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

 

[2020] QCAT 332

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

JR v Director-General, Department of Justice and Attorney-General [2020] QCAT 332

PARTIES:

JR

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML464-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

2 September 2020

HEARING DATE:

31 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General on 13 December 2019 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 confirmed.
  2. These reasons are to be published in a de-identified format only.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – whether exceptional case – whether not in best interests of children to issue positive notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where protective factors - where no reported incidents of domestic violence since 2017 – where coping strategies – where self-reflection and assessment of key triggers - where applicant is a capable employee with support network 

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERSwhere risk factors where volatile relationship with incidents of domestic violence – where some history of alcohol and prescription drug misuse – where children exposed to trauma - where applicant sought to minimise partner’s behaviour – where applicant placed relationship above interests of children – where applicant did not provide protective environment for children over period of some years

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – exceptional case – where interests of children must take priority over applicant’s interests – where it was applicant’s responsibility to provide safe environment for children – where those who work with children must act responsibly and protect them - where risk factors outweigh protective factors 

Human Rights Act 2019 (Qld), s 13

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 167, s 221, s 226, s 360, Schedule 1, Schedule 2

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

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

Commissioner for Children and Young People and Child Guardian v Lister (No. 2) [2011] QCATA 87

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

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293

HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403

JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251

Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Re TAA [2006] QCST 11

RPG v Public Safety Business Agency [2016] QCAT 331

Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257

APPEARANCES & REPRESENTATION:

 

Applicant:

J Pfister, solicitor of Genuine Legal Brisbane

Respondent:

D Taylor, legal officer 

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format.[1]

What is this Application about?

  1. [2]
    JR is a mother and recently registered psychologist. She needs a ‘Blue Card’ allowing her to work with children, so she can continue with her current employment. However, on 13 December 2019 the delegate of the Director-General, Department of Justice and Attorney-General issued her with a negative notice. This means that JR cannot obtain a Blue Card to work in certain types of employment and volunteer work.[2]
  2. [3]
    JR wants the Tribunal to review the Director-General’s decision. Because JR 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’.[3]
  3. [4]
    In reviewing the Director-General’s decision that JR’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for JR to obtain a Blue Card.[4] To determine this, I must identify and weigh protective factors with risk factors.[5]
  4. [5]
    JR is not required to show any error by the Director-General: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.[6]

Is it not in the best interests of children to issue a positive notice to JR?

  1. [6]
    Because a Blue Card 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 Blue Card to JR.[7]
  2. [7]
    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 protective factors favour issuing a positive notice to JR?

  1. [8]
    JR has been making considerable progress in a relatively short time to better herself and her situation. In 2012, JR was convicted for stealing and was unable to collect her children from after-school care due to overdosing on prescription medication. In 2015, JR was convicted for driving under the influence and assaulting / obstructing police. In 2016 and 2017, she was involved with incidents in which three of her children were exposed to domestic violence.
  2. [9]
    Since the 2017 incident, however, JR has been working hard to develop herself. She has graduated from university with a psychology degree and obtained employment as a psychologist helping others in need. She is able to seek guidance and support from a network of colleagues. She identified triggers for her behaviour and has developed coping strategies and undergone psychological treatment and counselling, including a two-day program on domestic and family violence. She has also reported no further incidents of domestic violence since 2017.
  3. [10]
    The Tribunal notes that none of JR’s criminal history involves offences relating to children[9] or is deemed by the legislation as ‘serious’.[10]
  4. [11]
    JR obtained a report[11] from a psychologist, KQ. KQ concluded that JR does not pose a risk if she is in a position of responsibility with children. KQ relevantly reported: 
  1. (a)
    JR identified coping strategies including responding to conflict in a rational and considered manner, walking away from tension, focusing on her own responsibilities and what she can control;
  2. (b)
    JR complies with her prescribed antidepressant medication;
  3. (c)
    JR expressed appropriate remorse for the 2015 incident and acknowledged the fear and emotional harm her children would have felt from witnessing the incident;
  4. (d)
    JR reported no further misuse of prescription medications;
  5. (e)
    JR acknowledged and expressed her understanding of the disinhibiting effect of alcohol use upon behaviour and resultant reduced capacity for sound judgement;
  6. (f)
    JR acknowledged that excessive consumption of alcohol is often an antecedent factor in relationships marked by domestic violence and remains cognisant that her current partner drinks beyond a healthy level;
  7. (g)
    JR engages in activities that foster good physical and mental health including bushwalking and walking her dog;
  8. (h)
    JR has strong support from her mother, maintains good relationships with her children and enjoys satisfactory relationships with her partner and stepson and reported strong levels of work and family support;
  9. (i)
    JR has learned that domestic violence can encompass psychological, physical, sexual, financial and emotional abuse and noted that whether or not a child is shielded from domestic violence, they still suffer from the emotional trauma;
  10. (j)
    JR has learnt how to assert herself, rather than being passive, aggressive or passive-aggressive;
  11. (k)
    JR reported that she had developed a safety plan for her children to follow in the 2017 incident;
  12. (l)
    JR developed a mood disorder in 2011-12 that is now in remission;
  13. (m)
    Nothing overt in JR’s presentation suggested dysfunctional personality attributes;
  14. (n)
    JR does not present as a person with criminogenic needs or a high risk of criminality;
  15. (o)
    Significant weight should be afforded to the training, work experience and supervision that JR has engaged in since the domestic violence incidents of late 2016 and early 2017;
  16. (p)
    The stealing offences in 2012 were instances of aberrant behaviour at a time when JR was not exhibiting sound judgment because she was suffering from a mood disorder and the effects of an addictive anxiolytic medication;
  17. (q)
    The offences in 2015 were reflective of impulsive behaviour and poor judgment at a time when conflict developed in her relationship with her partner. JR has since developed awareness of the harms that can come to children through exposure to domestic and family violence and excessive alcohol consumption;
  18. (r)
    JR has developed heightened insights around the causes, triggers and nature of domestic and family violence and understands the negative impacts upon children being exposed to domestic and family violence both in the short-term and longitudinally;
  19. (s)
    JR acknowledges fault for her behaviour that might not be considered to be in the best interests of children, during the domestic violence that was a feature of her relationship in 2016 and some of 2017;
  20. (t)
    JR has become aware of a range of proactive strategies to maintain stability within her household and the safety of children in the home and is able to describe the protective and preventative strategies she now adopts;
  21. (u)
    JR’s mental health is stable;
  22. (v)
    Any signs of deteriorating mental health by JR would be recognised by herself, her supervisor and her colleagues; and
  23. (w)
    There would appear to be little basis to suggest that JR would not act protectively towards her own or other people’s children in the future.
  1. [12]
    KQ’s evidence must be treated with some caution, as he did not attend the hearing to be cross-examined and does not have a history of treating JR over an extended period. Much of KQ’s report was also based on JR’s self-reporting during one video-link interview. JR’s solicitor, Mr Pfister conceded during the hearing that the weight to be attached to KQ’s report was to be reduced.
  2. [13]
    Despite this, the Tribunal accepts that JR has made commendable progress in reforming her behaviour and treating her mental health. The medical certificate from her General Practitioner, Dr SN corroborates that her mental health is stable.[12]
  3. [14]
    JR also provided written character references from family, friends and work colleagues,[13] some of whom attended the hearing to give evidence, including her work supervisors, her mother and her current partner. They variously describe JR as:
  1. (a)
    Not a danger to children;
  1. (b)
    Repeatedly demonstrating an ability and knowledge to use coping strategies during times of stress in the workplace;
  2. (c)
    Learning from her past mistakes with alcohol;
  3. (d)
    Remorseful;
  4. (e)
    Of good character;
  5. (f)
    A hard-working, responsible and loving mother;
  6. (g)
    Caring and considerate towards the needs of young people and children in general;
  7. (h)
    Compassionate and dedicated in her role as a psychologist;
  8. (i)
    Steady and level-headed;
  9. (j)
    Great with children; and
  10. (k)
    Reliable, thoughtful and kind-hearted.
  1. [15]
    The Tribunal is satisfied that JR has a supportive network who value her both as a mother and in her role as a psychologist attending to the needs of others. The Tribunal is also satisfied that much of this network is able to provide guidance and support to JR should she confront the triggers for her past transgressions.
  2. [16]
    JR expressed shame, embarrassment and deep regret over her past behaviour and actions and the fact that children should never have to witness domestic violence. She said she practises coping strategies including controlled breathing, mindfulness and relaxation. She also showed self-reflection when assessing her “very unwise decisions” and key triggers for the causes of her anger, including social isolation and alcohol and medication misuse.

What risk factors prevent issuing a positive notice to JR?

  1. [17]
    JR has been involved in no fewer than two relationships that have at times been characterised by volatility and abuse.  She also has some history of alcohol and prescription drug misuse, culminating in incidents in 2012, 2015 and 2017.
  2. [18]
    The Tribunal cannot go beyond JR’s convictions and must accept them as they are.[14] However, the key risk factors are the gravity and recency of incidents in 2015, 2016 and 2017. Child Safety records reveal interventions in 2012, 2015, 2016 and 2017 due to JR not acting protectively towards her children.[15] 
  3. [19]
    In 2015, JR reversed her car towards police while intoxicated and in the presence of her children. Police reported the following relevant circumstances that were not disputed by JR:

Police called on the defendant to stop, however she continued reversing…

Police then took up with the defendant, who was uncooperative and hostile towards police, and appeared grossly affected by alcohol… Police observed two young children in the vehicle, and heard the defendant state that she intended to drive back to [omitted] that night. Police removed the keys from the vehicle to prevent the defendant from driving it any further...

Police directed the defendant to remain where she was, while officers discussed the situation. The defendant had then run off back into the unit and emerged with both hands concealed behind her back. Police have heard the defendant’s daughter yell out words like “No mummy don’t! Don’t do it mummy!” The defendant’s partner then said words like “She’s probably getting a knife to cut herself again”… the defendant slowly removed her hands from behind her back revealing an iPad…

  1. [20]
    Exposing her children in this way would have clearly been traumatic for them.
  2. [21]
    In 2016, JR and her current partner were involved in another incident of domestic violence, resulting in an investigation into harm to their children. Emotional and physical harm to one child was substantiated.
  3. [22]
    In 2017, JR and her current partner were again involved in an incident of domestic violence that resulted in a Domestic Violence Protection Order. JR was named as the aggrieved and her current partner was named as the respondent.
  4. [23]
    Although JR was not the perpetrator of domestic violence, JR’s loss of self-control in the 2015 incident and her response to the incident of violence in 2017 raise considerable concerns about her acting protectively towards children.
  5. [24]
    Child Safety records show that JR “minimised” the domestic violence and “coached” others to downplay an incident.[16] Moreover, JR’s initial statement to police[17] accounted for the 2017 incident as follows:

I said to HH to get his kids to clean up after themselves.

HH said to me “If you don’t want to clean up after my kids and be step mum you can f--- off.”

---

HH hit me. It was an accident in the commotion of everything.

He hit me under the arm pit and made it bleed. He hit my lip and knee too.

I was bugging him while he was trying to sleep and then he told me to f--- off and let him sleep and he hit me.

I’m 7 months pregnant and he threw me across the floor. I don’t want to get him in trouble and he threw me across the floor.

It was my fault though I annoyed him to the point of him retaliating with violence.

It was like a smack and I just fell. I don’t want it on record so I’m not going to comment.

I yelled at him “how dare you throw someone who’s having your baby across the room.”

He replied “you’re a c--- you deserved it.”

  1. [25]
    JR later qualified her statement to reduce her partner’s responsibility for the incident. JR’s children were nearby and heard the incident. Sadly, like many cases involving physical and emotional abuse, by seeking to minimise her partner’s behaviour JR did not act protectively towards her children.[18] JR conceded during the hearing that she placed her relationship with her partner ahead of her children’s needs. This is particularly apposite in the context of JR continuing that relationship.
  2. [26]
    JR’s partner has since confirmed he had been drinking that night and reported attending anger management counselling and no further incidents.[19] However, JR also conceded that he still drinks a few beers each day. This alcohol consumption remains a risk factor in the relationship.
  3. [27]
    Although JR and her partner have since taken positive steps to address the situation, the evidence shows that JR’s children were not properly protected over a period of some years.[20] The evidence shows concerns about JR’s ability to provide a safe environment for her children, thereby exposing them to risk of harm.
  4. [28]
    JR is to be commended for implementing strategies to deal with triggers for her own behaviour. However, the Tribunal’s concern is that it is only three years since the most recent incident of domestic violence with her current partner, following a history of not acting protectively towards her children.
  5. [29]
    Because of this, the Tribunal is not satisfied that JR has yet had an opportunity to apply her coping strategies over a sufficiently extended period to protect her children’s interests.[21] JR and her partner need more time to show that their coping and risk-management strategies will endure.
  6. [30]
    JR has shown much promise in getting her life back on track. However, her ability to provide a protective environment for her children and resilience to risk-prone behaviour is still to be tested over an extended period.
  7. [31]
    She should continue on her current positive path. With more time and the continuing love and support of her family and friends, she might in the near future demonstrate that she is sufficiently resilient to always act in the best interests of children. 

Is this an ‘exceptional case’ to not issue a positive notice to JR?

  1. [32]
    The offending behaviour leading to the criminal conviction occurred in 2012 and 2015. The passage of time without further convictions is not of itself conclusive that the risk of harm is reduced.[22] Moreover, JR unnecessarily placed her children at risk by exposing them to violence and trauma and thereby failing to act protectively, as recently as 2017.
  2. [33]
    Those who work with children must act responsibly and protect them. The evidence is that JR works well with children. However, her failure to provide a protective environment over an extended period for her own children is relevant to child-related regulated employment. JR must act to protect children in potentially stressful or threatening situations.[23]
  3. [34]
    Children also depend on adults to have insight into their actions and their likely effect.[24] JR recently asserted that the 2012 and 2015 offences are not related to working with children.[25] This indicates she needs more time to gain greater insight into the impact of her actions on children:

It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[26]

  1. [35]
    While JR’s current relationship appears to have improved in recent times, it remains a risk factor given its history of volatility. More time is needed to show that the relationship no longer compromises the paramount need for JR to provide a protective environment for her children.
  2. [36]
    The law requires that in considering whether to allow a person a positive notice for a Blue Card, the interests of children must take priority over an applicant’s interests.[27] JR needs more time to demonstrate her ability to always act in the best interests of children – even when confronted by extreme emotions of others and dealing with her own emotions in response. 
  3. [37]
    This means that unfortunately for JR, issuing her with a positive notice at this time is not in the best interests of children. JR’s case is exceptional because she needs to show she will always act protectively towards her children, over an extended period.
  4. [38]
    JR’s failure to protect her children from an environment of trauma and violence and attempts to minimise that violence as recently as 2017 are risk factors that presently outweigh the protective factors. It is too early to be satisfied that JR has developed her skills and attitudes sufficiently to take responsibility for her own actions and the protection of children.[28]

Conclusion

  1. [39]
    Because JR’s case is ‘exceptional’, it prevents issuing her with a positive notice at this time. This is consistent with the proper purpose of promoting and protecting the human rights, interests and wellbeing of young people.[29] Any limitation on JR’s human rights is consistent with the paramount interests of children.[30]
  2. [40]
    The correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 13 December 2019 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).[31]

Footnotes

[1]  Direction 4 dated 17 August 2020; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, Schedule 1.

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.

[4] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.

[5] 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 Eales [2013] QCATA 303, [6] – [7].

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[7] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360.

[8] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(b).

[9] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(iv).

[10] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167, s 226(2)(a)(ii), Schedule 2.

[11]  Report dated [omitted].

[12]  Medical Certificate dated [omitted].

[13]  Statements of XD dated [omitted], [omitted]; Statements of YR dated [omitted], [omitted]; Statement of IM dated [omitted]; Statements of HH undated, dated [omitted], [omitted]; Statements of WI dated [omitted], [omitted]; Statement of SD dated [omitted]; Statement of CP dated [omitted].

[14] Pritchard v Chief Executive Officer, Public Safety 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]. 

[15]  Child Safety records dated various.

[16]  Child Safety records dated various, p 119.

[17]  Addendum Statement of JR dated [omitted].

[18] JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [47].

[19]  Statement of HH dated [omitted].

[20] JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [47].

[21] HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [70].

[22] Commissioner for Children and Young People and Child Guardian v Lister (No. 2) [2011] QCATA 87, [55].

[23] JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [48] – [50].

[24] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.

[25]  Statement of Evidence dated [omitted].

[26] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].

[27] Chief Executive Officer, Department of Child Protection v Scott (No. 2) [2008] WASCA 171, [109].

[28] JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251, [49].

[29] Human Rights Act 2019 (Qld), s 13(2)(b).

[30] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360.

[31] RPG v Public Safety Business Agency [2016] QCAT 331, [28].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 332

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    02 Sep 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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