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CDQ v Director General, Department of Justice and Attorney-General QCAT 166
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CDQ v Director General, Department of Justice and Attorney-General  QCAT 166
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
18 June 2019
15 May 2019
ADMINISTRATIVE LAW – ADMINSTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINSTRATIVE TRIBUNAL – review of decision by respondent to issue negative notice – not serious or disqualifying offences – whether an exceptional case
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – review of decision by respondent to issue negative notice – not serious or disqualifying offences – whether an exceptional case
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- CDQ, a 39 year old male, applied for a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to enable him to undertake student placement in the course of his university studies.
- CDQ’s criminal history is as follows:
- (a)22 January 2001 resisting police and loitering, convicted without penalty, no conviction recorded;
- (b)23 July 2008 aggravated assault (no weapon) against child or spouse, threaten to kill or endanger life – aggravated offence, damage property not by marking graffiti/damage type unknown, dismissed want of prosecution;
- (c)04 June 2012 aggravated assault against own child or spouse – no weapon, dismissed want of prosecution;
- (d)29 August 2013 contravene terms of intervention order – other than programs, fail to comply with bail agreement, convicted, good behaviour bond $500, 18 months, no conviction recorded;
- (e)31 January 2014 unlawfully on premises, damage building or motor vehicle (not graffiti or unknown), withdrawn;
- (f)14 May 2014 commit assault – basic offence, damage building or motor vehicle (not graffiti or unknown), withdrawn;
- (g)14 May 2014 fail to comply with bail agreement (2), convicted without penalty, no conviction recorded;
- (h)01 April 2015 aggravated assault (no weapon) against child or spouse, contravene term of intervention order – other than programs, dismissed want of prosecution.
- The respondent invited CDQ to make submissions about whether or not there was an exceptional case for CDQ. The respondent issued a negative notice on 29 June 2018. CDQ is seeking a review of that decision.
- Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
The Legislative Framework
- The purpose of the Tribunal’s review is to produce the correct and preferable decision, on the evidence before it and according to law. For the review the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount. On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland. The principles under which the WWC Act is to be administered are:
- (a)the welfare and best interests of a child are paramount;
- (b)every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.
- Section 221 of the WWC Act provides:
- (1)Subject to subsection (2), the chief executive must issue a positive notice to the person if—
- (a)the chief executive is not aware of any police information or disciplinary information about the person; or
- (b)the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
- (i)investigative information;
- (ii)disciplinary information;
- (iii)a charge for an offence other than a disqualifying offence;
- (iv)a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
- (c)the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- (2)If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
- For the present purposes a positive notice must be issued unless the chief executive is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
- The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:
…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.
- In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
- (a)in relation to the commission, or alleged commission, of an offence by the person—
- (i)whether it is a conviction or a charge; and
- (ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
- (iii)when the offence was committed or is alleged to have been committed; and
- (iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
- (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;
- (b)any information about the person given to the chief executive under section 318 or 319;
- (c)any report about the person’s mental health given to the chief executive under section 335;
- (d)any information about the person given to the chief executive under section 337 or 338;
- (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.
- The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’
- In determining whether there is an exceptional case the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved.
The Material and Evidence
- Documents obtained from the police indicate that between 2008 and 2014 the police had 16 separate interactions with CDQ involving domestic violence, assault, property damage and breaches of bail conditions and intervention orders.
- While the whole of CDQ’s criminal history and behaviours of concern are relevant and of concern, the particulars of some only of the incidents of concerning behaviour as indicated by the police records is set below. In respect of most, but not all, of CDQ’s criminal history, the alleged victim was, at the relevant time, the partner or former partner of CDQ.
- In March 2008 it is alleged that CDQ and the complainant had been out drinking at a function. Returning home they argued. It is alleged CDQ yelled and screamed at the complainant repeatedly shouting ‘slut, fucking slut’ and ‘I’ll fucking kill you’ as well as shouting ‘I don’t care about hurting you, your family or the kid, I’ll kill you all I don’t care’, grabbed the complainant by the back of the neck and dragged her across the cement and broke a window. It is alleged CDQ left the property and returned 15 minutes later, when he resumed yelling and was more aggressive than earlier and that the complainant was petrified, inside the house with her baby and mother. CDQ told police he defended himself by pushing the complainant who smashed a bottle over his head but recalls nothing further due to the amount of alcohol he had consumed that evening
- In December 2011, it is alleged that CDQ, who was intoxicated, and the complainant argued while out. The complainant went home and CDQ arrived shortly after her. They continued to argue. CDQ grabbed the complainant by the legs, causing her to fall to the ground and hit her head. While the complainant was lying on her stomach CDQ grabbed her dress and rammed her into the wall causing a laceration of about 3 inches to her head, as well as heavy bruising and swelling to her head. Upon attending the scene, police observed the complainant holding a pair of shorts to her head to stem bleeding, blood splatter marks on the wall and floor and a mop in the laundry which appeared to have blood on the mop and in the water.
- In May 2013, CDQ was subject to bail conditions prohibiting him from approaching or communicating with his partner or attending her residence. CDQ attended her residence and in the presence of his partner and his 2 young children, grabbed the male complainant by the throat and punched him to the left side of the head. Later at a public location CDQ damaged the male complainant’s car door. While at the police station reporting the incident, in the presence of police, the male complainant received a telephone call from someone identifying himself as CDQ who, while on loud speaker, apologised for assaulting the male complainant and for damaging his car. The police arrested CDQ who denied attending at the address, the assault and damaging the motor vehicle, saying that the whole thing was made up.
- There were 5 further incidents during 2013 requiring the police respond to domestic incidents or breaches of bail conditions or intervention orders and the police records indicate CDQ’s children were in attendance upon their arrival at some of those incidents.
- In October 2014, contrary to the provisions of an intervention order, CDQ was at the complainant’s house looking after his children, at the complainant’s request, while she went out. He stayed overnight and the next morning they argued. She told police that when she sought to retrieve her telephone from CDQ he grabbed her left wrist, squeezed it tightly, then grabbed her by the throat and lifted her off the ground and slammed her into the ground, causing her to land on the concrete and hit her head. Police records indicate CDQ said the complainant grabbed at him and his clothing, scratching him and tearing his clothes and he pushed her out of the way with one hand and left the house. Interviewing police observed CDQ was scratched and his clothing was torn.
- It is apparent from the police records that a number of the charges arising from the incidents of domestic violence did not proceed as the complainant refused to provide a statement to the police.
- CDQ gave evidence and provided two character witnesses and a clinical psychologist’s report for the Tribunal.
- At the age of 20, CDQ joined the military and was involved in a culture that he says encouraged heavy and binge drinking and treated this as normal behaviour. He was deployed to East Timor in 2002 and while there was no drinking overseas his heavy drinking resumed upon returning to Australia. He felt this behaviour was normal. At Christmas 2005, aged 25, he met his now ex-partner. They were heavy drinkers. In late 2005 he was told he would be deployed to Iraq. He found Iraq to be a very aggressive environment and that aggression was required to get things done. Upon returning to Australia in 2006 his binge drinking resumed. He said he did not feel like himself, that he was short and always angry and was hypervigilant and paranoid. An army doctor he consulted told him his feelings were normal and to give it time.
- In late 2006 he left the army, got a job in security and joined the army reserves. In 2007 he commenced employment in correctional services as a prison officer. He continued to binge drink.
- His 2 children with his ex-partner were born in 2007 and 2009. He and his former partner broke up in 2011 and the relationship was on and off between 2011 and 2014.
- In 2008 an intervention order was imposed prohibiting CDQ from approaching or communicating with his partner or attending at her place of residence. The terms of this order may have been amended in 2011 and it seems likely it remains in place today. Police records also indicate CDQ was served with an intervention order on 20 July 2012, providing that he must not assault, threaten, harass or intimidate his former partner. A number of CDQ’s convictions are as a result of his contravention of the prevention orders and his bail conditions.
- From June to December 2013 CDQ attended 9 individual counselling sessions with Open Arms and attended a further 3 sessions with them in the period October to November 2014. It is clear from the reports of these sessions and from CDQ’s own evidence that he struggled to reduce his consumption of or to give up alcohol and continued to fall back into his binge drinking lifestyle. Summary notes of his last Open Arms’ counselling session in November 2014 indicate that despite receiving extensive treatment during 2013 and 2014, he had not managed to address ongoing issues in relation to his consumption of alcohol.
- He attended an anger management course and while acknowledging that it was good he felt that the greatest improvement in his behaviour was achieved by reducing his alcohol consumption.
- The only counselling attended by CDQ since November 2014 is the single session with a clinical psychologist for the purpose of obtaining a report for this hearing.
- CDQ says that in 2014 he completely changed his life by ceasing to associate with his friends who were heavy drinkers, changing jobs and ending his relationship with his former partner. He self-reports that he has reduced his alcohol consumption. No reliable corroborating evidence of this reduction in alcohol consumption or his changed behaviour since 2014 was provided to the Tribunal.
- CDQ said that he was a binge drinker and that both he and his former partner drank heavily and that often the incidents occurred after he had consumed alcohol, but that he was not under the influence of alcohol at the time of the May 2013 incident. Reflecting upon the numerous incidents in the course of his oral evidence CDQ observed that these types of occurrences were what happened when they drank and argued.
- In the application for review CDQ said all the incidents occurred while he was under the influence of alcohol and that his children did not ‘see or experience’ any of the incidents. This is not correct as he acknowledged in oral evidence – the events of May 2013 did not involve alcohol. His children witnessed the May 2013 event and his young child was in the house at the time of the March 2008 occurrence. Further, police records noted that in January 2013 when police were called to the premises because CDQ was intoxicated and refused to leave, the two children of the relationship were at the door. In oral evidence, CDQ downplayed his children’s exposure to the events of October 2014 saying that it was a quick incident and he left.
- When asked about the impacts of the exposure of his children to the violence in their home life he said it would have ‘some effect’ but he lacks insight into the effect of his offending behaviour on his children. It is unlikely that both children could have failed to recognise acts of domestic violence.
- CDQ indicated that he was regretful of his behaviour over this period of his life but in the Tribunal’s view this regret was focussed on the impact of the behaviour on his plans going forward, with little regard for its impact on others, particularly his children.
- CDQ says not all the events occurred as reported by the complainant to police. This is also consistent with his former partner’s evidence. However, it is clear that the police were called numerous times to deal with violent domestic situations involving CDQ and he acknowledged this. Charges were unable to be pursued by police as CDQ’s former partner, the complainant, would not provide a statement. There is no doubt that the relationship was volatile and characterised by violence. CDQ wrote in support of the application for review that ‘some volatile situations occurred’. The police records indicate 16 separate interactions with CDQ involving domestic violence, assault, property damage and breaches of bail conditions/intervention orders between 2008 and 2014.
- CDQ called his ex-partner and a friend to give evidence in relation to his character. The friend was not aware of CDQ’s criminal history and had not seen the respondent’s reasons for the issue of the negative notice and accordingly while the Tribunal accepts that her comments were genuine, little weight can be placed on her evidence.
- CDQ’s former partner gave evidence that her relationship with CDQ now is amicable but acknowledged their previous volatile relationship. She said that her statements to the police following the incidents were often not completely correct. In relation to the charges that did not proceed her evidence was that she would withdraw her statements to police because the next day she would be embarrassed and could not always recall the events but felt that her statements to police exaggerated the events. The various incidents were downplayed in her evidence and the Tribunal’s overall impression is that she sought to cast her evidence in a biased manner, designed to be helpful to and supportive of CDQ in his present application. Accordingly, little weight can be placed on this evidence.
- A report from a clinical psychologist, who consulted once with CDQ, was provided to the Tribunal, although it was not provided to the respondent until the hearing commenced. The doctor was not called to give evidence. Due both to the lateness of the provision of the report to the respondent and the fact that the doctor was not made available for cross examination, the weight which I can afford
this report is limited.
- CDQ did not furnish the Tribunal with a report from the Open Arms counsellor. However, the counsellor’s summary notes taken during these sessions were provided to the Tribunal and document CDQ’s continued struggle with alcohol, controlling his alcohol consumption and anger management, even during his final counselling session.
- When questioned about his support network CDQ referred to his large family and indicated he had some friends who were not alcoholics but said that he did not really need people. He said that he did not ask a family member for a reference for these proceedings as he did not want to ‘bring others into it.’ This raises concerns for the Tribunal about CDQ’s support network.
- The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.
- In written submissions the respondent identified as protective factors that:
- (a)There have been no offences recorded on the applicant’s criminal history nor any evidence of interactions with police in more than four years;
- (b)The applicant appears to have sought counselling and treatment for his alcohol abuse and reports reducing his alcohol consumption and ceasing binge drinking;
- (c)Following his most recent offence in October 2014, the applicant ended his long term relationship with his ex-partner, who was present during all of the applicant’s interactions with the police. The applicant stated that he has subsequently had no issues nor any interaction with the police and that he and his ex-partner now have a good relationship and effectively co-parent their two children;
- (d)The applicant has demonstrated some remorse in relation to his previous interactions with police, and his issues with alcohol abuse and demonstrates some insight into his offending behaviour;
- (e)The two witnesses are supportive of the applicant and indicate he is of good character, has made positive lifestyle changes, presents as a positive role model to children, has reduced his alcohol consumption and has a support network in his referees. In oral submissions the respondent submitted that the evidence of these 2 witnesses and that of the clinical psychologist should be afforded limited weight.
- The respondent’s written submissions identify as risk factors the following:
- (a)The applicant has a criminal history comprising offences in 2001 and then spanning 2008 to 2014 with repeated offences and behaviours of concern involving exceptionally violent and aggressive behaviour. The ongoing and repeated nature of the applicant’s behaviour during this period raises concerns about his risk of recidivism in the future;
- (b)The applicant’s aggressive and violent behaviour raises concerns about his ability to judge appropriate behaviour, exercise self-control and act in the best interests of children;
- (c)The applicant repeatedly exposed his young children to his violent and aggressive behaviour towards their mother and on at least one occasion, his violent behaviour towards another male. The fact that the applicant repeatedly exposed his young children to ongoing, violent conflict between himself and their mother (regardless of who initiated or perpetrated that conflict) suggests that he repeatedly breached his position of trust and authority as a parent and failed to act protectively or to role model appropriate behaviour in the presence of the children. Further, the repeated nature of these behaviours suggest the applicant possess little insight into the long term and significant impact of exposing children to domestic violence;
- (d)The applicant’s interactions with police relate to conflict within an intimate relationship and appear to have been disproportionate reactions to everyday interpersonal conflicts. This suggests a propensity for the applicant to act violently and aggressively to situations of conflict. The applicant has not provided any evidence as to the specific strategies he employs and the steps he has in place which assist him to manage conflict in a constructive manner;
- (e)The majority of the applicant’s behaviours of concern were alcohol-related, suggesting that alcohol is a trigger for the applicant engaging in violent behaviours. Notwithstanding the applicant’s submissions before the Tribunal indicating that he has addressed his issues with alcohol abuse when the information is considered in its totality, it is not clear that the applicant has effectively addressed his issues with alcohol abuse. The applicant has also failed to identify any skills or strategies he has in place to manage his consumption of alcohol and it also remains unclear the exact nature of the applicant’s ongoing use of alcohol. As a result there remains a significant risk of the applicant engaging in further excessive alcohol consumption triggering behaviours of concern;
- (f)In relation to his criminal history and behaviours of concern the material filed by the applicant as a whole demonstrates:
- (i)Limited remorse, particularly with respect to the impact his behaviour had on his ex-partner (the complainant in most of the incidents involving violent behaviour);
- (ii)Inconsistencies in relation to the circumstances of the incidents of concern, giving rise to concerns about the veracity of the applicant’s submissions;
- (iii)A tendency of the applicant to deny and minimise the seriousness of the behaviours;
- (iv)Limited understanding by the applicant of the serious emotional and physical harm he inflicted on others as a result of his actions;
- (v)Deflection of blame to others; and
- (vi)Limited insight by the applicant into the reasons for offending and a limited indication of an understanding of the impact of those behaviours on victims and witnesses, particularly his children;
- (g)The effect of issuing the applicant’s blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the purpose for which he has sought the card.
- In determining the correct and preferable decision the welfare and the best interests of a child are paramount.
- It is undisputed that none of the convictions or charges are for serious or disqualifying offences. Not all the charges resulted in convictions. However, charges that do not result in convictions can and must still be taken into account in the Tribunal’s consideration.
- The Tribunal accepts CDQ’s evidence that his relationship with his former partner was volatile; it was characterised by on-going physical aggression and violence between 2008 and 2014. CDQ was 28 to 34 years old at the time of this behaviour. Of particular concern is that CDQ’s criminal history is characterised by the use of violence in his personal relationship, that his children were exposed to this violent behaviour and that he has convictions for the repeated contravention of intervention orders and bail conditions. The applicant has engaged in repeated threatening and violent behaviour in the context of a domestic relationship. The breaches of intervention orders and bail conditions by him exhibit a disregard for the law.
- CDQ’s evidence displayed very limited insight into the long term and significant impact of his behaviour on his children. Family violence, even when it is not specifically directed to a child, has a long lasting and negative impact on children’s development and diminishes their sense of trust and security from those who should be their greatest protectors.
- The applicant’s violent offending and behaviours of concern suggests he is not an appropriate person to provide a protective environment for children, given that children are dependent on adults around them to behave in an appropriate manner in all contexts.
- When questioned regarding strategies to ensure that his behaviour was not triggered he pointed to the cessation of the relationship with his former partner and a significant reduction in his alcohol consumption. CDQ has not demonstrated strategies to manage his alcohol use on an ongoing basis to ensure he does not relapse with respect to his alcohol use and violent behaviour. CDQ referred to his need to look after his children as part of his strategy and skill to deal with pressure but this has not been effective in the past. The Tribunal does not consider he has mechanisms in place to allow him to deal with situations of conflict in the future.
- While the Tribunal did take into account the number of years that have elapsed since the last of the charges, the passage of time is not the only consideration. There is a significant history of violent offences, some of which has occurred in the presence of his 2 children. The Tribunal has also taken into account the age of CDQ at the time of offending and the broad period of time over which the offences occurred.
- On balance, after consideration of all of the evidence, the risk and protective factors, and weighing the relevant matters in the WWC Act the Tribunal is satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The decision of the Director-General, Department of Justice and Attorney-General under review is confirmed.
- As much of the information raised in the matter was obtained under a Notice to Produce and involved domestic violence matters and laws, publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child is prohibited pursuant to s 66 of the QCAT Act.
- Accordingly, these reasons have been de-identified.
 WWC Act, s 221(2).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.
 QCAT Act, s 20.
 WWC Act, s 360.
 QCAT Act, s 24(1).
 WWC Act, s 5.
 WWC Act, s 6.
Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, p 4391.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
 Written Submissions in support of Application to Review a Decision lodged 9 July 2018.
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492.
 Written Submissions of the Applicant attached to Application to Review a Decision filed 9 July 2019, Ex. 5 and Written Submissions of Applicant contained in Ex. 1 p. BCS-37.
 Written Submissions of the Applicant contained in Ex.1 p. BCS-37 and Ex. 5.
 Written Submissions of the Applicant attached to Application to Review a Decision filed 9 July 2019 and Ex. 5
 WWC Act, s 226.
- Published Case Name:
CDQ v Director General, Department of Justice and Attorney-General
- Shortened Case Name:
CDQ v Director General, Department of Justice and Attorney-General
 QCAT 166
18 Jun 2019