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ACL v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 104

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ACL v Director-General, Department of Justice and Attorney-General [2020] QCAT 104

PARTIES:

ACL

 

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML260-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

16 April 2020

HEARING DATE:

31 May 2019

HEARD AT:

Cairns

DECISION OF:

Member Barker-Hudson

ORDERS:

  1. The decision of the Director, Blue Card Services (Screening Services) to issue a refusal of application, a blue card negative notice, to ACL is confirmed.
  2. The publication of information that may identify the Applicant, her family and community is prohibited under s66 of the QCAT Act.

CATCHWORDS:

ADMINISTRATIVE REVIEW - 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 –– whether fair to continue hearing when Applicant unable to rely on support from person in conflict because of her employment, where Applicant had sought but was unable to receive legal advice from Aboriginal or other Legal Service due to location in remote Aboriginal community.

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS - Blue-Card - where Applicant has history of criminal convictions for violence including use of knives, when under influence alcohol – where Applicant has been respondent in eight Domestic Violence Orders – where Applicant is indigenous woman making positive contribution to her community, is employed and caring for children of family members. – where Applicant is making changes for better in her life and seeking professional assistance and educational opportunities.

ADMINISTRATIVE REVIEW– ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether contrary to public interest to identify name of Applicant

Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 3, ,s 20, s 24, s 28, s 29, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), - s 5, s 6, s 19, s 220, s 221,s 222, s 223, s 226, s 236 , s 257, s 354, s 360

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Chief Executive Officer, Department of Child Protection v Scott [No 2]. [2008] WASCA 171

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

A Bryant, legal counsel for Director General, Department of Justice and Attorney-General

REASONS FOR DECISION

Preliminary matters

  1. [1]
    The Applicant lives in a remote Aboriginal Community and intended to rely on a person employed by the Department of Child Safety for support at the hearing. The Director-General considered the support of this person was a conflict of interest with their employment status and directed that the employee does not attend the hearing.
  1. [2]
    The Member was concerned as to a lack of fairness in the proceeding given these circumstances and given the Applicant had not had benefit of legal advice. The Member stated that she would consider an adjournment for hearing to re-convene in about 2 months’ time.
  2. [3]
    The representative of the Director General said that the costs of convening the hearing that day weighed in favour of the hearing continuing, but that she did not wish for the Applicant to be unfairly prejudiced.
  3. [4]
    So that the Applicant understand her position, the Member asked the representative of the Director General to outline the case that would be put before the hearing and that Applicant would have to answer.
  4. [5]
    The Member asked the Applicant whether she had sought advice from Aboriginal Legal Services available to her. She said that she had tried, but that they had not gotten back to her. The Member gave the Applicant time to consider her position.
  5. [6]
    On re-convening the Member asked the Applicant whether she sought an adjournment she stated that she wished to continue with the hearing that day.
  6. [7]
    The Member decided to proceed with the hearing that day recognising the QCAT Act[1] requirements for fair, just, economical, informal and quick addressing of applications as the Applicant was uncertain whether she would be able to obtain legal advice in a reasonable time; cost and time for her to return to Cairns; that she understood what she needed to address and the member’s appraisal that she would be able to represent herself well and the length of time since the decision under review was made.

The Application to QCAT

  1. [8]
    The Applicant, applied for QCAT review of a decision of the Director, Blue Card Services in respect of a negative notice made 6 August 2018. ACL included in her Application that she is a proud Aboriginal woman who lives in a remote community and that she is not a bad woman but one who has behaved badly and could have reacted differently in the circumstances.
  2. [9]
    ACL sought the opportunity to explain each incident, why it occurred and how she would react in similar circumstances today. ACL stated that she is remorseful for past behaviour and has sought counselling to help her understand and change her behaviours.
  3. [10]
    ACL stated that she has the support of a Carer Support / Cultural Practice Advisor from the Child Safety Placement Service Unit. ACL requested a reversal of the decision not to grant a blue card so that she could care for her nieces and nephews in the Child Safety system, there being little support for children and families in remote communities.

Legal Framework

  1. [11]
    Queensland’s blue card scheme is managed by Blue Card Services under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act), which screens individuals who engage in the care of children or regulated employment[2]. The basic principles under which the Act operates are to uphold the welfare and best interests of children and the entitlement of every child to protection from harm and the promotion of well-being[3].
  2. [12]
    The CEO of Blue Card Services may approve an application with a positive notice and issuing of a blue-card or provide a negative notice of refusal[4]. Without a blue card, a person may not apply for or engage in regulated child-related employment[5] or be a foster or kin carer of children. A blue card if issued, allows no restrictions such as supervision or other restrictions, to apply.
  3. [13]
    There are ‘serious offences’ and circumstances which negate the presumption of the approval for a blue card[6]. In ‘exceptional circumstances’ the CEO my issue a ‘negative notice’ of refusal of a blue-card against the presumption[7].
  4. [14]
    A person may apply for review of the CEO’s decision to QCAT[8] under procedures set in Chapter 9 of the Act. A person issues a negative notice can re-apply for a blue card after 2 years[9].
  5. [15]
    The Applicant held a blue card in 2012 which was withdrawn in 2014 due to criminal convictions. The Applicant re-applied in 2015 and 2018 and was issued with negative notices.

Respondent’s Reasons for refusal to cancel negative notice.

2015 Application

  1. [16]
    The Respondent, in its Reasons for refusing to cancel a negative notice made on 26 November 2015, cited the Applicant’s criminal history comprising 15 matters[10] . The Director detailed the offences, none of which automatically preclude the issuing of a blue card.
  2. [17]
    The most serious offences included:

1996 -stabbing boyfriend with knife to neck whilst drunk,

1996 slashing person with knife in attempt to assist unknown person – charge dismissed, mediated outcome and

2016 - punching of child (niece) and pulling child by the hair to drag home

  1. [18]
    ACL provided two references with this Application. The first stated that ACL was valued member of the pre-prep classroom, and described her as a talented, kind-hearted and gentle teacher. The second reference stated that she had known ACL for four years as teacher’s aide, and that she was hard-working, dedicated, had good initiative, and was friendly and calm in her approach to children. Neither stated that they knew of the Applicant’s offending history.

2018 Application

  1. [19]
    ACL said that she lost her Mum in a dispute between her parents when she was 12 years old and started abusing alcohol from at 15 years of age. She became a Mum at 17 years to a daughter and to a son 3 months before the father of the child took his own life at 20 years of age. She continued to abuse alcohol in her 20s and 30s and made bad partnership decisions.
  2. [20]
    At 46 she was still struggling with alcohol and had three grandchildren. She wanted these children to look up to her and felt in a good place to make this happen. She had received help from family, community and support services and this has helped her change her ways. She was involved in local church regularly attending services and groups.
  3. [21]
    She said that she could not change the past but believed she was now a better person with strategies in place to help her during difficult times. Her goal is to work with family and children in her community and it is her passion to make her remote community a better place.
  4. [22]
    In an oral submission ACL spoke of the latest offence which concerned her 17 year old adopted daughter, her sister’s child whom she had adopted as a baby. She said that she has had difficulties disciplining the girl. Her 6-year-old granddaughter was also in the house. The daughter punched the younger child in the head and when challenged about this ran out of the house to her uncle’s house. ACL grabbed her and the daughter fell over. This incident also involved her aunt. ACL had her granddaughter in her arms whilst this happened.
  5. [23]
    ACL provided written references:
    1. (a)
      Reference A – Has known ACL over 20 years having grown up together. Saw her become a woman, great mum and an “awesome and supportive grand-mother. She has changed life in big way, becoming older and a little wiser and understood effects of alcohol – much more responsible and family oriented now”.
    2. (b)
      “In observing her with children she is kind-hearted, nurturing, caring and very old soul with good mothering instincts and trying to support them in any way she can. She has helped her sisters and acted as mum to their children. When women in DV situations she would help out whenever and where-ever needed”..
    3. (c)
      ACL has worked in State School since 2012 and now as family support worker. She is valuable member of her community and workplace
    4. (d)
      Reference B - “ACL is of K---- decent [sic] and is from strong family who live and respect culture”. When her children were young, they were taken care of by their grandmother. She raised two children as single Mum and looks after children of extended kin. She is respected by the community and ‘fly in and out’ workers.
    5. (e)
      Reference C - Has known Applicant for 5 years, as hard-working woman working at school, involved in community events, church, and helping family. She is outstanding influence of children in her family. She has assisted management setting up youth group for girls after school. “I feel very privileged to know her and her family”
    6. (f)
      Reference D - Has known for 11 years as church member. “she has matured in her attitude and is learning about being of good character”. “She is learning to deal with behavioural issues and bad relationships”.
  6. [24]
    The Police informed Blue Card Services that on 29 January 2018 there were no Domestic Violence Orders (DVOs) which named ACL as an aggrieved or respondent.
  7. [25]
    The Director stated that in making her decision she had to consider the factors in s 226(2) of the Act. She noted the offences of which the Applicant, had been convicted or charged. These offences are not defined as ‘serious’ or ‘disqualifying’ but that the Act requires that the Director take all offences into account.
  8. [26]
    ACLs criminal history spans 1995 to 2016 and the on-going nature of the offences ‘constitutes a significant risk factor in this assessment’ particularly as they ‘involved the use of physical violence in domestic settling’. The most recent conviction concerns her 17-year-old niece whom she has raised as her daughter.

The material before me suggests that the applicant has a propensity to react violently and recklessly in situations of conflict, often resorting to using a weapon with the intent to injure the other person.

This unpredictable and violent behaviour is of direct relevance to her eligibility to work with children where situations of conflict may be expected to occur and suggest that she may present a poor role model to children and young people in her care.

The effect of cancelling the applicant’s negative notice and 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 Act, not just for purposes for which the applicant sought the card. Further, there is no power to issue a conditional blue card, for example requiring the applicant be supervised. Once issued, the blue card is fully transferable across all areas of regulated employment and business.

On the information before me I am satisfied that granting the application is not in the best interests of children and young people at this time.

QCAT Review

  1. [27]
    The Purpose of a review under the QCAT Act is to make the ‘correct and preferable’ decision after an ‘on the merits’ hearing [11] upholding the WWC Act [12] and exercising all the functions of the original decision-maker[13]. The QCAT hearing can accept new evidence not seen in making the original decision.
  2. [28]
    The term ‘exceptional case’ [14] is not defined and reliant on the circumstances of each case. Section 226(2) provides matters the Tribunal must consider but is not exhaustive.

226  Deciding exceptional case if conviction or charge

  1. (1)
    This section applies if the chief executive—
    1. a.
       is deciding whether or not there is an exceptional case for the person; and
    1. b.
       is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following—
    1. a.
       in relation to the commission, or alleged commission, of an offence by the person—
    1. i.
       whether it is a conviction or a charge; and
    1. ii.
       whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
    1. iii.
       when the offence was committed or is alleged to have been committed; and
    1. iv.
       the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
    1. v.
       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;
    1. b.
       any information about the person given to the chief executive under section 318 or 319;
    1. c.
       any report about the person’s mental health given to the chief executive under section 335;
    1. d.
       any information about the person given to the chief executive under section 337 or 338;
    1. e.
       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.

Applicant’s life story, submissions and witnesses at QCAT Hearing

  1. [29]
    Applicants are asked to submit their ‘story’ for a QCAT review. ACL said that she had five sisters and two brothers and as a child living in a house made of cabbage palm leaves. She remembers her early childhood and family fondly. She remembers the three local clans challenging each other to traditional dancing competitions at Christmas and New Year, and a school trip to Alice Springs and Uluru.
  2. [30]
    Over time her parents started drinking alcohol in excess, fighting and her father would abuse her mother. When this happened, the children would run to their auntie across the street. The auntie was a not a drinker, although her husband (her uncle) was abusive and violent, but auntie always protected the children.
  3. [31]
    She remembers aged 9 -10 having nothing to eat in the house. AC, as eldest, went and asked for food from the local teacher and gave the bread she was given to her brothers and sisters.
  4. [32]
    ACL reported being sexually abused at 11 years of age, by a boy a few years older than herself but she remembers little of that day. At age 12, she was living with an auntie and uncle. One night her auntie came and told her that her father had killed her mother when drunk.
  5. [33]
    ACL reported that she started hanging around with the wrong crowd and at 14 years old and started drinking alcohol. She became pregnant at 16 years and did not return to school after having her daughter. She miscarried a baby, then had another child in 1991. Her son was 3 months old when his father committed suicide. She found comfort in alcohol during these tragic events.
  6. [34]
    ACL said that she drank through her 20s and 30s. She had a series of relationships which were abusive. Now in her 40s and a grandmother she has tried to settle down and only drink on special occasions. Today, she feels she is in a good place, following her dreams and passion to make her community a better place and create a positive life for her children and grandchildren.
  7. [35]
    She wishes to do this for herself as well, and has support of counselling, family and friends ‘I know I can become a better person, who I hope, my children, family and community, will look up to, and be inspired by in the future’.

Respondent submission to support Reasons given

  1. [36]
    The Respondent provided DVOs showing that the Applicant was the respondent in eight DVOs between 2002 and 2015[15]. There are child safety notifications where ACL is mentioned in relation to a male person abusing a child in her care: - domestic violence in presence of children: - alcohol abuse and neglect.
  2. [37]
    The Respondent gave as positive factors in respect of ACL, that she acted as a protective parent in 2014 when notified of a teenage child in Applicant’s care being pregnant. In mid-2018, when a traumatised 12-year-old niece commenced residing with her, ACL provided appropriate care and worked with Department to ensure the child’s needs were met. The Applicant has therefore acted negatively and positively in regard to children in her care.
  3. [38]
    The Maher Case [16] provides that in considering a person for the issuing of a blue card, the statutory requirements [17] as well as relevant circumstances and factors must be taken into account. The latter being cast in terms of ‘risk’ and ‘protective factors’. The exact nature of an ‘exceptional circumstance’ is undefinable and dependent on the unique circumstances of the matter.
  4. [39]
    In this Applicant the Maher protective factors include:
    1. (a)
      ACL has made positive changes in her life, abstaining from alcohol (mostly); attending counselling since 2017 to deal with past trauma, anger management and alcohol abuse; full-time employment.
    2. (b)
      Protective care of children demonstrated in her care of traumatised niece and liaison with Department of child safety
    3. (c)
      Showing regret and remorse over past behaviour, particularly that in February 2016 when violent to ‘daughter’ in her care.
    4. (d)
      Providing references as to her general character, professional aptitude community involvement and positive changes.
  5. [40]
    In relation to the Applicant, the Maher risk factors include:
    1. (a)
      Criminal history from 1995 to 2016 with repeated offences for violent, anti-social behaviour, some of which occurred against or in the presence of children
    2. (b)
      ACL being a named respondent in eight Domestic Violence Protection Orders from 2002 to 2015, indicating a propensity to engage in violent behaviour and suggesting a high risk of offending in future.
    3. (c)
      The Applicant blaming her immaturity for behaviour which continued into her 30’s and 40’s, – which negates this explanation
    4. (d)
      The offending behaviour occurring as result of conflict between intimate partners, family members and acquaintances. This raises concern about her ability to exercise self-control and respond to daily conflict in controlled manner.
    5. (e)
      In February 2016, the Applicant physically assaulted a child aged 17 in her care (her niece). This is coupled with history of exposing children in her care to aggressive behaviour within the domestic environment and suggests little insight into long-term and significant impact of exposing children to violent, anti-social behaviour
    6. (f)
      The majority of ACL’s offending behaviour is alcohol related. Although she states that she now limits herself to “one or two drinks on special occasions” other material contradicts this. There appears to be significant risk associated with continued alcohol consumption.
    7. (g)
      Triggers of past trauma appear to underlie aggressive actions. ACL acknowledges she has a “long way to go” and has sought professional treatment which is on-going.
    8. (h)
      There appears to be lack of insight concerning use of knives in past incidents. The Respondent cited Re TAA[18] to support that ‘insight’ is a protective factor against harm.
    9. (i)
      The Applicant seeks a blue card to be a foster carer, however most of her offending and behaviours of concern have occurred in a domestic context.
  6. [41]
    The Respondent submitted that it must adopt a ‘precautionary approach’ to decision-making in blue card matters.

…the WWC Act is premised on past behaviour being an indicator of future behaviour… Blue card would allow the Applicant unsupervised and unfettered access to children… the risk factors identified render this an exceptional case such that it would not be in best interest of children and young people for the Applicant to be issued with positive notice and blue card.

Witnesses

  1. [42]
    The Applicant’s four witnesses provided written statements and gave oral testimony. In summary their evidence was that:
    1. (a)
      Cousin – ACL was in an abusive relationship and blamed herself when her partner killed himself. Alcohol has played a big part in her life. She is sorry for her recent behaviour to her niece which resulted in previous negative notice. With help and support she has found a good job, working with families within the community – something she has always dreamed of. “I know that she is in better place than she was before”. ACL has made big changes and is not an angry person anymore.
    2. (b)
      Social worker – ACL provided cultural, and appropriate professional advice about people and community when witness she started working there.12 months ago. She knows of past trauma and history. ACL has great respect amongst her community and her role is invaluable. ACL is soft and gentle person who maintains routine in her house, works and is stable. Without a stable environment the girl she cares for would not be ready to go to boarding school.
    3. (c)
      This witness has knowledge of ACL’s life story with alcohol and violence and she sees this as a way of her previously coping with her pain. ACL is never absent from work because of drinking, as witness used to work with drugs and alcohol, she would have notices symptoms if present.
    4. (d)
      Mental health nurse – ACL “has made extensive effort to change her behaviours and has worked through sessions to understand how and why she acts the way she has in the past”. The Applicant does not have a mental health diagnosis
    5. (e)
      Daughter – She has seen her mother

…struggles as single mother and her struggle over so many years to get on correct path and make things better for us.

My Mum is very community minded and participates in many activities and community events.

The daughter said that her mother has not been violent for a long time, since incident with her sister in 2012. She has seen big changes in her mother, being positive, communicating more, and helping her sister with her children. She attends bible study, a ladies’ group and Council group. Her mother is a leader in the community. She said that she had had disagreements with her mother when she was aged 18 to 20, but now she is grown up and has a good relationship with her mother.

Oral testimony of Applicant

  1. [43]
    ACL stated that she is now a 47-year-old Aboriginal woman. She acknowledges mistakes of the past, that she has gone though ‘a lot of stuff, but is happier and in a ‘good place now’. The Applicant stated that if similar events occurred today, she would avoid going near fights, keep children away and try and use talk to sort it out.
  2. [44]
    She believes she is a good mother and she is making changes in her life. If she had a blue card, she could support her family more and she could assist extended family there being a need to keep the community’s children ‘at home’.
  3. [45]
    She struggles to provide for family. She has tried to get a better job and started in Certificate III in childcare but abandoned this when she received the negative notice. She has attended fly-in counselling service since 2017, attending over ten sessions [19].
  4. [46]
    ACL said that she has tried to cut down the alcohol and attends canteen only 1 night a week. The canteen serves light XXXX from 5 to 9pm and each person can only buy 10 cans. Previously, there was no alcohol-related service available in her community but ATODS has recently come to the community, but she has not sought its support.
  5. [47]
    The Respondent queried the Applicant’s statement that she only goes to canteen once a week and drinks a 6 pack. In the dry season ‘sly grog’, is brought into community. It is now the dry season and 2 weeks ago she had got drunk on wine at her sister’s house. She did not go home that night and thus was not with children when drunk. One of her sisters still drinks and is argumentative. Her other sister does not drink at all and gave up smoking.
  6. [48]
    ACL said that she feels stronger now. She has changed her life she has her deceased sister’s children (a boy aged 8 and girl aged 13) and granddaughter aged 10 in house, with other children visiting regularly. She has support of Child Safety and a ‘chance to be someone’.

Respondent’s final submission

  1. [49]
    The Respondent traversed the Applicant’s criminal history, all of which ACL acknowledged, also that alcohol had been a major factor in incidents in which she had behaved violently
  2. [50]
    The Applicant responded that she was trying to protect her daughter in 2016 incident, as she did not wish her to get into car with drunk driver. She handled the situation badly and it got out of control. ACL does not have good relationship with son and this has led to DVO incidents with him.
  3. [51]
    The Maher case considers that risks and protective factors should be considered:
    1. (a)
      The risk factors are: Length of criminal history – 21 years; the Applicant is the respondent in eight DVO; her immaturity cannot be seen as factor as most incidents occurred when the Applicant was 30 to 40 years of age.
    2. (b)
      The protective factors are: - cutting down alcohol use; demonstrated remorse for 2016 incident; receiving counselling to deal with trauma; developing skills and strategies such as verbal discipline; use of verbal discussion of issues not violence: full-time employment and demonstrated protective behaviour to three children in her care.
  4. [52]
    Past aggressive behaviour is likely to have had a negative effect on children, such as her son. ACL has changed her behaviour, reducing alcohol consumption but she herself has reported recently drinking cask wine and becoming drunk. Past behaviour of violence when drunk, could be repeated today.
  5. [53]
    The Respondent acknowledged good steps have been taken and that ACL has acted protectively towards children. However, The Respondent is not persuaded that Applicant would not behave in similar way to the past and therefore is an ‘exceptional case’.

ACL’s final submission

  1. [54]
    When she thinks of past and childhood there were many issues. Now her attitude is that we make mistakes and must move on. The Applicant said that she needs a chance to prove she is a better person and should not be judged from her past but who she is now. If she had a blue card she could support her community and family and says that she wants to be role model in her community.

Discussion

  1. [55]
    The WWC Act contains a presumption of grant of a blue card unless there is an ‘exceptional case’[20]. To find an Application ‘exceptional’ each matter is taken on its own facts with the balance being that of probabilities not the criminal ‘beyond reasonable doubt’.
  2. [56]
    Scott’s Case[21] was cited by the Respondent and holds that detriment to an individual in finding an ‘exceptional case’ and the benefit to children or a community from a person’s skills and knowledge is not to be taken into account.
  3. [57]
    In making decisions in WWC Act matters, the over-arching principle is that ‘the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes well-being’[22] Of relevance is the fact that the issuing of a blue card enables the recipient able to work in any regulated employment and situations with children, not just the work relating to the application.
  4. [58]
    The Applicant’s story of abuse, violence, domestic murder, and suicide within an Aboriginal family and community is tragically common. In the course of her life the Applicant has suffered all of these things and her children and those who she has cared for, have witnessed and been participants in this alcohol-fuelled violence.
  5. [59]
    Countering this, in her late 40s, the Applicant is changing her life. She has reduced her alcohol use, has a steady job and is well thought of by the people in her family and with whom she works. ACL has sought appropriate counselling and support, joined her church bible study, changed her attitudes, drinking habits and social interactions and adopted preferable responses to incidents.
  6. [60]
    ACL is remorseful and knows she cannot alter the past, but is striving the live a better life and to be of real benefit to the children in her community. These are all protective factors to weigh in a decision concerning issuing a blue card. ACL has two role models, one of her sisters who continues to drink and her other sister, with whom she consults, who no longer drinks alcohol or smokes.
  7. [61]
    Negative factors to consider are that ACL abandoned her child-related course upon receiving the negative notice, whereas to continue might have increased her knowledge and skills in child-related matters. This course, although not a requirement of receipt of a blue card, might had provided further insights into responsibilities inherent in holding such a card.
  8. [62]
    The Applicant has not sought assistance from ATODS which she reported is now accessible in her community to reduce or eliminate her alcohol consumption which appears to have led to so much grief in the past. Witnesses support that the Applicant has reduced her alcohol consumption, some thinking that she has stopped drinking alcohol altogether.
  9. [63]
    ACL’s self-reporting of alcohol consumption ‘on special occasions’ is diminished by her admission that she had been drunk only two weeks previously. The Applicant also candidly admitted that this alcohol had been illegally imported into her community. She had been wise enough to stay at her sister’s house and not return to her family home where she has care of three children and did not state who looked after the children in her absence.

The Tribunal’s view

  1. [64]
    The changes that the Applicant is making in her life have impressed the Tribunal. Her desire to care for the children in the community, so that they stay strong members of the community, is accepted as sincerely held. All her witnesses think highly of her, although some may not have known of her legal history.
  2. [65]
    Positive factors include ACL having full-time employment, a stable environment to raise the children currently in her care and that the eldest child is about to go to boarding school to finish her education demonstrating the stable environment she has provided this child. The passion and commitment that the Applicant feels to be a true ‘elder’ of respect in her community and beyond, is not doubted.
  3. [66]
    Conversely, only two weeks prior to the hearing ACL reported being so drunk that she could not return to care for her children, having consumed beer at the canteen followed by illegally imported cask wine. This behaviour is of grave concern because of past serious violent domestic incidents involving knives. That ALC revealed this incident and did not return to her home whilst drunk, is to her credit.
  4. [67]
    This later event, coupled with the extended history of serious violence when she is affected by alcohol and anger, tips the balance into the ‘exceptional’ ranks as found by Blue Card Services and negative decision concerning the issuing of a blue card.
  5. [68]
    Section 236 allows that a new application can be made after two years, this means that with continued change in her life and the support of her community, the Applicant can re-apply to undertake the work which she so clearly feels passionately drawn to do.

Non-publication

  1. [69]
    The question to determine is whether the publication of the names of individuals in relation to this matter would be contrary to the public interest or the interests of justice.[23]
  2. [70]
    The Applicant comes from a small Aboriginal community and information and discussion in this decision would best for the individuals and community not be in the public domain.
  3. [71]
    I put to the parties, that I considered making a confidentiality order to de-identify the Applicant and both parties agreed with this proposal.

Footnotes

[1] QCAT Act s 3, s 28, s 29

[2] WWC Act , s 5

[3] Ibid s 6.

[4] Ibid s 220.

[5] Ibid s 257.

[6] Ibid s 221, s 226.

[7] Ibid s 223.

[8] Ibid s 35.4

[9] Ibid s 236.

[10] 1995 - Assault occasioning bodily harm whilst armed with offensive weapon = recognizance $500, good behaviour 12 months; 1996 - Disorderly behaviour = convicted, fined $150, community service 19 hours; 1996 - Assault occasioning bodily harm whilst armed with offensive weapon = no evidence, dismissed; 2003 - Common assault, conviction, = community service 60 hours;              2007 - Possession liquor prohibited area = convicted, fined $2000; 2007 - Assault occasioning bodily harm whilst armed with offensive weapon = conviction, probation 12 months; 2008 - Possession liquor prohibited area = convicted, fined $1,200; 2009 - Possession liquor prohibited area = convicted, fined $150; 2009 - Two counts of Public nuisance = conviction;               2010 - Possession liquor prohibited area = Convicted, recognizance $400, Good behaviour 6 months;2012 Assault / obstruct Police = conviction Fine $250; 2014 - Possession liquor prohibited area = No Conviction, fined $200; 2014 – Public nuisance = no Conviction, fined $300; 2015 - Assault occasioning bodily harm whilst armed with offensive weapon / in company = no evidence; 2016 - Common assault = conviction, Fine $350.

[11] QCAT Act s 20.

[12] WCC Act s 360 under ‘best interests of child principle’.

[13] QCAT Act s 19.

[14] WWC Act s 221 (2).

[15] See paragraph [24] above for police report previously mentioned.

[16] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[17] WWC Act, s 226.

[18] [2006] QCST 11.

[19] Supported by witness.

[20] WWC Act s 222.

[21] Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171.

[22] WWC Act s 6.

[23] Queensland Civil and Administrative Tribunal Act 2009 Qld s 66(2).

Close

Editorial Notes

  • Published Case Name:

    ACL v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    ACL v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 104

  • Court:

    QCAT

  • Judge(s):

    Member Barker-Hudson

  • Date:

    16 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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