Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

SDK v Director-General, Department of Justice and Attorney-General[2019] QCAT 124

SDK v Director-General, Department of Justice and Attorney-General[2019] QCAT 124

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SDK v Director-General, Department of Justice and Attorney-General [2019] QCAT 124

PARTIES:

SDK

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML151-18

MATTER TYPE:

Children’s matters

DELIVERED ON:

9 May 2019

HEARING DATE:

22 February 2019

HEARD AT:

Caloundra

DECISION OF:

Professor Ashman, Member

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that SDK’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue card – where Applicant breached a protection order naming children under 16 years of age – where no conviction was recorded – where the Applicant sought the cancellation of a negative notice – where the decision of the Respondent was set aside and replaced with a decision that there is no exceptional case

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20 and 24.

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

APPEARANCES & REPRESENTATION:

 

Applicant:

SDK

Respondent:

Legal representative for the Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    On 7 May 2015, the applicant was issued with a positive notice and blue card to enable her to provide care as an adult resident of a family day care service. The Queensland Police Service notified Blue Card Services on 29 August 2016 that the applicant had allegedly breached a condition of a domestic violence order and had been charged on 27 August 2016. Blue Card Services undertook a review to determine her eligibility to hold a blue card. The Director, Blue Card Services, noted that the order listed the names of both children implied that the Court may have determined that they were at risk by virtue of the applicant’s actions and, therefore, the circumstance of the matter constituted an exceptional case. It was, therefore, not in the interest of children for the applicant to receive a positive notice or blue card and they were cancelled on 17 August 2017.
  2. [2]
    On 25 May 2018, the applicant filed an application at the Tribunal seeking a review of the decision by the Director, Blue Card Services. Her application sought the reconsideration of the negative notice issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) to enable consideration of her eligibility for a blue card that she required to enable her to continue in her chosen career that involves aged care in community settings.
  3. [3]
    In a submission to the Tribunal dated 17 September 2018, the applicant provided some background in regard to her relationship with her former partner (the father of the applicant’s children) who was the aggrieved party in the relevant domestic violence order. The applicant states that she was the subject of domestic violence over a number of years, which included verbal and physical abusive and serious threats. This led to symptoms of anxiety and depression and efforts by the father to limit and refuse her access to her sons.
  4. [4]
    The applicant states that the relationship with the father was punctuated with disagreements about parenting responsibilities and her unwillingness to continue working after the birth of the first son, and to recurring financial difficulties as the father had difficulty maintaining employment. The applicant reports that police officers were called several times during the course of the relationship and domestic violence orders were realised against each other requiring them to be of good behaviour. She now recognises that she was living in a toxic relationship that led to mental ill-health.
  5. [5]
    The purpose of the Tribunal’s review is to consider whether the applicant’s history and current circumstances constitute an exceptional case and produce the correct and preferable decision.[1] In undertaking the review, the Tribunal may confirm or amend the decision, set it aside and substitute its own decision, or set it aside and return it to the Director-General, Department of Justice and Attorney-General for reconsideration.[2]
  6. [6]
    The term, exceptional case, is not defined in the Act. Whether a case is exceptional is to be determined by considering the circumstances of each individual case, having regard to the legislative intention of the Act. In the course of this review, the Tribunal must consider the totality of the applicant’s circumstances to determine if an exceptional case exists. The Tribunal’s decision must be consistent with the Act’s objects that include promoting and protecting the rights, interests, and wellbeing of children in Queensland and be in accord with the principle that the welfare and best interests of a child are paramount.
  7. [7]
    Blue cards are given without condition so if the applicant were to be issued with a blue card, she could work in any area of child-related employment, whether supervised or not.
  8. [8]
    In summary, in determining the correct and preferable decision, the Tribunal needs to be satisfied on the balance of probabilities that an exceptional case exists, or that it does not exist. Neither any prejudice or hardship that the applicant might have experienced, or would experience by not holding a blue card, are irrelevant when considering the case nor is any benefit that children might derive by interacting with, or having access to, her.
  9. [9]
    I will begin by outlining the written and oral submissions of the Director, Blue Card Services, then the applicant’s written and her oral submission. Following that I will summarise the evidence given by a witness who appeared at the hearing in support of the applicant. Finally, I will outline the reasons for the Tribunal’s decision.

The Director-General’s written submission

  1. [10]
    The Director, Screening Services Unit provided a copy of the reasons for canceling the applicant’s positive notice. Unusually, the bundle of documents contained in her submission is not wide-ranging. They include: a statement of reasons outlining the basis for her decision; a copy of the applicant’s 2013 blue card application to which I have referred in [1], Queensland Police Service reports relating to the domestic violence breach; a copy of Department of Communities, Child Safety and Disability Services report regarding an interview with the applicant; a summary of an oral submission made by the applicant to Blue Card Services on 9 January 2017; a notice cancelling the applicant’s positive notice and blue card; and a Tribunal information sheet concerning review procedures.
  2. [11]
    The Director’s justification for the negative notice is based solely on the applicant’s breach of the domestic violence order taken out by her then partner that contains the names of their children. The breach occurred as a result of the applicant sending text messages to the father contrary to a condition of the protection order. The Director writes that the “fact that a domestic violence order was in place at the time indicates the Court may have previously determined that an act of domestic violence had occurred and that such an order was necessary to protect the complainant and other named persons” and that the order failed to deter the applicant from engaging in any such behaviour. The Directors suggests that the Court’s practice of naming a child on a domestic violence order is intended to protect the child from domestic violence or exposure to domestic violence. This can include seeing or hearing an assault or physical abuse, comforting a person who has been abused or otherwise observing the results of domestic violence.
  3. [12]
    The Director referred to the applicant’s oral submission to Blue Card Services in which she referred to an emotional interaction with her then 14-year-old son.
  4. [13]
    The Director notes that scant evidence was available to clarify the reasons for the naming of the children on the domestic violence order or describing any strategies that the applicant might employ to ensure that she interacted appropriately with the children. The lack of this information created concerns that the applicant might offend in the future. The Director writes that the naming of the children “strongly suggests that the children have been exposed to domestic violence between the applicant and complainant” and that the applicant may be unable to exercise restraint and manage her frustration or anger in the children’s presence.[3]
  5. [14]
    The Director also refers to the involvement of the Department of Communities, Child Safety and Disability Services and recognises that the incident that led to their investigation occurred in 2003 when the older son was only aged 2 years. He was found wandering along a busy road with the family dog.
  6. [15]
    The Director refers to the applicant’s lack of evidence to support positive changes in her personal relationship or the outcomes of any therapeutic intervention that would mitigate the Director’s concerns.
  7. [16]
    Toward the end of the hearing, the departmental legal representative provided an additional submission entitled “Respondent’s outline of submissions.”[4] This document rehearsed the process of the Tribunal’s review, the requirements of the Act, and the material that Blue Card Services collected from other sources. Of relevance to this decision are sections that list the Director’s perception of the protective and risk factors that relate to the matter.
  8. [17]
    The Director refers to three protective factors:
    1. (a)
      Steps that the applicant has taken to manage anxiety and depression;
    2. (b)
      The applicant’s submission that she can now manage harassing behaviour and has not breached any further domestic violence order; and
    3. (c)
      She has successfully completed a Certificate 111 in Aged Care.
  9. [18]
    As for risk factors, seven are suggested.
    1. (a)
      The applicant provided no personal reference in support of her application;
    2. (b)
      She disclosed that she has self-harmed and sought psychological counselling in 2013, 2016, and 2018. Given the recency of the treatment, “it may be that not enough time has passed for the Applicant to demonstrate her ability to implement the coping strategies that she has been taught”;
    3. (c)
      Submission indicate that children were at risk of harm, for example, Blue Card Services found that there were instances where the applicant left her 9-year old son at home alone overnight while she was at work and was not contactable by phone, there were also concerns about the children’s repeated exposure to domestic violence;
    4. (d)
      It is unclear if the applicant has the requisite skills or ability to act in the children’s best interest and provide a protective environment for them;
    5. (e)
      It is unclear if the applicant has insight concerning the impact of her behaviour on the children and the significance of the breach of the protection order, and in addition, blames the father for the circumstances that existed when she left her child at home overnight while she went to work;
    6. (f)
      the applicant is still dealing with a custody matter and it is not clear when this will be resolved, therefore, it may be that she needs more time to deal with these ongoing stressors with psychological assistance to develop resilience and confidence in acting in the best interest of any child’s her care; and
    7. (g)
      The issue of a blue card allows a holder to work in any child related business situation regulated by the Act.[5]

The Director’s opening statement

  1. [19]
    In her oral submission, the Director-General’s legal representative outlined the purpose of the Tribunal hearing and the key issues that are to be taken into consideration in determining the matter. She stated that the applicant was issued a blue card in 2013, which was renewed in 2015. The Director-General’s primary concern was the history of domestic violence. The applicant did not provide additional documents as directed by the Tribunal to permit an understanding of the nature or extent of the domestic violence or the impact that it might have had on her children. In the same way, there was no information available to determine what actions the applicant had taken subsequent to the withdrawal of the blue card or to ascertain if there was a risk to children if she were to work in child-related employment.
  2. [20]
    Four issues were highlighted that required clarification:
    1. (a)
      What insights the applicant has in regard to her behaviour;
    2. (b)
      Was she aware of the triggers that could lead to a verbal, emotional, and physical violence;
    3. (c)
      What strategies and skills does the applicant now possess to circumvent verbal, emotional, and physical violence; and
    4. (d)
      What protective factors exist to ensure that she can prevent verbal, emotional, and physical violence and any impact that it might have if children are present.
  3. [21]
    There was no elaboration on specific matters raised in the written reasons for the cancelation of the negative notice and blue card but points (a) to (d) were incorporated in the discussion during the taking of evidence along with (a) to (g) contained in the additional written submission.

The applicant’s written submissions

  1. [22]
    The application for a review of the Director-General’s decision contains statements that outline the applicant’s personal history, the nature and extent of the domestic violence and the issue of protection orders. Copies were also provided of the various documents submitted in the Department’s bundle of documents.
  2. [23]
    There is little point in documenting the applicant’s life history here. It is sufficient to say that she co-habited with her partner for more than a decade in a situation characterised by verbal, physical, and psychological abuse[6]. They had two children who were five years apart in age. There were periods of unemployment, financial instability, and accommodation in temporary situations in another state and in Queensland. The applicant was candid in describing the mental health consequences of the domestic setting with a capricious partner. She stated that the situation that led to the police notification to Blue Card Services was precipitated by two domestic violence orders, the first initiated by the Queensland Police Service against the father, and a second by the father against her. She describes the home situation as a toxic environment and that she had contemplated separation on several occasions.
  3. [24]
    Contained in the package of documents is a report from a psychologist who provided ten therapy sessions from 22 March 2018 to 22 October 2018. This submission will be outlined later.
  4. [25]
    There are also two letters from a Family Law Solicitor to the principals of the two schools that the applicant’s children were attending. Both are similar, drawing the principals’ attention to the nature of the domestic violence orders and the naming of the two children. The letter states that the children were isolated from their mother since June 2016 orders even though the order against her did not prohibit her from seeing the children at school. It merely states that she needed to be of good behaviour toward the father and was prohibited from coming within a certain distance of him. The lawyer emphasises the orders did not include any child of the aggrieved.
  5. [26]
    There is also a medical certificate dated 3 July 2018 that informs the reader that the applicant suffered from depression and anxiety since 2016 that prevented her from completing tasks and that she was receiving treatment via medication and psychologist review.

The applicant’s oral submissions

  1. [27]
    The applicant was questioned under affirmation for approximately four hours. She confirmed that her relationship with the father has been characterised by frequent domestic violence events from almost the beginning of the relationship in 2000/2001. She described the first few years as being less traumatic than those after 2007 but generally the father’s aggressive and controlling behaviour precipitated arguments that would almost invariably lead to emotional and physical consequences. This situation appears to have escalated after the applicant chose to terminate her first pregnancy and continued after the birth of the two sons.
  2. [28]
    the applicant described the communication difficulties with the father and acknowledged that she was a ready co-participant in the verbal altercations; she consciously decided to stand up against them rather than withdraw and this most likely extended the duration and increased the intensity of the event. She reported that police were called a number of times due to the severity of their disputes.
  3. [29]
    Since the issue of the domestic violence orders, the applicant has had little contact with the children. Both live permanently with the father. She holds the view that he has turned the elder boy against her such that he does not wish to communicate or otherwise have contact with her, but it appears as though the younger one still wishes to see her although he is often prevented. The applicant states that she finds this situation extremely distressing although she is now resigned herself to that situation.
  4. [30]
    In regard to the breach of the domestic violence order, the applicant admits that this was an error. She insists that the text messages sent in breach of the order related to tax matters pertaining to the joint business venture and sought information that was in their mutual interest and has financial implications for the children. She states, however, that there was nothing in the communications that related directly to the children. She viewed the father’s report to the police at that time, and on other occasions, as intended to be punitive.
  5. [31]
    The applicant separation from the father in 2016 marked the beginning of a relationship with other man, who had been one of the father’s close friends. The applicant and her current partner have recently bought a house and have moved from the community where the father and the boys live to another some distance away. She describes her new relationship as stable and emotionally positive. She described her current partner as a quiet and peaceful person who has similar interests to her own and she was of the view that this was a lasting relationship.
  6. [32]
    As for the future, the applicant stated that she expected the relationship with the father and the children to remain a difficult one. She did not expect the father’s disposition to change due to the previous association between the father and the new partner, but she hoped the relationship with her sons would eventually settle, and at some time in the future, reflect a normal mother/son relationship. She said that she would need to be patient with the elder but hoped that, as he got older, his antagonism toward her would soften. The younger one apparently still has a positive view of her and has not been reacted to the same degree of influence as his brother.
  7. [33]
    When asked about her friendship network, the applicant stated that she had very close and supportive connections with her own family, especially her parents. She identified close friends who can provide emotional support and who are willing to talk over issues and explore resolutions to conflict situations although she was concerned not to burden her friends and family unduly with her personal problems.
  8. [34]
    In her written statement the applicant indicated that she required a blue card to enable her to work in the aged care sector. While this seems inconsistent with the Act, her services are undertaken within the broader community and might involve situations in which children are present.

Evidence given by a witness

  1. [35]
    A psychologist attended the hearing by telephone and gave evidence under an affirmation. This psychologist had a therapeutic relationship with the applicant of ten sessions over five and a half months, beginning in May and lasting through to the middle of October 2018.
  2. [36]
    The psychologist stated that the applicant’s relationship with the father broke down two to three years prior to the beginning of the therapeutic relationship. She confirmed that the sons had little, if any, contact with their mother. At the beginning of the therapy, the applicant had described the hopelessness of her future and significant grief and loss about lack of contact with her children.
  3. [37]
    Evidence was given orally that once the domestic violence and protection orders expired, the father began sending lengthy, abusive, and threatening texts to the applicant, who reported these events to the police.
  4. [38]
    Over the course of the therapy, which focused on contextual cognitive behaviour therapy, the applicant was also taking anti-depression medications. Her decision-making, concentration, motivation improved, and her level of fatigue reduced during the course of the treatment. A major component of the therapy focused on strategies designed to reduce the impact of intrusive ruminations and practice at managing emotional distressful situations and events. The psychologist stated that the applicant engaged well with the treatment regime and learned how to manage her moods effectively. She confirmed that the applicant would like to reconnect with her children at some point in the future.
  5. [39]
    In response to question put by the Department’s legal representative, the psychologist acknowledged that she had read the Director’s reasons for the cancelation of the blue card and confirmed that the applicant was fully aware of her actions and their consequences. She stated that this related not only to the impact of domestic violence within the home but also to the communication that constituted a breach of the protection order.
  6. [40]
    Specific questions to the psychologist addressed the direct and indirect impact of domestic violence on the children. The psychologist states that from the start of the therapeutic relationship the applicant was fully aware of the harm her children might have experienced, and she was distressed by that. She stated that during the sessions considerable discussion focused on the her, and the father’s, behaviour on the children. The psychologist continued that that the applicant was sensitive to any red flags that might appear in her current relationship, she was calm, had well-practiced skill that she could apply in stressful or emotionally demanding situations. The applicant was still taking medication for depression but, importantly, she has a skill set that would enable her to work in any stressful situation.
  7. [41]
    The Tribunal’s final question to the psychologist asked if she would have any concerns about the applicant working with the psychologist’s own children. The answer was a very definite “No.”

Final statements

  1. [42]
    The final period of the hearing focused on the document entitled “Respondent’s outline of submissions” with the applicant responding to the protective and risk factors outlined by the Department. She did not challenge the protective factors but offered comments on the risk factors.
  2. [43]
    In regard to (a), she stated that she did not feel comfortable asking family and close friends to provide references about her character although, she believes, they would have been very willing to supply them. She expressed the considerable assistance provided by the psychologist and believed that the report affirmed that she was now very mindful of how she can, and is, dealing with conflict situations.
  3. [44]
    In regard to (b), the applicant acknowledged that there had been a single incident when the pressure of the relationship with the father led her to take excess medication and that he had taken her to hospital. She acknowledged the valuable psychological assistance provided and responded that she was now more level-headed and stronger than in the past and that she had the skills to deal with confrontations but also to ensure that she was not placed in such emotionally-laden situations.
  4. [45]
    As for (c), the applicant acknowledged that harm of domestic violence. In regard to allegations made, she stated emphatically that she had never left her younger son alone at night when she was work and would never have considered doing so. She questioned the origin of the information on which the Department relied.
  5. [46]
    As for (d), the applicant again stated that she has made huge advances in her ability to deal with conflict and confrontation and could avoid situations in which the father might seek to affect her emotionally. She stated that the only issue for her now is to right the wrongs done and to ensure that she was always open to reconnecting with her children in a positive way.
  6. [47]
    In the matter of (e), the applicant stated that her reference to the domestic violence breach as “technical” and the inclusion of the children’s names on the protection order as “protocol” was how the police described the breach to her.
  7. [48]
    In the matter of (f), the applicant acknowledged that the matter of custody was still active. She has papers to submit to the Court and may pursue this in due course. She said that she was capable of dealing with this issue and was sensitive to any impact that it might have on her emotional state and that of her children. Her primary concern was not causing the children further stress by having them appear in Court.
  8. [49]
    In regard to (g), the applicant was aware of the unconditional and fully transferable nature of a blue card. She indicated that she wished to continue working the aged care field and that she might need a blue card might as for her previous work involved community contact. It was possible that the same or another employing body would require a blue card. She states that she was no longer employed but hoped that the former service might re-employ if she was able to gain a blue card.

The Tribunal’s decision

  1. [50]
    The Tribunal’s decision, as it was for the Director, Blue Card Services is to determine what is in the best interest of children and whether it would be in their best interest for the applicant to work with them in regulated activities. My focus is whether the applicant’s circumstances represent an exceptional case under s 266(2) of the Act.
  2. [51]
    The Tribunal accepts that the applicant lived with her former partner in a relationship characterised by on-going verbal, psychological, and physical aggression over more than a decade. The applicant acknowledges that she participated in the domestic violence and did not endeavor to remove herself from the situation in which the tensions were building between the couple or employ other strategies to diffuse the developing conflict. She states that she stood her ground when conditions of conflict emerged. The evidence suggests that she was not the primary protagonist and that on at least one occasion took action to terminate the relationship with the father. It is unlikely that both children could have failed to recognise acts of domestic violence, although it is not clear what was the extent of their awareness of those events. The applicant stated that she was mindful of the impact of the arguments and tried to minimise their public nature although this was not, apparently, fully successful.
  3. [52]
    The applicant eventually terminated the relationship with the father and is now in another that she states is loving, caring, and long-term. The two boys continue to reside with the father, and at this time, the applicant has limited, if any, contact with them due to the father’s refusal to allow her access. She stated that she has not seen the children since June 2016 although she believes that the younger one would like to have contact with her.
  4. [53]
    The applicant’s blue card was cancelled because the applicant breached the condition of a protection order by sending text messages to her former partner. This was specifically forbidden in the protection order. She states that the text messages were civil in their nature and sought only tax information that pertained to a joint business venture. She acknowledges her mistake.
  5. [54]
    The Director-General’s concerns are set out in the reasons dated 17 August 2018 with additional comments provided in the “Respondent’s outline of submissions” handed to the Tribunal during the hearing on 22 February 2019. It appears from the latter document that the Director of Blue Card Services did not have much in the way of submissions from the applicant to understand any extenuating circumstances that might be in the applicant’s favour. There were no personal references provided, there was no report from a treating health professional indicating the outcome of any psychological intervention, and no evidence that strategies had been learned to enable her to deal successfully with aggression, stress, or conflict. There was no submission from the applicant about the status of any court action concerning child custody, or indeed, any substantial statement about the impact of domestic violence on the children over more than a decade.
  6. [55]
    The “Respondent’s outline of submissions” clearly sets out the Department’s concerns and I will now address these now.
  7. [56]
    First, the applicant provided no personal references as to her character. This was raised during the hearing. She states that she had considered this and could have asked family and friends to provide them. While she had no concerns that all would have supported her, were aware of domestic violence she had experienced, the nature of the various protection orders, the breach of the order, the cancellation of the blue card, and the Tribunal’s involvement, she thought that the report from her psychologist would carry more evidential weight.
  8. [57]
    The Department’s legal representative did not pursue this matter.
  9. [58]
    Personal references are often lodged in blue card matters. They provide a perspective on the extent and depth of a person’s family and friendship network. Without them, the Tribunal can be unaware of the support on which a person might rely in difficult times. During the hearing, the applicant spoke of the close relationship that she has with her parents and other family members, and of the relationship with long-term friends. She is open and forthright with all, can and does, seek their views about difficult situations that she encountered in earlier years, and that they remain willing to help in the future.
  10. [59]
    This Member does not consider personal references essential in blue card matters. Certainly, they confirm the existence of a support network, but by their nature and brevity they are sometimes of limited value in determining issues of relevance under the Act.
  11. [60]
    Second, the Director-General expressed concern about the applicant’s continuing mental ill-health, drawing attention to the relative recency of her psychological treatment and her history of severe depression, anxiety, plus an incident of self-harm. The applicant fully acknowledged this history. She spoke at length during the hearing about the events that precipitated her anxiety and depression and its basis located in her inability to remove herself from the toxic circumstance in which she lived with the father. The psychology report is particularly salient here. The psychologist was quite clear in her view that the applicant had acquired the skills necessary to protect her in situations similar to those she experienced in her earlier relationship. She is aware of the triggers that might lead to stress and has practised distress tolerance strategies to assist with calming at times of heightened emotion. It is especially significant that the psychologist said that she would have no concerns whatsoever about her children engaging with the applicant.
  12. [61]
    Third, the applicant disputed the Department’s report that she left her 9-year old son at home alone while she was at work overnight. She described several situations in which she was required to negotiate access with her sons, the younger one in particular, and her explanation of events challenged the one proposed by the Department. Throughout the hearing she described how she has managed difficult access situations, her devotion for both of her sons, and that she would never act in a way that was detrimental to their welfare, despite the events that had occurred with their father. In regard to the impact of the children’s awareness of the domestic violence history, she acknowledged that they would have been affected and she was deeply sorry about that and determined to make amends however that was possible.
  13. [62]
    Fourth, it is apparent that custody matters remain. The applicant stated that she has prepared documents for the Court in regard to access. She stated that she did not wish to put the children though a court experience and this might suggest that she may not pursue that course of action. She stated, for example, that it might be better to remain at a distance and allow the children to seek contact with her, should they choose to do so. She believed that her younger son would be likely to do this now but might be hindered by the father. Regardless, her discussion of this issue reflected her awareness and reluctance to pursue the matter. The Tribunal believes that this indicates her sensitivity to her children’s situations.
  14. [63]
    Fifth, the applicant fully appreciates the unconditional nature of the blue card authority.
  15. [64]
    In coming to a decision in this matter, the Tribunal recognises that the Act is specific about its purpose, that being the protection of the rights, interests, and wellbeing of children in Queensland taking into account the paramount consideration that children are entitled to care in ways that protect them from harm and promote their wellbeing. The applicant is entitled to receive a blue card unless her case is an exceptional one such that it would not be in the best interest of a child for her to have a positive notice and blue card issued as indicated in s 221(c).
  16. [65]
    There is a range of authorities that supports the view about what constitutes an exceptional case. It is not defined specifically in the Act but is a matter of discretion based upon the circumstances of the case. In the Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, the Queensland Court of Appeal endorsed a balancing approach between the relevant risk and protective factors arising from the circumstances of the particular case. This approach has been adopted by the Director-General in this matter and by the Tribunal in numerous earlier decisions.
  17. [66]
    The submissions made by the Director-General mounts a case that the risk factors outweigh the protective factors. In coming to the decision, the Tribunal finds that the protective factors summarised above and described in the evidence do not sustain a position that the applicant is a risk to children any greater than for any other adult in the community. Indeed, there is a history of the applicant’s involvement in a context of domestic violence, but there has been no substantive evidence provided that a risk continues. The applicant was willing to discuss very personal aspects of her life and expressed considerable regret about the impact her behaviour might have had on her children. She has significant support from the psychologist and fully appreciates the need to protect all children from emotional distress. There is evidence that she possesses the skills and strategies to avoid the negative impact of aggression, treat, and anxiety. This being the case, the protective factors that are apparent in this matter outweigh the risks that the Director-General has argues.
  18. [67]
    The Tribunal does not consider this matter to be an exception case as proposed by the Director-General.

Publication of these reasons

  1. [68]
    The Department asked the Tribunal to consider a non-publication order to protect the applicant’s and her children’s identity. A non-publication order can be made if it is considered necessary in the interests of justice, among other reason. The Tribunal indicated that the identity of the parties in this matter would be respected in the preparation of this set of reasons. The legal representative and the applicant agreed that this was appropriate, and no non-publication order was necessary.

The orders

  1. [69]
    The orders of the Tribunal are as follows: The decision of the Director-General, Department of Justice and Attorney General that the applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that this is not an exceptional case.

Footnotes

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

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[3] It does not appear as though the Director draws a distinction between the offence that led to the police notice, that is, the breach of the protection order via a text message to the aggrieved, and the applicant’s involvement in domestic disputes.

[4] An adjournment was called to enable the applicant to read the submission and consider her responses. Her comments on the submission were given on reconvening the hearing.

[5] This appears to imply that the applicant could be a threat if she moved from one employment situation to another, but this is not explored further.

[6] The actual frequency of these events was not explored.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 124

  • Court:

    QCAT

  • Judge(s):

    Member Ashman

  • Date:

    09 May 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.