FLS v Director General, Department of Justice and Attorney-General [2019] QCAT 5

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FLS v Director General, Department of Justice and Attorney-General [2019] QCAT 5 PARTIES: FLS (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO: CML225-17 MATTER TYPE: Children matters DELIVERED ON: 18 January 2019 HEARING DATE: 20 July 2018 HEARD AT: Townsville DECISION OF: Member Pennell ORDERS: 1. That the decision by the Director General, Department of Justice and Attorney General dated 11 September 2017 to cancel the applicant’s positive notice and blue card is confirmed 2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the identity of the applicant is prohibited CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – review of a decision to cancel a positive notice and blue card – applicant convicted of offences of violence – offences are not serious or disqualifying offences –– whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – exercise of discretion when making a non-publication order – identity of applicant – whether it is in the interests of justice to identify the applicant -- 1 of 11 -- 2 Criminal Code Act 1899 (Qld), s 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1) and s 66 Domestic and Family Violence Protection Act 2012 (Qld), s 177 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221(2), s 226, s 353, s 354 and s 360 Briginshaw v Briginshaw [1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 Kent v Wilson [2000] VSC 98 KTD v Director General, Department of Justice and Attorney General [2018] QCAT 293 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 Re Perry and Brown's Patents (1930) 48 RPC 200 APPEARANCES & REPRESENTATION: Applicant: Self represented Respondent: C. Borger, Legal Officer REASONS FOR DECISION Introduction [1] Notwithstanding the applicant having already been convicted of the offence of going armed to cause fear,1 she was issued with a positive notice and blue card on 29 April 2015. Subsequent to being issued with that positive notice and blue card, the respondent received information about a change to her criminal history. That change related to the applicant being convicted for the offences of assault and the contravention of a domestic violence order.2 1 The applicant was convicted in the Magistrates Court on 14 November 2011 and placed on probation for a period of six months. No conviction was recorded. 2 The applicant was convicted in the Magistrates Court on 15 August 2016 and placed on probation for a period of nine months. No conviction was recorded. -- 2 of 11 -- 3 [2] The respondent wrote to the applicant and invited her to make submissions about the latest entries on her criminal history and why her positive notice and blue card should not be cancelled.3 Submissions in response to those requests were provided by the applicant. [3] In assessing the applicant’s response, the respondent considered that the appropriate action to take was to cancel the applicant’s positive notice and blue card. That decision was made on 11 September 2017 and communicated to the applicant. The applicant now seeks a review of the respondent’s decision. The legislative pathway [4] The objects of Working with Children (Risk Management and Screening) Act 2000 (Qld) (“Working with Children Act”) are to promote and protect the rights, interests and wellbeing of children in Queensland.4 The principles in which the Working with Children Act are to be administered is that the welfare and best interests of the children are paramount. The wellbeing of children should be promoted, and every child is entitled to be cared for in a way that protects that child from harm.5 [5] It is not the intention of the Working with Children Act to impose additional punishment on someone who has acquired police or disciplinary information, but rather the central focus is to put gates around employment so as to protect children from harm. The intent of the Working with Children Act is to protect children from future abuse, not to punish people twice.6 [6] In assessing whether it is appropriate to issue an applicant with a negative or a positive notice, there are a number of considerations that the respondent is obliged to undertake before considering whether or not an exceptional case exists. Those considerations include whether an applicant has been the subject of an investigation or has been prosecuted, and whether the facts, evidence or information of the investigation suggest that it is not in the best interests of children for the issuing of a positive notice. Exceptional Case Discussion [7] Whether the circumstances of a person’s case would render it an exceptional case is the threshold to be applied when the tribunal is deciding whether an applicant should be issued with a positive notice. In applying that principle, regard must be given to the intent, purpose and design of the legislation.7 The tribunal need only weigh up the competing facts and apply the balance of probabilities principle.8 [8] Although the term “exceptional case” is not defined in the Working with Children Act, the phrase has been the subject of many previous discussions in a variety of jurisdictions, including the tribunal’s own appeal jurisdiction. An exceptional case 3 Letters dated 19 December 2016 and 10 January 2017. 4 Working with Children (Risk Management and Screening) Act 2000, s 5. 5 Working with Children (Risk Management and Screening) Act 2000, s 6. 6 Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard, 14 November 2000 at p. 4391. 7 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] citing Kent v Wilson [2000] VSC 98 at [22] per Hartigan J. 8 The Briginshaw test as provided in Briginshaw v Briginshaw [1938) 60 CLR 336. -- 3 of 11 -- 4 is a question of fact and degree to be decided in each individual case and is a matter of discretion.9 [9] In exercising that discretion and deciding whether an exceptional case exists, the tribunal is required to bear in mind the gravity of the consequences involved if a positive notice and blue card were to be issued.10 Guidance has previously been provided to the tribunal that it would be most unwise to lay down any general rule about what an exceptional case is because all of these matters are matters of discretion11 and each case should be considered on its own facts. [10] Having regard to the relevant discussions on the term exceptional case, if the respondent decides that a case is exceptional because of the applicant’s criminal history, or because of an event that occurred involving that person, then justification may exist if the decision and refusal to issue a positive notice and blue card was made in the best interests of children.12 The tribunal’s role [11] If the respondent decides to issue a negative notice to an applicant, that person who is affected by the decision can apply to the tribunal for a review of the respondent’s decision.13 Any review must be undertaken on the principle that the welfare and best interests of children is paramount.14 The review must also be undertaken by way of a fresh hearing on the merits of the application.15 [12] The tribunal ‘stands in the shoes’ of the original decision maker and the purpose of the review is to produce the correct and preferable decision.16 Any correct and preferable decision reached by the tribunal must be based on the material which is before the tribunal at the time of the review hearing.17 [13] In reaching the correct and preferable decision, the tribunal has the discretion to either confirm or amend the decision, or set aside the decision and substitute its own decision, or set aside the decision and return the matter for consideration to the original decision maker with directions the tribunal considers appropriate.18 The applicant’s background [14] The applicant grew up in rural location. Her family unit consisted of her mother, her stepfather and three siblings. Her parents were less than ideal as role models. Her 9 FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 at [18]. 10 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] applying the Briginshaw test as provided in Briginshaw v Briginshaw [1938) 60 CLR 336. 11 Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [34] endorsing the observation made by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 that particular attention should be paid to the warning given in the frequently cited definition of “exceptional case” which arises out of Justice Luxmoore’s comments in Re Perry and Brown's Patents (1930) 48 RPC 200. 12 Working with Children (Risk Management and Screening) Act 2000, s 221(2). 13 Working with Children (Risk Management and Screening) Act 2000, ss 353 and 354. 14 Working with Children (Risk Management and Screening) Act 2000, s 360. 15 Queensland Civil and Administrative Act 2009, s 20(2). 16 Queensland Civil and Administrative Act 2009, s 20(1). 17 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. 18 Queensland Civil and Administrative Act 2009, s 24(1), -- 4 of 11 -- 5 mother suffered a mental health illness and developed a significant gambling habit. Her stepfather was a drug addict who was abusive towards the applicant’s mother. Neither of her parents worked and she can recall the police searching the family home for illicit drugs on numerous occasions. [15] She told the tribunal that as far back as she could recall in her childhood, she was sexually abused by her stepfather. This abuse occurred daily. He threatened to harm her if she disclosed the abuse to anyone else. Understandably, she was a frightened young girl during this period in her life and the abuse impacted upon her wellbeing, education and social life. [16] At the age of 15 she ran away from home and disclosed to a friend the sexual abuse she had suffered at the hands of her stepfather. The police became involved and she and her siblings were taken into care by child services and moved into foster care at another location. [17] She settled into life as a foster child and completed her schooling. She later obtained employment and met ED who was to become the father of their three children. Two thirds of the way through her pregnancy with their first child, her relationship with ED started to crumble. The applicant and ED regularly argued, and she admits that she had issues in managing her emotions and anger during her pregnancy. She said that by that time, ED was drinking alcohol heavily, his employment suffered, and he eventually lost his job.19 This placed their relationship under stress and they eventually separated. [18] After the birth of her first child, the applicant managed to secure employment at a childcare centre. Some time passed before the applicant and ED reconnected, they were again in a relationship. She fell pregnant with their second child, only for the relationship to again break down. It appears from the facts that this was a recurring pattern of their tumultuous relationship because they later reunited after the birth of their second child, and she fell pregnant with their third child, only to separate for a final time before that child’s birth. [19] ED later commenced a relationship with a new partner, CBA.20 Knowing of his new relationship with CBA, the applicant placed conditions upon him with regards to the time he was to spend with their children. This did very little towards enhancing their own relationship so far as both of them being responsible for the co-parenting of their children. [20] It is clear from her own submissions that the applicant took great umbrage to ED’s new relationship with CBA. In her view, she felt that he was not spending enough time with their children and this led to the applicant’s confronting behaviour towards ED and CBA. Applicant’s criminal history 19 ED acknowledged that he had an issue with alcoholism. He later deposed in his affidavit to support his application for a domestic violence order that he attended an alcohol rehabilitation facility. See Exhibit 7, Notice to Produce documents at page 241. 20 ED and CBA are now married. -- 5 of 11 -- 6 [21] The applicant has a criminal history, although it is limited to four entries over a period of nine years. None of the entries are classified as being serious or disqualifying offences as defined within the Working with Children Act. Notwithstanding that, the intent of the Working with Children Act is that when an applicant has a criminal history, all of that history should be taken into account, regardless whether the convictions are for serious or disqualifying offences.21 Therefore, in blue card matters the tribunal should always adopt a cautionary approach when an applicant presents with a criminal history, particularly when that history includes offences of violence or disobedience of court orders. [22] What I find concerning about the applicant’s criminal history is that the history is punctuated with entries relating to the use of violence or the contravention of court orders.22 The applicant’s confrontational and criminal behaviour Going Armed to Cause Fear [23] The applicant accepts that she struggled with the breakdowns of the relationship with ED. Sometime after the birth of their first child, she was heartbroken that their daughter was not spending time with ED. [24] Having those concerns in mind, she telephoned ED on the evening of 13 November 2011. The call was answered by a woman who refused to allow the applicant to talk to ED. The applicant then asked the woman when ED was going to see his daughter, to which the woman replied that she did not care as “it’s not our child”.23 This infuriated the applicant to a point where she struggled to control her emotions. When the woman disclosed to the applicant that she and ED were at a nearby hotel, the applicant made the decision go to that hotel and confront them. [25] She then placed her young child into her vehicle, along with her younger sister who was aged 11 at the time. She drove to the hotel, taking with her a large knife. When she arrived in the hotel’s carpark, she saw ED with a woman in the carpark. She got out of her car and approached them with the knife in her hand. ED and the woman tackled the applicant to the ground and took the knife from her. [26] The police were called and the applicant was arrested and charged with going armed to cause fear.24 The police report shows that the applicant was remorseful for her conduct and she told the police that her behaviour was related to her anger and emotions. [27] She was then taken to a mental health facility at the local hospital and admitted as an involuntary patient where she was assessed and treated for three days. During her admission and treatment at that facility, she was referred for counselling at Headspace. The initial psychological assessment was that she was suffering from a 21 Working with Children (Risk Management and Screening) Act 2000, s 226. 22 The criminal history includes commit public nuisance (2007), going armed to cause fear (2011), breaching a probation order (2012), common assault and contravening a domestic violence order (2016). 23 Meaning the child from the relationship between ED and CBA. 24 Criminal Code 1899 (Qld), s 69. She later appeared in the Magistrates Court and pleaded guilty. She was placed on probation for six months. No conviction was recorded. -- 6 of 11 -- 7 chronic adjustment disorder, triggered by a combination of becoming a mother, whilst simultaneously dealing with the deterioration of her relationship with ED.25 By 3 January 2012, the applicant had only attended one counselling session with Headspace. It is reported that she did not wish to engage in any further counselling sessions.26 Domestic violence and assault [28] By late 2015, the applicant and ED were no longer in a relationship. ED had formed a relationship with CBA. On 9 December 2015, the applicant approached ED and CBA in a shopping centre. CBA’s young children were present. The applicant verbally abused and threatened CBA by saying “I’m going to smash you, you slut”. [29] What is inexcusable in the context of all this, was the seemingly unprovoked verbal attack about CBA’s defenceless children. She referred to CBA’s children as “ugly mutt dog kids” and she was going to “stomp on their heads”. The applicant also swung a clenched fist at CBA and in doing so grazed CBA on the chest. [30] Unsurprisingly, a complaint was made to the police and ED made an application for a domestic violence order to protect himself and CBA.27 The applicant did not oppose the making of that order by the Magistrates Court,28 which named her as the respondent. Contravention of domestic violence order [31] On 29 July 2016, the applicant sent a text message to ED to determine who would be looking after their children that evening. By this time, the domestic violence order referred to above in paragraph [30] had been made. [32] It seems that the applicant’s text message to ED was ambiguous and resulted in a misunderstanding between the applicant and ED. The applicant took the children to ED’s house. When she arrived at ED’s house with the children, ED was at home but unaware that she was there because he was playing loud music and did not hear her arrive. [33] Because he did not answer the door, she tried telephoning him. He answered the call but because of the loud music, he could not hear what she was saying. She believed that he was out somewhere drinking, and she lost her temper. She later sent two denigrating text messages to him that contravened the conditions of the domestic violence order. [34] The applicant was charged with contravening the domestic violence order. She later appeared in the Magistrates Court where she pleaded guilty.29 At the same time, the assault charge arising from the shopping centre incident was also finalised. The Court imposed a global penalty for both offences and placed the applicant on probation for a period of nine months. No conviction was recorded. 25 Exhibit 7. Notice to Produce documents at page 221. 26 Exhibit 7. Notice to Produce documents at page 223. 27 Exhibit 7. Notice to Produce at page 267 – 274. 28 The domestic violence order was made on 12 January 2016; Exhibit 7. Notice to Produce at page 260. 29 Domestic and Family Violence Protection Act (Qld) 2012, s 177. -- 7 of 11 -- 8 [35] Arising out of the applicant’s contravention of the domestic violence order, ED applied to the Court for a variation of that order.30 In support of his application, ED filed an affidavit which contained several concerning allegations. It also suggested that the applicant was prone to emotional abuse and occasional physical violence, with the use of objects to inflict violence upon ED.31 He provided examples, some of which are as follows: (a) ED locked himself in the bathroom to get away from the applicant. She repeatedly kicked the door in what ED described as her trying to kick the door in; (b) She yelled at him, then bit and scratched him; (c) She armed herself with a large knife and confronted ED and another woman in a hotel carpark on 13 November 2011;32 (d) The confrontational incident at a shopping centre on 9 December 2015;33 (e) She drove her vehicle at his vehicle, ramming it and caused damage; (f) She nearly overdosed on drugs on three occasions. ED took her to the hospital on each occasion; (g) She smashed a wine bottle on the back of ED’s head; (h) When becoming aware that ED had re-partnered with CBA, she told CBA that she knew “who you are and where you live, and you are going to die in a pool of your own blood”; and (i) Outside a school fete attended by their children, she told CBA that she was “going to smash” her. [36] As evidenced by her criminal history, some of her aggression towards EB and CBA has resulted in her being convicted for assault and contravening that domestic violence order.34 It appears that the allegations were not challenged by the applicant in the Magistrates Court when the original domestic violence order was varied. Nor did the applicant challenge them during the tribunal hearing. To her credit though, she told the tribunal that she accepted full responsibility for her actions, and she was remorseful for her behaviour. The applicant’s insight into her behaviour [37] The applicant does not shy away from her past behaviours and admitted that she had acted with “some silly criminal behaviours”. She accepted full responsibility for her conduct and acknowledged that her behaviour had impacted upon everybody, 30 Exhibit 7. Notice to Produce documents at pages 246 – 250. 31 Exhibit 7. Notice to Produce documents at pages 239 – 245. 32 This incident is described in paragraphs [25] to [26] of these reasons. 33 This incident is described in paragraphs [28] to [29] of these reasons. 34 Convicted in the Magistrates Court on 15/08/2016 for contravening a domestic violence order. No conviction was recorded. The applicant was placed on probation for nine months. -- 8 of 11 -- 9 including the children that were the subject of, or witnessed her behaviour. She was embarrassed by her behaviour and accepted that there were other ways that she could have resolved those conflict issues with ED and CBA.35 [38] She said that her outlook on life is different to when her behaviour was a concern and there was now a very low risk of her ever again engaging in any offending behaviour. She stressed that she was not a risk to the community and suggested that she is “moving on” with her new partner, of which there has been no conflict with him. Although it was noted that her relationship with her new partner had only existed for a relatively short period of time.36 [39] In regard to ED who had been the target of her outbursts of emotions and anger, she said that she has re-established communications with him regarding the parenting of their children. There are Family Court orders relating to the parenting of the their children and understandably, in obeying those orders there is a need for contact with ED.37 She said that she had learnt that conflict with ED was not worth the “hassle and embarrassment”, however in saying that, she did not explain why there was a need to have a second person with her when she meets with him at changeovers to collect and drop off the children. [40] If her application was successful, she intends to enrol in university and qualify as a childcare worker. It seems that she has not undertaken that enrolment because she considers that not having a blue card is a factor which holds her back from her studies. Whilst there is a legislative requirement for someone to hold a blue card when engaging in employment involving children, the applicant never gave a clear explanation of the need or requirement for her to have a blue card before she could enrol in studying to be a childcare worker. [41] Notwithstanding all of that, the question I am required to consider is not whether the applicant should be issued with a positive notice and a blue card which would allow her to commence her studies, but rather whether her circumstances allows the tribunal to reach a conclusion that there is an exceptional case whereby the issuing of a blue card to her would not harm the best interests of children.38 [42] In regard to managing her emotions, the applicant said that she had “called a few places” to enrol into anger management courses, one place being Centacare. She was placed on a lengthy waiting list, however she had not participated in any anger management course prior to the hearing of her application. Applicant's witnesses [43] I acknowledge and accept that the witnesses who gave evidence in support of the applicant were genuine in their comments and support of her. Notwithstanding that, they were never provided with the opportunity to read the facts relating to the applicant’s criminal past and I was not surprised that those witnesses had only positive things to say about the applicant. This is not a criticism of their evidence, 35 Exhibit 2. 36 Six months at the time of the tribunal hearing. 37 Exhibit 7. Notice to Produce documents at pages 253 – 259. 38 KTD v Director General, Department of Justice and Attorney General [2018] QCAT 293 at [26]. -- 9 of 11 -- 10 but an observation that caution should be exercised in placing any weight on their evidence because of the close friendship or association they have with the applicant. [44] If I am to accept or reject their evidence, it is what degree of weight that I apply to their evidence. In this case, because of their relationship and association with the applicant, I am not satisfied that I should not place any weight upon their evidence. Conclusion [45] The main issues explored at the hearing were whether the applicant had developed insight into her past actions, and what strategies, if any, she had developed to ensure that vulnerable children were not placed at potential risk in the future by being exposed to domestic violence or unpredictable behaviours. [46] She does not have any strategies in place to deal with the management of her anger, though she had expressed a willingness to undertake anger management courses. It was also noticeable that she failed to acknowledge her previous issues with mental health, and the additional traumatic experiences of her childhood which she has not sought to address through any substantive counselling. [47] There is a distinct lack of any evidence of the applicant benefiting from suitable counselling sessions or courses specifically designed to address her emotional reactions. The applicant simply contends that she wished to attend an anger management course and she has been placed on a waiting list. [48] It would appear that as from 11 September 2019, it will open for the applicant to make representations to the respondent to have her negative notice cancelled. I am of the view that having regard to all the facts and circumstances, this lapse in time may allow her enough time and opportunity to further demonstrate her insight, complete further appropriate counselling, and demonstrate a commitment to abstaining from offending behaviours. [49] I am also of the view that the applicant’s attendance at an appropriately credited anger management course, coupled with counselling with a suitably qualified practitioner may assist in addressing those underlying emotional difficulties she experienced and acted upon. That could only be a benefit to her in managing her own behaviour in stressful situations. [50] Although I am satisfied that the applicant has bona fide intentions to address those issues just discussed, I am inclined to accept the respondent’s proposition that the applicant has not mitigated the concerns raised about her anger management.39 In the absence of any independent evidence to satisfy me that the applicant has addressed her anger management issues, I am satisfied that the correct and preferable decision is to confirm the respondent’s decision to issue her with a negative notice. Non-publication order [51] Because of the nature and sensitivity of matters involving children, consideration should always be given by the tribunal to de-identifying applicants who are seeking 39 Applicant’s written submissions dated 2 August 2018. -- 10 of 11 -- 11 a positive notice relating to a blue card. However, I recognise that because the issues of non-publication are discretionary, each matter should be determined on its own set of facts and circumstances. [52] Before taking any action to prohibit the identification of a party, the tribunal must reach a conclusion that any order relating to non-publication is necessary to protect the identity of those people who appear in the proceedings. The tribunal must also consider whether the making of the non-publication order would avoid, amongst other things, the publication of confidential information, or information whose publication would be contrary to the public interest.40 [53] I am satisfied that it is necessary to make a non-publication order in relation to the applicant. This will avoid the publication of confidential information, or information which published, would be contrary to the public interest. My view is that it would be in the best interests of the applicant and her children that she not be identified. Decision [54] The tribunal orders that: – 1. The decision by the Director General, Department of Justice and Attorney General dated 11 September 2017 to cancel the applicant’s positive notice and blue card is confirmed. 2. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the publication of the identity of the applicant is prohibited. 40 Queensland Civil and Administrative Tribunal Act 2009, s 66. -- 11 of 11 --