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

 

[2020] QCAT 113

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

PARTIES:

GM

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML035 -19

MATTER TYPE:

Children’s matters

DELIVERED ON:

7 April 2020

HEARING DATE:

24 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Quinlivan

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’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 this is not an exceptional case.
  2. The Tribunal prohibits the publication of the names of the Applicant and her children and any non-expert witnesses.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – whether exceptional case – where applicant has a criminal history – where none of the offences are serious or disqualifying – domestic violence – drug abuse – where applicant committed offence against child threatening violence – whether adult has insight into previous actions

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – non-publication order – where contrary to public interest to identify applicant’s children

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2), s 226, s 360

CEO, Department of Child Protection v Scott (No 2) [2008] WASCA 171

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Grindrod v CEO, Department for Community Development [2008] WASAT 289

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

N Rajapakse, In-house Lawyer for Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    On 24 October 2019 the Queensland Civil and Administrative Tribunal (QCAT) considered an Application by GM seeking a review of a reviewable decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    GM represented herself.
  3. [3]
    The Department of Justice and Attorney-General was represented by Ms Nilusha Rajapakse, an in-house solicitor. Also, in attendance was Ms Geraldine Dobinson from the Department.

Background

  1. [4]
    On 23 June 2017, GM applied for a positive notice and blue card under the WWC Act.
  2. [5]
    On 3 January 2019, the Department issued GM with a negative notice on the basis that her case was an ‘exceptional’ one in which it would not be in the best interests of children for her to be issued with a positive notice and a blue card. On 23 January 2019, she sought a Review of the Department’s decision.
  3. [6]
    The WWC Act provides that if the Tribunal is not satisfied that an ‘exceptional’ case exists then it must issue the Applicant with a positive notice.[1]
  4. [7]
    The Tribunal’s decision must be made in accordance with the provisions of both the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[2]
  5. [8]
    The purpose of the review is to reach the correct and preferable decision.[3]
  6. [9]
    The object[4] of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring:
    1. (a)
      the development and implementation of risk management strategies; and
    2. (b)
      the screening of persons employed in particular employment or carrying on particular businesses.
  7. [10]
    The principle under which the WWC Act must be administered is that every child is entitled to be cared for in a way that protects them from harm and promotes their wellbeing.[5] A child related employment decision must be reviewed under the principle that ‘the welfare and best interests of the child are paramount’.[6]
  8. [11]
    In the matter of Maher,[7] the Appeal Tribunal determined that the Tribunal must decide the question of whether or not an ‘exceptional’ case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.
  9. [12]
    Neither party has an onus of proving that an ‘exceptional’ case exists.[8]
  10. [13]
    The term ‘exceptional’ case is not defined in the legislation. An exceptional case is to be determined in each case having regard to ‘the context of the legislation which contains [it], the intent and purpose of the legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children’.[9]
  11. [14]
    Any prejudice or hardship to an Applicant is not relevant in determining whether a case is ‘exceptional’.[10] Likewise, if the case is exceptional due to identified risk factors, ‘any benefit which might be thought to flow to children by having access to the Applicant’s knowledge, experience or flair in working with children is of no relevance’.[11]
  12. [15]
    Section 226 of the WWC Act sets out the considerations to be taken into account in determining whether an ‘exceptional’ case exists:
  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.
  1. (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.
  1. [16]
    Section 226 of the WWC Act is not an exhaustive list of considerations and does not expressly or impliedly confine the Tribunal[12] to considering only those matters. They are simply matters that the Tribunal must take into account in considering the application.
  2. [17]
    In this case, the Department submits that it has addressed each of the relevant matters in the Reasons accompanying its decision.
  3. [18]
    The role of the Department is not necessarily to promote the decision it has made, but rather to assist the Tribunal to come to the correct and preferable decision. The role of the Department is informed by the ‘Model Litigant’ principles.
  4. [19]
    Pursuant to section 21 of the QCAT Act, in proceedings for the review of a reviewable decision, the decision maker must use their best endeavours to help the Tribunal so that it can make the correct and preferable decision.

The Evidence

  1. [20]
    GM states that over the last nine years she has had no criminal charges or police engagement outside of her role as a support worker.
  2. [21]
    Her last recorded conviction is dated 11 February 2010 when she was convicted of ‘threatening violence – discharge of firearms or other act’ on 14 April 2009. The complainant in this matter was a 10-year-old child who was living with her mother, brother and sister. GM was placed on probation for two years and a conviction was recorded.
  3. [22]
    The sentencing Judge stated:

…the Magistrate tried to tell you and I am going to try and tell you that you need to curb your tendencies towards violence when trying to resolve things. You pleaded guilty to this charge of threatening violence. It is a serious offence… you came to a house apparently looking for someone that you knew and there was a little girl present and you made threats about going to kill her or words to that effect. It had a profound effect upon her. She was extremely upset.[13]

  1. [23]
    The Department emphasises the seriousness of this offence in the context of these proceedings. The details of the offence are outlined in the Reasons provided by the Department. It is unclear from the material provided how GM responded to the remarks of the Judge, but the evidence establishes that she has not committed further criminal offences since that time.
  2. [24]
    Whilst this is a relevant consideration, the passage of time, alone does not determine whether or not a case is an ‘exceptional case’. It is necessary to consider all of the other relevant circumstances.
  3. [25]
    In the period while waiting for her application for a positive notice to be considered, GM submits that she was employed and dealt with critical incidents, stakeholders and youth in care and during this entire period she did not receive any negative feedback. She contends that she made a positive and educational impact on all young people that she came in contact with.
  4. [26]
    She argues that she successfully passed the licensing requirements (LCS-2) in order to work with vulnerable youth. She feels that her previous dealings with Child Safety are being used against her in this application and that she is being re-victimised as a domestic violence victim.
  5. [27]
    She is seeking the opportunity to recommence her role as a youth support worker. In order to do this, she seeks to have her Application reviewed so that she can fight for a positive notice and a blue card.

Applicant’s Life Story

  1. [28]
    In February 2019, GM provided the Tribunal with her life story.
  2. [29]
    She was born into a family with indigenous heritage, but her parents did not acknowledge this which led to childhood confusion for her. She is now 45 years old.
  3. [30]
    She states that she often felt stigmatised and judged by other indigenous persons while growing up.  She says that both her mother and father were chronic alcoholics and extremely abusive towards each other. She witnessed their behaviour, as did her siblings, on an ongoing basis while growing up.
  4. [31]
    She disclosed during the hearing that she had been sexually abused by an elderly man that her parents worked for. She stated that her parents still have no knowledge of what happened to this day.
  5. [32]
    She attended high school to grade 11 but started to have behavioural issues such as depression and severe anxiety from trauma. She started to experiment with marijuana, LSD, speed and alcohol. She fell pregnant at 15 years of age. After the birth of her child she had minimal contact with her mother until she turned 20 years old.
  6. [33]
    GM describes a life characterised by drug use and violence. She states that when she became an adult, her mother would constantly voice her opinion regarding her children and her parenting skills which made her feel incompetent and a failure as a mother.
  7. [34]
    She claims that her choices of male partners were directly influenced by the complex trauma she suffered as a child. In addition, due to her indigenous heritage, she says that she was fearful because of these relationships that she would get the stigma of being identified as just another statistic for indigenous women.
  8. [35]
    She claims that at various times she attended counselling and many courses to improve her life in a positive way, such as PPP, anger management, self-esteem and self-care.
  9. [36]
    Eventually GM chose to leave her situation and make another attempt to abandon her past. She says that once she arrived in Hervey Bay, she resided with her parents and her children and her life changed for the better. She began working two jobs and gaining financial stability as well as some self-confidence and independence. She says that her relationship with her mother began to improve and change in a positive way.
  10. [37]
    She describes her work and study history during this time as including completing courses in Hospitality and Infection Control, and her current study for a certificate IV in Youth and Family Intervention as part of her work as a Support Worker for Residential Care under statutory intervention by the Department of Child Safety. She also gained employment in other areas such as retail, chef, bartending, bottle shop manager, body piercing, seasonal work, and NDIS cleaning.
  11. [38]
    Inevitably, support work and working with children and young people became her passion. Due to her own traumas she asserts that she can relate to and understand her clients’ traumas and help them to improve their self-esteem, self-confidence and ability to make healthy choices.
  12. [39]
    She claims that she has received positive feedback from managers, team leaders and colleagues who say that she has changed clients’ lives in a positive way. She submits that unfortunately due to the blue card decision, she cannot pursue this career that she is so passionate about.
  13. [40]
    She submits that she now regards herself as a valuable member of society who can contribute immensely towards helping youth overcome trauma-based backgrounds and enable them to have healthy and positive futures. She also submits that working in this area has improved her own social life because she now engages with numerous people who are positive, healthy peers who have provided her with a meaningful and appropriate outlook towards life.
  14. [41]
    She claims that she is currently a single mother who does not need a partner to complete her life because she is a successful single parent. She has numerous close friends with whom she is able to confide and call on for help and support if needed. She is committed to ensuring both a safe and stable environment for her children and feels that the positive changes that she has made in her life are proving successful.
  15. [42]
    GM has received assistance from various health professionals in relation to her medical history. She has sought counselling for her depression, domestic violence survival, drug abuse, sexual abuse, Post-Traumatic Stress Disorder, anger management and Positive Parenting Program.
  16. [43]
    She has consulted with psychiatrists and psychologists for her anxiety and diagnosis of Post-Traumatic Stress Disorder and she has undergone Eye-Movement Desensitisation and Reprocessing Therapy.
  17. [44]
    She has engaged in drug diversion regarding her drug and alcohol abuse.
  18. [45]
    She has received support from general practitioners for referrals and treatment of depression, anxiety, insomnia and trauma.
  19. [46]
    GM credits Eye-Movement Desensitisation and Reprocessing Therapy with helping improve her mental health and outlook in a positive and healthy way.
  20. [47]
    She says that she no longer participates in illegal substance abuse and has not done so for at least 10 years and has not had any dealings with police on a personal level as she has remained a law-abiding citizen.
  21. [48]
    She points out that her failure to obtain a blue card has caused financial hardship and stress. However, she remains highly committed and passionate about being able to remain a worker for children and young people and she feels that she has positive contributions to make.
  22. [49]
    The Department argues that GM’s criminal history contains 18 entries for violence and drug related offences between 1999 and 2010.
  23. [50]
    The Department emphasises that the remarks of the last sentencing Judge included:
    1. (a)
      ‘You need to curb your tendencies towards violence when trying to resolve things’;
    2. (b)
      ‘It is a serious offence… there was a little girl present and you made threats about going to kill her or words to that affect. It had a profound effect on her. She was extremely upset’; and
    3. (c)
      ‘I take a serious view of the offending in the context of your criminal history and therefore record a conviction’.
  24. [51]
    The Department also stresses that GM has convictions for common assault in 2008, public nuisance in 2009 and a series of drug related offences spanning the period from 2000 to 2009.
  25. [52]
    She has a very poor traffic record dating from 1994 to 2018 with at least 21 instances of exceeding the speed limit. Her traffic record remains a matter of concern with her most recent offences having occurred in December 2018. This is significant because she is seeking a positive notice which could result in her transporting children and young people in a motor vehicle.
  26. [53]
    The Department provided evidence of two domestic violence orders made in 2002 and 2005 in the Warwick Magistrates Court relating to GM as an aggrieved person with her children named as well. Further, the Department provided evidence of three domestic violence related matters in 2006, 2007 and 2009 involving GM. In each of these matters she appears to have been the aggrieved person.
  27. [54]
    The Department also provided material from the Department of Child Safety Youth and Women relating to GM that indicates that the Department received five notifications between 2005 and 2009 for issues involving domestic violence and drugs. A number of child concern reports were recorded and on at least one occasion GM’s children were taken into care.

The Outcome

  1. [55]
    The issue to be determined in this matter is whether this is an ‘exceptional’ case such that it would not be in the best interests of children to issue a positive notice and a blue card to GM.
  2. [56]
    The Department submits that the Court of Appeal, in the case of Maher[14] accepted the approach of considering relevant risk and protective factors in deciding whether a particular case is ‘exceptional’.
  3. [57]
    At the hearing, GM called three witnesses and gave evidence herself.
  4. [58]
    Her first witness, TT, said that she had known GM for about 32 years and indicated that she had observed many incidents of verbal, physical and sexual abuse directed towards GM during that time.
  5. [59]
    TT stated that despite having her blue card application declined, GM has remained strong and focused on doing whatever is necessary to be granted a positive notice so that she can continue on with her passion to work with children and young people.
  6. [60]
    TT gave her evidence in a matter of fact style and demonstrated considerable knowledge of GM’s history and circumstances particularly in relation to her previous partner and the attempts that she had made to get out of her hostage-like existence.
  7. [61]
    TT described the occasion when GM attended her grandmother’s funeral and took the opportunity to escape from her partner by jumping out of a car and running for her life. She went to a women’s shelter and started rehabilitation to abstain from her addiction and counselling for her mental health.
  8. [62]
    TT confirmed that GM has never re-entered a relationship and has focussed her attention on herself and her children when they were returned to her 12 months after being put into care. TT expressed her opinion that that was when GM’s life changed for the better and probably for the first time, she had enough confidence and courage to set out to achieve her life goals.
  9. [63]
    She emphasised that GM was aware of the impact on her children of her previous behaviour and how GM hated the 10 years of her life when she was involved in criminal behaviour and drug abuse.  TT expressed her opinion that GM is regretful and remorseful about that period of her life.
  10. [64]
    TT identified a number of positives that she has observed in relation to GM, in particular, that her last visit with the psychologist was in 2016. She has always worked to look after her kids. She got her kids back within 12 months of leaving her previous environment and she is no longer the person that she was 10 years ago. TT readily agreed that she would entrust her own children to GM.
  11. [65]
    TOW, a colleague from Southern Cross Support Services provided a written statement and gave oral evidence on behalf of GM. She was aware that the proceedings related to things that occurred more than 10 years ago. She said she was aware that GM had been in domestically violent relationships involving drugs and alcohol. TOW said that she had told her about her life story.
  12. [66]
    She was aware that GM had made bad decisions that she regretted. However, she admitted that she had no knowledge of any police information relating to her.
  13. [67]
    PN, who is the Regional Manager for Southern Cross Support Services, also provided written and oral evidence. She said that she had known GM on a professional level for approximately 18 months.
  14. [68]
    PN stated that as a Support Worker, GM had been responsible for the day-to-day care of children and young people who more often than not, had come from significant trauma and abuse backgrounds and who displayed highly challenging behaviours. She advised that throughout her employment, GM had always displayed a high level of professionalism and maintained appropriate boundaries.
  15. [69]
    PN acknowledged that she had no knowledge of her criminal history but referred to the fact that she was aware that GM had made poor choices when forming relationships and there was a time when she couldn’t protect her children from her partner.
  16. [70]
    At the time that her blue card application was refused, PN said that GM was being considered for a team leader role due to her skills in delivering appropriate and quality care to children and young people and also her commitment to the work that she had done since being employed.
  17. [71]
    GM also provided a statement from Ms Tracey Mousset, psychologist, dated 30 May 2019. She did not arrange for Ms Mousset to give evidence.
  18. [72]
    The Report states that GM was Ms Mousset’s client between 2015 and 2016, that she was reviewed periodically under a Mental Health Care Plan and was treated for Post-Traumatic Stress Disorder and Major Depression as a result of many years of domestic violence.
  19. [73]
    GM engaged in Cognitive Behaviour Therapy and EMDR for the treatment of her trauma and resulting depression. EMDR is a treatment approach specifically developed for PTSD with the aim of minimising intrusive memories, thoughts and anxiety.
  20. [74]
    According to Ms Mousset, GM displays sound insight into her mental state, behaviours and consequences and has not used drugs for approximately 10 years.
  21. [75]
    GM no longer experiences trigger responses to her past traumas, minimising the risk of relapsing. In Ms Mousset’s opinion, it is likely that she would be motivated to attend a treating doctor or psychologist if she became aware of any relapse triggers.
  22. [76]
    The Tribunal often relies upon psychological or psychiatric reports. Ms Mousset was not called to give evidence and as result little weight can be placed on the Report as rightly pointed out by the Department.
  23. [77]
    The material is, however, consistent with other evidence received by the Tribunal in the hearing to the effect that GM has demonstrated some insight into her circumstances and the need to change and she has not used drugs for more than 10 years. This may not have been instigated as a result of her insight but nevertheless it appears to have been effective.

Risk and Protective Factors

  1. [78]
    The Department identified a number of risk factors:
    1. (a)
      GM’s criminal history contains 18 entries for violence and drug related offending between 1999 and 2010;
    2. (b)
      During the time of her criminal offending, she was between 25 and 36 years of age. Therefore, youth or immaturity should not be considered contributory factors to her behaviour;
    3. (c)
      At the time of her most recent convictions in 2009 and 2010 that involved violence and drug related offending, she had children who were approximately five and ten years of age;
    4. (d)
      The repeated nature of her convictions suggests that she may not have appropriate skills and strategies to refrain from criminal offending;
    5. (e)
      The evidence suggests that she has engaged in some rehabilitative services. However, details of her engagement in those services and any strategies that she has learned are limited; and
    6. (f)
      The evidence raises concerns about her ability to act protectively towards children by preventing exposure to domestic violence and to act as an appropriate role model towards children.
  2. [79]
    The Department submits that:
    1. (a)
      GM has a history of exposing her own children to domestic violence from at least 2005 to 2009 while living with her partner as well as also engaging in physical violence herself in the presence of her children;[15]
    2. (b)
      They express concerns about her ability to act in the best interests of children, for example, despite her partner physically abusing her children in 2004 including one child being ‘hit on her face, slammed against a wall and held by her neck and slapped’, she was not forthcoming with information and refused to co-operate with the Departmental investigation; and
    3. (c)
      She continued her relationship with her partner with ongoing domestic violence until at least 2009.[16]
  3. [80]
    In relation to the risk factors identified by the Department:
    1. (a)
      GM has acknowledged her past behaviour but there is no evidence to suggest that she has engaged in any criminal activity or similar behaviour since at least 2009. The Tribunal finds that she has demonstrated by her actions a capacity to change her life so that she will not be a danger to children or young people in the future.
    2. (b)
      GM does not rely on her age at the time of her offending as being an excuse or a reason to justify her past behaviour. She readily admits her past.  She is now 45 years of age. She has established herself as a single woman and parent who has survived serious domestic violence and an inappropriate lifestyle.
    3. (c)
      There can be no excuse for her actions in relation to her last criminal offence which clearly had a significant impact on a young child. However, she now has her own children in her care and has managed to convince the Department of Child Safety that she is a suitable person to do so.
    4. (d)
      She has demonstrated by her recent ‘past behaviour’ over an extended period of time that she does have appropriate skills and strategies to avoid criminal offending.
    5. (e)
      She presented her own case before the Tribunal as best she could. There were clearly some gaps and some limitations to her case, but she presented as a credible and honest person.
    6. (f)
      GM has demonstrated that she is able to act protectively towards her children by taking the steps that she has and by refraining from inappropriate relationships and regaining care of her own children from the Department of Child Safety. She has completely changed her lifestyle and circumstances.
  4. [81]
    GM proudly talks about each of her children and the progress they are making in their own lives. Two of her children are now independent adults and the other two live with her and attend high school.
  5. [82]
    The Department identified a number of protective factors as being relevant to GM’s application:
    1. (a)
      She is no longer in an abusive relationship and she has moved elsewhere with her children;
    2. (b)
      She has not used drugs for a very long time;
    3. (c)
      She has attended treatment for her mental health conditions;
    4. (d)
      She has received treatment for depression, anxiety and substance abuse as well as working through the trauma from her previous violent relationships; and
    5. (e)
      She has provided statements from a previous employer, a friend, a domestic violence counsellor, and a psychologist who all speak positively about her.
  6. [83]
    She has a number of close friends that she is able to confide in and call upon for help and support if needed. She appears to be ready and willing to seek appropriate treatment and advice at any time for any of the challenges that she faces.

Conclusion

  1. [84]
    The issue for the Tribunal is to determine whether the risk factors demonstrated by her past conduct and behaviour continue to present an unacceptable risk to children and young people?
  2. [85]
    The Department specifically drew the Tribunal’s attention to her offending behaviour leading to her conviction for ‘threatening violence – discharge firearms or other act’ in 2009.
  3. [86]
    The Department highlighted that her only response to this particular incident was to state that her actions were impulsive, and she regretted the whole incident.
  4. [87]
    The Department argues that while she has taken the positive step of removing herself from the abusive relationship, she has not provided any details to demonstrate an understanding of the impact of the exposure of her children to domestic violence over the years.
  5. [88]
    The Department also points out that she has not provided any details to demonstrate an understanding of the impact of her own violent and drug related behaviours on her children other than stating that she only used drugs while her mother or someone else was babysitting the children.
  6. [89]
    The Department submits that the importance of an Applicant possessing genuine insight as a protective factor is highlighted in the decision of Re TAA[17] that states:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to reoffend 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 upon the adults around them having insight into their actions and the likely effect on children.

  1. [90]
    The Department also referred to the Report of psychologist Tracy Mousset. The Department points out that the Report is brief and does not mention any knowledge of the Applicant’s criminal history or involvement with the Department of Child Safety, Youth and Women.
  2. [91]
    In their final submissions the Department pointed out that Ms Mousset was not made available for cross-examination by GM and that two of her other witnesses had no knowledge of her previous history. Therefore, the Department submits that only limited weight should be given to this Report. The Tribunal accepts this submission and has only considered the Report in that context.
  3. [92]
    The Department concludes by pointing out that GM has sought a blue card for the purposes of employment with Southern Cross Support Services. The effect of issuing her with a blue card is that she would be able to work in any child related employment or conduct any child related business regulated by the Act, not just for the purpose for which she has sought the positive notice and blue card.
  4. [93]
    The Department stresses that the Tribunal must take into account all possible work situations open to GM. The Department submits that the Tribunal has no power to issue a conditional blue card and once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business. Again, the Tribunal accepts those submissions.
  5. [94]
    The Tribunal acknowledges that the WWC Act supports a precautionary approach to decision-making with respect to these matters. While it is not possible to predict the future, the WWC Act is based on past behaviour being an indicator of future behaviour and allows for a careful approach to be taken even if it is not demonstrated that a person’s criminal offending is directly child related.
  6. [95]
    Any prejudice or hardship that she may experience if she is not issued with a positive notice is not relevant to the Tribunal’s determination of whether her case is ‘exceptional’.
  7. [96]
    The welfare and best interests of children are the paramount principle that the Tribunal must apply in this review.
  8. [97]
    GM has struggled throughout her life. She experienced a chaotic childhood and a significant period of violent relationships based around drug and alcohol abuse.
  9. [98]
    The evidence demonstrates that her life changed for the better about 10 years ago and since then she has worked to re-establish herself as a valuable member of society.
  10. [99]
    She moved to a new location and started a new life with her children. She obtained employment and has been employed in various areas since that time. She has undertaken a range of courses for her own personal development and to obtain appropriate qualifications and employment to improve her own circumstances and those of her children.
  11. [100]
    While the passage of time is not a factor that would normally be considered in a matter such as this, the reality is that it has allowed GM to demonstrate her determination and ability to make her life better. She has not returned to any of her past behaviours and has re-engaged with her extended family.
  12. [101]
    The Tribunal has considered the risk and protective factors proposed by the Department and makes the following findings:
    1. (a)
      GM’s criminal behaviour took place between 1999 and 2010;
    2. (b)
      In the period between 2005 and 2009 she exposed her own children to domestic violence;
    3. (c)
      She is no longer in an abusive relationship and now lives independently with her younger children;
    4. (d)
      She has not used drugs for more than 10 years;
    5. (e)
      She has received treatment for depression, anxiety and substance abuse as well as working through the trauma from her previous violent relationships; and
    6. (f)
      She has demonstrated by her actions and evidence that she does have insight into her mental state, behaviours and the consequences of her past and present decision making.
  13. [102]
    Having regard to the evidence and the various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that this is not an ‘exceptional case’ and GM is not an unacceptable risk of causing harm to children or young people within the meaning of s 221(2) of the WWC Act.
  14. [103]
    The WWC Act provides that if the Tribunal is not satisfied that an ‘exceptional’ case exists then it must issue the Applicant with a positive notice.[18]

Order

  1. [104]
    The Tribunal makes the following order:

The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’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 this is not an exceptional case.

Publication?

  1. [105]
    GM did not seek a non-publication order. The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.
  2. [106]
    A non-publication order should be made in this instance to protect the identity of GM’s two underage children.

The Tribunal prohibits the publication of the names of the Applicant and her children and any non-expert witnesses.

Footnotes

[1] WWC Act, s 221(2).

[2] QCAT Act, s 20(1).

[3] Ibid, s 20(2).

[4] Section 5  Working with Children (Risk Management and Screening) Act 2000

 

[5] WWC Act, s 6.

[6] Ibid, s 360.

[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, citing the test matter of Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[8]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[9]Commissioner. for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 31, citing Kent v Wilson [2000] VSC 98, [22] (Hedigan J).

[10]CEO, Department of Child Protection v Scott (No 2) [2008] WASCA 171, 109 (Buss J).

[11]Grindrod v CEO, Department for Community Development [2008] WASAT 289.

[12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42] (Philippides J).

[13]  DJAG, Blue Card Services Reasons (3 Jan 2019), Sentencing Remarks of Judge Samios, 4.

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

[15]  DoCs material – NTP 24.

[16]  DoCs material – BCS 1-32.

[17]  [2006] QCST 11.

[18]  WWC Act, s 221(2).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 113

  • Court:

    QCAT

  • Judge(s):

    Member Quinlivan

  • Date:

    07 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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