LB v Director-General, Department of Justice and Attorney-General
[2021] QCAT 140
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- LB v Director-General, Department of Justice and Attorney-General[2021] QCAT 140
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LB v Director-General, Department of Justice and Attorney-General[2021] QCAT 140
LB v Director-General, Department of Justice and Attorney-General[2021] QCAT 140
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | LB v Director-General, Department of Justice and Attorney-General [2021] QCAT 140 |
PARTIES: | LB |
(applicant) | |
v | |
Director-General, Department of Justice and Attorney-General | |
(respondent) | |
APPLICATION NO/S: | CML088-20 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 18 May 2021 |
HEARING DATE: | 15 March 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General dated 18 February 2020 that the applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – blue card – where negative notice issued – whether an exceptional case – where charged with offences other than a ‘serious offence’ – consideration of mandatory factors Human Rights Act 2019 (Qld), s 8, s 13, s 26, s 27, s 31, s 34, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 16, s 221, s 226, s 358, s 360, Schedule 2, Schedule 3, Schedule 4, Schedule 5 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | G. Carrington, in house legal officer |
REASONS FOR DECISION
- [1]
- [2]On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[3] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[4] There is no presumption that the decision under review is correct.[5]
- [3]The Tribunal previously made an order prohibiting the publication of information that may enable the applicant and nominated others to be identified.[6] This decision is to be published only in a de-identified format.
- [4]The evidence is that LB had a very challenging childhood. She was subjected to abuse by a close family member, subjected to bullying at school, self-harmed as a teenager, was subjected to domestic and family violence during her relationship with a now ex-partner, fell pregnant during that relationship and experienced post-natal depression and post-traumatic stress disorder.
- [5]During the abusive domestic relationship, while a minor, LB was charged with two offences arising out of the same incident. One charge was for contravention of a domestic violence order and the other for threatening violence with a weapon. LB’s evidence is that she retaliated to being subjected to physical violence and intimidatory conduct. The Magistrate’s remarks were in evidence before me.[7] LB was remorseful and acknowledged she should not have done what she did and was referred to restorative justice.
- [6]As LB was not convicted of a serious offence as defined under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’),[8] the presumption is that a working with children clearance (‘Clearance’)[9] should issue except where the Chief Executive or the Tribunal in the Chief Executive’s place is satisfied it is an exceptional case in which it would not be in the best interests of children for her to be issued with a Clearance and must issue a negative notice.[10]
- [7]The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[11]
- [8]The WWC Act is to be administered having regard to the principles 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.[12]
- [9]
- [10]The WWC Act does not define what is an ‘exceptional case’. The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor[15] and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
- [11]The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[16] has also provided some guidance. In exercising the discretion as to whether there is an exceptional case the Tribunal undertakes a risk assessment. This usually involves identifying and considering risk factors and mitigants[17] in the context of the WWC Act.
- [12]Section 226 of the WWC Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence. I address the considerations below.
- [13]LB contends that her case is not an ‘exceptional’ case and she should be issued with a Clearance.[18]
Is it not in the best interests of children for LB to be issued with a Clearance?
- [14]I find that LB’s case is an exceptional case in which it would not be in the best interests of children to issue a Clearance at this time.
- [15]Assessing whether it would not be in the best interests of children for LB to be issued with a Clearance involves an assessment of whether LB poses a risk to children.
- [16]LB sought a blue card to allow her to work in the community services sector assisting other young mothers and had enrolled in a diploma in community services. While awaiting the outcome of the blue card application she worked with babies, young children and young mothers, some of whom were under the age of 18. Upon receiving the negative notice, she was unable to continue to pursue this career choice.
- [17]The Chief Executive submits, and I accept, that any detriment to LB of not being granted a ‘blue card’ is not a relevant consideration.[19]
- [18]
- [19]The evidence is that:
- (a)at the time of the oral hearing LB was 20 years old;
- (b)the events which led to the charges occurred a number of years ago;
- (c)during the abusive domestic relationship she was isolated from members of her own family;
- (d)she struggled to form an emotional attachment with her child;
- (e)her child was at times present in the same room or the same house during incidences of conflict or violence between LB and her now ex-partner;
- (f)although she moved away from her now ex-partner, physical violence towards her escalated;
- (g)she employed various strategies to seek to protect her child from the violence;
- (h)she struggled to put boundaries around contact with her now ex-partner and had maintained a separate mobile phone to allow some contact with him. She described contact once a day with him as minimal contact and explained that she did so because she considered it would reduce the likelihood of him attempting to locate her, which would place both her and her child in danger. Whilst daily contact may be less than previous contact, it is difficult to accept this as minimal.
- (a)
- [20]LB has taken significant steps to change her life including:
- (a)seeking to further her education and gain meaningful employment;
- (b)creating a safety plan;
- (c)seeking assistance from a counsellor then seeking assistance from a psychologist;
- (d)moving away from her now ex-partner and taking steps to further limit contact. LB’s evidence was that this time was different because ‘she had had enough’;
- (e)changing her circle of friends;
- (f)seeking to put in place a mental health plan.
- (a)
- [21]These steps assist to mitigate the risk of harm to children.
- [22]Her former treating psychologist gave evidence and was available to be questioned at the hearing. Her evidence was that it had been several months since their last session and she no longer had access to the records of her former employer. Her evidence based on her recollections was that:
- (a)LB was very young and did not have the emotional regulation skills nor support to deal with the abusive relationship with her now ex-partner;
- (b)whilst significant progress had been made during their limited number of sessions, in her view a person who had such a long history of emotional dis-regulation and trauma would require more assistance but may not need to see another psychologist to continue this work depending upon the other support available to her;
- (c)some sessions involved both LB and her child. In her view, LB was better able to meet her child’s emotional needs than before she undertook the sessions;
- (d)her relationship with her now ex-partner was a significant risk factor. During their sessions LB logically understood that it was not conducive to her health or the health of her child;
- (e)LB was not pursuing the relationship but was working through her associated emotions.
- (a)
- [23]LB’s evidence is that she is seeking to find another psychologist to assist her and that she employs strategies such as walking away, mindfulness and listening to music to regulate her emotions.
- [24]The evidence is that she has the support of her parents. Neither parent gave evidence in this proceeding although her mother attended the oral hearing as a support person. As mentioned earlier in these reasons the evidence was that LB had been abused as a child so there is some doubt about the quality of LB’s relationships with her parents. There was limited evidence of other support structures currently available to LB although the evidence is that LB is seeking some additional support.
- [25]There is evidence before me relating to her former employment[22] as to her positive interactions with not only her own child but also other children. Two representatives of her former employer were available to confirm their statements, give oral evidence and answer questions. They had read the chief executive’s reasons document. Their evidence was that LB had remarkable insight, had a really steady personality, was good at accessing support and her efforts were a credit to her given the trauma she had experienced. I accept this evidence.
- [26]During the hearing LB presented as an exceptionally calm person, which is, in my experience, unusual for a self-represented party in proceedings before the tribunal.
- [27]A significant risk factor is contact with her now ex-partner. Towards the conclusion of the hearing LB gave further evidence of how her circumstances have changed, in particular, as to the likelihood of contact with him. Her evidence was that a final domestic violence order was likely to be made shortly, which would restrain him from contacting her and her child for five years in person and by telephone. She stated that previous orders had not restrained him from such contact. Copies of some protection orders were in evidence before me, which are consistent with LB’s evidence.[23] She contends that the likelihood of her having contact with her now ex-partner is low. Whilst I accept LB’s evidence that such a final order was to be sought, it had not been made at the time of the oral hearing.
- [28]The Chief Executive submits and I accept that the charges and the totality of the evidence raises the possibility of a risk to children such that it would not be in the best interests of children for LB to be issued with a Clearance at this time given the paramount principle of the WWC Act. The evidence before me raises a concern in relation to how LB manages situations of conflict particularly with her now ex-partner.
- [29]LB has clearly made significant progress, for which she is to be commended. In the view of her former treating psychologist she still had more work to do, to process the trauma she has experienced, when she last saw her several months prior to the hearing. In the absence of more up to date evidence from a treating practitioner, I accept that evidence.
- [30]The evidence is that LB has not had further sessions with another practitioner (although she is seeking to do so) and her current support structures were not well explained. In my view this presents a risk as to her ability to provide a safe and protective environment for children currently. These are matters which LB can continue to address to support a future application to the Chief Executive to cancel the negative notice.
- [31]The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding this Application, I am acting as a public entity in an administrative capacity. I accept that a decision under the WWC Act potentially impacts LB’s human rights[24] and the right of every child to protection.[25] I have considered LB’s human rights and am satisfied that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable.[26] It has long been recognised that it is not possible to impose conditions on the use of a ‘blue card’. A Clearance once obtained entitles the holder to work in any child related employment. The limitation of LB’s human rights is consistent with the paramount principle in the WWC Act.
- [32]I confirm the Decision.
Footnotes
[1] Decision dated 18 February 2020.
[2] Exhibit 1 filed 9 March 2020.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (QCAT Act).
[4] Ibid, s 20.
[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[6] QCAT Act, s 66. Decision dated 16 November 2020.
[7] Exhibit 7.
[8] WWC Act, s 15, Schedule 2 and Schedule 3.
[9] Previously known as a positive notice.
[10] WWC Act, s 221(2).
[11] Ibid, s 5.
[12] Ibid, s 6.
[13] Ibid, s 358.
[14] Ibid, s 360.
[15] [2004] QCA 492.
[16] [2013] QCATA 303.
[17] Often referred to as protective factors.
[18] WWC Act, s 221(2).
[19] AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248, [22].
[20] WWC Act, schedule 2.
[21] Ibid, s 16, schedule 4, schedule 5.
[22] Exhibits 3 and 5.
[23] Exhibit 8, NTP216, NTP217 and NTP208 -209.
[24] Human Rights Act 2019 (Qld), s 27, s 34, s 36(2).
[25] Ibid, s 26(2).
[26] Ibid, s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.