BWJ v Director-General, Department of Justice and Attorney-General [2018] QCAT 218

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BWJ v Director-General, Department of Justice and Attorney-General [2018] QCAT 218 PARTIES: BWJ (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML161-17 MATTER TYPE: Childrens matters DELIVERED ON: 12 July 2018 HEARING DATE: 18 May 2018 HEARD AT: Mackay DECISION OF: Member Milburn ORDERS: 1. The decision of the Director-General, Department of Justice and Attorney-General made on 22 February 2017 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) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. 2. Other than to the parties to the proceeding, the Tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant. 3. The Tribunal is to deliver this decision to the parties by email. 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 – offences of serious assault; assault/resistance/obstruct police officer; breach of domestic violence order – where not categorised as serious offences under the Working with Children (Risk -- 1 of 10 -- 2 Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) NON-PUBLICATION ORDER – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would be contrary to the public interest Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(3), 20(1), 20(2), 24(1), 66(2) TAA, Re [2006] QCST 11 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms C Borger, Government Legal Officer for the Director- General, Department of Justice and Attorney-General REASONS FOR DECISION Background [1] This case relates to a woman who would like to continue to work in her current school- based employment but is not able to do so because her application for a ‘blue card’ was unsuccessful. [2] The applicant applied to the respondent for a Blue Card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) (the application). On May 2017, the respondent rejected the application and issued a negative notice under the WWC Act. The applicant requests this tribunal review that decision. Merits Review [3] The tribunal conducts a fresh hearing on the merits (the review).1 The tribunal reconsiders the application to produce the correct and preferable decision.2 The tribunal conducts the review within the same legislative framework as the primary decision-maker and has the power to confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2). 2 Ibid, s 20(1). -- 2 of 10 -- 3 for reconsideration to the decision-maker.3 The tribunal has all the functions of the decision-maker for the reviewable decision.4 [4] In conducting the review, the tribunal does so by administering the principles contained in the WWC Act. The tribunal must have regard to these principles in the context of reviewing child related employment decisions.5 The WWC Act provides for the following principles- (a) the welfare and best interests of a child are paramount; and (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child's well-being.6 [5] The tribunal must have regard to these principles in the context of reviewing child related employment decisions. [6] A person may work with children in any environment, whether supervised or not, if they hold a blue card. The screening process for use in employment, or carrying on businesses, promotes and protects the rights, interests and wellbeing of children and young people in Queensland.7 Criminal Convictions [7] Often, an applicant for a merits review has a criminal history, which may include criminal convictions. A conviction for some offences is regarded as a serious offence, and the balance are ‘offences other than serious offences’. Section 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) provides the definition of a ‘serious offence’. In this case, the applicant has a criminal history that involves uncharged incidents and charged incidents. The charged incidents have resulted in criminal sanction. The convictions relate to offences other than serious offences. The default position in this case is that the respondent would issue a positive notice (that is, grant the applicant a Blue Card). Otherwise, the case must be exceptional to warrant issuing a negative notice to the applicant. The primary role of the tribunal is to determine whether this is an exceptional case. [8] The tribunal considers the matter on review based on the evidence available to it at the time of hearing the review. [9] At the hearing, the applicant gave evidence and called three witnesses. The evidence of the applicant [10] The applicant is the perpetrator of domestic violence, as evidenced by her breach of a domestic violence order and conviction for the criminal offence associated with that action. However, she gave evidence to the tribunal that she is herself the victim of domestic violence and is comforted by ‘recent changes in law to impose greater criminality on perpetrators’. 3 Ibid, s 24(1). 4 Ibid, s 19(3). 5 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360 6 Ibid, s 6. 7 Ibid, s 5 -- 3 of 10 -- 4 Serious assault in 2001 [11] The facts of the offence are that the applicant and a co-offender (her brother) occupied the co-offender’s vehicle at a police station holding yard. Police had secured the vehicle for investigative purposes. The applicant and her brother refused to leave the holding yard when directed to do so and police warned them several times pending their arrest. Police arrested the applicant for refusing to leave the yard. The applicant refused to comply with further police directions. A police officer attempted to remove the applicant from the yard by taking hold of her and she responded by struggling violently and began flailing her arms at the officer and hitting him about the shoulders. The second officer attempted to restrain the applicant. The applicant then turned her attention to the second officer and whilst flailing her arms about struck both offices on their upper bodies. She scratched the second officer to his face. The officers restrained the applicant and took her to a holding cell. The applicant later expressed her remorse and said that she was in a stressful separation from her defacto husband. [12] During the tribunal hearing, the applicant did admit that she ‘put arms in air’ but minimised her actions by suggesting that police assaulted her. When asked about her plea of guilty, where the court convicted and fined her the sum of $280, the applicant said that she had little alternative as she had ‘a duty lawyer’. The applicant told the tribunal that despite her plea, she did not accept that she obstructed the police. The applicant did tell the tribunal, as she did the court in 2001, that she was ‘going through relationship problems’. [13] In hindsight, the applicant acknowledged that she would approach her situation differently. She explained that her actions were, in some way, supportive of her brother’s interests. She told the tribunal that she should have cooperated with the police. To some degree, she categorised his actions as indicative of her distrust of males. Breach of domestic violence in 2008 [14] In 2008, the applicant breached a domestic balance order made late in 2007. For the breach, the court convicted her and imposed a fine of $250. [15] The facts are that the applicant and her defacto partner were at a park with their three children. The applicant’s partner was pushing their one-year old son in a pram around the lake. The applicant wished to remove the infant from the pram to play, but her defacto partner said that the infant was happy and content and did not want her to remove him. An argument followed. When the applicant attempted to remove the infant from the pram, a struggle broke out with the infant in the middle. The applicant punched her defacto partner on the shoulder, but she fell to the ground. The applicant’s defacto partner was on top of the applicant with the infant still in the middle before punching the applicant in the hip. The applicant reached up to push him away and scratched his nose, which caused it to bleed. The applicant’s defacto partner got off the applicant and left the scene. The infant and the applicant were blood-smeared as a result of the scratch to the defacto partner’s nose. The other two children were playing nearby during the incident. Police arrived and spoke with the applicant. The applicant admitted to punching her defacto on his shoulder. [16] The applicant told the tribunal that when she breached the order her defacto partner was affected by the consumption of alcohol. Her version to the tribunal was different -- 4 of 10 -- 5 to the version provided to the sentencing court. She told the tribunal that she drove the family to a park. The two older children played, while she and her defacto partner cared for their baby in an enclosure. Her version is that her defacto wanted to leave as he had consumed all the available alcohol and wanted more. She attempted to remove the baby from the pram when he began to shake the pram. She says that he attacked her first, by a choking manoeuvre. She responded, and while on the ground (holding the baby), she scratched him. The applicant dismissed the suggestion by the legal officer for the respondent that her actions had resulted in exposing her baby to airborne blood. The applicant justified her behaviour by saying that but for her actions, her defacto partner might have taken children and driven drunk, with the children unrestrained. [17] In explaining the background to the circumstances that led to violence on the day, the applicant said that her defacto had been drinking alcohol. Generally, he would drink at home. The applicant told the tribunal that despite her urging him to do so, her partner did not seek help for the consumption of alcohol. [18] During the tribunal hearing, the applicant said that she does not minimise the potential effect of these matters on children. Incident on 25 November 2007 [19] The applicant was the respondent to an application for domestic violence order because of an incident in November 2007. The applicant told the tribunal that she and her defacto were in bed. She discovered infidelity on his part and in response to her statements, he reacted and choked her. She suffered a black eye. She said she grabbed his testicles in a defensive manoeuvre. [20] She went to neighbours and police said that by leaving she gave up her ‘right to the children’. The applicant told the tribunal that the children had no exposure to the incident, as they were asleep. She did acknowledge however that the events, if witnessed by children, would have negative impact on them. [21] The applicant did not explain to the tribunal why, on her version, the court named her as a respondent in a subsequent domestic violence order. Incident on 3 August 2013 [22] The applicant told the tribunal that in 2013 she was the victim of violence where her defacto partner ‘grabbed her by throat’. She said that he slammed her against the cupboard. She sustained a severe cut, and went to the hospital, where medical staff treated her by inserting five stitches. [23] The applicant advised the tribunal that she did not report the incident, although she was the persistent victim of domestic violence for at least eight years. The applicant explained that in her view, sometimes having the benefit of a domestic violence order ‘makes things worse’. Although the applicant was willing to leave her to facto as early as 2008, she stayed to ‘protect the children’. [24] The applicant told the tribunal that by 2013 she did ask for some help and received information about domestic violence. However, she was unwilling to take much action as she was not prepared to risk allowing ‘custody’ of her children to her defacto. From the incident, the applicant fell into depression, for which she took medication. -- 5 of 10 -- 6 Incident on 3 April 2014 [25] The applicant categorised the events in April 2014 as minor. It involved arguments over outstanding bills. While attempting to pay bills via the Internet, her defacto stopped her from using her computer. Children did not witness the events. Incident on 20 April 2015 [26] The applicant gave evidence to the tribunal that by this time her relationship with her defacto had improved. However, on this day, her defacto had consumed large quantities of alcohol. He became jealous and began throwing things around the house. An argument between the applicant and her defacto became physical. The applicant’s son witnessed domestic violence. [27] By this stage, the applicant had realised that she had to take affirmative action, and invited her defacto to leave, which he did. At the applicant’s request, he went to counselling, following which he returned to the family household and, for a while, the relationship was stable. The applicant told the tribunal that during this period she did have discussions with her son and was concerned about making further disclosure, for fear it would make things worse. She acknowledged that in her discussions, she did downplay issues. [28] The police took out a domestic violence order, and on this occasion named the applicant as the aggrieved. Final incident in March 2016 [29] From April 2015 until Easter 2016, the applicant said that her relationship was stable, and everything was going well between her and her defacto. However, by far the most serious incident occurred in March 2016. [30] According to the applicant, her defacto consumed a considerable amount of alcohol and he complained about the applicant. He followed her and he punched her in the mouth. Their son came into the room and the applicant said her defacto ‘spat blood out of his mouth’ onto their son. [31] According to the applicant, her defacto grabbed began to choke her. He threw her onto to the footpath. He had her hair and he was smashing her head into the footpath. He drove off, crashed and in doing so, deployed the air-bag. [32] At the hearing before the tribunal, the legal officer for the respondent enquired of the applicant as to what protective factors she took or might have taken at this time. The applicant said that she has asked herself that question many times. [33] That incident prompted a permanent separation between the couple. When asked why she had not separated from her defacto in earlier instances, the applicant said that the issues surrounding domestic violence are complex. Even though supports were available, ultimately, she felt that the children were safer staying, rather than leaving. The applicant said that the situation changed in 2016, because of the severity of the attack upon her. She said that at that time she also had more support. Police acted to exclude him from the house. Child safety intervened and provided the applicant with support. The applicant did seek support from DV Connect. She explored and obtained therapy. She arranged for ‘Headspace’ support for the children. -- 6 of 10 -- 7 [34] The applicant acknowledged the severity of the domestic violence that occurred but urged the tribunal to accept that she has taken permanent action to ensure that there is no further exposure of domestic violence to her children. She passed a psychological assessment. Domestic violence awareness [35] The applicant said that she is very pleased that the domestic violence legislation and the community emphasis has changed recently. She feels more supported now than she did 10 years ago. She has acted to ensure that the ongoing benefits of domestic violence order in her favour will continue, and as at the date of hearing, indicated that in June 2018, police would assist in applying to refresh the order. [36] The applicant does accept that she has lived a long history of domestic violence and must accept that in the early stages she was the respondent in a domestic violence order, and on one occasion a court convicted her of breaching an order. [37] However, the applicant gave evidence to the tribunal that, where possible, she tried to avoid any exposure of domestic violence to the children. One of the ways that she did that was to encourage her then partner to spend time with his mother to avoid escalation. To his credit, she said that he would do so. [38] The applicant said that despite the incidence of domestic violence, her children have progressed well and have a balanced outlook on life. She described them as well- rounded children with friends, and they enjoy attending school and sporting events. Supports [39] The applicant said that she now has a great deal of support, primarily in the form of family and friends. The applicant has linked with support programs and has received sponsorship to complete her yoga teaching training. She has studied child psychology. [40] The applicant said that since 2016, she has not had conflict in her life. Her life is now peaceful and calm. She says she has a brave little family. She speaks with her children in a candid fashion and encourages her children to be open and honest. She speaks highly of the development of her children, saying that they are ‘moving ahead in leaps and bounds’. She has achieved her desire for a quiet, ‘normal’ life. Life is now peaceful and calm. The applicant has received no communication from the ex-partner. To the best of her knowledge, he relocated to Brisbane and his address is not known to her. The applicant says that she feels safe. The applicant is not in a new relationship and says that her standards are now very high. She does not attend pubs or clubs and leads a quiet life. She is not medicated, enjoys yoga and regards herself as physically fit. [41] The applicant produced a substantial number of written references, where the referees speak highly of her development. At the tribunal hearing, three further witnesses gave oral evidence. The evidence of JF [42] The witness provided statements dated 25 June 2017 and 6 March 2018. -- 7 of 10 -- 8 [43] The witness has spoken with the applicant about the instances of domestic violence. The applicant suffered severe domestic violence in the March 2016 incident. After the incident in March 2016, the witness took the applicant’s children in to her home. The children reported to her that they were aware of arguments between the applicant and her partner but gave evidence to the tribunal that based on their statements to her, they did not suffer exposure to any domestic violence before March 2016. However, the incident in March 2016 was devastating and the children reported that they had ‘seen their father try to kill their mother’. The children were in shock. The events of March 2016 came as a great shock to them – and they were traumatised. [44] The applicant has been working with a counsellor, who works with women who have suffered exposure to domestic violence. The witness further stated that in her view the applicant is not a violent person. She is not a perpetrator. She was a respondent to a domestic violence order but feels that the applicant was responding to aggressive behaviour. [45] The witness says that she does accept that a child can suffer exposure to domestic violence by hearing yelling and abuse. The witness expressed a view that she cannot understand why the department denied the applicant a blue card. [46] In the context of strategies implemented by the applicant, the witness said that since the incident in March 2016 the applicant has had no contact with her former partner but has regular contact with friends and support networks. She, and the children, obtained counselling. She has work by providing yoga training. The witness said that she understands the difficulty the applicant has in both working and caring for her children as a single mother, but she does so well. [47] The witness spoke of the seriousness of the offending behaviour by the applicant’s former partner. She urged the tribunal to ‘look at the reality of the events’. She gave evidence that the applicant has suffered traumatic events and it has taken a great deal of courage by her to work through that trauma. She has done so well. Evidence of BT [48] The witness is the acting school principal where the children attend. She gave evidence to the tribunal that the children present well and that their mother takes good care of them. They exhibit some minor behavioural issues but nothing particularly unusual. The witness gave evidence that the school does assist children where domestic violence is involved. The applicant arranged for her children to attend counselling after separation. [49] The applicant works at school. She regards the applicant well in terms of her employment and speaks positively of her engagement with students. While paid at school, via an outside agency, the witness said that the applicant does volunteer for many things around the school and spends more unpaid, than paid, time at school. [50] The witness did visit the applicant’s family home. The applicant was renovating the inside areas. The witness described the household as normal, where the children interact well. She described the home as a happy, inviting home. In fact, the witness said that her own child has spent a considerable amount of time with the applicant and she always treats him well and ensures that he is in a safe environment. -- 8 of 10 -- 9 [51] The witness said that she is aware of the reasons for the decision of the department to deny the applicant her blue card. She gave evidence to the effect that she does realise that a blue card is transferable but still regards the applicant is an excellent candidate for a blue card. Evidence of PC [52] The witness is a psychiatric nurse. The applicant consulted him in 2016 and he assisted her to work through her issues, which resulted in the development of a mental health care plan. He assisted the applicant to better understand what is involved in being a victim of domestic violence and the plan required her to see him and other health professionals and a psychiatrist. He saw the applicant on five occasions and she did meet with a psychiatrist. He did not feel the need for a referral for the children. The witness says that he and the treating team, including the psychiatrist, are of the view that there is no ongoing need for the applicant to continue to seek assistance. [53] The witness could see no good reason the applicant would be denied a blue card. What risk factors exist in this case? [54] In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.8 [55] The tribunal acknowledges that the applicant has been the respondent in a domestic violence order and does have a criminal history. The tribunal does note the convictions for both assault and breaching a domestic violence order but is of the view that the applicant is unlikely to repeat these offending behaviours. What protective factors exist in this case? [56] The applicant demonstrated insight by acknowledging the adverse effects on her children through exposure to domestic violence. The applicant has a strong support network and has obtained work. [57] The applicant leads a busy and productive life, and has nurtured a safe, loving and protective home for her children. Insight [58] Good insight into the harm that an applicant has caused is a protective factor. In TAA, Re,9 the former Children Services Tribunal stated: 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. [59] The tribunal rejects the respondent’s submission that ‘the applicant’s offending has continued well into adulthood reflecting adversely on her ability to change the behaviour and address underlying triggers of her offending’.10 8 Commission for Young People v V (2002) 56 NSWLR 476. 9 TAA, Re [2006] QCST 11 at paragraph 97. 10 Respondent's outline of submissions dated 16 May 2018, at [35(b)]. -- 9 of 10 -- 10 [60] The tribunal rejects the submission of the respondent that ‘the physical confrontation in March 2008 exhibited behaviour which disregarded the physical and emotional well-being of her children and put those children at risk of significant physical harm’.11 [61] The tribunal rejects the respondent’s submissions that are critical of the applicant’s decision to stay in the home from the commencement of instances of domestic violence. The tribunal does not accept the respondent’s submission that the applicant ‘has not accepted responsibility for her offending behaviour, nor shown remorse for her actions’.12 [62] The tribunal is of the view that the applicant has gained valuable and sustained insight into the nature and adverse effect that domestic violence may have on children. The applicant has developed appropriate techniques to deal with such issues should they arise in the future. To that extent, the tribunal rejects the submissions of the respondent that ‘concerns remain about the depth of insight she holds into the risks posed by her own actions in the context of domestic violence over the years, and the need to prioritise the well-being of children in her care so that they are not exposed to domestic violence.13 [63] The tribunal is of the view that while the applicant did minimise her behaviours that lead to suffering criminal penalties, it otherwise accepts the evidence of the applicant and that of her witnesses. [64] The tribunal is of the view that the applicant has developed positive strategies that she will employ if she finds herself in similar destructive relationships or scenarios where she needs to protect children from exposure to violence and abuse. Her outlook has changed. Conclusion [65] The tribunal is mindful of the fact that a blue card is ‘fully transferable’. The holder of a blue card can undertake a wide range of child related activities. The blue card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children. The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake, and not what activities the holder of the blue card intends to undertake, in relation to child related activities. [66] The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children. The tribunal is to determine the question on the balance of probabilities, based on the gravity of the consequences involved. The tribunal considers the protective factors outweigh the risk factors in this case. This is not an exceptional case. It would be in the best interests of children for the tribunal to overturn the decision of respondent. Non-publication order [67] In this case, the publication of the name of the applicant or any witnesses would be contrary to the public interest and contrary to the interests of justice.14 This case involves matters of domestic violence. 11 Ibid, at [25(c)(i)]. 12 Ibid, at [25(e)]. 13 Ibid, at [25(f)]. 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2). -- 10 of 10 --