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

NGV v Director-General, Department of Justice and Attorney-General[2020] QCAT 319

NGV v Director-General, Department of Justice and Attorney-General[2020] QCAT 319

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NGV v Director-General, Department of Justice and Attorney-General [2020] QCAT 319

PARTIES:

NGV

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML300-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 August 2020

HEARING DATE:

30 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case.
  2. Publication is prohibited of information that may identify the applicant, her children, or her grandchildren.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – where applicant seeks blue card – where applicant committed offences other than serious offences – whether exceptional case

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

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Jayatilaka

REASONS FOR DECISION

Introduction

  1. [1]
    NGV is a 54-year-old woman. She wishes to obtain a blue card as a step toward gaining approval to be a kinship carer for her grandsons.
  2. [2]
    NGV applied for a blue card on 10 December 2018. On 18 July 2019, the respondent (‘Blue Card Services’) decided to issue a negative notice. A negative notice prevents a person from holding a blue card while the notice remains in force.
  3. [3]
    In deciding to issue a negative notice, Blue Card Services had regard to NGV’s criminal history, a summary from the Department of Child Safety, Youth and Women (‘Department of Child Safety’), and other information. NGV’s criminal history includes offences of assault, public nuisance, drink driving, and driving while a child was unrestrained. The Department of Child Safety received several notifications over the years about NGV’s parenting of her children and domestic violence in the home.
  4. [4]
    NGV has four children: daughters born in 1987, 1990, and 1997, and a son born in 1999. NGV’s long-term partner, RDV, from whom NGV has now been separated for some years, is the father of the two youngest children.
  5. [5]
    Blue card decisions are made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). Where, as in NGV’s case, an applicant has not been convicted of a ‘serious offence’ as defined, the applicant must ordinarily be issued with a positive notice (which permits the granting of a blue card). However, if Blue Card Services is satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued, then instead a negative notice must be issued.[1]
  6. [6]
    Blue Card Services decided that NGV’s is an exceptional case. That is a reviewable decision.[2] On 16 August 2019 NGV applied to the Tribunal for a review. The matter was heard on 30 July 2020. Various documents were admitted into evidence,[3] and there was oral evidence from NGV and several of her witnesses. The documents included additional records that had not been before Blue Card Services when it made its decision, such as NGV’s traffic history and detailed notes made by the Department of Child Safety. NGV made oral submissions at the conclusion of the hearing. Blue Card Services then filed written submissions on 4 August 2020, and NGV filed written submissions in reply on 5 August 2020.
  7. [7]
    The tribunal must conduct a fresh hearing on the merits, and reach the correct and preferable decision.[4] Accordingly, I must decide whether NGV’s is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. It is necessary to have regard to several factors under section 226(2) of the Working with Children Act:
  1. 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. whether it is a conviction or a charge; and
  2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. when the offence was committed or is alleged to have been committed; and
  4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. 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;
  2. any report about the person’s mental health given to the chief executive under section 335;
  3. any information about the person given to the chief executive under section 337 or 338;
  4. 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. [8]
    References to the chief executive should be read as references to the tribunal, for the purposes of the review.
  2. [9]
    Some of the factors in section 226(2) will not require further discussion: it is uncontentious that NGV has not been charged with a serious offence, and that no information or reports have been provided under sections 318, 319, 335, 337 or 338 of the Working with Children Act. Further, a disqualification order under section 357 can be made only when a person is convicted of certain disqualifying and serious offences, and NGV has no such convictions.
  3. [10]
    The object of the Working with Children Act to promote and protect the rights, interests and wellbeing of children and young people, including through screening persons employed in particular employment or businesses,[5] must be borne in mind. The Working with Children Act is to be administered under the principle that the welfare and best interests of a child are paramount, and the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[6] Further, a child-related employment decision, such as the one made by Blue Card Services in NGV’s case, is to reviewed under the principle that the welfare and best interests of a child are paramount.[7]

NGV’s offending, and her comments 

  1. [11]
    NGV has committed the offence of drink driving on several occasions: in 1985, 1992, and twice on the same day in 2008. At the time of the 1992 offence, she also committed the offence of failing to provide a breath sample. She committed the offences of unlicensed driving in 1984, failing to produce a provisional licence in 1993, failing to wear or properly wear a seat belt in 1997 and 2008, and speeding in 2000, 2001, and twice in 2007.
  2. [12]
    In 1993, NGV committed the offence of driving while a child was unrestrained. NGV says this involved driving while one of her children should have been in a baby capsule but was not. NGV attributed this offending to having grown up in a rural area where it had been common not to restrain children in cars.
  3. [13]
    In 1991, NGV committed the offence of assault. The police outline of facts indicates that the offence occurred in the early hours of the morning outside a hotel; NGV punched the female victim to the ground and then punched her on the ground; another person also punched the victim on the ground; and the victim suffered a broken nose and abrasions to her knees. She required five stitches to her face. When NGV was interviewed, she said she did not have a clear memory of the incident but said she had not started the fight. In her evidence at the tribunal’s hearing, NGV said she would have been affected by alcohol at the time. She recalls feeling provoked by the victim, but she does not recall punching repeatedly as alleged.
  4. [14]
    In 1992, NGV committed the offence of behaving in an indecent manner. This involved urinating in public.
  5. [15]
    In 1997, NGV committed the offences of imposition and stealing. Both offences were committed on the same day. The police allegations are not in evidence, but NGV says the stealing related to a bed cover. She denies that she intended to steal it, but she concedes that she pleaded guilty to the charge.
  6. [16]
    NGV committed the offence of public nuisance in 2009, and again in 2012.
  7. [17]
    The police particulars of the 2009 offence indicate that it occurred in the early hours of the morning outside a nightclub. NGV yelled and swore at police. A male companion forced her to move away. She then swore at members of the public, and threw her shoes into a vacant lot. She tried to get back to the police to confront them, but she was restrained by her companion. The police then arrested her.
  8. [18]
    The police particulars for the 2012 offence indicate that it involved NGV yelling abuse at people involved in a disturbance outside a hotel in the early hours of the morning. She continued to do so after the police asked her to stop and leave. NGV says that this offence occurred when she was distressed in the immediate aftermath of her then-partner, RDV, having been seriously assaulted. 
  9. [19]
    NGV was not sentenced to imprisonment for any of her offences. For most offences she was fined. She was disqualified from driving on several occasions. For the assault she was placed on a good behaviour bond.

Information from Department of Child Safety, and NGV’s comments

  1. [20]
    There are lengthy notes[8] of the Department receiving notifications about, and conducting investigations into, NGV’s family at various times between 1990 and 2014. There are also notes about interactions between NGV and the foster carer of some of NGV’s grandchildren in 2019.
  2. [21]
    The notes are sometimes difficult to interpret. This is partly because the names of persons other than NGV have been redacted, so it is not always apparent which child is being discussed. Further, it is sometimes unclear whether the Department is merely recording an allegation received from a notifier, or expressing its own view.
  3. [22]
    Of particular note from the Departmental notes:
    1. (a)
      in 1990 the Department found that the father of NGV’s eldest daughter had hit that child, aged three, while NGV was in hospital, and NGV disclosed to the Department that this partner had previously been violent to her (NGV);
    2. (b)
      in 1996 a notifier told the Department that NGV was using alcohol and amphetamines daily, and occasionally using marijuana, ecstasy and heroin;
    3. (c)
      in 1997 the Department concluded that NGV had neglected a child or children in that she failed to take a daughter to a follow-up medical appointment (or possibly appointments) and she had not arranged counselling for a daughter who had been sexually abused;
    4. (d)
      NGV had been largely evasive and uncooperative with the Department in the course of that investigation, but she did admit to the conduct in question, and she also spoke of having previously smoked drugs;
    5. (e)
      in 1997 a notifier told the Department that NGV’s boyfriend has a quick temper and threw hot water on someone;[9] that the children were verbally abused by NGV and neglected; that NGV and the boyfriend were continually fighting; that NGV left the children by themselves; and that half of the time the children were not going to school;
    6. (f)
      the Department checked with the school and concluded that the allegation about the children’s absence was unfounded;
    7. (g)
      in 2004 a notifier told the Department that NGV’s partner was physically disciplining one of the older girls; that he masturbated in front of one of the girls and on the next day exposed his genitals to her; and there was domestic violence, with the notifier having seen the partner hit NGV;
    8. (h)
      NGV was informed of the allegations,[10] and said she did not believe the child’s disclosures;
    9. (i)
      in about 2007 the investigation and assessment file was transferred from the Department’s Toowoomba office to its Gladstone office, and the Gladstone staff had difficulty working out what previous investigations and interventions had been done;
    10. (j)
      Gladstone staff checked with the Queensland Police Service, who said that police records indicate that an assessment had been undertaken in St George by police and Department of Child Safety staff and that ‘the subject children’[11] were removed by the Department under a temporary assessment order and placed in care;
    11. (k)
      however, the Gladstone staff were unable to find out more details from Departmental records;
    12. (l)
      in 2011 a notifier told the Department that NGV had been out drinking for 12 hours; when she returned there was an argument between NGV and her partner; he grabbed her around the neck and threw her to the ground while yelling abuse at her; he later grabbed her arm and twisted it to force her out of bed; and children were present;
    13. (m)
      in 2013 a notifier told the Department that someone[12] threw a banana and a glass at NGV during an argument, and then pushed plates off a bench causing them to smash;
    14. (n)
      a few weeks later a notifier advised of increasing domestic violence, with NGV feeling very intimidated by her partner;
    15. (o)
      on one occasion the partner hit NGV while they were travelling in the car but NGV declined to give a statement to police;
    16. (p)
      at that time there was a domestic violence protection order in place to protect NGV;
    17. (q)
      in 2014 a notifier told the Department that police had been called to the house and observed blood; the partner told police there had been only a verbal argument; NGV told police that her partner had grabbed her by the throat and attempted to choke her, had smashed her head against the wall numerous times causing bleeding, had stood on her foot to cause pain as he had frequently done before, and had attempted to break her finger; there were nightly arguments which were often violent; NGV was fearful but could not afford to move; NGV told police that the partner was not very nice to the children; NGV told Departmental investigators that she had been subjected to aggressive and physical outbursts over the years from her partner; she was concerned about children living in this environment but seemed to be at the end of her tether and could see no way out of the situation;
    18. (r)
      NGV described domestic violence in the relationship over many years, with police assistance sometimes being required;
    19. (s)
      she said her partner was controlling but she could not see a way out of the situation because he would find her if she left;
    20. (t)
      the Department considered that ‘[redacted] [NGV] have no insight into how their continued Domestic Violence is affecting their relationship and their children’s emotional health’;[13]
    21. (u)
      Departmental officers considered that NGV’s ‘lack of emotions is a concern’;[14]
    22. (v)
      the Department considered that there was ‘violent domestic violence that is occurring in the home environment instigated mainly by [redacted] with [NGV] playing a role in this behaviour continuing’;[15]
    23. (w)
      NGV and the partner agreed to have counselling as suggested by the Department; and
    24. (x)
      in 2019, a notifier described NGV and a foster carer for some of NGV’s grandchildren arguing, yelling and abusing each other at contact handovers in front of the children.
  1. [23]
    In relation to the failure to take a child to a follow-up medical appointment (or appointments), NGV says that at the time, in 1996, she was living in Gladstone; her second daughter became seriously ill and was hospitalised in Gladstone before being transferred to a Brisbane hospital; and after her daughter was discharged, NGV did not get her to a follow-up appointment in Brisbane. She says this was because she found it hard as a single parent to get back down to Brisbane, but she would have taken her daughter to see her local doctor in Gladstone. She says that her daughter made a full recovery. A solicitor for NGV, Ms Kerfoot, had previously advised Blue Card Services that at the time, NGV had minimal support from the child’s father, felt depressed and helpless because of the child’s illness, but did everything possible to assist in the child’s recovery.
  2. [24]
    In relation to the other matter in respect of which the Department of Child Safety concluded that NGV had been neglectful, namely the failure to arrange counselling for a child who had been sexually abused, NGV told the tribunal that she does not have a recollection of a requirement for counselling. Ms Kerfoot said in her letter to Blue Card Services that this incident related to a suggestion that the manager of a caravan park where the family was living had sexually abused one of the children. Ms Kerfoot said that NGV had taken the child to the doctor, who had advised NGV to keep an eye on the child.
  3. [25]
    In relation to the relationship with RDV, Ms Kerfoot said that the relationship had been normal until 2013 when RDV suffered a brain injury when assaulted outside a nightclub. (However, the year of the assault was probably 2012, rather than 2013, given that NGV says it happened on the same night that she committed the second public nuisance offence). Ms Kerfoot said that the injury changed RDV and made him very angry. Ms Kerfoot said that NGV felt she needed to support RDV, and she tried to limit the children’s exposure to his outbursts. Ms Kerfoot submitted that NGV was in the very difficult position of trying to support her partner and protect her children. She tried to pacify him, but this did not work, and the family then relocated to Darwin to see if a change of location would help. Ultimately, however, NGV ended the relationship.
  4. [26]
    NGV acknowledges that she used to smoke cannabis, but denies any other illicit drug use. In her ‘Life Story’ in September 2019,[16] NGV said she has been drug-free for ‘over 20 years’.[17] In her statement in March 2020, however, NGV said she had not engaged in drug use for ‘over ten years’.[18]
  5. [27]
    NGV told the tribunal that she did not fight with the foster carer in front of her grandchildren in 2019, as was alleged by a notifier.

Other information about NGV’s circumstances

NGV’s account

  1. [28]
    The following is a brief summary of NGV’s evidence about her background and circumstances.
  2. [29]
    NGV is proud of her Aboriginal heritage. In her Life Story, she describes her upbringing in very positive terms. She also gives an account of her adult relationships, jobs and interests.
  3. [30]
    She was a coordinator of a homework group for children between 1996 and 1998. She held a blue card between 2006 and 2008, when she worked in childcare. For most of her career she has worked in the construction industry. She currently has employment as a traffic controller.
  4. [31]
    Her second daughter’s three youngest sons are in a kinship care placement with her third daughter. NGV would like to gain approval as a kinship carer, so she can help look after the children on a full-time basis. Currently, she is permitted by the Department of Child Safety to have the children on a respite basis on weekends for up to 48 hours, or for longer periods with Departmental approval. Sometimes, the boys’ older brothers also come to stay.   
  5. [32]
    She engaged in cannabis use when she was younger, drank, and committed offences. She is remorseful about that conduct. She has since grown to become a responsible person. She now drinks only on special occasions.

The accounts of others

  1. [33]
    NGV provided statements or references from several friends and relatives, and from some health professionals. A number of these witnesses also gave oral evidence.
  2. [34]
    A statement from NGV’s sister-in-law, who also worked alongside NGV in the homework club, paints a different picture of the idyllic childhood described by NGV:

[NGV] grew up in a disadvantaged family with an alcoholic father and illiterate mother. Since childhood [NGV] has been exposed to alcoholism and dysfunctional relationships. The normalization of alcohol in [NGV’s] life was made by her father and the drinking culture of the small rural town she was raised in.

I have always known her to be very maternal being one of six children helping to raise her younger siblings. As a mother she actively participated within the community including regularly volunteering at her children’s school in sporting events and homework club.

I believe that [NGV] has made significant changes to better her life to become eligible to obtain a Blue Card.[19]

  1. [35]
    In a reference, this witness described NGV creating a ‘positive, nurturing learning environment where children feel safe’.[20] In her oral evidence, she recalled an occasion when she looked after NGV’s children for a few days when NGV was not allowed to have them. She said this had something to do with one of the children having been sexually abused at a childcare centre, which was followed by a court appearance in Goondiwindi.[21] The witness thought that the reason that the children were removed from NGV may have had something to do with a conflict of interest.
  2. [36]
    I found this witness particularly thoughtful and impressive. I accept her evidence.
  3. [37]
    The father of NGV’s eldest daughter gave evidence of NGV’s caring qualities. He said that she had been the victim of a ‘difficult domestic situation’ from which she ‘was unable to completely break away’.[22] He referred to NGV drinking and partying when she was younger, but considered that she has since matured.
  4. [38]
    I found this witness credible.
  5. [39]
    NGV’s first and third daughters gave evidence of their mother being a caring person who has matured. The third daughter, talking of her experiences growing up with NGV and RDV, said there had been arguments but she had not felt scared. They said that their mother interacts well with her grandchildren.
  6. [40]
    These witnesses, while sincere, seemed to me to have a tendency to remember their upbringings in a more favourable light than was probably warranted. Nonetheless, I accept that they have observed very positive interactions between NGV and her grandchildren.
  7. [41]
    RDV’s mother gave evidence that she had also worked in the homework group, and that she thinks NGV is wonderful with children. She said RDV became prone to angry outbursts after he was injured in 2012. He would yell and smash things. She said that NGV would phone her on such occasions to ask her to come and take the children. This witness acknowledged that some of NGV’s offending must have been ‘fuelled by alcohol’, but she considers that NGV is no longer prone to such behaviour.
  8. [42]
    This witness impressed me as sensible and honest.
  9. [43]
    NGV’s psychologist Dr Harvey gave evidence that NGV has attended 11 sessions with him since January 2020. NGV was referred by her general practitioner because of anxiety and depression relating to the situation of her grandchildren. Dr Harvey describes the goal of the therapy in terms of NGV achieving a better understanding of her emotional reactions to stress, so that she can more confidently and sensibly deal with life’s stresses.
  10. [44]
    NGV told the tribunal that she intends to continue psychological sessions, though with a different psychologist.
  11. [45]
    NGV provided evidence that she has participated in a number of programs in 2020: an assessment and relapse prevention program at the Alcohol Tobacco and Other Drugs Service (ATODS); a positive parenting program; and a women’s safety circle program designed to enhance awareness of cycles of domestic violence and the impact of such violence on families, to build resilience, and so on. A letter from the ATODS principal service provider indicates that no signs of ongoing substance dependence were evident in NGV.
  12. [46]
    NGV has also provided evidence to show that she started a diploma in counselling in 2017, which she has yet to complete, and that she has been committed to an exercise program to improve her physical and mental health.

Submissions on factual matters, and findings

  1. [47]
    Blue Card Services submits that comments by NGV that violence and other offending are not in her character, and had occurred 20 years ago when she was young and naïve, demonstrate that she minimises, and lacks insight into, her offending. NGV’s comments to that effect in her statement, taken in isolation, could give that impression, especially as some of the offending is more recent. However, in her evidence as a whole, NGV has acknowledged the offending and expressed remorse for it. It seems that the point NGV has tried to make is that her offending did not reflect her usual character, and that she stopped offending as she gained in maturity. 
  2. [48]
    In relation to the material from the Department of Child Safety, Blue Card Services submits that it overall:

suggests [NGV’s] actions, as recorded, constitute a fundamental breach of her duty of care as a parent, and are highly concerning given they appear to demonstrate an inability or unwillingness on [NGV’s] part to act proactively and prioritise the needs of children in her care.[23]

  1. [49]
    That submission proceeds on an assumption that all the matters set out in the Departmental notes are established fact. However, that is far from the case.
  2. [50]
    The identity of the notifiers is not disclosed in the material, though it is apparent that the 2004 allegations were made by a family member. While it is understandable that the Department does not identify notifiers, the practical effect for present purposes is that there is no way of knowing whether any particular allegation came from a neutral and therefore presumably reliable source, or, for example, from a neighbour or relative who bore animosity toward NGV.
  3. [51]
    Accordingly, for example, the allegation that NGV used heroin, amphetamines and ecstasy is a mere allegation from an unknown source, not confirmed by any admissions or sworn evidence, and denied by NGV in sworn evidence.
  4. [52]
    Further, Blue Card Services has misread some of the Departmental notes. In respect of the 1997 allegations about NGV verbally abusing children and so on, Blue Card Services submits that says that ‘Upon investigation the Department concluded “cause to be concerned about emotional abuse”’.[24] However, it is not apparent from the notes themselves that there had been any investigation. Indeed, the comments in question appear before an ‘Investigation Plan’ table, which has not been filled in. Further, the Department’s comment, more fully, was: ‘There may be cause to be concerned about emotional abuse …’.[25]
  5. [53]
    Similarly, in relation to the 2004 allegations of NGV’s partner physically disciplining one of the girls and masturbating in front of her and so on, Blue Card Services submits that the Department concluded that the children were at ‘high risk’ of neglect by NGV.[26] However, the adjective ‘high’ was not used by the Department in describing that risk.[27]
  6. [54]
    It is difficult to know what to make of the Department’s records about that notification. The notification came from a family member. There are comments from the Department to the effect that NGV knew about physical harm to the child by her partner (which may simply relate what the notifier said), and that she disbelieved the child’s disclosures (presumably about the sexual conduct). However, it is not apparent whether the Department itself ended up believing the allegations. One would have thought that removal of the children, or least some quite serious intervention, would have flowed if the Department regarded the allegations as credible. Yet there is no indication of that. There is reference to the child in question staying with a friend that night, so conceivably she might never have returned home, but the notifier had also expressed concern to the Department about potential risk to another person, presumably one of the other girls.
  7. [55]
    The only allegations of neglect or abuse by NGV that could be regarded as having been verified are the findings of neglect in 1997. This related to NGV failing to take her second daughter to a follow-up medical appointment (or perhaps appointments) in Brisbane, and not arranging counselling for a child in relation to sexual abuse. Perhaps because NGV was uncooperative with the Department in its investigation, there is no indication whether the Department considered that NGV may have had the practical difficulties she has described in getting back down to Brisbane from Gladstone, or whether she followed up, as she asserts that she would have, with the child’s doctor in Gladstone. I see no reason to doubt NGV’s evidence about this matter, in light of the corroboration by other witnesses about her caring nature. In relation to the failure to arrange counselling, it is not obvious why it would have been NGV’s role to arrange counselling for a child who had experienced sexual abuse. That would normally be done by police, the Department, or other professionals involved.
  8. [56]
    While it is possible that there were some shortcomings by NGV in respect of these matters, I do not consider that the finding of neglect by the Department means that there is a general tendency on NGV’s part to be neglectful of children.
  9. [57]
    There is some evidence, albeit imprecise, of children being removed from NGV’s care at some point. This was in St George, under a temporary assessment order. It appears that this followed one of the girls being sexually abused at a childcare centre. NGV’s sister-in-law says that this removal was only for a few days. There is no evidence to indicate that there was any abuse or neglect by NGV involved. Presumably the children may have been removed on a short-term basis while the Department clarified who had committed the abuse and in what circumstances.
  10. [58]
    It can be seen that some of the matters in the Department of Child Safety material are satisfactorily established. NGV admitted the conduct that gave rise to the finding of neglect in 1997. It is also undisputed that children were removed on a short-term basis in St George. In relation to domestic violence, there is other evidence that NGV was subjected to domestic violence. She acknowledges using alcohol, and she has admitted having used cannabis. The information about NGV’s then-partner physically disciplining a child in 1990 appears to be something that he admitted to, according to the Departmental notes, but in my view that incident does not reflect adversely on NGV given that she was in hospital at the time.
  11. [59]
    In respect of other matters in the Department of Child Safety material, such as allegations that NGV used amphetamines, that she verbally abused her children, and that she argued with a foster carer in front of her grandchildren, there are nothing more than anonymous allegations. There are no convictions, admissions or statements of evidence. Those matters are not established.
  12. [60]
    In relation to substance use, Blue Card Services submits that alcohol and drug use was a contributing factor in NGV’s offending. I accept that submission in relation to alcohol, but there is no evidence that drug use was a factor. In relation to whether substance use is an ongoing problem, Blue Card Services points to the differing accounts by NGV of how long she has been abstinent from drugs: ten or 20 years, as noted in paragraph 26 above. Further, Blue Card Services submits that NGV’s evidence about her abstinence from alcohol does not explain the need for her current enrolment in an ATODS program. However, I found NGV’s explanation credible. She said that she engaged with ATODS in order to demonstrate that she does not have an ongoing substance abuse problem. Further, she wanted to better understand why she had turned to alcohol in the past, and to help ensure that she did not relapse after what has been a very difficult time when she has been prevented from being a full-time carer for her grandchildren.
  13. [61]
    I accept that NGV has not used cannabis for many years, and that she does not now drink alcohol to excess.
  14. [62]
    In relation to domestic violence, Blue Card Services’ submissions begin:

Material produced by the Department indicates a history of domestic violence between the Applicant and her ex-partner from 1996 to 2013, whereby the Applicant allowed her two (2) children to be exposed to ongoing domestic violence.[28]

  1. [63]
    However, the available information does not indicate a history of domestic violence between NGV and RDV, so much as a history of NGV being victimised by RDV’s sustained and brutal violence. The submission that NGV ‘allowed’ her children to be exposed to domestic violence assumes that NGV could have stopped RDV’s violence, or simply removed herself and the children. That overlooks the contemporary understanding in our society of power imbalances in violent relationships, the disempowering effects of violence on victims, and the danger to women and children in leaving violent relationships.
  2. [64]
    Similarly, it was surprising to see a comment in the records of a government agency, summarised in paragraph 22(v) above, to the effect that NGV played a role in RDV’s perpetration of violence upon her. 
  3. [65]
    Blue Card Services also points to comments by the Department of Child Safety on the lack of emotion shown by NGV in relation to her situation, but in my view the lack of emotion is probably indicative of someone who had resigned herself to a harsh reality. Blue Card Services also points to the Department of Child Safety’s comment to the effect that NGV had no insight into the effects on the children of being exposed to violence. That comment, however, is not consistent with another comment in the Departmental notes about NGV being concerned about her children being in the home environment. RDV’s mother also gave evidence that NGV would ring her to take the children when she anticipated an outburst from RDV. I accept that evidence, and it too indicates that NGV was not indifferent to the effects of the violence on the children.
  4. [66]
    Blue Card Services also submits that in her oral evidence, NGV initially said that the domestic violence was just verbal, and the children were never in danger, before later acknowledging in light of the Department of Child Safety material that there had been physical violence. Blue Card Services submits that this demonstrates a lack of insight by NGV into the domestic violence that occurred and its effect on children. However, NGV actually described the violence as ‘mainly verbal’, which may well be accurate. On the other hand, the description given by Ms Kerfoot of the relationship between RDV and NGV being normal until 2013 (mentioned in paragraph 25 above), based on NGV’s instructions, either downplays the level of earlier violence or represents a peculiar view of normality. While there has probably been a downplaying by NGV of the level of violence, this may well reflect an understandable reluctance on her part to dwell on the extreme violence. Further, in saying that the children were not in danger, NGV explained in her oral evidence that she meant that RDV did not physically harm them when he was angry with her.
  5. [67]
    Blue Card Services acknowledges that NGV has recently engaged in counselling and programs.
  6. [68]
    Blue Card Services submits that Dr Harvey’s letters do not address questions such as the extent of NGV’s insight into her offending behaviours, whether there are remaining triggers for further offending, what if any preventative strategies NGV uses. These were topics which directions issued by the tribunal on 21 November 2019 said should be addressed in any health professional report. It is true that Dr Harvey did not approach his evidence in that manner. He prefers to focus on a particular therapeutic approach. His evidence is therefore of limited value, beyond showing that NGV has been willing to engage in sessions with a psychologist aimed at improving her ability to cope with stresses. 
  7. [69]
    Blue Card Services notes that NGV’s participation in counselling and programs only started after she was issued with a negative notice, and much of it is yet to be completed. Blue Card Services submits that there has been insufficient time to indicate whether these interventions have had a positive impact on NGV.
  8. [70]
    It is true that these interventions have been recent, and probably mainly motivated by a desire on the part of NGV to enhance her case. Further, I consider that there is a tendency in NGV to give a rosy view of her past: she recounts the happy parts of her childhood while probably glossing over struggles; she portrays RDV in sympathetic terms; and so on. Her evidence cannot be accepted uncritically. However, given the challenging circumstances that NGV has confronted, her tendency to portray her life positively probably reflects an unconscious coping mechanism rather than deceitfulness.
  9. [71]
    It is noteworthy that NGV’s pattern of offending has not continued since 2012. This lends support to the evidence of NGV and her witnesses that she has matured and reformed. This change in public conduct is also consistent with NGV’s account of her alcohol consumption changing from excessive to moderate. There is corroboration from witnesses that NGV is a caring person who engaged well with children in the homework group she coordinated, and that she interacts well with her grandchildren. NGV held a blue card in the past for two years. She says, and I accept, that at that time she worked in childcare. I accept that NGV is a caring and responsible person in her interactions with children. I do not consider that she poses a risk to children.

Section 226 factors

  1. [72]
    I have previously described NGV’s offending. In respect of all matters, she was convicted rather than merely charged. In some instances, the courts ordered that no conviction be recorded, but for present purposes any finding of guilt or acceptance of a plea of guilty constitutes a conviction, whether or not a conviction is recorded.[29]
  2. [73]
    None of the offences was a serious offence, as defined.
  3. [74]
    The offending occurred between 1985 and 2012, when NGV was aged between 19 and 46. She is now 54.
  4. [75]
    The sentencing remarks are not in evidence, so the courts’ reasons for not imposing imprisonment are not known. However, the offences are not ones that would  ordinarily attract terms of imprisonment.
  5. [76]
    I must consider the nature of the offences and the relevance of the offences to ‘employment, or carrying on a business, that involves or may involve children’[30] (‘child-related employment’).
  6. [77]
    One of NGV’s offences was directly child-related: the offence of driving while a child was unrestrained. Such an offence is obviously relevant to child-related employment because it involves placing a child in danger. It is relevant to take into account that the offence was committed some 27 years ago, and that it has not since been repeated.
  7. [78]
    NGV’s other offending was not directly child-related, but involved variously a lack of responsibility, dishonesty, violence, volatility, and lack of self-control. Such attributes give rise to concerns about whether such an offender will appropriately carry out child-related employment: whether the offender has good judgment; can cope well with conflict and stress; will behave responsibly and safely with children; will be a good role model for children; and so on.
  8. [79]
    The assault offence occurred some 29 years ago, and the pattern of other offending by NGV did not continue after 2012. Further, NGV interacted appropriately with children in a homework club between 1996 and 1998, and again while working in childcare between 2006 and 2008. NGV has also engaged successfully in other employment over many years, which indicates that substance use, irresponsibility as a driver and other personal shortcomings, and even subjection to ongoing domestic violence, cannot have intruded significantly on her working life.  
  9. [80]
    It is also relevant to take into account the other evidence that has been discussed, such as the Department of Child Safety notes and the evidence of NGV and her witnesses, under section 226(2)(e) of the Working with Children Act. The Court of Appeal has indicated that a broad inquiry is warranted in such cases into whether the circumstances that existed at the time of offending remain.[31]
  10. [81]
    I have discussed the Department of Child Safety information at some length. While I have accepted that children were removed from NGV’s care for a short time in St George at some point, there is no evidence that this resulted from neglect or abuse by NGV. The Department found that NGV had been neglectful in 1997, but as discussed I consider there were extenuating circumstances. I am satisfied that NGV was generally a caring parent to her children, as she is to her grandchildren.
  11. [82]
    It was relevant for the Department to consider whether NGV’s children were being harmed by exposure to domestic violence, because the Department had a duty to protect NGV’s children regardless of whether she could have prevented such exposure. The matter has ongoing relevance in relation, at least, to any child-related employment that might be conducted in the home. I note that NGV is not presently in a relationship. I am satisfied that as a result of her awareness of domestic violence through personal experiences and her participation in the women’s safety circle program, she is likely to avoid entering into a new relationship where she is at risk of violence.
  12. [83]
    If NGV were granted a blue card, it would be unconditional and it could be used in any child-related employment. That would encompass work with vulnerable children, and unsupervised work. It is also, of course, important to bear in mind the objects of the Working with Children Act, and the principles to be applied, including the paramount principle, as discussed in paragraph 10 above.
  13. [84]
    Blue Card Services submits that the Human Rights Act 2019 (Qld) is also relevant, though I am not satisfied that any rights of NGV under that Act identified by Blue Card Services, namely the rights to privacy and reputation, to take part in public life, to further vocational education and training, and to enjoyment of culture, have any relevance in this case. The only relevant right of NGV in my view is the right to a fair hearing in the review.[32] In relation to the rights of children, Blue Card Services points to the right of a child to protection.[33] That is a right emphasised in the Working with Children Act itself.
  14. [85]
    Blue Card Services submits that a precautionary approach is warranted, in view of the objects of the Working with Children Act and the principle that the welfare and best interests of a child are paramount. I accept that.
  15. [86]
    Blue Card Services submits that NGV’s is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued: NGV lacks insight into the impacts of substance abuse and domestic violence; there is insufficient evidence and insufficient time to indicate whether any therapeutic intervention has mitigated concerns; and there is no corroborating evidence to indicate that NGV has addressed her antisocial behaviours or that she has the ability to effectively manage her anger in times of stress.
  16. [87]
    I do not accept those submissions. I am satisfied that NGV does understand the impacts of substance abuse and domestic violence. She no longer uses alcohol to excess. She no longer uses cannabis. She has engaged in antisocial behaviour at times in the past, but that has been the exception rather than the rule. Her assault offence was committed in anger, but it was many years ago. The public nuisance offences are more recent. They were lapses in NGV’s ability to control her anger, but they were committed when NGV was still drinking to irresponsible levels. I also accept NGV’s evidence that the later offence, in 2012, arose in an extremely stressful situation when her partner had just been grievously assaulted.
  17. [88]
    Considering all of the circumstances, and bearing in mind the objects and principles of the Working with Children Act, I disagree with the conclusion reached by Blue Card Services that NGV’s is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. I consider that NGV’s is not an exceptional case. Accordingly, the correct and preferable decision is to set aside the decision made by Blue Card Services. 

Non-publication order

  1. [89]
    The tribunal may prohibit publication where that is necessary for some reason in the interests of justice.[34]
  2. [90]
    It is in the interests of justice that NGV, her children, and her grandchildren not be identified, for two reasons at least. Firstly, NGV has been a party to a domestic violence proceeding, and so she must not be identified.[35] Secondly, some or all of the children and grandchildren have been the subject of investigations of allegations of harm or risk, and so they too must not be identified.[36]

Conclusion

  1. [91]
    The appropriate orders are to set aside the reviewable decision and to substitute a decision that NGV’s is not an exceptional case, and to make a non-publication order.

Footnotes

[1]Working with Children Act, s 221.

[2]Ibid, s 353(a).

[3]Exhibits 1 to 6.

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

[5]Working with Children Act, s 5.

[6]Working with Children Act, s 6.

[7]Ibid, s 360.

[8]Exhibit 5.

[9]From the context, it was probably one of the children.

[10]Presumably the sexual allegations, though it is not entirely clear from the notes.

[11]Exhibit 5 NTP22; it is not evident which children are referred to as the subject children.

[12]Presumably NGV’s then-partner, RDV.

[13]Exhibit 5 NTP38.

[14]Exhibit 5 NTP40.

[15]Exhibit 5 NTP42.

[16]Exhibit 2.

[17]Ibid, [38].

[18]Exhibit 3, 3.

[19]Exhibit 3, annexure 1.

[20]Exhibit 4, BCS43.

[21]It was not clear from her evidence who had to appear in court, or why.

[22]Exhibit 3, annexure 3.

[23]Blue Card Services’ submissions filed 4 August 2020, [58].

[24]Ibid, [57(g)].

[25]Exhibit 5, NTP17.

[26]Blue Card Services’ submissions filed 4 August 2020, [57(i)].

[27]Exhibit 5, NTP20.

[28]Blue Card Services’ submissions filed 4 August 2020, [68].

[29]Working with Children Act, Schedule 7 (definition of ‘conviction’).

[30]Ibid, s 226(2)(a)(iv).

[31]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [41].

[32]Human Rights Act 2019 (Qld), s 31.

[33]Ibid, s 26.

[34]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[35]Domestic and Family Violence Protection Act 2012 (Qld), s 159.

[36]Child Protection Act 1999 (Qld), s 189(1).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 319

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    19 Aug 2020

Appeal Status

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

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.