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AL v Director General, Department of Justice and Attorney-General[2019] QCAT 203

AL v Director General, Department of Justice and Attorney-General[2019] QCAT 203

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

AL v Director General, Department of Justice and Attorney-General [2019] QCAT 203

PARTIES:

AL

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML-279-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

29 July 2019

HEARING DATE:

12 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that AL’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of AL.
  2. Publication of the name or identifying information of AL, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

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 – blue card – where issue of negative notice – application for review – criminal history – charge of common assault – convictions of contravention of domestic violence order– where not categorised as serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Commission for Children and Young People Bill 2000, Explanatory Notes, [10]

Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

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

Commissioner for Young People v Storrs [2011] QCATA 28

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

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

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

Re FAA [2006] QCST 15

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

APPEARANCES & REPRESENTATION:

Applicant:

In person

Respondent:

R Te Kani, In-House Government Legal Officer

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (who is the chief executive officer), Department of Justice and Attorney General (‘the Respondent’) that the case of AL (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant is a 45 year old woman.
  3. [3]
    The Applicant’s criminal history contains one charge and two convictions for domestic violence related offending which occurred in 2000 and 2014 respectively.  This will be described in more detail later. None of the charges or convictions were for a serious offence.[1]
  4. [4]
    The Applicant has completed a Certificate III in Assistant in Nursing.  She seeks a blue card to enable her to carry out her work duties in her employment.
  5. [5]
    In December 2017, the Applicant applied to the Respondent for a positive notice and blue card under the WWC Act.
  6. [6]
    The Respondent considered the Applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that the Applicant had been charged or convicted for an offence other than a serious offence.[2] The Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[3] Accordingly, by letter dated 30 August 2018, the Respondent advised the Applicant of its decision to issue a negative notice.
  7. [7]
    The Applicant has applied to the Tribunal for review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[4] may, within the prescribed 28-day time period, apply to the Tribunal for a review of a chapter 8 reviewable decision,[5] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the Respondent issued a negative notice.[6]
  2. [9]
    The Applicant has satisfied the prerequisites to apply for the review because the Applicant is not a ‘disqualified person’ and the Applicant applied to the Tribunal for review within the prescribed 28 day time limit.[7]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the Respondent as to whether or not there is an exceptional case for the Applicant, because that decision resulted in her being issued with the negative notice.[8]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[9]
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[10]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[11]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[12]
  5. [16]
    The role of the Respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[13]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that where a person has been charged or convicted with an offence other than a serious offence,[14] a positive notice must be issued[15] unless the Respondent 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. In that case, a negative notice must be issued.[16]
  2. [18]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [19]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
    1. the chief executive is not aware of any police information or disciplinary information about the person; or
    2. 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 –
      1. (i)
        investigative information;
      2. (ii)
        disciplinary information;
      3. (iii)
        a charge for an offence other than a disqualifying offence;
      4. (iv)
        a charge for a disqualifying offence that has been dealt with other than by a conviction; or
    3. the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  2. (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.
  1. [20]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [21]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines ‘exceptional’ as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [22]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. (i)
        whether it is a conviction or a charge;
      2. (ii)
        whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. (iii)
        when the offence was committed or is alleged to have been committed;
      4. (iv)
        the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. (iv)
        in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [23]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [24]
    The Tribunal cannot go beyond convictions and must accept them as they are.[17] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[18]
  3. [25]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[19]
  4. [26]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[20]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [27]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[21]
  2. [28]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[22]
  3. [29]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[23]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [30]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott No.2, Buss J observed:[24]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [31]
    The Tribunal should consider risk and protective factors when determining a review decision.[25]
  2. [32]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[26]
  3. [33]
    Neither party bears the onus in determining whether an exceptional case exists.[27]
  4. [34]
    The Tribunal must review a decision under the WWC Act under the principle that the welfare and best interests of a child are paramount.[28]

Matters required to be considered by section 226 of the WWC Act

Criminal history information given under section 318 of the WWC Act

  1. [35]
    The Applicant’s criminal history is as follows:
    1. (a)
      A charge dated 2 August 2000 of common assault (committed on an unknown date). No summons was served on the Applicant in respect of that charge, for reasons unknown to the Respondent;
    2. (b)
      Two charges dated 26 February 2015 of contravention of domestic violence order (committed on 16 December 2014) and contravention of domestic violence order (committed on 28 December 2014) respectively. In respect of those charges and a separate charge of drive motor vehicle under the influence of liquor (committed on 27 November 2014), the Applicant was placed on probation for 6 months and was disqualified from driving for a period of 6 months, with no conviction recorded. The circumstances of those charges are noted in the Queensland Police Service (‘Police) Brief are as follows:
      1. A Protection Order naming the Applicant as respondent was made on 15 December 2014. The Protection Order was due to expire on 14 December 2015. The Applicant’s male partner, HM, and the Applicant’s three children, then aged 18 years, 10 years and 5 years were named persons on the Protection Order;
      2. It was alleged that at about 5.00pm on 16 December 2014, the Applicant came home heavily intoxicated. The Applicant became angry and aggressive towards HM and tried to kick him in the groin and throw a plate at HM. The Applicant threw a small glass jar at HM and also smashed the windscreen of HM’s car. It was alleged that the Applicant’s two young children witnessed the incident. The Police was called to the residence. The Applicant stated to the Police that she was a chronic alcoholic and although she had sought help for her alcoholism she was unable to get sober;
      3. It was further alleged that at about 8.15pm on 28 December 2014, the Police was called to attend a domestic violence incident.  An informant told the Police that they could hear glass smashing inside the address where there was a male and female and that the two young children were at a neighbour’s house because they were scared. The Applicant admitted she threw a glass bottle at HM although it didn’t hit him.  The Applicant alleged that HM had smashed things. HM told Police that the Applicant had ripped off a windscreen wiper off his car but he did not wish to make a complaint about HM and he was otherwise not forthcoming with information. It was alleged that the Applicant’s two young children had witnessed the incident;
      4. It was alleged that the Applicant breached conditions of the Protection Order which required her to be of good behaviour and not commit domestic violence against HM and not expose the children to domestic violence.
  2. [36]
    None of the charges/offences is in respect of a serious offence nor a disqualifying offence.[29]
  3. [37]
    The charges of contravention of domestic violence order and contravention of domestic violence order are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[30]
  4. [38]
    The relevance of the charges/offences to employment, or carrying on a business, that involves or may involve children is that the Applicant’s behaviour placed persons at risk of psychological and physical harm. It indicated a tendency to respond to stressors in an aggressive manner. In relation to the charges of contravention of domestic violence order, the Applicant exposed her children to domestic violence, which indicated failure to act in the best interests of children and to act protectively towards children by avoiding their involvement in and exposure to violence. Such behaviour is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the Applicant’s ability to provide a protective environment for children and to ensure their safety and wellbeing.

Sexual offender order information given under section 319 of the WWC Act

  1. [39]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [40]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under section 337 or 338 of the WWC Act

  1. [41]
    No information was requested or received pursuant to those sections.

Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [42]
    Additional matters which the Respondent considered particularly relevant are that at least one of the offences occurred in the context of the Applicant being intoxicated with alcohol. The Applicant admitted that she was a chronic alcoholic and she had a history of alcohol misuse.
  2. [43]
    The Applicant was also respondent to an Apprehended Domestic Violence Order summons in New South Wales in 2000 however there is no evidence that a Domestic Violence Protection Order (‘PO’) was made at that time.

Materials provided by way of Notice to Produce

  1. [44]
    Material was produced by the Department of Child Safety, Youth and Women (‘DOCS’), the Ipswich Magistrates Court and the Department of Transport and Main Roads pursuant to Notices to Produce issued by the Tribunal.
  2. [45]
    Relevantly, the material noted the following:
    1. (a)
      DOCS was notified of a number of concerns regarding the Applicant using drugs and alcohol, the Applicant’ driving her children to school whilst drunk, the Applicant’s mental health after the death of her father and exposure of the Applicant’s children to domestic violence. Assessments were made regarding the safety and wellbeing of the Applicant’s children in her care however no ongoing action was taken by DOCS. None of the concerns met the threshold for a Child Protection Notification to be recorded under s 14 of the Child Protection Act 1999 (Qld) (‘CP Act’) and DOCS did not provide information to the police under s 14(2) of the CP Act in respect of any of the incidents;
    2. (b)
      On 24 November 2014, upon Police application, a Temporary Protection Order was made which named the Applicant as respondent. HM was named as the aggrieved and the Applicant’s three children, including two minor children, were named persons also protected by the Temporary Protection Order. It included a condition that the Applicant was not to commit domestic violence against HM and was not to expose her children to domestic violence;
    3. (c)
      On 15 December 2014, a Protection Order was made in the same terms as the Temporary Protection Order. It was to expire on 14 December 2015. The Protection Order was ordered by consent without admissions;
    4. (d)
      The Applicant was convicted of drive motor vehicle under influence of liquor (over high a/limit) for having a blood alcohol content of 0.267 on 27 November 2014. The Applicant was disqualified from driving for six months. The Applicant was also convicted of speeding once in 2016 and twice in 2012.

Witness evidence

The Applicant

  1. [46]
    The Applicant gave evidence by way of a written ‘life story’, two written statements of evidence and oral testimony given during examination-in-chief and cross-examination.
  2. [47]
    The Applicant is a 45 year old woman. She has three children: a son aged 22 years and two daughters aged 10 and 15 years respectively. She lives with her current partner, HM, and her daughters. Her son lives independently although they have regular contact.
  3. [48]
    The Applicant described growing up surrounded by alcohol and drugs. She became dependent on alcohol during her late teens or early 20’s, particularly following her involvement in emotionally and physically abusive relationships and the birth of her first child. 
  4. [49]
    In relation to the charge of common assault in 2000, the Applicant admitted that she assaulted her former partner in the context of frustration about having to ‘beg’ for child support.  She denied that she was intoxicated at the time.
  5. [50]
    The Applicant met her current partner, HM, when she was about 28 years old.  Her alcohol dependence continued.
  6. [51]
    From about 2003, the Applicant was abstinent from alcohol for a period of about 5 years through ‘sheer will power’.  Her second child was born during this time.
  7. [52]
    The Applicant was profoundly affected by the suicide of her father in August 2008.  The Applicant used cannabis on an intermittent basis when she was not in the presence of the children but ceased that upon becoming aware that she was pregnant. She experienced postnatal depression following the birth of her third child on the one year anniversary of her father’s death.
  8. [53]
    Around this time, the Applicant recommenced drinking alcohol and soon after became a “full blown alcoholic”. HM regularly worked away at mines but when he was home, the Applicant and HM both drank heavily. There were increasing domestic disputes between them. The Applicant moved out of their marital home but conflict between them continued. 
  9. [54]
    A Temporary Protection order was made on 24 November 2014, which included a condition that the Applicant was not to commit domestic violence against HM and was not to expose her children to domestic violence. A Protection Order was made in the same terms on 15 December 2014. 
  10. [55]
    The Applicant accepts the alleged circumstances of the charges of contravention of domestic violence order, committed on 16 December and 28 December 2014 respectively. She acknowledged that she was at fault. At the time of the offences, the Applicant was under the influence of alcohol, felt frustrated and pushed to the limit by HM and did not realise the seriousness of her conduct.
  11. [56]
    The Applicant also accepts the charge of driving under the influence of alcohol.  She denies that she has ever driven her children whilst under the influence of alcohol.
  12. [57]
    The Applicant ceased drinking alcohol on 26 January 2015 due to feelings of guilt and shame in relation to the charges and to be sober for her children.  She suffered serious alcohol withdrawal symptoms including seizures.
  13. [58]
    However, the Applicant has remained abstinent of alcohol since that time, a period of about 4 years and 4 months, by using ‘sheer will power’ and the support of family and friends, particularly her partner, sister, neighbour and son. The Applicant recognises triggers and manages triggers with exercise and talking with members of her support group. She has learnt to mentally process her thoughts and feelings in a way she never previously did. She regularly talks with her sister, CF, who is a qualified mental health worker, which she has found that particularly helpful as “she knows me and she tells me as it is, straight up”. She also talks more with her partner, HM, and their relationship has greatly improved. An elderly neighbour is also a valuable support. She is less angry about past events. She attended one counselling session but did not find talking to a stranger helpful. She attended Alcoholics Anonymous on one occasion but did not find it helpful and she was uncomfortable with the group setting and religious aspects and hearing attendees say they were going to the pub after the meeting.
  14. [59]
    The Applicant has maintained alcohol abstinence despite her experiencing severe alcohol withdrawal symptoms and emotional challenges as a result of the Blue Card process and feelings of deep shame, particularly over the last year. She has also maintained alcohol abstinence despite her partner, HM, continuing to drink alcohol.
  15. [60]
    The Applicant says that she would never intentionally hurt a child.  However, she acknowledged that her behaviour exposed her children to unacceptable incidents of personal violence and that she was unable to protect them as best she could when she was drinking. 
  16. [61]
    The Applicant returned to the marital home with HM and her children in August 2015.  There has been no violence between them since that time despite various stressors.
  17. [62]
    The Applicant now has a good relationship with HM and her children.  HM no longer works away and they have a more loving relationship.  Her children are doing well and she has a close relationship with them.  She has undertaken an online Triple P parenting course. She consults mental health websites and literature for advice and strategies. She has obtained a qualification of Assistant in Nursing Certificate 3 and has maintained ongoing employment for a number of years. She wants to be a good role model for her children and a valuable employee. 
  18. [63]
    The Blue Card application and appeal process has caused the Applicant to further revaluate her past behaviour. She expressed feelings of “deep shame and embarrassment” in relation to her past alcohol use and behaviour. She expressed considerable remorse about the impact of her alcohol use and behaviour on HM and her children. She now has a complete aversion to alcohol and has resolved never to drink any alcohol again. 

HM, the Applicant’s partner

  1. [64]
    HM gave evidence by way of a written statement and oral testimony given during cross-examination.
  2. [65]
    HM and the Applicant have been in a relationship for 18 years. Together they have raised the Applicant’s three children. The Applicant has also had a close relationship with HM’s children from another relationship.
  3. [66]
    The Applicant started drinking significantly following the death of her father.  At the time, HM was regularly working away for periods of time. HM feels that he was partly to blame for the Applicant’s actions because he also drank when he was home.
  4. [67]
    He denied that the children were ever endangered as a result of the Applicant’s behaviour.
  5. [68]
    HM confirmed that the Applicant has not used alcohol since January 2015 and he believes that she will not relapse back to alcohol use. He and the Applicant now have a healthy relationship and there is no violence between them. He and other family members, their neighbour and friends will help to support her.

CF, the Applicant’s sister

  1. [69]
    CF gave evidence by way of a written statement and oral testimony given during cross-examination.
  2. [70]
    CF is qualified with a Diploma in Community Mental Health and has ten years’ experience working as a Mental Health Support Worker.
  3. [71]
    She was aware of the Applicant’s charges, history of alcohol use and the reasons given for issuing the negative notice.
  4. [72]
    Following the suicide of their father in 2008 and the birth of the Applicant’s daughter in 2009, CF observed a noticeable decline in the Applicant’s mental health and the Applicant’s increasing dependence on alcohol.
  5. [73]
    Since the Applicant was convicted in January 2015, CF and the Applicant have become closer and they now maintain frequent contact. CF confirmed that the Applicant has been abstinent of alcohol since January 2015. The Applicant has demonstrated her conviction to maintain sobriety by ceasing communications with individuals that are not conducive with her family orientated healthy lifestyle. CF has no concerns regarding the Applicant.
  6. [74]
    The Applicant has expressed to CF her remorse for the damage and suffering she caused to her children due to her behaviour and dependence on alcohol. She has also attempted to mend family bonds and provide a positive role model for her children and the community. She is a loving and caring mother and her children are happy and engaged.
  7. [75]
    The Applicant has gained invaluable knowledge through her recovery and demonstrates respect and empathy through developed perspective.
  8. [76]
    The Applicant has developed a calmness and no longer responds with anger or heightened emotions. She is receptive to counsel and listens to suggestions to increase her comprehension of issues.  She now has skills to manage her responses with maturity and consideration for others.
  9. [77]
    The Applicant implements helpful strategies when stressed such as communicating her thoughts and fears rather than denying the existence of any problems. She has implemented personal goals and is focused on utilising self-regulation strategies and techniques to create new coping mechanisms for managing daily life and stress.

AL, the Applicant’s adult son

  1. [78]
    AL gave evidence by way of a written statement and oral testimony given during cross-examination.
  2. [79]
    AL acknowledged the Applicant’s previous drinking behaviour but was adamant that that he and his siblings were not in danger.
  3. [80]
    AL confirmed that the Applicant has not consumed alcohol for over four years. In that time, the Applicant has studied, got a job and improved her life. AL and the Applicant now have a close relationship and their family is “doing great”. He described the Applicant as “the best Mum in the world”. The Applicant frequently apologises for her past behaviour. He believes that the Applicant will never drink again.

Respondent’s submissions

  1. [81]
    The Respondent identified the following protective factors:
    1. (a)
      There is evidence that the Applicant has developed insight into her offending behaviour, feels remorse and has identified her triggers and strategies to minimise the risk of future behaviour;
    2. (b)
      The Applicant is supported by her partner, family and friends who attest to the positive changes that she has made in her life;
    3. (c)
      The Applicant’s assertion that she no longer consumes alcohol is supported by her doctor and referees;
    4. (d)
      The Applicant has completed a Certificate III Assistant in Nursing; and
    5. (e)
      The Applicant and her adult son both state that they have a changed relationship as a result of the Applicant’s sobriety.
  2. [82]
    The Respondent identified the following risk factors relevant to the Applicant:
    1. (a)
      The Applicant has one charge and two convictions for domestic violence related offending which occurred in 2000 and 2014 respectively;
    2. (b)
      While the charge of common assault was not finalised, the WWC Act requires the Tribunal to take charges into account when assessing whether or not an Applicant’s case is an exceptional case;[31]
    3. (c)
      The Applicant exposed her minor children to domestic violence on at least three occasions known to police and twice in contravention of the conditions of a PO. Further a documented concern that the Applicant was driving her children to school whilst under the influence of alcohol raises questions about her ability to make appropriate decisions about a child in her care;
    4. (d)
      The Applicant has a long history of alcohol misuse, particularly as a coping tool for depression and stress. The Applicant ceased using alcohol in approximately 2003 for about six years without external support but then relapsed after the death of her father in 2008 and after having post-natal depression in 2009. In 2014, the Applicant was convicted of driving whilst under the influence of alcohol and was involved in three incidents of domestic violence where police attended and her intoxication was a factor;
    5. (e)
      Past behaviour suggests that the Applicant may not get help if she relapsed using alcohol;
    6. (f)
      Although alcohol use was a significant factor in the Applicant’s offending, emotional factors such as frustration, anger, stress and anxiety were also issues;
    7. (g)
      The Applicant has not used professional external support to stop using alcohol or to deal with emotional issues;
    8. (h)
      The Applicant has a history of using illicit drugs;
    9. (i)
      Some of the Applicant’s referees do not acknowledge the harm caused to the Applicant’s children from her behaviour.
  3. [83]
    The Respondent submitted that a precautionary approach should be adopted by the Tribunal.
  4. [84]
    Further, the Respondent submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
  5. [85]
    The Respondent submitted that the risk factors identified rendered the Applicant’s case an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to issue should be confirmed.

Applicant’s submissions

  1. [86]
    Although the Applicant’s doctor provided a letter, the Applicant did not make her doctor available for cross-examination because she though that the doctor would be too busy.
  2. [87]
    The Applicant denied that she historically hid her alcohol use from family or friends. With the benefit of new understanding, her family and friends would know if she commenced drinking again.
  3. [88]
    The Applicant acknowledged that her actions caused harm to those around her, particularly her children and expressed deep shame and remorse for her behaviour.
  4. [89]
    The Applicant noted that many of the issues of concern to the Respondent relate to the Applicant’s ability to manage her anger and aggression and to resolve conflicts without resorting to violence, particularly when intoxicated. 
  5. [90]
    She submitted that the circumstances which gave rise to the exceptional case no longer exist because she has changed since the offences. She now has a reliable support network of family and friends and has learnt to recognise and manage triggers. She has not drunk alcohol since 2015 and will never drink alcohol again.
  6. [91]
    The Applicant’s case is not an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to issue should be confirmed.

Findings of fact

  1. [92]
    The Applicant presented as open and sincere. Her evidence is largely supported by the other witnesses. 
  2. [93]
    The Applicant’s sister, CF, presented as open and honest. She had knowledge of the reasons for issue of the negative notice and the relevant charges. CF gave evidence in a personal rather than professional capacity, however her qualifications and experience in mental health were acknowledged as helpful to the Applicant.
  3. [94]
    Whilst HM and AL were also aware of the relevant charges and the Applicant’s alcohol dependence.  They did not acknowledge the risk of harm caused to the Applicant’s children as a result of their exposure to domestic violence, however they presented as sincere.
  4. [95]
    The Tribunal accepts the evidence of the Applicant, CF, HM and AL.
  5. [96]
    The Tribunal does not place any weight on witness statements of the Applicant’s doctor which did not comply with Tribunal directions and of other persons who were not made available for cross-examination.
  6. [97]
    On the basis of the evidence, the Tribunal accepts that the circumstances of the Applicant’s criminal history are as outlined above. It accepts that whilst the children were not themselves the subject of domestic violence, they were exposed to violence between the Applicant and HM. The Tribunal finds that the Applicant has insight that she was at fault in relation to the charges. Further, the Applicant has a genuine understanding that her behaviour was harmful to her children and was unacceptable and not suitable for a person responsible for the care of children. The Tribunal accepts that the Applicant is sincere in expressing deep shame and remorse for her behaviour. The Tribunal accepts that the Applicant has not consumed alcohol for approximately four years and four months and intends never again to consume alcohol. Further, the Applicant has changed her behaviour and has not engaged in any further aggressive behaviour during that period. The Applicant has since obtained a Certificate III Assistant in Nursing qualification and has obtained and maintained ongoing employment. The Tribunal is satisfied that the Applicant has demonstrated a developed understanding of triggers and how to manage triggers to avoid relapse of alcohol use and aggressive behaviour. The Applicant’s family and a neighbour are positive supports.

Consideration of the law and facts relevant to this case

  1. [98]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  2. [99]
    The Tribunal has also considered the submissions on behalf of the Applicant and Respondent respectively including relevant risk factors and protective factors.
  3. [100]
    Concerns raised in relation to the Applicant were noted in the DOCS material. However, no incident met the threshold for recording a Child Protection Notification and DOCS did not provide information to the QPS under s 14(2) of the CP Act. Accordingly, the Tribunal places limited weight on that information and its relevance to risk.
  4. [101]
    The Applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[32] However, the Applicant’s was convicted of common assault in 2000[33] and two contraventions of domestic violence order in 2014. In addition, the Applicant was convicted of drive under the influence of alcohol (over high a/limit) in 2014.
  5. [102]
    The Applicant’s domestic violence related behaviour (which gave rise to the making of the Protection Order) and offending indicated a tendency to respond to stressors in an aggressive manner. Exposure of the Applicant’s children to violence between the Applicant and HM, placed the children at risk of psychological, if not physical, harm. It also indicated the Applicant’s failure to act in the best interests of her children and protectively towards them by avoiding their involvement in and exposure to violence. It raises serious concerns about the Applicant’s ability to provide a protective environment for children and to ensure their safety and wellbeing.
  6. [103]
    The Applicant has not engaged in any further offending or concerning behaviour in the intervening period of approximately four and a half years.  However, the passage of time alone is not determinative of whether or not a case is an exceptional case[34] and it is necessary to consider relevant risk factors and protective factors.
  7. [104]
    The Applicant’s chronic alcoholism was identified as a significant contributor to her offending behaviour. The Applicant has a long history of alcohol misuse, particularly as a coping tool for depression and stress. Emotional factors such as frustration, anger, stress and anxiety were also identified as significant factors in the Applicant’s offending.
  8. [105]
    It is commendable that the Applicant has demonstrated complete abstinence from alcohol since January 2015, despite some stressful periods during that time. She Applicant has also demonstrated an intention to remain completely abstinent from alcohol in the future.
  9. [106]
    An issue of concern is whether the Applicant will be able to maintain her current abstinence from alcohol. She previously relapsed using alcohol after a six year period of abstinence.
  10. [107]
    Based on the evidence, the Tribunal is satisfied that there are some noticeable differences in the circumstances of the Applicant’s current abstinence from alcohol and her previous six year period of abstinence.
  11. [108]
    Firstly, the Applicant has now developed good insight into her offending behaviour and she feels deep shame and remorse for her behaviour. The 2014 convictions and the Blue Card process have been confronting for the Applicant and have caused her to carefully consider her behaviour and the reasons for it. The Applicant now understands the impact of her chronic alcoholism and underlying emotional issues. The Applicant has a genuine understanding that her behaviour was harmful to her children and was unacceptable for a person responsible for the care of children. Further, she is genuinely motivated to maintain positive changes.
  12. [109]
    Secondly, the Applicant has identified triggers for her behaviour. The Applicant has identified that her chronic alcoholism together with emotional factors such as frustration, anger, stress and anxiety were significant factors in her offending.
  13. [110]
    Thirdly, the Applicant has identified and implemented strategies to successfully manage her alcohol dependence and emotional triggers. The Applicant has identified that she cannot drink any alcohol whatsoever and she has been completely abstinent of alcohol for about four years and four months. The Applicant has made positive changes to her life and now lives a quieter, family oriented lifestyle. She successfully manages her emotional triggers through exercise and talking with members of her support group. The Applicant is calmer and is not as emotionally triggered as she was previously. There have been no incidents of aggressive or inappropriate behaviour since the offending behaviour. This is a real achievement given that the Applicant has had various stresses, obtained her qualification and maintained ongoing employment during that time.
  14. [111]
    Fourthly, the Applicant has developed positive supports. It is a concern that the Applicant has had very limited engagement with professional support services such as Alcoholics Anonymous and a counsellor to stop using alcohol or to deal with her emotional issues. However, the Applicant now has improved and closer relationships with her family and neighbour and they have an improved understanding of her alcohol dependence and emotional issues. The Applicant now processes emotional and other issues through talking with them in a way that that she never previously did.  The Applicant has particularly benefited from a closer, more candid and supportive relationship with her sister who now has mental health training. The Applicant also consults mental health websites and literature for advice and strategies. Those supports are likely to continue.
  15. [112]
    Fourthly, the Applicant now also benefits from other positive factors such as her Certificate III Assistant in Nursing qualification.

Conclusion

  1. [113]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that there is not a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  2. [114]
    The Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a positive notice. Accordingly, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
  3. [115]
    The Tribunal orders that the decision of the Respondent that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the Applicant.

Non-publication

  1. [116]
    The Applicant and Respondent agree that it is appropriate for a non-publication order to be made under s 66 of the QCAT Act to de-identify references in any material to the Applicant, her family and her children.
  2. [117]
    The Tribunal orders that publication of the name or identifying information of the Applicant, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 QCAT Act.
  3. [118]
    Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]Defined in s 167 WWC Act.

[2]Defined in s 167, WWC Act.

[3]Section 221(2), WWC Act.

[4]Defined by s 169 of the WWC Act.

[5]Section 354(1), WWC Act.

[6]Section 353, WWC Act, definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’.

[7]Section 33(3), QCAT Act.

[8]Section 353, WWC Act, definition of ‘chapter 8 reviewable decision’; s 354, WWC Act.

[9]Section 19(a), QCAT Act.

[10]Section 19(c), QCAT Act.

[11]Section 20(1), QCAT Act.

[12]Section 20(2), QCAT Act.

[13]Section 21, QCAT Act.

[14]Defined in s 167, WWC Act.

[15]Section 221(1), WWC Act.

[16]Section 221(2), WWC Act.

[17]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner 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].

[18]Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[19]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[20]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[21]Section 5(b), WWC Act.

[22]Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[23]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[24]2008 (WA) SCA 171, [109].

[25]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[26]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) CLR 336.

[27]Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[28]Section 360, WWC Act.

[29]As those terms are defined by ss 167 and 168 of the WWC Act.

[30]Schedule 7 of the WWC Act, definition of ‘conviction’.

[31]Section 226 WWC Act.

[32]As those terms are defined by ss 167 and 168, WWC Act.

[33]Whilst the charge of common assault in 2000 was not finalised, the Tribunal is entitled to have regard to it in determining in determining whether an exceptional case exists: s 226 of the WWC Act and Explanatory Notes to the Commission for Children and Young People Bill 2000 at page 11.

[34]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2019] QCAT 203

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    29 Jul 2019

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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