DYT v Director-General, Department of Justice and Attorney-General [2017] QCAT 293

CITATION: DYT v Director-General, Department of Justice and Attorney-General [2017] QCAT 293 PARTIES: DYT (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML048-17 MATTER TYPE: Childrens matters HEARING DATE: 29 August 2017 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 4 September 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General on 13 February 2017 that DYT’s case is “exceptional” within the meaning of section 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. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where application for review of negative notice to work with children – whether exceptional case – whether or not in best interests of children to issue positive notice – where key risk factors were recent breach of Domestic Violence Order and whether applicant could respond appropriately to conflict – where breach arose in context of relationship in which applicant felt trapped and frightened as reflected in penalty of relatively modest fine and recording no conviction – where Court referred -- 1 of 8 -- 2 to ‘Blue Card’ in recording no conviction – where applicant’s actions were response to real and ongoing threat to her and her daughter’s safety and welfare – where protective factors – where applicant ended her abusive relationship – where applicant moved to another town – where applicant in stable employment focusing on those in need – where applicant appropriately medicating and managing illnesses – where applicant showed considerable insight into illnesses – where expert evidence that applicant had acted to protect herself and her daughter – where positive character references that applicant reliable, friendly and dedicated – where referees expressed confidence in applicant’s ability to act and protect children when faced with conflict – where applicant applied coping strategies to real-life situation with children – where supportive network – where applicant shown she has insight into behaviour and its impact on others sufficient to work with children – whether exceptional case – where risk factors do not outweigh protective factors – where case not exceptional to not issue positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 167, s 221, s 226, s 360, Schedule 1 BI v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492 Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 Harley v Department of Justice and Attorney- General [2012] QCAT 620 JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 Sargent v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 333 -- 2 of 8 -- 3 Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 APPEARANCES and REPRESENTATION (if any): APPLICANT: DYT appeared in person RESPONDENT: Mr Ian McCowie, Government Lawyer appeared for the Director-General, Department of Justice and Attorney-General REASONS FOR DECISION What is this Application about? [1] DYT is a young lady trying to make a better life for herself and her daughter. Despite a history of abusive relationships and domestic violence, in only 18 months she has managed to secure a new home for her daughter and herself, maintain a job in an area she is passionate about and free herself of the toxic environment and influences around her. [2] However, all this came to a jarring halt on 13 February 2017 when she was issued with a ‘negative notice’, preventing her from holding her ‘Blue Card’ to work with children.1 This was because of a change in her police information showing that she had breached a Domestic Violence Order on 27 February 2016, when she hit her then-partner in the face. [3] DYT wants the Tribunal to review the Chief Executive’s decision to issue her with a negative notice. What does the Tribunal do? [4] The Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.2 DYT does not need to prove any error – the decision under review is not presumed to be correct.3 [5] Because DYT is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.4 [6] In reviewing whether DYT’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue 1 Working with Children (Risk Management and Screening) Act 2000(Qld), s 156 and Schedule 1. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 3 Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 4 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226. -- 3 of 8 -- 4 a positive notice.5 To determine this, I must identify and balance protective factors with risk factors.6 Is it not in the best interests of children to issue a positive notice to DYT? [7] Because a positive notice authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a positive notice to DYT.7 [8] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.8 What are the risk factors in issuing a positive notice to DYT? [9] The key risk factors are DYT’s recent conviction in early 2016 for breaching a Domestic Violence Order and whether she can respond appropriately to conflict. [10] The Police report states that DYT punched her then-partner in the face and scratched him during an altercation, resulting in him being cut above the eye. [11] The Tribunal cannot go beyond the conviction and must accept it as is.9 However, the Tribunal must regard the nature of the offence and its relevance to working with children,10 the penalty imposed,11 and anything else relevant to the offence.12 [12] The Tribunal notes that the legislation does not deem the offence as ‘serious’,13 nor was it directed towards children.14. Rather, DYT said she acted out of fear to protect herself and her daughter and she saw it as ‘a normal response to what appeared to be unsafe and threatening towards our lives’. [13] Certainly, both DYT and her then-partner each had Domestic Violence Orders against each other. A month before the incident, DYT had been in 5 Ibid, s 221. 6 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 7 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360. 8 Ibid, s 6(b). 9 Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 [36], citing with approval Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257, [37]. 10 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iv). 11 Ibid, s 226(2)(a)(v). 12 Ibid, s 226(2)(e). 13 Ibid, s 167, s 226(2)(a)(ii), Schedule 2. 14 Ibid, s 226(2)(iv). -- 4 of 8 -- 5 an altercation with her former partner from which she suffered injuries to her head, shoulder, and ankle.15 [14] The Tribunal is satisfied that the offence arose within the context of a relationship with DYT’s former partner in which she felt trapped and frightened. This is reflected in the Court imposing a penalty of a relatively modest fine and recording no conviction. Indeed, the learned Magistrate specifically referred in his sentencing remarks to DYT’s ‘Blue Card’ when recording no conviction. This suggests it was not the Court’s intent to impose a penalty that would adversely impact on DYT’s ability to work with children. [15] Despite this, the Tribunal is satisfied that the recency of the offence does present as a risk factor. However, the Tribunal is not satisfied that it shows a lack of ability by DYT to respond appropriately to conflict. [16] This is because DYT’s behaviour at the time should not be assessed in isolation and without regard to her particular circumstances. DYT was a vulnerable woman trapped in an abusive relationship. She was isolated from family and friends. Everything was in her former partner’s name. She and her daughter had nowhere else to go. She had asked her former partner to leave and he was attempting to get back in. [17] Sadly, as is often the case with situations of domestic violence, DYT’s choices were bleak: remaining in her current abusive relationship, returning to another situation where she had been previously abused, or becoming homeless. Faced with these ‘options’, DYT acted to protect herself and her daughter. [18] Within this context, DYT’s actions were a response to a real and ongoing threat to her and her daughter’s safety and welfare. Although not ideal, nor to be encouraged, her actions might best be understood as an act of desperation in a real life ‘fight or flight’ situation – without flight as a realistic option. [19] She then did the best she could at that time by returning to stay with her parents. When later confronted with a threat to her daughter’s welfare in her new situation, however, she responded appropriately by immediately removing herself and her daughter from the threat. What protective factors favour issuing a positive notice to DYT? [20] DYT has been diagnosed with bipolar disorder, anxiety, and depression. She has a history of abusive relationships. She was sexually abused as a child. She ended a relationship with her daughter’s father in 2012, describing it as ‘emotionally and physically violent’. She ended her most recent relationship in 2016, after what she described as ‘18 months of emotional and physical abuse’. 15 Police Report dated 21 January 2016. -- 5 of 8 -- 6 [21] Against this backdrop of despair, the current signs are encouraging. DYT has ended her abusive relationship and moved to another town to be closer to her family. She has moved into her own property with her brother and daughter. She has been working in a job that she loves as a support officer and as a personal carer since July 2016. Both jobs focus on helping those in need. She has a health plan and is taking medication for illnesses. [22] The community must be confident that DYT is aware of the psychological and emotional impact of her behaviour on others sufficient to work with children, even when she herself is experiencing stress.16 To her credit, DYT admitted that at times she has not acted or handled situations appropriately. She now realises that she has a mental illness and that not taking her medication affects her judgement. [23] During the hearing, DYT showed considerable insight into her illnesses, correctly referring to them as a chemical imbalance in the brain requiring medication. She has been taking her medication ‘religiously’ for 18 months and has never missed a date. Her health plan also includes regular visits to her General Practitioner and counselling sessions with a Mental Health Accredited Social Worker. [24] Her social worker notably reported that: a) DYT is working towards the management of her disorders; b) DYT is not a risk to people to whom she cares for; c) DYT presented well in her counselling sessions; d) DYT is very reliable and has acted in a responsible and effective manner to protect the safety of herself, her daughter, and her property; e) DYT shows no threat to others and especially for the people whom she cares for every day; f) Recent sessions have focused on coping strategies, assertiveness training, decision-making processes, goal setting and exploring barriers to moving forward; g) She and DYT identified successful strategies for DYT to implement to enhance her coping mechanisms and wellness; and h) DYT completes all tasks between sessions, seeks answers to her thoughts, feelings and behaviours, and explores options to manage them. 17 16 JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [49] – [50]. 17 Report dated 15 June 2017. -- 6 of 8 -- 7 [25] Although her social worker conceded that she did not have DYT undergo psychometric testing or formally assess her suitability to work with children, she distinguished between domestic violence and working with children. In her expert opinion, DYT had acted in a domestic violence situation to protect herself and her daughter: ‘She did it to survive’. [26] DYT provided positive character references from her employers, a family friend, and her mother.18 Her referees also gave oral evidence, consistent with their written statements to the effect that she is reliable, friendly, and dedicated. All expressed confidence in DYT’s ability to act and protect children in her care when faced with conflict or a stressful situation – even when told of her recent breach of a domestic violence order and mental illness. [27] DYT herself referred to her coping strategies and explained how she would handle conflict in a domestic setting by removing the child from the situation and ‘walking away’. DYT did just this when confronted with a recent gross betrayal of trust by a close family member towards her daughter. She then used it as an opportunity to advance her independence, further insulating her daughter and herself from their troubled past. DYT has therefore applied her coping strategies to a real- life situation with children. [28] The evidence shows that DYT is supported by her family, friends, employers and a professional network. She has removed herself from her hostile environment and is managing her illnesses appropriately. All her witnesses said she had shown a drastic change of temperament since leaving her relationship and maintaining her medication. [29] DYT positively interacts with vulnerable children in the care of one of her high needs clients. Friends turn to her to look after their children, including infants. She explained how she nurtures them through love and care and teaches them values including to give and that it is okay to make mistakes. When the Tribunal asked what would be the one thing she would tell a child, DYT answered ‘I care’. I am satisfied that DYT is committed to the welfare of children.19 [30] The Tribunal is satisfied that DYT can control her behaviour around children and appreciates situations of risk for children. DYT has shown she now has insight into her behaviour and its impact on others sufficient to work with children. 18 Letter To Whom It May Concern dated 11 June 2017, Letter To Whom It May Concern dated 13 June 2017, Letter To Whom It May Concern undated, Letter To Whom It May Concern dated 14 June 2017. 19 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [45]. -- 7 of 8 -- 8 Is this an ‘exceptional case’ to not issue a positive notice to DYT? [31] The law requires that in considering whether to issue a person a positive notice, the interests of children must take priority over an applicant’s interests. However, the Tribunal does not determine the question on the basis that there is to be no risk. Rather, the weight the Tribunal applies to each relevant factor depends on the circumstances of each case and may vary accordingly.20 [32] DYT has come along in leaps and bounds since the last incident of domestic violence in February 2016. She has removed herself and her daughter from their toxic environment. She has ended her abusive relationship and cut her dependency on that relationship. She has surrounded herself with a support network. She is working in a job she is passionate about, helping others in need. She is wanted and needed in her community. She has her driver’s licence and made a home for herself and her daughter. She is treating her medical condition and managing her behaviour appropriately. [33] DYT was real, direct and honest when she gave her evidence. Although at times understandably worried and distraught about the outcome of her application, she showed a resilience and determination to make life the best she can for her daughter and herself. She is attuned to the needs of others. Her personal growth has been rapid. She has shown she can be expected to not place children at risk. [34] The Tribunal is satisfied that the weight of evidence suggests that DYT has put her past issues behind her. The risk factors do not outweigh the protective factors to prevent issuing her a positive notice. [35] I am satisfied DYT’s case is not ‘exceptional’ to prevent issuing her with a positive notice. What is the correct and preferable decision? [36] I am satisfied that because the risk factors do not outweigh the protective factors, the correct and preferable decision is to set aside the decision of the Director-General, Department of Justice and Attorney-General on 13 February 2017 that DYT’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) and replace it with the Tribunal’s decision that there is no exceptional case. [37] Because these proceedings are subject to a non-publication order,21 these reasons are to be published in a de-identified format. 20 Sargent v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 333, [26]. 21 Direction 1 dated 13 June 2017. -- 8 of 8 --