim feared DTH would act upon the threats made to him and his daughter. The victim and a witness reported the incident to the police. As a result of the incident DTH was charged with common assault and threaten injury to person with intent to commit indictable offence. The applicant was convicted of common assault on 10 August 2010 and was fined $500. The charge for threaten 11 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42]. 12 WWC Act, Schedule 7 (definition of ‘conviction’). 13 Ibid, Schedule 2. 14 Ibid, Schedule 4. 15 Ex 11, BCS22, New South Wales Police Force brief of facts. 16 Ex 11, BCS23, New South Wales Police Force brief of facts. -- 4 of 11 -- 5 injury to person with intent to commit indictable offence was dismissed. I do not know the reasons for the dismissal of the charge. The applicant appealed. On appeal, on 2 May 2012, she was resentenced to be of good behaviour for six months. No conviction was recorded. Police material indicates that on 15 March 2017, the applicant made demands of her then partner, the victim (a 71-year-old man), to pay her $34,000. The victim refused to pay the applicant the money. The applicant pushed the victim using both hands on his shoulders.17 The victim had to step backwards and was shaken by the applicant’s aggressive conduct. The incident occurred in the victim’s home. On 16 March 2017, DTH and the victim were driving home from dinner. The applicant said to the victim words to the effect that he must take her to the bank the following day to withdraw $34,000 to give to her.18 In response to the victim’s denial of the request, the applicant punched the victim on the wrist. This upset the victim and caused bruising to his wrist.19 On 17 March 2017, DTH and the victim were at the victim’s home. DTH said words to the effect that he must take her to the bank to withdraw $34,000 to give to her.20 The victim refused. The applicant dug her nails into the victim’s wrist, scratching the victim on his wrist and breaking the skin. Following a trial, on 14 November 2017, as a result of her conduct between 15 and 17 March 2017, the applicant was convicted of two offences of assault occasioning actual bodily harm (DV) and one offence of stalk/intimidate intend fear physical etc harm (domestic).21 DTH gave evidence at the trial. She denied demanding money from the complainant and said that his injuries were either self-inflicted or suffered while the complainant attempted to hit her. The victim’s evidence was found by the trial judge to be plausible, including that DTH made constant demands for money, inflicted injury upon the victim and that her behaviour was intimidatory. Aggravating features of DTH’s conduct considered by the court were the repetitive nature of her behaviour, the significant age difference between the victim and DTH, and the victim’s personal vulnerabilities, that he was elderly and had emphysema.22 The court considered DTH’s offending was ‘approaching in each instance the mid range of seriousness.’23 She was sentenced to be of good behaviour for two years. In 17 Ex 11, BCS25, New South Wales Police Force brief of facts; BCS86-BCS87 Transcript of Proceedings R v (de-identified) 14 November 2017. 18 Ex 11, BCS25, New South Wales Police Force brief of facts. 19 Ex 11, BCS25, New South Wales Police Force brief of facts; BCS88-BCS90 Transcript of Proceedings R v (de-identified) 14 November 2017. 20 Ex 11, BCS26, New South Wales Police Force brief of facts; BCS88-BCS90 Transcript of Proceedings R v (de-identified) 14 November 2017. 21 Ex 11, BCS68, National Police Check Results Report; BCS122, Transcript of Proceedings R v (de- identified) 14 November 2017. 22 Ex 11, BCS122, Transcript of Proceedings R v (de-identified) 14 November 2017. 23 Ibid. -- 5 of 11 -- 6 addition, the court made a two-year apprehended violence order naming the victim as the aggrieved and DTH as the respondent.24 On 10 August 2018, on appeal by DTH, the court confirmed the orders.25 There is a gap of about seven years in DTH’s offending. However, the circumstances of the offending conduct both display a concerning pattern of violent, intimidating and aggressive behaviour by her. DTH’s conduct reflects adversely on her ability to manage her anger, judge appropriate behaviour and deal constructively with situations of conflict. There was no evidence of strategies DTH has implemented to address the triggers for her offending conduct. Those engaged in child related employment must act in a controlled and rational manner. Blue card holders are expected to behave in a manner that protects and promotes a child’s safety and physical and psychological wellbeing. DTH’s offending behaviour is directly relevant to her eligibility to work with children where situations of conflict may be expected to occur. I accept that the offences noted are the only entries recorded on the applicant’s criminal history. DTH has not engaged in any concerning or offending behaviour since the offending behaviour more than four years ago. However, the passage of time is not determinative of whether or not a case is an exceptional case.26 This risk factor must be considered in the context of all the relevant circumstances. 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 [33] DTH’s offending attracted good behaviour bonds. The court’s reasons for the imposition of the penalty in 2011 are not known. The court’s reasons for imposing the penalty in relation to the 2017 offending are discussed above. Any information about the person given to the chief executive under section 318 or 319 No information was given under s 318 or s 319 of the WWC Act. Any report about the person’s mental health given to the chief executive under section 335 No information was given under s 335 of the WWC Act. Any information about the person given to the chief executive under section 337 or 338 No information was given under s 337 or s 338 of the WWC Act. Information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG No information was given under this provision. 24 Ibid. 25 Ex 11, BCS68, National Police Check Results Report. 26 FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8]. -- 6 of 11 -- 7 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 the applicant say about the offending conduct? DTH seeks a working with children clearance to enable her to pursue a career in psychology. She said that the decision to issue her with a negative notice is unfair because the reasons upon which the respondent relies are untrue. The 2010 offending DTH provided her statutory declaration dated 7 August 201027 addressing the 2010 offending. A two page document, which appears to be extracts of a statement of DTH to police about a sexual assault, was provided to the respondent by DTH in the course of its consideration of her application.28 DTH said she was raped and abused by the victim who took advantage of the fact that she had no family in Australia to support her. Further she said that he had threatened her children. When she saw him in the street on the day of the offending conduct she parked her car and went over to talk with him. She asked that he return her documents. After some discussion he became angry and approached her. As she was about to tumble onto the road he grabbed her violently and would not release her. After she got free of him some witnesses approached her but she received a telephone call at that time, and they left before she was able to obtain their contact details. She believes now that the complainant arranged for her to be distracted at that time by the telephone call (she believes the caller was a friend of his) to ensure she could not obtain their contact details. She did not immediately report the incident to police but after speaking with a girlfriend agreed that they would go to the police station together to make the report. While she was waiting for her girlfriend the police arrived and arrested her and advised that an apprehended violence order had been taken out against her. She denied threatening the victim and his daughter. She said she appealed the original decision because the allegations were not true. DTH said that she reported the 2010 rape to the DPP after she was charged, but the DPP did not pursue the matter and she did not do so because she wished to protect the complainant’s daughter. The applicant said she was not aware of the support available to her at the time but then went on to detail that after the rape Crimestoppers endeavoured to help her, that she saw a rape crisis counsellor, went to church, and had good friends for support. The 2017 offending DTH denied pushing, scratching or otherwise harming the complainant in the 2017 offending. DTH and the complainant had been in a relationship and she was his carer. The applicant provided a 2016 letter from Centrelink29 indicating her intention to claim for carer payment, which it was suggested confirmed her role as carer in the 27 Ex 14. 28 Ex 11, BCS51- BCS52. 29 Ex 13. -- 7 of 11 -- 8 relationship. She said there was a dispute with the complainant’s family as one of them was also claiming, for Centrelink purposes, to be the complainant’s carer. DTH explained that the victim was fearful of his family and that she was protecting him from them. DTH said she appealed this decision because she wanted the truth to come out. She said that her lawyer did not attend the August 2018 appeal hearing and that she provided a medical certificate dated 24 May 201830 to the court to the effect that she was unable to perform any activity, especially if it involved decision making, for the period 24 May to 24 August 2018 for health reasons including PTSD, but that despite this the matter proceeded. On appeal, the orders at first instance were confirmed. DTH said that she appealed this decision also, but that the court has twice lost her paperwork. More than two years later DTH does not know whether she has a valid appeal, saying she did not have the time to pursue it. If there is an appeal it has not progressed in more than two years. DTH denies the 2010 offending which is inconsistent with the findings of guilt. Further, her evidence in relation to her 2017 offending behaviour differed from the findings of the trial judge. DTH offered an alternative version of events, but that has been litigated and it is not for me to revisit. I cannot accept a version of events inconsistent with the existence of the convictions.31 What has changed for DTH since her offending? DTH spoke of her support network through her church and a strong friendship group. Some of these friends provided statements and were available for cross examination. AK,32 EE33 and LZ34 spoke of DTH’s good character and caring nature. These witnesses were loyal to DTH and spoke positively of her interactions with children. However, none of them recalled having read the respondent’s reasons for issuing the negative notice. They had no apparent knowledge of the 2010 offending and their knowledge of the 2017 offending was limited to them knowing that DTH wished to pursue an appeal, that the her solicitor did not appear at the appeal in 2018 and a strong belief that she would not commit such offences. EE believed the claims giving rise to the 2017 charges were fabricated. It was unclear to the Tribunal whether these witnesses were aware that DTH has children. The Tribunal affords limited weight to the evidence of these witnesses as they were unaware of the reasons for the refusal by the respondent and had limited knowledge of DTH’s criminal history. YE provided a statement35 but was not available for cross examination. She told of DTH’s commitment to supporting the homeless which she had observed through their support of mutual clients in a crisis centre. NC has known DTH for more than 12 years and told of DTH’s humanitarian efforts working with children and her strong passion 30 Ex 17. 31 WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [63]. 32 Ex 9. 33 Ex 7. 34 Ex 8. 35 Ex 3. -- 8 of 11 -- 9 advocating for children’s welfare.36 She said that she knows DTH to be incapable of the conduct alleged in 2017. These matters were unable to be explored with the witnesses as they were not available for cross examination. In the circumstances the Tribunal places limited weight on their evidence. Three of the character witnesses provided statements dated either 2007 or 2010.37 As these statements are more than 10 years old and the witnesses were not available for cross examination the Tribunal places no weight on this evidence. 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.38 DTH said that the allegations leading to her convictions are untrue and entirely disputes her guilt despite a hearing and unsuccessful appeals. I must accept the fact of the convictions. I cannot go behind the findings of the courts on each occasion, nor can I accept a version of events inconsistent with the findings of the courts on those occasions. DTH minimised her conduct which resulted in the convictions. It is not apparent that she has developed genuine insight about the impact of her unlawful and violent behaviour on those persons who were the subject of her behaviour. Similarly, I am not able to reach a finding that she has insight into the impact that such behaviour would have on 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 considerations The Child Safety material DTH has two daughters now aged 21 and 15. They were removed from her care on separate occasions. It was clearly distressing for the applicant to discuss this. The respondent provided to the Tribunal material from Child Safety in relation to DTH and her two children, but the material does not indicate why her children were removed from her care. DTH was initially unable to explain it. She went on to say that one child was removed from her care due to false allegations regarding her mental health by a person who raped her and is the father of that child. DTH denied the conduct indicated in the Child Safety material, saying that the child’s father reported 36 Ex 10. 37 Ex 4, 5 and 6. 38 [2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. -- 9 of 11 -- 10 to Child Safety that she had abandoned her daughter and Child Safety believed him. She said that her other child was removed due to mental health concerns. She said that she now sees her adult daughter only on Facebook. Her younger daughter is in foster care interstate and she has not seen her since 2015. They communicate through a counsellor. It was apparent that DTH cares for the wellbeing of her daughters. However, they were removed from her care. I infer from this that DTH was unable to appropriately protect and care for the children while they were in her care. It is not apparent that DTH has developed the skills and strategies necessary to take responsibility for her own actions and for the protection of children. DTH’s mental health While mental health issues do not preclude a person from obtaining a working with children clearance and blue card, the possibility that such issues can 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. DTH said she had been the victim of rape on two occasions and was the victim of other sexual assault. The details contained in the extracts of DTH’s statement regarding the alleged 2010 rape were disturbing. She has also experienced the trauma of the removal of her children from her care. Clearly, DTH has experienced significant trauma because of these events. DTH provided a medical certificate39 which said she was experiencing PTSD in 2018 and so was unable to participate in decision making. Reports provided by DTH in support of her application for an extension of time to obtain medical reports for this review indicated that she consulted with psychologists over the period 2000 to 2019. While additional time to obtain this material was granted by the Tribunal no medical reports of this nature were provided. While DTH recounted some steps she had taken to address the trauma of the 2010 rape, it was not clear whether she had sought to address the other trauma she has experienced, her PTSD or the mental health issues which she said led to the removal of her children from her care. The material suggests that she has sought professional support but there was no evidence about this support, the steps she has taken to address the trauma she has experienced or the strategies she has developed. Indeed, DTH denied she had mental health issues. In the absence of medical evidence regarding the nature of these consultations and of her current progress and strategies she has implemented to address her mental health and mitigate future risk I cannot be satisfied that DTH’s mental health is effectively managed. 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.40 The question to be determined is whether, exercising its discretion, the Tribunal considers it is an 39 Ex 17. 40 WWC Act, s 360. -- 10 of 11 -- 11 exceptional case in which it would not be in the best interests of children to issue a working with children clearance. In making this decision I have been mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business. In view of DTH’s pattern of violent and intimidating offending behaviour, my findings in relation to remorse, insight, DTH’s ability to provide a protective environment for children and her mental health, 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 DTH’s case is an exceptional case under s 221(2) of the WWC Act. Non-publication I consider it is not in the public interest to release identifying information regarding DTH, any witnesses for her and any complainant as this may lead to the identification of DTH’s children. Pursuant to s 66 of the QCAT Act the Tribunal orders that publication of information that may enable the applicant, witnesses, and the complainant to be identified is prohibited. Accordingly, these reasons are to be published in a de-identified format. Orders The Tribunal confirms the decision of the Director-General, Department of Justice and Attorney-General made on 5 October 2018 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 the complainants. -- 11 of 11 --