KWT v Director-General, Department of Justice and Attorney-General
[2021] QCAT 122
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- KWT v Director-General, Department of Justice and Attorney-General[2021] QCAT 122
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KWT v Director-General, Department of Justice and Attorney-General[2021] QCAT 122
KWT v Director-General, Department of Justice and Attorney-General[2021] QCAT 122
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | KWT v Director – General, Department of Justice and Attorney – General [2021] QCAT 122 |
PARTIES: | KWT |
(applicant) | |
v | |
Director – General, DEPARTMENT OF JUSTICE AND Attorney – General | |
(respondent) | |
APPLICATION NO: | CML060-20 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 9 April 2021 |
HEARING DATE: | 2 December 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: |
|
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 Domestic and Family Violence Protection Act 2012 (Qld), s 159 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, s 226 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Director – General, Department of Justice and Attorney – General v CMH [2021] QCATA 6 JR v Director – General, Department of Justice and Attorney – General [2020] QCAT 332 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | David Taylor (Government Legal Officer) |
REASONS FOR DECISION
Introduction
- [1]The Applicant (KWT) is a 23-year-old woman. She is the mother of two children. Those children were born in October 2016 and January 2020. Her relationship with the father of the elder of those children commenced in 2015 and terminated in or about late 2017. Since mid to late 2018 KWT has been in a relationship with the father of her younger child. That relationship subsists.
- [2]In July 2018 KWT applied for a Blue Card.[1] After assessing that application, the Respondent (Blue Card Services) issued a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).[2] That decision is a reviewable decision[3] and KWT has sought a review of that decision.[4]
- [3]The issue of a negative notice means that the applicant is under certain statutory restrictions including that she cannot apply for or start or continue in regulated employment.[5]
- [4]In coming to the decision to issue a negative notice Blue Card Services had regard to various matters including the applicant’s criminal history.
- [5]The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[6] One way that this object is sought to be achieved is by the screening of persons employed in particular employment. The principles for administering the WWC Act are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
- [6]
- [7]Given the issue of a negative notice,[10] it follows that Blue Card Services considered that KWT’s case was exceptional.
- [8]
- [9]Thus, the question before me can be phrased as follows – is KWT’s case an ‘exceptional case’ so that it would not be in the best interests of children for a positive notice to be issued?[13]
- [10]What constitutes an exceptional case? The phrase is not defined in the WWC Act, but the phrase must be considered in the context of that Act, the intent and purpose of that legislation and the interests of children who are the persons that the Act is designed to protect.[14]
- [11]Where, as here, there have been charges and convictions[15] a list of factors that the Tribunal must have regard to are set out in s 226 of the WWC Act. The matters that the Tribunal, conducting a fresh hearing, must have regard to include:
- (a)When the offences the subject of the charges and convictions were committed.
- (b)The nature of the offences and their relevance to employment, or carrying on a business, that involves or may involve children.
- (c)The penalty imposed by the court.
- (a)
- [12]
- [13]These factors are to be evaluated consistent with the guiding principle that the welfare and best interests of a child are paramount.[18]
KWT’s offences and her comments
- [14]In Blue Card Services’ ‘Reasons’[19] for coming to a decision to issue a negative notice and in Blue Card Services’ written submissions to the Tribunal[20] the offences and dates of the offences[21] are outlined as follows:
- (a)False and misleading representation on 7 January 2015.
- (b)Unauthorised dealing with goods on 11 October 2015.
- (c)Contravention of a domestic violence order on 9 February 2017.
- (d)A further contravention of a domestic violence order on 2 April 2017.
- (a)
- [15]The first two offences were committed in the year after the applicant had left school when she was 17 or 18 years old. They do not involve children or violence; however, they do show a level of dishonesty. Neither of these offences resulted in a conviction being recorded.
- [16]In the context of this matter particular focus needs to be given to the offences that constituted contraventions of a domestic violence order (the domestic violence offences). These domestic violence offences arise out of the now terminated intimate relationship between the applicant and the father of her elder child. This relationship subsisted in some form, although not necessarily accompanied by continuous co-habitation, from 2015 to in or about November 2017. The salient facts regarding the circumstances relevant to these offences are not in contest.
- [17]In her oral evidence the applicant stated that this relationship became ‘toxic’ when she was about four months pregnant with her first child. That is, in or about mid 2016. The applicant asserts that the manifestations of the toxic nature of the relationship were that she was subjected to verbal, physical and economic abuse by her then intimate partner. The applicant also asserts that her then partner engaged in substance abuse and did not provide much in the way of parenting assistance after the birth of their child.
- [18]Other evidence shows this relationship was troubled. It became the subject of a number of protection orders. Despite KWT’s assertion that her partner was abusive toward her, the first Protection Order in respect of this relationship, applied for on 2 February and made on 8 February 2017, nominated KWT as the ‘Respondent’.[22] That order enjoined KWT from committing domestic violence against her then partner. The order also provided that, subject to further order, it would continue in force to and including 8 August 2017. The grounds for this Protection Order are two incidents that occurred in early February 2017.
- [19]KWT gave oral evidence about these incidents. KWT acknowledged that the first of these incidents took place in the early evening of 1 February 2017. KWT stated that she attended at the residence that she had shared with her then partner to collect some of her possessions as she had moved out some one to two weeks earlier. Whilst there, KWT conceded to punching her then partner in the face during the course of an argument.
- [20]The second incident took place on the next night, 2 February 2017. KWT conceded that it was likely that she again punched her former partner in what she says were circumstances of some aggravation.
- [21]In her oral evidence KWT acknowledged that these incidents did involve violence by her and that her baby was exposed to this domestic violence.
- [22]As a result of these two incidents a Magistrate made a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld) on 8 February 2017. That order named KWT as the Respondent. The ‘Aggrieved’ was named as KWT’s then partner. KWT was in court when the Protection Order was made.
- [23]The very next day, 9 February 2017, a further incident occurred. This incident involved a verbal altercation between KWT and the father of her first child at the residence that they had shared. It was this incident that led to KWT’s conviction on 6 March 2017.
- [24]On 2 April 2017 another incident occurred. This incident was also at the residence that KWT shared with her former partner. At the time of this incident co-habitation had resumed. KWT, in her oral evidence, states that there was an altercation between her and the father of her child. During the course of this incident KWT admits that she bit her then partner as the means of freeing herself from his ‘bear hug’ and that her child was again exposed to domestic violence. This incident led to the Appellant’s further conviction for contravention of a domestic violence order. That is the conviction on 22 May 2017.
- [25]The relationship between KWT and the father of her elder child was the focus of further Protection Orders. These further Protection Orders were made at the instigation of KWT.[23] The Respondent to these Protection Orders was her now former partner. These applications were made on 4 April 2017 (resulting in a Protection Order dated 19 April 2017) and on 23 September 2019 (resulting in a Protection Order dated 14 November 2019).[24]
- [26]The incidents that led to KWT’s convictions for contravention of a domestic violence order share some concerning characteristics. They involve incidents of violence – pushing, punching and biting – all occurring in the presence of or in close proximity to her child.
KWT’s evidence
- [27]KWT called four witnesses to give evidence on her behalf, all of whom had provided witness statements. Two of these witnesses[25] had known KWT for about nine years. That is, since her early teenage years. In addition, KWT’s current domestic partner (and the father of her second child) provided a written statement[26] and gave evidence.
- [28]The fourth witness was a team leader from a domestic violence service that KWT has consulted over the period from 2017 to as recently as November 2020.[27]
- [29]In addition to these witnesses, KWT produced a letter from a psychology practice that she attended.[28] That letter set out the dates KWT had attended at the practice and the names of the psychologists she consulted. Blue Card Services did not dispute the accuracy of what was set out in the letter from the psychology service – that KWT had attended this service on 19 occasions in two tranches. Those tranches being nine appointments between 21 February 2017 and 30 May 2017 and ten appointments between 21 August 2018 and 23 March 2019.
- [30]The value of this letter as evidence was limited. It did not set out any reports from the psychologists who KWT consulted or details of the psychological therapy she received.
- [31]As a result, there were no independent psychology reports addressing such matters as KWT’s insight into the behaviour that led to her domestic violence convictions, whether she is able to recognise and control the triggers that caused the offending and what strategies or protective factors she has put in place to reduce the risk of further offending.
- [32]However, these matters were addressed by KWT in her written and oral evidence and by the witnesses that gave evidence in support of her application.
Insight into offending
- [33]KWT recognised, in both her statement of evidence and in her oral evidence, the seriousness of the behaviour that led to the making of the 8 February 2017 domestic violence order and her subsequent contraventions of that order. She did not prevaricate when addressing these incidents in her oral evidence and submissions. Rather she readily conceded that violence was an incident of the relationship between her and her former partner.
- [34]KWT expressed what I consider to be genuine remorse for her conduct. Further, I accept KWT’s evidence that she has benefited from the assistance she has received from consulting with psychologists and domestic violence practitioners. I consider that she now appreciates the emotional and psychological impact that violence can have on her children and any children that may be in her charge.
- [35]That this is a genuine insight was supported by the observations of the two lay witnesses that have known KWT for about nine years. Both these witnesses[29] were aware of the circumstances surrounding the domestic violence and other convictions, having been provided with a copy of the Blue Card Services ‘Reasons’ document.[30] They both gave evidence that KWT had insight into and regretted the behaviour that gave rise to the domestic violence offences and that she has learnt from her experience. These two witnesses also gave evidence that, based on their firsthand knowledge of KWT, she was a good mother to her two children and interacts well with other children.
- [36]Based on the evidence before me I consider that KWT does have insight into her offending.
Recognition and control of triggers that caused offending
- [37]KWT’s offending was in the context of her intimate relationship with her former partner, the father of her elder child. That relationship ended and co-habitation ceased towards the end of 2017. Since that time, and at least until about October 2019, KWT has had continued interaction with her former partner regarding parenting arrangements for their child. KWT’s evidence is that these interactions have been conducted without incident and that this is, at least in part, due to her recognition of the triggers that caused her offending.
- [38]In this regard her evidence is supported by the evidence of her current partner and the father of her second child. He gave evidence of interactions that he has witnessed between KWT and her former partner in the context of parenting arrangements for KWT’s elder child. KWT’s current partner’s evidence was that despite being subject to provocation in the form of passive aggressive remarks or being treated with condescension by her former partner, KWT retained her equanimity.
- [39]I consider that the termination of the relationship that gave rise to the 8 February 2017 Protection Order and KWT’s greater maturity and development of inter-personal skills for dealing with conflict, reflect recognition and control of the triggers that caused the offending.
Strategies or protective factors to reduce the risk of further offending
- [40]Although no independent psychology reports were in evidence, KWT did give evidence regarding strategies or protective factors that she has adopted to reduce the risk of further offending. I accept that she has benefited from the sessions that she has attended with psychologists. In particular, I accept that she has come to understand and adopt strategies to reduce the risk of further offending by understanding and dealing with stressful situations by communication and not by resorting to violence.
- [41]As to other strategies and protective factors, I note that the relationship that gave rise to the domestic violence offences terminated in or about late 2017 and that there have been no further offences since April 2017. KWT’s current partner gave evidence of a harmonious relationship – one that has produced a further child.
- [42]Finally, in relation to strategies and protective factors, KWT called a witness who was a domestic and family violence senior practitioner. That practitioner gave evidence that the organisation that she worked for, a specialist agency to assist people affected by domestic and family violence and their children, was provided with a copy of the Blue Card Services Reasons document. She also gave evidence, based on her organisation’s records, of KWT’s consultations with multiple domestic and family violence practitioners. The weakness of this evidence was that the witness had not consulted with KWT in a professional capacity in relation to KWT’s domestic violence offences and that her statement[31] was largely a recitation of what KWT had told practitioners at that service.
Section 226 and other factors
- [43]In relation to the offences set out above, I consider that the domestic violence offences relating to the contravention of the Protection Order of 8 February 2017 are of specific relevance to employment, or carrying on a business, that involves or may involve children. This is particularly so given the incidents on 1 and 2 February 2017 that gave rise to the making of the Protection Order on 8 February 2017, the 2 April 2017 contravention involved violence perpetrated by KWT and her elder child was present at times when that violence was occurring.
- [44]No convictions were recorded in respect of the contraventions of the domestic violence order at KWT’s court appearances on 6 March and 22 May 2017. However, there was some penalty – a fine was imposed, and a recognisance forfeited.
- [45]In both written and oral submissions, Blue Card Services recognised that KWT has made commendable efforts to change her circumstances and that the relationship that gave rise to the domestic violence offences had now terminated.[32]
- [46]However, the essence of Blue Card Services’ concerns regarding KWT’s application, expressed in both oral and written submissions, can I consider be reduced to two main points. Firstly, that as KWT’s actions exposed her child to violence, more time should elapse so that she can demonstrate her ability to always act in the best interests of children. Secondly, that there was a lack of independent probative evidence to establish that KWT’s offending behaviour does not still pose the possibility that children will be exposed to harm should she be issued with a blue card.
- [47]In considering these submissions, it is important to appreciate that any blue card that is issued would be unconditional and it could be used in any child-related employment.
- [48]As to the first of these matters Blue Card Services referred me, in both oral and written submissions, to the recent Tribunal decision of JR v Director – General, Department of Justice and Attorney – General [2020] QCAT 332 (JR). The circumstances that gave rise to that decision do bear some similarities with KWT’s situation, particularly with respect to the elapse of time since the last incident of concern and the steps taken by the applicant in that matter to improve her life. In JR the Member considered that the applicant needed more time to demonstrate her ability to always act in the best interests of the children and that issuing a positive notice would not be in the best interests of children.
- [49]Although that decision was of assistance, it is the case that each decision in this area will turn on its own facts. In the present application, I consider that KWT’s changed domestic circumstances since 2017 contrast with the position of the applicant in the JR decision. I also consider that KWT’s further educational achievements since 2017, her conduct of a home business and her employment in a hospitality enterprise are all significant factors that need to be taken into account in assessing the adequacy of time since the relevant offences. I also place significant weight on the birth of KWT’s second child in the context of her current domestic partnership and the evidence of her current partner (and the father of her second child) as to their domestic arrangements.
- [50]As to the lack of independent probative evidence from a psychologist or similar health professional, this is a difficulty for KWT. It would have been preferable if such evidence was before the Tribunal. However, it is not in contest that KWT has attended nineteen appointments with two psychologists and that she has also had extensive contacts with a specialist domestic violence service. I accept KWT’s evidence that, during these sessions, she has been advised on how to deal with the situations that gave rise to her domestic violence offences. The evidence of KWT’s current partner supports the conclusion that she has been able to successfully put this advice into practice.
- [51]As stated above, the ultimate question for determination is whether, on the basis of the material before me, I am satisfied that KWT’s case is an ‘exceptional case’ so that it would not be in the best interests of children for a positive notice to be issued.[33]
- [52]
- [53]Having considered the material before me in the context of the objects of the WWC Act, I am of the view that KWT’s case is not an exceptional one. As a result, I consider that the correct and preferable decision is to set aside the decision made by Blue Card Services.
Non-publication order
- [54]The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non-publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.[36] I consider that such an order is appropriate here. In coming to this view, I note that KWT has been a party to domestic violence proceedings and so subject to certain exceptions not presently relevant, should not be identified.[37]
Conclusion
- [55]The appropriate orders are to set aside the decision made by Blue Card Services and to substitute a decision that KWT’s is not an exceptional case and to make a non-publication order.
Footnotes
[1]Respondent’s written submissions at paragraph 2.
[2]Blue Card Services’ decision is set out in a letter to KWT dated 28 January 2020. That letter forms part of Exhibit 4 (at pages BCS 41-2).
[3]WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’ para (a)).
[4]Ibid. KWT’s application to review Blue Card Services’ decision was received by QCAT on 19 February 2020.
[5]WWC Act, s 176A.
[6]Ibid, s 5.
[7]WWC Act, s 6.
[8]Ibid, s 221(1)(c).
[9]Ibid, s 221(2).
[10]Blue Card Services’ decision is set out in a letter to KWT dated 28 January 2020. That letter forms part of Exhibit 4 (at pages BCS 41-2).
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (QCAT Act). That hearing was conducted on 2 December 2020.
[12]Ibid, s 19.
[13]WWC Act, s 221.
[14]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].
[15]‘Charge’ and ‘conviction’ are both defined terms in Schedule 7 of the WWC Act.
[16]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16].
[17]Human Rights Act 2019 (Qld), s 58(1)(b).
[18]WWC Act, s 360.
[19]The ‘Reasons’ document is contained in exhibit 4.
[20]Exhibit 9.
[21]Blue Card Services accepted, both during the course of the hearing and in written submissions (exhibit 9 at paragraph 39) that the offences are neither serious nor disqualifying offences.
[22]The Protection Order and the grounds for that order form part of exhibit 3.
[23]KWT is named as the ‘Aggrieved’ in both of these Protection Orders.
[24]The applications by KWT for these Protection Orders form part of exhibit 1.
[25]Exhibits 5 and 6.
[26]Exhibit 7.
[27]A statement from this witness setting out the Applicant’s engagement with this domestic violence service is exhibit 8.
[28]The letter is dated 28 May 2020 and is Annexure 6 of exhibit 1.
[29]The witness statements are exhibits 5 and 6.
[30]The Respondent’s ‘Reasons for the decision to issue a negative notice’ dated 28 January 2020. A document that forms part of exhibit 4.
[31]Exhibit 8.
[32]Exhibit 9 (Blue Card Services’ submissions), paragraph 53.
[33]WWC Act, s 221.
[34]Director – General, Department of Justice and Attorney – General v CMH [2021] QCATA 6, [16].
[35]Ibid, [19].
[36]QCAT Act, s 66.
[37]Domestic and Family Violence Protection Act 2012 (Qld), s 159.