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IAR v Director-General, Department of Justice and Attorney-General[2021] QCAT 14

IAR v Director-General, Department of Justice and Attorney-General[2021] QCAT 14

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

IAR v Director-General, Department of Justice and Attorney-General [2021] QCAT 14

PARTIES:

IAR

(applicant)

 

v

 

Director-General, Department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML383-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 January 2021

HEARING DATE:

9 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 24 September 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant or any relevant child.

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 – where applicant has criminal history – where not categorised as serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has child protection history – where applicant has history of domestic violence – where applicant has history of illicit drug use and alcohol abuse – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, s 580, Schedule 7

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

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

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

Re TAA [2006] QCST 11

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

G Carrington

REASONS FOR DECISION

Background

  1. [1]
    The applicant applied for a positive notice and a blue card, as it then was, under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) in order to pursue degree studies in social work.
  2. [2]
    As a result of the applicant’s criminal history the respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant. Further submissions were invited in respect of the applicant’s police information and information received from the Department of Communities, Child Safety and Disability Services. The applicant provided material in response.
  3. [3]
    At the relevant time, where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent issued a negative notice on 24 September 2019 and the applicant seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28 day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    The applicant is not a disqualified person and sought review of the decision within the prescribed period.

The legislative framework

  1. [7]
    Pursuant to amendments to the WWC Act which came into effect on 31 August 2020, in undertaking this review the Tribunal must apply the amended WWC Act.[6]
  2. [8]
    The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.[7] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[8] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[9] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[10] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[11]
  3. [9]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[12] The principles under which the WWC Act is to be administered are:
  1. the welfare and best interests of a child are paramount;
  2. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[13]
  1. [10]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[14]
  2. [11]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) —

For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (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 working with children clearance, the chief executive must issue a negative notice to the person.
  1. [12]
    For the present purposes, a working with children clearance must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued.
  2. [13]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[15]

  1. [14]
    In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[16]
  2. [15]
    ‘Conviction’ is defined in 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’.
  3. [16]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[17] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[18]

Consideration of s 226(2) of the WWC Act

  1. [17]
    The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.

Whether the offence is a conviction or a charge

  1. [18]
    The applicant has:
    1. (a)
      Four convictions for unlawful dealing with shop goods (maximum $150);
    2. (b)
      Three convictions for contravene direction or requirement;
    3. (c)
      Two convictions for failure to appear in accordance with undertaking;
    4. (d)
      One conviction for enter premises with intent to commit indictable offence;
    5. (e)
      One conviction for unlawful use of motor vehicles, aircraft or vessels – use;
    6. (f)
      Two convictions for enter dwelling with intent;
    7. (g)
      Two convictions for fail to stop motor vehicle;
    8. (h)
      One conviction for breach of bail condition;
    9. (i)
      Three convictions for stealing;
    10. (j)
      Two convictions for assault or obstruct police officer;
    11. (k)
      One conviction for possess utensils or pipes etc for use;
    12. (l)
      One conviction for receiving tainted property; and
    13. (m)
      One conviction for possess utensils or pipes etc that had been used.
  2. [19]
    The applicant also has:
    1. (a)
      One charge for contravene directions or requirement, where the prosecution offered no evidence, and the applicant was discharged;[19] and
    2. (b)
      One charge for possess property suspected of having been used in connection with the commission of a drug offence and one charge for possessing dangerous drugs, in relation to events which occurred in October 2015. The prosecution offered no evidence in relation to these charges as a certificate analysis did not identify any dangerous drugs. The charges were withdrawn.[20]

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [20]
    None of the offences on the applicant’s criminal history are serious offences[21] or disqualifying offences[22] under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.

When the offence was committed or is alleged to have been committed

  1. [21]
    The applicant’s offending and alleged offending occurred between February 2010 and August 2016.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children

  1. [22]
    On 28 July 2016, the applicant was convicted of numerous offences, as follows:
    1. (a)
      One offence each of fail to stop motor vehicle, assault or obstruct police officer, and receiving tainted property (on 5 December 2015).[23] Police located the applicant’s vehicle with stolen registration plates. When police attempted to speak with the applicant she drove away before pulling over and allowing a male passenger to run from the vehicle. Police followed the male. When they returned the applicant had left the scene in her vehicle. The male passenger indicated that it was his intention to give the applicant time to escape;[24]
    2. (b)
      Possess utensils or pipes etc for use (on 10 January 2016).[25] The police attended the applicant’s residence in relation to another matter and observed the applicant run into another room in an attempt to conceal a glass pipe. The pipe was the type used to smoke methylamphetamines. When questioned, the applicant denied ownership of the utensil. Other occupants of the residence stated that they had observed the applicant use the utensil a number of times in the past;[26]
    3. (c)
      Two offences of unlawful dealing with shop goods (maximum $150) and two offences of stealing (on 25 January 2016).[27] The applicant attended a number of retail centres over the course of the day and took items without paying for them. Upon questioning by police, the applicant indicated she understood her actions were unlawful and made admissions;[28]
    4. (d)
      One offence of assault or obstruct police officer (on 29 February 2016).[29] When police attended the residence to locate the applicant in relation to a warrant, the applicant refused to accompany the police despite a number of requests to do so and was required to be forcibly removed from her vehicle;[30]
    5. (e)
      Fail to stop motor vehicle (on 12 March 2016).[31] Due to the speed at which the applicant’s vehicle was travelling, the police activated sirens and lights in order to intercept her. The applicant did not stop. When spoken to by police some months later she interrupted and was uncooperative;[32]
    6. (f)
      Stealing (on 23 March 2016).[33] The applicant was seen taking three items from a store, concealing them in her bag, then leaving without paying. She later returned two of the items but claimed to have dumped the third item. Upon further questioning she retrieved the item from her bag and returned it;[34]
    7. (g)
      Breach of bail condition (on 3 June 2016).[35] The applicant failed to appear at the police station, stating she had no means of transport to get to the station at the required time;[36]
    8. (h)
      Two offences of enter dwelling with intent, one offence of enter premises with intent to commit indictable offence and one offence of unlawful use of motor vehicles, aircraft or vessels – use (on 2 July 2016).[37] The applicant and her associates forced entry to three residences and attempted to steal a number of items. The associates were disturbed by the complainant returning home, and escaped. The applicant was found locked in a vehicle outside the residence, by one of the complainants. When questioned, the applicant stated she had been sleeping in the car as she was homeless. Police checks revealed that the vehicle in which the applicant was found was stolen. The applicant advised police that she had been drinking heavily and claimed she was unaware the vehicle had been stolen.[38]
  2. [23]
    On 22 September 2016, the applicant was convicted of one offence of possess utensils or pipes etc that had been used (on 14 August 2016).[39] Police approached the applicant and her associates in a car park and found a glass pipe on the applicant. She told police that she used it to smoke methylamphetamine about two weeks earlier and had it with her as she was moving to a new house.[40]
  3. [24]
    The applicant’s criminal history contains charges and convictions for drug related offending, including the possession of methylamphetamine and related utensils, and dishonest offending. Her offending raises concerns that she may have been under the influence of drugs while children were in her care.
  4. [25]
    Children have a right to be protected from exposure to drug involvement and to be cared for by people who are not using drugs that may impair their ability to promote and protect children’s best interests. Continued drug offending by the applicant would likely detract from her ability to provide a protective environment for children in her care.

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. [26]
    The applicant has received numerous fines and a 30-month probation order for her offending. She was also ordered to complete 120 hours of community service and was disqualified from driving for two years.
  2. [27]
    The court’s reasons for imposing these penalties are not known to the Tribunal.

Any information about the person given to the chief executive under sections 318, 319, 335, 337 or 338 of the WWC Act

  1. [28]
    No information was given under these 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. [29]
    The applicant has a Queensland traffic and non-TORUM history[41] between 2010 and 2018 with 29 infringements, including two disqualifications and a conviction for driving while a relevant drug is present. This charge appears to relate to concerns received by the Department of Child Safety, Youth and Women that the applicant had driven her children while she was affected by drugs.[42]
  2. [30]
    Other factors relevant to the offending or alleged offending reasonably considered to be relevant are discussed below.

The material and the evidence

  1. [31]
    The applicant provided the Tribunal with her life story,[43] five letters of support,[44] a placement reference,[45] a letter from a psychologist,[46] a letter and certificate confirming her attendance at drug and alcohol counselling[47] and a letter confirming her attendance at counselling in relation to domestic violence.[48]
  2. [32]
    Arrangements had not been made by the applicant for these witnesses to give evidence meaning some of them, including her psychologist, MS, were not available for cross examination. The applicant declined an adjournment to enable this evidence to be given to the Tribunal, firmly expressing her desire to proceed on the day, with the evidence available.
  3. [33]
    Numerous statements were provided to the respondent for the purposes of its consideration of the application and these were included in the respondent’s material.[49]
  4. [34]
    The respondent provided the Tribunal with its reasons for decision, a bundle of documents paginated BCS-1 to BCS-169 and documents obtained pursuant to notices to produce paginated NTP-1 to NTP-197.
  5. [35]
    At the conclusion of the hearing orders were made for the provision of written submissions. The respondent provided written submissions on 9 November 2020. The applicant sought an extension of time and provided written submissions on 26 November 2020.
  6. [36]
    IAR said that she used cannabis for a couple of years from about the age of 14 or 15, was introduced to methamphetamine in 2011 (aged about 20) by her ex-partner and continued to use it until she quit in December 2016. While her use began ‘socially’ it increased until it was ‘really bad’ in 2015. She agreed she had been addicted to methamphetamine and had experienced drug induced psychosis. IAR accepted that in the past she lied about her drug use as she was concerned about the consequences of being honest about her use, particularly in relation to her children. A review in March 2017 indicated that IAR was abstinent of methamphetamines, advised she had no intention of returning to drug use and had been proactive in making positive steps for her future.[50]
  7. [37]
    After ending an earlier long-term relationship, she entered another relationship in about 2015 which ended in January 2016. IAR said that was a toxic domestic relationship, characterised by mental and emotional abuse. IAR said that she endeavoured to protect her daughter from the violence in this relationship by having her family look after her daughter. Upon ending this relationship IAR was homeless for about eight months.
  8. [38]
    IAR explained the charges arising out of the October 2015 events. IAR said[51] that in October 2015 she found items which suggested to her that her partner was still using or planning to sell drugs, contrary to their previous agreement. She spoke with him about this and they argued. She became scared and left the house, catching a taxi to her parents’ house, still in possession of the items which she had found, including scales, 21 unused clip seal bags and 1.26g of methylamphetamine. Upon arriving at her parents’ house, she had no money to pay for the taxi. The taxi driver drove her to the police station. There she did not explain to police that she had fled without cash due to domestic violence because of her fear of the repercussions from her partner should she do so. She said that for the same reason, when police found the items in her bag and shoes, she did not tell them to whom they belonged.
  9. [39]
    The applicant has three children. The younger two are in her care. The eldest child lives with his father and IAR does not see him. She denied that this is related to the child safety concerns in 2017 and 2018[52] saying that this is because shared custody was upsetting her son. Visits with him are presently required to be supervised but she said she is seeking to have this requirement removed so that he can live with her.
  10. [40]
    The applicant admitted to driving while under the influence of drugs and to using drugs in the presence of her children but denied being under the influence of drugs while her children were in the vehicle.
  11. [41]
    In October 2015, the applicant’s second child was assessed by Child Safety to have suffered emotional harm and neglect considered to be significant and detrimental.[53] The child had been exposed to traumatic events including significant domestic violence, parental alcohol and drug abuse, neglect, parental mental health issues and family dysfunction. The child was removed from her care in 2015.
  12. [42]
    Child Safety records show that in September 2016[54] the department recorded a substantiated risk for IAR’s unborn child who was a child in need of protection. While at this time IAR denied substance abuse to Child Safety, an August 2016 drug screen indicated amphetamine and methamphetamine use. At that time Child Safety’s records indicated that between 2006 and 2015 there were three notifications and ten Child Concern Reports for IAR and that the concerns related to domestic violence and IAR’s drug and alcohol use. Although initially unaware she was pregnant, upon finding this out she continued to use drugs during her third pregnancy. Her third child was placed in foster care for about eight weeks after his birth in 2017. Following this the child was placed with IAR’s mother. Her two younger children were returned to her care in August 2017 and child protection orders for the children were withdrawn and revoked in October 2017.[55]
  13. [43]
    Concerns continued to be reported to Child Safety during 2017 and 2018. A June 2018 report to Child Safety[56] indicated concerns about the exposure of IAR’s eldest child to domestic violence while in IAR’s care, that IAR’s ‘drug and alcohol abuse is spiralling out of control’ and concerns about her mental health. In relation to the allegation that she was using drugs in 2018, IAR said she stopped using drugs in 2016. She denied that her eldest child would have been very disturbed by her behaviour in 2018.
  14. [44]
    In response to material indicating she was abusing alcohol as a 17-year-old,[57] IAR denied that she had a problem with alcohol, saying that she drank as a coping mechanism and used drugs with alcohol. In June 2018, the applicant told the respondent she had been abstinent of drugs and alcohol since December 2016.[58] She repeated this claim in August 2018.[59] She said that now she drinks socially, consuming alcohol only once a fortnight and on those occasions consumes about four to six standard drinks.
  15. [45]
    IAR has experienced mental health issues. She suffered post-natal depression following the birth of her first child in 2009. She has previously attempted suicide. The documents obtained pursuant to the notices to produce indicate that throughout 2015 and 2016 IAR continued to experience significant mental health issues.
  16. [46]
    IAR accepted that her drug use impacted on her mental health, saying that it made her anxiety and depression worse. She accepted that her mental health impacted on her children but denied that her children were ever at risk of physical harm while in her care.
  17. [47]
    The applicant has a history of refusing assistance, including over the period 2015 and 2016.[60] During this time she was homeless for about eight months. She said that settling into stable accommodation in 2016 enabled her to make the necessary connections for support. She said that her mental health started to improve when her drug use ceased. At this time, she said she also engaged with Child Safety. She said she undertook parenting, drug rehabilitation and domestic violence courses (including ADS, Triple P Parenting, HHOTS, Amends, Circle of Security Parenting, 1,2,3 Magic Emotion Coaching Course, Heart Ties Parenting) and counselling to address Child Safety’s concerns and have her children returned to her care.
  18. [48]
    IAR’s evidence in relation to her current mental health is inconsistent. She told the respondent that she no longer suffers from depression and anxiety.[61] In oral evidence, the applicant said that her mental health has now improved, that she is on medication to help with her anxiety and depression and has ongoing, fortnightly counselling. The only evidence of counselling over 2020 before the Tribunal was with MS and KE, which commenced following the April 2020 domestic violence incident.
  19. [49]
    In early 2019 the applicant entered a new relationship. The Child Safety material[62] indicates that in April 2020, the couple argued after drinking all afternoon. The argument became physical and children witnessed this. A witness observed the couple hit each other. As a result of this incident the police are seeking a protection order in which the applicant is identified as the respondent and IAR’s children are the named persons. IAR said that she had a verbal altercation with her partner, that he got angry and hit her. The fighting woke the children, who witnessed the incident. She claims to have acted in self-defence and is opposing the order. Prompted by this incident IAR commenced counselling with MS and KE. IAR admitted that alcohol was as issue for her in this relationship but said that now she only drinks socially.
  20. [50]
    While the applicant acknowledged the similarities between this relationship and previous relationships, she said she ended this one ‘the minute’ the violence occurred and has not seen him since.
  21. [51]
    The applicant said that since 2016 she has developed an extensive support network comprising family, student peers, professional support and her children. Further, she said she has made huge changes in her life and her children’s lives. She is now living in stable accommodation and has commenced tertiary studies. Since giving up drugs she said she has learnt to avoid places where she might be influenced to use drugs again and has strategies and coping skills in place to assist her in remaining abstinent of drugs.
  22. [52]
    She told the Tribunal that she wished she had never used drugs, that she is ashamed, embarrassed, and remorseful. IAR recognised the significant impacts that her drug use had on her children, as they were removed from her care and said that they would not have felt stable or secure. She indicated that she undertook parenting courses to help her address these issues and still undertakes counselling. IAR also acknowledged the impact her drug use had on her parents.
  23. [53]
    IAR said that she has been trying to turn her life around and that the people who have supported her through this have caused her to realise her passion and desire to give back to the community. She said that she has worked hard, and it would enhance her life and the future of her children if she were to be granted a blue card.
  24. [54]
    The respondent’s material[63] included extracts of letters from drug and alcohol counselling services with which the applicant was engaged in early 2017 for the purposes of addressing Child Safety concerns. The psychologist observed that IAR engaged well and demonstrated an ability to reflect on what she had learnt in these sessions.
  25. [55]
    MS, a psychologist, was not available to give evidence. She reported in June 2020[64] that IAR had attended one session with her and had expressed interest in continuing. There was no indication of issues addressed or the strategies developed in this session.
  26. [56]
    KE, a registered nurse, provided a letter[65] and confirmed the applicant’s attendance at about seven counselling sessions with the Drug and Alcohol Service since May 2020. These sessions are ongoing. He was aware of the applicant’s substance abuse but had no knowledge of her police involvement or criminal history, other than a DVO, and had not read the respondent’s reasons. He is working with IAR to develop relapse prevention strategies and to manage her stress. In his view, IAR has no ongoing daily issues with alcohol.
  27. [57]
    RU met the applicant about four years ago when IAR attended a program managed by RU, to address Child Safety’s concerns, a program which IAR continues to attend. RU observed that IAR ‘demonstrated maturity, self-awareness, and keen insight into the needs of others, particularly children (her own and others).’[66] She considers that IAR’s disposition, values and lived experience would make her ‘an impressive and effective practitioner’ in her desired career. She is of the opinion that IAR poses no risk to children. While she did not recall having read the respondent’s reasons, she had some awareness of Child Safety, domestic violence, and drug issues in the applicant’s life.
  28. [58]
    RK[67] has known IAR for almost two years through their studies, although they have had only ‘Zoom’ contact since about April or May 2020. While she had not read the respondent’s reasons, she had spoken with the applicant about the reasons. She was not aware specifically of the applicant’s police or criminal history, other than broad issues around drug use and the removal of her children from IAR’s care. In her opinion IAR is compassionate and would be an asset working in the community. She was of the view that IAR has redeemed herself for the mistakes she has made.
  29. [59]
    EI[68] has similarly known the applicant for about two years through their studies. She had not read the respondent’s reasons and had some limited knowledge of the applicant’s drug and Child Safety history. She was not aware of IAR’s criminal history in relation to her drug use but said that IAR had not used drugs in the time they had known each other. Since last seeing the applicant in June 2020 they have maintained contact through social media and she understands from IAR that her life is pretty good at the moment. She considered IAR would be an excellent community services worker, particularly due to her insight gained from lived experience.
  30. [60]
    NA[69] provided a reference dated October 2019 for IAR’s study placement. He had not read the respondent’s reasons but through discussions with IAR had some awareness of her drug history, past homelessness, and involvement with the wrong people. Having heard her stories he opined that she has demonstrated growth. He would welcome IAR back to the placement. He has been in contact with IAR only once since providing his reference, when she was seeking employment.
  31. [61]
    RM provided a report advising that IAR had attended four counselling sessions over May and June 2020 for domestic violence, with another booked. She opined that ‘based on [IAR’s] experiences and responses… she would be identified as an aggrieved and not the predominant aggressor’ (de-identified).[70] RM was not available for cross examination so this evidence could not be further explored.
  32. [62]
    DO, a social worker, knows IAR through the community group he runs and is involved in student placement for practical experience in the course of their social work degrees.[71] He could not recall whether he had read the respondent’s reasons. He had some knowledge of the applicant’s child safety involvement. DO provided evidence of IAR’s positive interactions with children, both her own and the children of other people. He considered it a mistake not to issue a blue card to IAR, advocating the value of lived experience in social work as it provides a unique ability for social workers to connect with those they are seeking to help.[72] He considers IAR’s experience would make her a very effective social worker.
  33. [63]
    AO has known IAR since January 2019 through their studies. He had not read the respondent’s reasons but had spoken with IAR about ‘her past including substance addictions, homelessness and circumstances that were relevant to these issues.’ [73] She has proven to him that she is not that person anymore. He observed that she is committed to gaining employment in the field of community services and to using her life skills to help others. He considered there was no risk of IAR returning to her past life or causing issues in others’ lives due to her commitment to her future.
  34. [64]
    IAR said that despite the harm she caused to her relationship with her family she now has a good relationship with her parents and her brother. In June 2018, the applicant’s parents provided written statements[74] for the purposes of the respondent’s consideration of IAR’s application. Her father indicated that he considered IAR a changed person over the previous 18 months and noted she was a good mother. IAR’s mother was aware of IAR’s violent domestic relationship, her drug use and prior homelessness. She observed IAR to be a wonderful mother to her children. It was not apparent whether they were aware of the extent of the applicant’s criminal history, mental health issues or illicit drug use. These issues, as well as their knowledge of the applicant’s current drug and alcohol use, current mental health and relationship status were unable to be explored as her parents were not available for cross examination. In the circumstances, the Tribunal affords their evidence limited weight.
  35. [65]
    Numerous other statements were provided to the respondent for its consideration of the application. In February 2017, a clinical nurse consultant observed IAR to be abstinent of substance use and proactive in her recovery, having attended ADS and HHOT.[75] A witness, having observed IAR and her two younger children in a community centre playgroup environment, said in February 2018, that IAR was a very loving, engaged and gentle mother.[76] The other witnesses, many from the playgroup, described the applicant as a caring person, and a loving and confident parent, who is a role model to other parents.[77] The extent of their knowledge of the applicant’s conduct of concern is unknown and these witnesses were not available for cross examination. Accordingly, no weight is afforded to their evidence.

Consideration

  1. [66]
    In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount.[78]
  2. [67]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[79]

  1. [68]
    A number of the witnesses opined that IAR would make a valuable contribution in her chosen career. That is not relevant to the Tribunal’s consideration in this review.
  2. [69]
    While the applicant’s witnesses spoke well of her now as a mother, their knowledge of the applicant’s criminal history, history of drug and alcohol abuse and mental health issues was limited. Further, none indicated awareness of the domestic violence in which the applicant was involved earlier this year nor of the ending of that relationship. Accordingly, the Tribunal affords limited weight to the evidence of the applicant’s witnesses.
  3. [70]
    On the evidence available, the Tribunal is not satisfied that the applicant has established a reliable and effective support network.
  4. [71]
    Considered as a whole, the applicant’s criminal, traffic and non-TORUM history raises concerns about her ability to judge appropriate behaviour. Children rely upon adults to exercise good judgement and to judge appropriate behaviour in order to protect their best interests.
  5. [72]
    While the applicant has had no additional entries on her criminal history for four years, the passage of time is not determinative of whether or not a case is an exceptional case.[80] This risk factor must be considered in the context of all the relevant circumstances.
  6. [73]
    The applicant has a history of the abuse of illicit substances, alcohol abuse, and mental health issues. The Tribunal finds that IAR’s drug and alcohol abuse is more extensive than revealed by her criminal history.
  7. [74]
    The applicant has an extensive history of drug use over a period of almost ten years. Over this time, in violent personal relationships, her drug addiction and alcohol abuse continued, and her mental health suffered. Two of her children were removed from her care. She was offered support but declined. When a relationship ended, she experienced a period of homelessness. Clearly, her addiction has impacted all aspects of her life.
  8. [75]
    The applicant said she had been abstinent of drugs and alcohol in the past. There is limited independent evidence that the applicant is presently abstinent of drugs. She relapsed with respect to her alcohol consumption, influenced by a partner, in 2019 and 2020. As recently as April 2020, this relapse impacted adversely on the applicant and her children. Prompted by these events she has now engaged with professional support. On the evidence available, the Tribunal is not persuaded that the applicant has developed the skills and strategies to mitigate future risk.
  9. [76]
    The Tribunal finds that IAR has developed insight into the impact of her drug use on her family, particularly her children and her parents. She expressed remorse for her past conduct. However, the Tribunal finds that this insight has not developed sufficiently to act as a protective factor.
  10. [77]
    There is very limited medical evidence before the Tribunal regarding the steps the applicant has taken to address her mental health and the current status of her mental health. In view of the significant links between the applicant’s conduct of concern and her mental health, this is of concern to the Tribunal.
  11. [78]
    Given the applicant’s history of drug and alcohol abuse and mental health concerns, medical evidence is, in the Tribunal’s view, critical. In the absence of medical evidence of her current progress and the strategies she has implemented to mitigate further risk the Tribunal cannot be satisfied that the applicant’s mental health is effectively managed.
  12. [79]
    While IAR has taken steps to bring about changes to her life, acquiring stable accommodation, undertaking tertiary studies with a view to a career in social work and recently engaging with counselling services, at the present time the Tribunal cannot be satisfied that IAR has developed the skills and attitudes necessary to take responsibility for her own actions and for the protection of children.
  13. [80]
    The Tribunal acknowledges the insidious nature of domestic violence. The applicant should be commended for the steps she has taken to address her past trauma and her offending behaviour. She may apply for the negative notice to be cancelled two years after the original decision. If IAR remains drug and alcohol free, addresses her mental health and has supportive professional documentation attesting to this, she should have a much stronger application to put to the respondent.
  14. [81]
    In making this decision the Tribunal is mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business.
  15. [82]
    The Human Rights Act 2019 (Qld) (‘HR Act’) commenced on 1 January 2020. As these proceedings were commenced on 14 October 2019, prior to the commencement of the HR Act, the HR Act does not apply in this review.[81]
  16. [83]
    After consideration of all of the evidence, the findings of fact, the risk and protective factors, and the relevant matters in the WWC Act, including s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.
  17. [84]
    The decision of the Director-General, Department of Justice and Attorney-General made on 24 September 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

Non-publication

  1. [85]
    The Tribunal does not propose to identify the witnesses before the Tribunal as to do so could lead to the identification of IAR. Identification of IAR would be contrary to the Direction of the President of the Tribunal prohibiting publication of information that may identify a victim of domestic and family violence.[82] Pursuant to s 66 of the QCAT Act the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant or any relevant child.
  2. [86]
    Accordingly, these reasons have been de-identified.

Footnotes

[1]WWC Act, s 221(2).

[2]WWC Act, s 169 (at the time).

[3]WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’).

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’).

[5]WWC Act, s 353(definition of ‘chapter 8 reviewable decision’).

[6]WWC Act, s 580.

[7]QCAT Act, s 19(a).

[8]Ibid, s 20.

[9]Ibid.

[10]WWC Act, s 360.

[11]QCAT Act, s 24(1).

[12]WWC Act, s 5.

[13]Ibid, s 6.

[14]As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[15] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22].

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

[17]Ibid, [30].

[18] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[19]Ex 9, BCS27.

[20]Ex 9, BCS169.

[21]WWC Act, Schedule 2.

[22]Ibid, Schedule 4.

[23]Ex 9, BCS25 to BCS27.

[24]Ex 9, BCS112 to BCS117.

[25]Ex 9, BCS25 to BCS27.

[26]Ex 9, BCS118 to BCS120.

[27]Ex 9, BCS25 to BCS27.

[28]Ex 9, BCS121 to BCS129, BCS136 to BCS138.

[29]Ex 9, BCS25 to BCS27.

[30]Ex 9, BCS33 to BCS35.

[31]Ex 9, BCS25 to BCS27.

[32]Ex 9, BCS142 to BCS144.

[33]Ex 9, BCS25 to BCS27.

[34]Ex 9, BCS133 to BCS135.

[35]Ex 9, BCS25 to BCS27.

[36]Ex 9, BCS139 to BCS141.

[37]Ex 9, BCS25 to BCS27.

[38]Ex 9, BCS145 to BCS158.

[39]Ex 9, BCS25 to BCS27.

[40]Ex 9, BCS36 to BCS38.

[41]Ex 9, BCS165 to BCS168.

[42]Ex 9, BCS29.

[43]Ex 1.

[44]Ex 2,3,4, 5 and 10.

[45]Ex 11.

[46]Ex 6

[47]Ex 7.

[48]Ex 8.

[49]Ex 9, BCS9 to BCS14.

[50]Ex 12, NTP68.

[51]Ex 9, BCS80 to BSC81.

[52]Ex 12, NTP164 and NTP168.

[53]Ex 12, NTP131.

[54]Ex 12, NTP166.

[55]Ex 12, NTP162.

[56]Ex 12, NTP168.

[57]Ex 12, NTP1 and NTP79.

[58]Ex 9, BCS51.

[59]Ex 9, BCS81.

[60]Ex 12, NTP35 to NTP59.

[61]Ex 9, BCS82.

[62]Ex 12, NTP177.

[63]Ex 9, BCS13 and BCS14.

[64]Ex 6.

[65]Ex 7.

[66]Ex 2.

[67]Ex 3.

[68]Ex 4.

[69]Ex 11.

[70]Ex 8.

[71]Ex 9, BCS75.

[72]Ex 10.

[73]Ex 5.

[74]Ex 9, BCS70 and BCS73.

[75]Ex 9, BCS64.

[76]Ex 9, BCS65.

[77]Ex 9, BCS67, BCS68, BCS69, BCS71, BCS72, BCS74, BCS76 and BCS78.

[78]WWC Act, s 360.

[79][2006] QCST 11, [97]. See also Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

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

[81]HR Act, s 108.

[82]Direction dated 30 April 2020 pursuant to s 172(2)(b) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 14

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    20 Jan 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
2 citations
Jump To
Cite 1 - [2016] QCAT 210
Cite 2 - [2016] QCAT 210
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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