NK v Director-General, Department of Justice and Attorney-General
[2021] QCAT 270
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- NK v Director-General, Department of Justice and Attorney-General[2021] QCAT 270
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NK v Director-General, Department of Justice and Attorney-General[2021] QCAT 270
NK v Director-General, Department of Justice and Attorney-General[2021] QCAT 270
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | NK v Director-General, Department of Justice and Attorney-General [2021] QCAT 270 |
PARTIES: | NK (applicant) |
v | |
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) | |
APPLICATION NO/S: | CML134-20 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 30 July 2021 |
HEARING DATE: | 16 July 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
ORDERS: |
|
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 – whether exceptional case – whether not in best interests of children to issue positive notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where protective factors – where acknowledgement of contravention of Domestic Violence Order – where no issues with drugs or alcohol – where applicant worked with children for no fewer than three years without incident – where applicant participated in group program and counselling – where positive character references FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where risk factors – where no expert evidence of progress with risk factors and coping strategies – where serious allegations of domestic violence – where attempts to minimise responsibility – where evidence of ongoing coercive control – where contravention of order not isolated incident of domestic violence – where evidence of past and current professional treatment, coping strategies and support networks to address triggers was deficient – where circumstances of Order and contravention were recent – where evidence of coercive control since Order FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – exceptional case – where children depend on adults to have insight into their behaviour and its likely effect – where interests of children must take priority over applicant’s interests – where those who work with children must act responsibly – where community cannot be confident that applicant is aware of psychological and emotional impact of his behaviour on others and can exercise restraint and self-control in certain situations, sufficient to work with children – where risk factors outweigh protective factors Domestic and Family Violence Protection Act 2012 (Qld), s 53 Human Rights Act 2019 (Qld), s 13, s 26 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000, (Qld) s 6, s 15, s 156, s 221, s 226, s 360, Schedule 1, Schedule 2, Schedule 4, Schedule 5 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 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 Re TAA [2006] QCST 11 Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | G Carrington, Legal Officer |
REASONS FOR DECISION
What is this Application about?
- [1]NK was convicted of breaching a Domestic Violence Order by being with his ex-partner. The Order named NK’s ex-partner and her two children (one of whom is also NK’s son) as protected persons. The Director-General, Department of Justice and Attorney-General then issued NK with a ‘negative notice’ to work with children. This means that NK cannot obtain a ‘Blue Card’ to work in certain types of employment and volunteer work.[1]
- [2]NK wants the Tribunal to review the Director-General’s decision. Because NK is not convicted of any ‘serious offence’, he is entitled to be issued with a positive notice for a Blue Card unless his case is ‘exceptional’.[2]
- [3]In reviewing the Director-General’s decision that the case is ‘exceptional’, I must decide whether it would not be in the best interests of children to issue a positive notice for NK to obtain a Blue Card.[3] I am assessing the risk in allowing NK to work with children, by identifying and weighing protective factors with risk factors.[4]
Is it not in the best interests of children to issue a positive notice to NK?
- [4]Because a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to NK.[5] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[6]
What protective factors favour issuing a positive notice to NK?
- [5]NK is 23 years old. Apart from breaching the Domestic Violence Order, he has “no criminal history in Australia”.[7] He acknowledged that his behaviour was “completely unacceptable”[8] and expressed regret. He said he has “learnt from the experience”. In particular, he said he had learnt that emotional abuse is “not okay” and to be “careful what I say to people”.[9] He said he understands it was serious to breach the Order and that he should not have had contact with his ex-partner.[10] He said he has never had any issues with drugs or alcohol.[11]
- [6]NK has worked with children for no fewer than three years without incident. Since the allegations of domestic violence, he has participated and engaged constructively in an 18-week group program to assist men to stop abusive and violent behaviour in their relationships. He has also attended relationships counselling.
- [7]NK provided character references.[12] They variously described him as:
- (a)A kind-hearted and great coach who treats children with respect;
- (b)Having strong communication skills and able to establish a rapport with others;
- (c)A great father to his children;
- (d)Engaging with his community in a decent and respectful manner;
- (e)Unlikely to repeat the offending behaviour;
- (f)Respectful, caring, considerate and trustworthy; and
- (g)Having great aspirations and commendable character.
- (a)
- [8]The weight to be attached to these references varies according to whether the referees were aware of the offending behaviour. One of the referees was the victim, who was certainly aware. However, only one of the other referees referred to being aware of the breach of the Domestic Violence Order. None of them attended the hearing for cross-examination. The weight I attach to the victim’s reference is not affected by her not attending. However, the weight to be attached to the other references must be reduced.
- [9]Nevertheless, I am satisfied based on NK’s evidence and references that he has been taking some steps to move forward with his life and seek support to help him address his issues.
What key risk factors weigh against issuing a positive notice to NK?
- [10]Unfortunately, none of this information was sufficiently detailed to reveal the extent to which NK was able to identify and address the triggers for his behaviour and appropriate coping strategies. NK provided no expert evidence about his progress.
- [11]Apart from saying he never wants “to hurt anyone or damage my relationships in future” and that if he is upset with a situation “the best thing to do is walk away”,[13] NK made no mention of the impact of his behaviour on his ex-partner and the children.
- [12]NK denied most of the allegations of violence, although he admitted sending his ex-partner a threatening text that “I will kill you”. NK remains subject to a Protection Order until 2024. The allegations leading to the Protection Order are serious. They include NK entering his ex-partner’s house at 3am without her knowing and lying next to her in bed, physical (punching and slapping) and verbal abuse in front of children, telling his ex-partner what to do and threatening text messages.[14] There is also evidence that NK and his family pressured his ex-partner not to end the relationship or take any action.[15]
- [13]The Court granted NK’s ex-partner the Protection Order for ongoing physical violence and controlling behaviour on 31 January 2019. Within five months, NK was convicted of contravening the Order and fined $350 with no conviction recorded.[16] Police found him in the same location as his ex-partner.
- [14]It is a concern that NK contravened the Order within five months. Of considerable concern is NK’s attempts to minimise the contravention and the circumstances leading to the Order. He said that his ex-partner obtained the Order because he agreed to it without the Court making “relevant findings of fact”.[17] He said the contravention involved “meeting the aggrieved at a concert with her agreement and no allegation of controlling, threatening or violent behaviour”.[18]
- [15]NK cannot transfer responsibility for his breach of the Order once in place. NK must abide by the Order once made. Instead of accepting responsibility for this, his evidence and submissions focused on minimising and not admitting responsibility. Even if his ex-partner “agreed”, NK’s attempts to minimise his involvement do not show acceptance of responsibility for his own actions and their seriousness. NK’s focus on his breach not involving actual violence ignores the psychological and emotional impact of continuing contact with his former partner.
- [16]Despite NK’s assertion to the contrary,[19] his admitted contravention is relevant to child-related employment.[20] By seeking to minimise his offending behaviour, NK continues to lack insight into the impact of his behaviour on others and the importance of abiding by the law. Adult behaviours can harm children even when not directed towards them:
It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[21]
- [17]The Tribunal cannot go beyond the conviction and must accept it as it is.[22] The Tribunal notes that the legislation does not deem the contravention as a ‘serious’ offence,[23] nor did it involve children.[24] However, the evidence is that the contravention was not an isolated incident of domestic violence. The earlier allegations were of sufficient veracity and seriousness for NK to agree to the granting of the Order.
- [18]More alarming is evidence of controlling behaviour since the Order. In seeking to terminate the Order, NK’s ex-partner said:
I feel I contributed to the incidence (sic) occurring due to my treatment of [NK] including acting verbally abusive towards him, I believe I provoked him to become angry with me.
I was pressured by my friends to take on (sic) order out against [NK]. My friends were always unhappy that I didn’t have time to socialise with them when I was spending time with [NK].
I have a really good relationship with [NK’s] family; they are very supportive of me. I don’t wish to ruin the relationship I have with them by having this order.[25]
- [19]I do not accept these statements as proof of their content. Rather, they are evidence of coercive control: victim self-blame and shame, social isolation and in-law pressure. Domestic violence manifests in many forms: physical, psychological, emotional and financial. They are all abhorrent and unacceptable.
- [20]The period without evidence of further offending is not of itself sufficient to show that NK does not present as a risk, without evidence of the triggers for the offending behaviour at the time and how they have been addressed since. Both the circumstances of the Order and its contravention are relatively recent. Although NK completed the group program, the evidence of past and current professional treatment, coping strategies and support networks to address his triggers is deficient:
… it is not sufficient for [the applicant] to rely solely upon him attending counselling. He must show he has acquired the necessary ability or skills to cope with stressful situations. That is, there must be evidence to support the hypothesis the counselling he received greatly reduces the risk of his susceptibility to [the offending behaviour] in stressful situations.[26]
- [21]NK did not provide evidence of psychometric testing or formal assessment of his current suitability to work with children. NK did not identify any triggers for his behaviour, such as anger issues. Other than walking away, he did not identify non-violent coping strategies to address situations of stress or other evidence of steps he has taken to address triggers for his behaviour. Member Kent has previously warned of the serious deficiency of “walking away” when caring for children:
If a person [is] in charge of children or who is caring for children or working with children, then that person is not in a position to be able to disconnect themselves, remove themselves from the situation or to wait for a support person to become available. Children are entitled to the protection of the adult that is caring for them and has them under their protection. It appears that it is necessary for the applicant to pursue a longer period of time to develop his own strategies beyond requiring what essentially is time out and a discussion with another person. Without further strategies it would not be appropriate for the tribunal or another decision maker… [to] grant him a positive notice.[27]
- [22]The first step in personal growth is to admit the need for change. This requires examining one’s own behaviour and a level of self-reflection that can be painful and confronting – but necessary:
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.[28]
- [23]Unfortunately, NK’s evidence and submissions since his actions show a lack of understanding of this and why it is relevant to determining his suitability to work with children. He instead focused on denying and minimising his involvement and seeking to transfer responsibility to his ex-partner.
- [24]The Court’s refusal to terminate the Protection Order on four occasions is evidence of ongoing concerns and that it is necessary to continue the Order to protect NK’s ex-partner and the children. The naming of children in the Order means the Court was satisfied it was necessary or desirable to protect them from being exposed to domestic violence.[29] NK must show restraint and exercise self-control, particularly when children are present. NK placed his own feelings first: above court orders and the feelings of those for whom he claims to care about.
Is this an ‘exceptional case’ to not issue a positive notice to NK?
- [25]Domestic violence causes great pain and suffering. It is a scourge that takes many forms, extending beyond actual physical violence into the realms of psychological and emotional abuse. Being aware of this and how contravening a Domestic Violence Order impacts others and the importance of abiding by the order means a person is less likely to repeat the behaviour, when subjected to similar stressors.[30]
- [26]The community rightly expects those working with children to have the deepest understanding of this, as children depend on adults to have insight into their actions and their likely effect.[31] NK has not shown this. Those who work with children must act responsibly. NK’s current limited insight into the seriousness of his behaviour and its impact on others, together with evidence of ongoing coercive control, are risk factors that presently outweigh the protective factors.
- [27]Although NK may have much to offer to the community, issuing him with a positive notice at this time is not in the best interests of children. Any detriment to NK is not relevant to the granting of a positive notice[32] – the paramount consideration is the welfare and best interests of children.[33] This is consistent with human rights considerations.[34] The process of applying for a Blue Card is about assessing NK’s suitability to work with children. The process serves the best interests of children. The interests of children must take priority over an applicant’s interests.
- [28]The community cannot be confident that NK is aware of the psychological and emotional impact of his behaviour on others and can exercise restraint and self-control in certain situations, sufficient to work with children. His case is ‘exceptional’ and prevents issuing him with a positive notice for a ‘Blue Card’.
What is the correct and preferable decision?
- [29]The correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 28 February 2020 to issue NK a negative notice.
- [30]Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format.[35]
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, Schedule 1.
[2] Working with Children (Risk Management and Screening) Act 2000, s 226.
[3] Working with Children (Risk Management and Screening) Act 2000, s 221.
[4] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6] – [7].
[5] Working with Children (Risk Management and Screening) Act 2000, s 6(a), s 360.
[6] Working with Children (Risk Management and Screening) Act 2000, s 6(b).
[7] Personal History Statement dated 12 June 2020.
[8] Personal History Statement dated 12 June 2020.
[9] NK’s evidence-in-chief.
[10] Personal History Statement dated 12 June 2020.
[11] Personal History Statement dated 12 June 2020.
[12] Reference of WD dated 21 July 2020; Reference of GP dated 15 July 2020; Reference of DF dated 3 June 2020; Reference of VG dated 3 June 2020; Reference of GA dated 9 June 2020.
[13] Personal History Statement dated 12 June 2020.
[14] Court File NTP-57.
[15] Court File NTP-57.
[16] Conviction dated 27 June 2019.
[17] Grounds for Review dated 26 March 2020.
[18] Grounds for Review dated 26 March 2020.
[19] Grounds for Review dated 26 March 2020.
[20] HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [65].
[21] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [61], [67].
[22] Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257, [37].
[23] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 15, s 226(2)(a)(ii), Schedule 2, Schedule 4, Schedule 5.
[24] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(iv).
[25] Court File NTP-30.
[26] KAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 457, [63].
[27] SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165, [24].
[28] Re TAA [2006] QCST 11, [97]
[29] Domestic and Family Violence Protection Act 2012 (Qld), s 53.
[30] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.
[31] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.
[32] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [47], [48]; Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2, [29].
[33] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(a), s 360.
[34] Human Rights Act 2019 (Qld), s 13, s 26.
[35] Decision dated 7 October 2020; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.