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IFF v Director General, Department of Justice and Attorney General QCAT 301
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
IFF v Director General, Department of Justice and Attorney General  QCAT 301
DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
7 September 2021
18 May 2020, 21 May 2021 and 27 August 2021
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – significant child protection history involving the applicant and her children – the applicant has substantial criminal history – offences listed on applicant’s criminal history are not serious or disqualifying offences – whether the applicant’s case is exceptional – the applicant is recorded as both aggrieved and respondent to acts of domestic violence – the applicant disobeyed a Court order – the applicant contravened a temporary domestic violence order – whether the applicant displayed insight into her behaviour – the applicant’s children were the subject of child protection proceedings – whether the applicant’s failure to protect her own children impacts upon her case as being exceptional – whether there is an unacceptable risk to children should a positive notice and blue card be issued to the applicant
EVIDENCE – MISCELLANEOUS MATTERS – NEW EVIDENCE – INTERESTS OF JUSTICE – new evidence introduced late in proceedings – Tribunal not bound by the rules of evidence – the Tribunal is required to act fairly and comply with the rules of natural justice – no prejudice to applicant – interests of justice require the new evidence to be admitted – the applicant contravened a court ordered domestic violence protection order – the applicant showed a lack of insight – whether insight is a relevant feature to consider
EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON PUBLICATION OF IDENTITY – Tribunal exercising its own initiative to de-identify the applicant – the publication of the applicant’s identity or the identity of any witnesses and non-parties would be contrary to public interest
Domestic and Family Violence Protection Act 2012 (Qld), s 10 and s 159(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1), s 28(2), s 28(3)(a), s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221(2), s 226, s 353, s 354, s 360 and Schedule 2
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kent v Wilson  VSC 98
Kioa v West (1985) 159 CLR 550
Murray v Figge (1974) ALR 612
Perry and Browns Patents (1930) 48 RPC 200
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions  1 VR 1
Re TAA  QCST 11
Watson v Metropolitan (Perth) Passenger Transport Trust  WAR 89
N Rajapakse, In-House Solicitor for the hearing on 18 May 2020 and C A Davis, In-House Solicitor for the hearing on 27 August 2021
REASONS FOR DECISION
- The applicant (‘IFF’) applied for a positive notice and blue card under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). In assessing the merits of that application, the respondent denied the application and issued her with a negative notice.
- In assessing IFF’s application, the respondent determined that it would not be in the best interests of children for a positive notice and blue card to be issued to her. That assessment was based on a number of issues, including IFF’s substantial child protection history along with her police information consisting of fourteen separate appearances in Court over a twenty-four year period.
- Those Court appearances related to a range of offences including break and enter a dwelling, stealing, assault, obstructing police and contravening a police direction. There are other recorded offences including the contravention of child protection orders pursuant to the Child Protection Act 1999 (Qld) (‘Child Protection Act’) and drug offences involving the possession of a dangerous drug and possession of drug utensils.
- IFF applied to the Tribunal for a review of the respondent’s decision. She outlined that she was a mother of ten children, and at the time of the hearing, several of those children were still living with her. Whilst acknowledging the concerns raised by the respondent, she advocates that she is now a changed person with a solid work history. She required a blue card to remain working in the hostel industry to financially support her children.
In support of her application, IFF relied upon two certificates completed in 2014 relating to workplace relationships. Those courses did not involve any education in respect of addressing domestic violence, sexual abuse or a propensity to be involved in criminal activity. From 2010, she has worked as a night attendant at an Aboriginal hostel for people waiting for other housing, such as domestic violence victims, but was stood down from that position when the respondent refused to issue her a blue card.
The Tribunal’s role
- Because the respondent decided to issue a negative notice, a discretion is afforded to IFF for her to apply to the Tribunal to review that decision. In circumstances where a review is undertaken pursuant to the Working with Children Act, it must be carried out by applying the principle that the welfare and best interests of children is paramount.
- In reviewing the respondent’s decision, the Tribunal effectively stands in the shoes of the original decision maker and the review is conducted by way of a fresh hearing on the merits of the application. The purpose to be achieved is to produce the correct and preferable decision and the Tribunal’s decision must be based on the material before the Tribunal at the time of the review hearing.
- In reaching the correct and preferable decision, discretion is available to the Tribunal to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute its own decision; or set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the Tribunal considers appropriate.
An ‘exceptional case’
- Because IFF has been convicted of criminal offences, the Tribunal must have regard to considerations prescribed within the Working with Children Act in determining whether an exceptional case exists. Those provisions are not an exhaustive list of considerations and do not expressly or impliedly restrain the Tribunal to consider only those provisions, rather they are merely certain particular matters which the Tribunal is obliged to consider in deciding the application.
- Although the Working with Children Act does not provide a supporting definition as to the special meaning or construction of the term ‘exceptional case’, guidance can be otherwise found in an earlier Court of Appeal decision. In that instance, it was determined that it would be most unwise to lay down any general rule with regard to what is an exceptional case. These types of matters are matters of discretion.
- Other jurisdictions have said the term means ‘unusual, special, out of the ordinary course’ and the facts must be examined in the light of the legislation and its legislative intention. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.
IFF’s police information, child protection history and domestic violence
Police information – Criminal and traffic history
- IFF’s traffic history spans five pages. Over a thirteen year period from 2006 to 2019, she accrued thirty-six separate traffic offences, including seven speeding offences. She was convicted of driving without a licence on five occasions and twice convicted for disqualified driving.
- IFF was aged fourteen when her criminal offending began. She was with a group of young girls when they were picked up by a taxi. One of the girls had a bicycle which was placed into the boot of the taxi. After arriving at their destination, IFF waited until the taxi driver left the vehicle to remove her friend’s bicycle from the taxi’s boot. She then reached underneath the driver’s seat and stole the taxi driver’s handbag, including $500 cash that she later shared with her friends.
- Two days later, she again stole money from a taxi driver. In circumstances similar to the earlier incident, IFF stole the taxi driver’s wallet containing $120 and a calculator by deploying the same modus operandi.
- Three days later, IFF and two of her friends removed louvres from a window to a house and gained entry with the intent to steal money. After searching the house, no money was found.
- IFF later appeared in the Childrens Court for those offences and was placed on supervision for six months. In the instances where she stole money, she was ordered to pay restitution to the taxi drivers.
- A little over two months after stealing money from the taxi drivers, IFF and a group of friends burgled three houses intending to steal money. She was again placed under supervision for those offences.
- Almost two years later, IFF and three of her friends were involved in a home invasion type incident. They went to the address of the fourteen year old girl where they viciously assaulted the victim inside her own home. After confronting the victim, one of IFF’s friends punched and kneed the victim. The victim retreated into the sanctuary of her own home only to have IFF and her friends chase after her. They continued to assault her and IFF punched the victim several times in the face and ribs. Although only aged sixteen at the time, it seems that IFF was no longer attending school and was easily identifiable as she already had distinctive tattoos to her feet and arms.
- Moving into the middle and latter part of the 90s, IFF refused to provide her name and address to police. She was convicted of obstructing a police officer.
- By 2009, IFF’s children were the subject of child protection orders. On three occasions that year, IFF contravened those child protection orders. She later pleaded guilty and was convicted. At a later time, one of IFF’s children who was in the care of what is now known as the Department of Children, Youth Justice and Multicultural Affairs (‘the department’) went missing from her foster care placement. The police were notified, and enquiries were made at IFF’s house for the child. IFF invited the police to search her house and when the search was undertaken, cannabis was located. The facts she pleaded guilty to were –
As police entered the residence, they immediately observed in plain sight on the kitchen table a small quantity of green leafy matter consistent in appearance and odour as cannabis. [IFF] immediately admitted her possession of the matter.
[IFF] admitted during questioning that the matter was cannabis and that she had purchased it earlier that evening citing a toothache as her reason for possessing the cannabis. [IFF] stated that she had smoked some cannabis using tally ho papers despite being almost full-term pregnant at the time.
- Her later submissions to the respondent about this offence are inconsistent with those facts. She wrote –
On the 25/06/2010 I was charged, no conviction recorded with possession of marijuana, this marijuana was left in my laundry either by my brother or [SOS], it was approximately 0.50 grams mixed with tobacco. I was the only person in the house when police attended; police told me that it was mine as me (sic) being the only adult in the house at that time.
- That version also differed to the explanation she gave at the review hearing. She told the Tribunal that she had not smoked cannabis since 2007 and the cannabis found at her house belonged to her sister, but she took the blame to protect her sister.
- Subsequent to IFF’s first drug conviction, a search warrant was executed on her house. Police found a coffee grinder on the kitchen bench containing remnants of cannabis. The facts suggested IFF admitted owning the grinder and it was used by her guests for grinding marijuana to smoke at her house. IFF pleaded guilty to the offence. Again, her written submissions to the respondent about her offending differed to the facts she pleaded guilty to. She said –
The offence on 26/08/2011, conviction recorded, was for a coffee grinder that [SOS] had left in my laundry to mix marijuana in. On the morning of police attending the utensil was found by police and I had to be charged with it as I was the only adult in the house.
- The last entry on IFF’s criminal history relates to her obstructing police in the execution of their duty. Police went to her house in search of IFF’s daughter. Her daughter was inside the house and when IFF met the police at the front door, she screamed at them to leave and refused to allow them into the house. Her behaviour allowed her daughter to escape through the back bedroom window.
- Notwithstanding the concerning features of some of those offences, there is a historical nature to the offences and none of them are classified by the Working with Children Act as either serious or disqualifying offences.
Child Protection History and domestic violence
- By 2009, the department were involved with IFF and her children. Her former partner, SOS, was the father of seven of the children, with the oldest child a product of an earlier relationship.
- SOS sexually assaulted IFF’s oldest child. Child protection orders were made by the Court granting custody of IFF’s children to the department. The Court orders prevented IFF and SOS from having any contact with them, either direct or indirectly, unless the department supervised that contact. That particular non-contact order was put in place because IFF was allowing contact between SOS and the child he sexually assaulted.
- Eighteen child protection notifications were recorded with the department, with ten of those notifications substantiated. Apart from the seriousness of SOS sexually assaulting one of her children, other concerns which led to the Court making child protection orders arose because of IFF’s gambling and alcohol consumption, no food within the family home, physical harms, along with neglect and emotional harm. She failed to protect the children from harm, and it became apparent that although those orders prevented SOS’s contact with the children, over a substantial period of time there were significant examples of SOS continually returning to the family home. Along with those concerns, there were sixty-four incidents reported to police involving domestic violence within the family home.
- A majority of the child protection notifications related to events characterisation by the domestically violent relationship between IFF and SOS. Her children were exposed to the domestic violence, and she was not protecting them from that violence. The department identified that the domestic violence caused emotional harm to the children.
- In her submissions to the respondent, IFF said she had always tried her hardest to control the level of domestic violence shown in front of her children. Most times the violence happened while the children were asleep. She argued that by her taking out domestic violence orders on SOS, and his imprisonment for domestic violence offences, this was a demonstration of her protectiveness towards her children. It is noted though that it was actually police officers who made those applications that led to the protection orders being made. Any application IFF made only related to her attempts to vary the conditions of those orders to favour SOS.
- On another occasion, SOS physically harmed one of the children during a domestic violence incident. The child acted protectively of IFF and attempted to prevent SOS assaulting her. In explaining that incident, IFF said that after SOS was imprisoned for assaulting her, and after he was released from custody, he visited her house. He had no respect for the law, and he simply walked into her house without permission.
- Another concern arose when IFF travelled away from Townsville and left the children in SOS’s care. This was in contravention of child protection orders directing her not to allow him unsupervised contact with the children. When the department investigated this matter, IFF’s house was seen to be in a state of neglect with observable damage caused by previous domestic violence incidents. The department assessed the children to need protection as there was a risk of physical harm to the children by neglect. IFF denied those allegations and said she did not leave any of her children with SOS or any other person.
- Subsequent to that, IFF allowed SOS to spend time with the children despite knowing the risk of harm this posed. At that time, there were Court orders in place preventing any contact between him and the children. The police became involved and IFF protected SOS by providing false information to the police about his whereabouts.
- In responding to those allegations, IFF said the allegations were untrue. She wrote in her submissions to the respondent –
I knew I had orders out and [SOS] would just disobey them. I would not have lied to police of his whereabouts as I have previously given many addresses of where I think [sic] that he would be. I have asked Department of Child Safety as a time (sic) of how [SOS] would be able to visit his children, and they replied he would have to call them. I was told by Department of Child Safety (sic) that [SOS] did have a supervised visit at their office. As I’ve stated before, I would not allow [SOS’s] violence be witnessed by my children at any such time. I have always tried to protect them by calling police (sic) on several occasions. Police would come to my house and [SOS] would see them and he would run at all times. I have never hidden [SOS] from the law, as I have assisted them by giving addresses and names of people of where I thought he would be.
- About nine months later, IFF again allowed SOS to have contact with the children in contravention of the Court orders. When this allegation was investigated, the department established that IFF had taped her children to chairs as a behaviour management strategy and tape was also placed over their mouths.
- In response to those allegations, IFF told the respondent –
I would also like to [re-iterate] that I had taped my children to chairs and taped their mouths, my children were playing games at that time, and they laughed about it, as they thought they were playing at the time. I would not do that, as that is just not me or in my nature to do so. If the Department of Child Safety thinks I done (sic) such a thing for discipline, well ohh my God, we are talking about humans here and that I have physically harmed and neglected my children, not in this life would I even have done that to my dog.
- About five months after the department’s investigation into the notifications relating to the children being taped to chairs, a number of allegations were made about IFF, including her allowing SOS to live in the family home despite the restrictive Court orders preventing contact between him and the children.
- The investigation also focused on drug use in the family home; SOS supplying drugs and alcohol to the children; and the continual domestic violence between IFF and SOS. Those allegations were substantiated, and the children were assessed as being at risk of emotional and physical harm.
- In response, IFF denied SOS lived at her home. She said they had an on and off relationship and he was never allowed to live at the family home because he was a violent person and a heavy drug user. She denied that she was a drug user, saying –
I came clean for the sake of my children, prior to that I was not dependent on drugs or alcohol. I also have not done any drugs or alcohol in front of my children as I was not bought up like that.
To my knowledge [SOS] has not supplied any sort of drug to my children.
- IFF later told the respondent in her submissions –
I lived in Garbutt at this time and had my cousin [BA] and his three children live with me. BA and I had a disagreement over him not playing (sic) board and lodgings, [BA] became stressed with me and I asked him to leave, I was home with my nephew [T] at this time. Later that day, [T] and I drove to the shop, only to meet BA at the intersection of Ramsey Street and Halifax Street, BA stopped me and jumped out of his car with a bar and smashed my windscreen.
- IFF’s version about this incident does not accord with an earlier documented version recorded in an application made by the police for a domestic violence protection order naming her as the aggrieved. In the application, it was reported –
Police attended [IFF’s address] after reports of a male person with a firearm at the address threatening occupants. On arrival there was no disturbance. Police then took up with [IFF] who stated that her cousin [BA] attended the address earlier in the day. An (sic) verbal argument incurred (sic) over a stolen wallet. This argument has escalated to threats of violence towards [IFF] and her daughter in the kitchen. After a short time [BA] left the address in his vehicle. After a period of approximately 3 hrs [IFF] was returning to Halifax Street in her vehicle after visiting her sister. It is at this time that [BA] in his vehicle intercepted [IFF] in her vehicle at the intersection of Ramsey and Halifax Sts. [BA] is believed to exit his vehicle and punch (sic) the windscreen of [IFF’s] vehicle causing it to smash. [IFF] has then exited her vehicle, approached the vehicle of [BA] and attempted to punch the windscreen. After these attempts failed, [IFF] has retrieved a bar from the front of her vehicle. With this bar [IFF] has smash (sic) the windscreen of [BA] vehicle (sic). [IFF] returned home and parked the vehicle beside her residence. [BA] has also decamped in his vehicle to an unknown destination. [IFF] states that she was driving the vehicle at the time and her nephew was a passenger in the rear of the vehicle.
- There is an obvious difference between the versions about that incident. In one version IFF suggests it was her cousin who was armed with the steel bar, whereas the police say it was IFF.
- Approximately three months later, the department were again involved because of a domestic violence incident between IFF and SOS. Their one month old baby was struck with a kitchen utensil thrown by SOS at IFF. SOS was in the kitchen, and he picked up a fork and threw it in her direction. She was standing in the adjacent lounge room. The fork struck the baby just under the right eye. The baby received a bruise under the right eye and four puncture sites where the fork had impacted.
- At that time, the children were continually exposed to the ongoing domestic violence between IFF and SOS. Several of the children were injured when they intervened during the violence between IFF and SOS. The department assessed that IFF minimised the harm she caused to the children and provided inconsistent explanations in regard to child protection concerns.
- In her submissions to the respondent about this allegation, IFF wrote –
Concerns regarding one of my children being hit during altercations with myself and [SOS], I do definitely not recall this happening at all, and me shaking my infant, are the allegations actually witnessed and charges being laid against me? I would not cause any such harm to any child, whether mine or any other persons. This to me is very vulgar in all, upsetting and my heart is so very sore reading this. For the Department of Child Safety to actually say I done (sic) this to my child, Lord above, I cannot explain.
- Her response to this allegation appears to focus on denying she ever harmed the child, but it is noted there was no denial that the baby received a facial injury as earlier described.
- Sometime later, the department was advised about SOS living at the family home on a full-time basis. This was assessed as a risk of IFF’s inability to protect the children from his violent tendencies. IFF denied that SOS lived permanently at the family home, although she acknowledged he visited the house several times offering to take the children to school. She claimed the children were always protected, or at least she tried to protect them from SOS by maintaining a domestic violence protection order in place until his death.
- During the hearing, IFF acknowledged the concerns raised about SOS, including suspecting his involvement in sexually abusing one of the children. An observation is that because she was privy to his confession to this offence, her knowledge of the matter goes beyond merely suspecting he was involved. She took the child to a local waterpark to meet him. During that meeting, he confessed his guilt to the child in IFF’s presence. He apologised to the child for sexually assaulting her. At that time, the child stood behind IFF and was upset and crying. Notwithstanding his confession and his apology, IFF took no action to report that confession to the police or the department. When asked why she did not report his confession, she could offer no reasonable explanation other than say that SOS left the waterpark immediately afterwards.
- Concerningly, there was an apparent lack of acknowledgement or understanding on her behalf of the emotional and psychological trauma her child would have experienced when she met her abuser under those circumstances.
- In respect to the information relating to domestic violence, the material produced to the Tribunal by the department indicates that between 2010 and 2015, sixty-four domestic violence incidents had been reported to the police with various domestic violence protection orders made by the Court involving IFF.
- The first application for a domestic violence protection order related to an incident between IFF and her cousin. The factual circumstances of this incident were discussed earlier in these reasons. Notwithstanding IFF arming herself with a steel bar and causing damage to her cousin’s vehicle, that application favoured IFF. She was nominated as the aggrieved and her cousin as the respondent. The application was not contested, and the Court made the domestic violence protection order on a final basis for a period of two years.
- The police later made an application for a domestic violence protection order naming IFF as the aggrieved and SOS as the respondent, with two of IFF’s children nominated as named persons. The circumstances of that application related to SOS being intoxicated. He was yelling and screaming before he threw a ceramic garden statue through a window of IFF's house causing the window to shatter. The children were home at the time, and they were shaken and distraught. Ultimately, a domestic violence protection order was made on a final basis for a period of two years.
- About five months later, IFF applied to the Court to vary that domestic violence protection order. The premise of her application was to vary the conditions of that order and remove the non-contact conditions, as well as remove the condition preventing SOS from entering any place where she lived. IFF deposed in her application that she and SOS shared children together and they were about to have their first grandchild. SOS had asked her to give him one more chance. The Court struck out that application.
- The day after that application was struck out, IFF made a fresh application to vary the order. She again sought the revocation of the condition relating to non-contact the prevention of SOS from entering any place where she lived. She wanted to reconcile with him for the sake of their children and a grandchild. That application was later granted by the Court and the domestic violence protection order was varied accordingly.
- About six months later, IFF made another application to vary the domestic violence protection order. This time it was a reverse of her earlier application. She wanted to re-instate the conditions preventing SOS having contact with her and prevent him entering the place where she lived. The Court struck out that application.
- The assessment of the evidence contained within the domestic violence material produced to the Tribunal is contradictory to IFF’s claim that her children were always protected. It is also contradictory to any suggestion IFF protected them from SOS by maintaining a domestic violence protection order in place until his death.
The applicant’s case
- IFF strongly disagrees with the respondent’s decision to refuse her a blue card and positive notice. She argues that the decision was based on her past history in preference to considering her present circumstances. Notwithstanding that, she accepts she committed the offences listed on her criminal history, including matters involving possession of drugs and contravening Court orders relating to the protection of her children. She argued that all her convictions took place when SOS was alive and since his death, there have been no other adverse interactions with the police.
- IFF told the Tribunal that she has been through a lot of domestic violence with SOS. Her children would sometimes witness that domestic violence, but at other times the children were either at school or asleep. As the children each grew older, they stood up to him during the domestic violence incidents, and on occasions SOS absconded before police arrived.
- She said SOS was a ‘real persistent person’ whenever he was on drugs, intoxicated or just being released from prison. He simply had no respect for the law. Despite Court orders preventing him from coming to her house or having contact with the children, he visited her home to deliver gifts to the children. She acknowledged that she knew what he was doing was wrong, and she attempted to amend the Court orders so that it would allow him to visit.
- IFF acknowledged that SOS sexually assaulted her eldest daughter, and he was restrained from having any contact with that child, yet she allowed contact between them to occur at the water park. She further accepted that her daughter saw him and ran up to them and hid behind her. He apologised and said sorry to the child for sexually assaulting her. Her daughter then started to cry. IFF told him to leave, and he walked away. She knew that contact between SOS and her daughter was wrong and she accepted that she should have telephoned the police at the time to report his confession. She felt guilty at the time for letting him apologise to her daughter, and for that she is remorseful.
- She said that from the age of nineteen she had smoked cannabis, but only did this seldomly and never in the presence of her children. After her children were removed from her care in 2007, she never used cannabis again because drug use was an issue in regard to her trying to get the children back into her care. Despite this, she suggested that the two entries on her criminal history for drug offences after 2007 happened because she took the blame for others. When the police raided her house and found the drug, she was the only adult home. She claimed that she had to say it was hers. The Tribunal notes the inconsistency between that explanation and the facts that she pleaded guilty to. An observation about her comment that she did not use drugs in front of the children is that when the police found the drugs within her home, the drugs were found in common areas of her house.
- In discussing disciplining her children, she suggested her daughter [C] was spoilt by her paternal grandparents for a number of years resulting in [C] being a difficult child to handle. When [C] was fourteen, she ‘went off the rails and committed crime’. SOS and family members tried many different ways to help [C], but she just would not listen. IFF’s structure of discipline was to ground [C] and take away her mobile phone, but this was to no avail. On one occasion, SOS tried to stop [C] from getting into a stolen motor vehicle but [C] became violent. SOS slapped [C] on the arm as she tried to jump the fence. This caused [C] to hit her head on the fence post from which she received a cut to the side of her head. IFF acknowledged that it was wrong for her to ask SOS to discipline [C] that day, she feels guilty and remorseful for what happened.
- However, the department’s child protection concern report about that incident takes the circumstances somewhat further. [C] disclosed to the department that she received several stiches to her right temple when SOS tried to stop her from going out to steal motor vehicles. He was holding her back, so she stabbed him with a pair of scissors. He then struck her. Her next recollection was waking up in a pool of blood. She then called her boyfriend who came and collected her. Over the next few days, she continued to be involved in stealing motor vehicles until caught by police.
- Notwithstanding those comments, IFF went on to say that her children had never been harshly disciplined. Although she may have removed privileges from them such as the internet and their mobile phones. She said she never has, and still never ‘belts’ her children.
- IFF discussed the difficulties she has in disciplining her daughter [Y]. She said that [Y] is a difficult child to deal with. She is a follower, and many of her friends are older than she is so she tends to listen to that older peer group. Most of her friends are from affected families themselves and are under custody orders placing them with the department.
- Since the passing of SOS (Y’s father), [Y] has displayed suicidal ideation and has attempted to commit suicide. IFF said that she has asked her to do some grief counselling, but she has rejected that proposal.
- IFF said that personally, she has many support networks around her, as well as her family to help her get back on track, only for the children to deny any support that is given to them. Her children have, through the Courts and family elders, used the death of their father as an excuse for their bad behaviour. She said the children have always blamed her for what happened to SOS and used that blame as an excuse for their own bad behaviour.
- Only CJ was called by IFF to give evidence to support her application. CJ had previously provided a reference for IFF in relation to her application for a blue card. CJ told the Tribunal that IFF was not happy with the respondent’s decision, and she did not understand why that decision had been made. In giving evidence, CJ did not appear to be fully aware of the concerns relating to the background of IFF’s criminal history, domestic violence and the department’s involvement with her family.
- Although CJ may feel a need to support IFF in her quest to obtain a blue card, I am not satisfied that any weight should be placed on her evidence as she was not able to provide anything tangible to support a hypothesis that the issuing of a blue card to IFF would be in the best interests of children. For the same reasons, the statements provided by EP and ID carry no weight.
Additional ‘new’ information
- These proceedings involve an administrative review undertaken of the respondent’s refusal to issue a positive notice and blue card to IFF. At the Tribunal’s discretion, blue card proceedings are conducted subject to the provisions of the Working with Children Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’). The Tribunal is obliged to employ fair procedures adapted to the circumstances of each particular case, and although not bound by the rules of evidence, it is required to act fairly and comply with the rules of natural justice.
- In this matter, the proceeding had concluded so far as the Tribunal taking evidence and it was in the process of reaching the correct and preferable decision when the respondent became aware that IFF had subsequently twice contravened a temporary domestic violence protection order. The respondent applied to the Tribunal for leave to adduce further evidence relating to IFF’s offending. IFF did not oppose the respondent’s application.
- The key consideration relating to the admission of new evidence after the hearing is complete, but before judgment is given, is whether the evidence is material to the facts in issue and the interests of justice require it be admitted. Another consideration is the admission of the evidence should only be undertaken on a condition that ensures no prejudice is afforded to IFF by reason of its introduction at such a late point of time.
- In respect to the evidence the respondent sought to introduce, the circumstances of those facts took place subsequent to the Tribunal hearing the earlier evidence. The facts were relevant to the Tribunal’s determination as to what was the correct and preferable decision taking into account the paramount principle as provided under the Working with Children Act. Overall, the Tribunal is satisfied that there is no prejudice to IFF, and the interests of justice require the evidence to be admitted.
- The background of the new evidence is that sometime after the death of SOS, IFF commenced a relationship with SRJ. SRJ is SOS’s auntie. That relationship continued up until IFF and SRJ separated on 7 November 2020. Two days later, SRJ made an application to the Magistrates Court (‘the Court’) for a domestic violence protection order pursuant to the Domestic and Family Violence Protection Act 2021 (Qld) (‘Domestic and Family Violence Protection Act’). On the first return date for the application, the Court made a temporary protection order nominating IFF as the respondent. The temporary protection order consisted of the standard terms in that IFF was to be of good behaviour towards SRJ and not commit domestic violence against her. Further conditions prevented IFF from contacting or attempting to contact SRJ or asking someone else to contact her other than a lawyer. The final term prohibited IFF from approaching SRJ when she was at any place.
- Within a few weeks, IFF filed her own cross application for a domestic violence protection order nominating SRJ as the respondent. On the same day IFF filed her cross application, she contravened the conditions of the temporary protection order by telephoning SRJ and sending her text messages. Three days later, IFF again contravened the temporary protection order by sending further text messages to SRJ. Although SRJ was aware that IFF had contravened the temporary protection order, she did not complain to police about those contraventions until almost two months later. Consequently, when SRJ made her complaint, the police charged IFF with two offences of contravening the temporary protection order.
- In respect to SRJ’s application for a domestic violence protection order and IFF’s cross application, they were both able to reach an agreement to resolve their respective applications. They each signed undertakings indicating they would be of good behaviour towards each other; and would not commit domestic violence against each other. As well as those conditions, they each gave an undertaking not to use the internet or any other communication device, including social networking sites, to publish photographs or make comments about each other. They advised the Court of their intention to withdraw their respective applications.
- Subsequent to the withdrawal of the domestic violence applications, SRJ and IFF approached the police to have the charges preferred against IFF withdrawn. After considering the circumstances of the allegations relating to IFF twice contravening the temporary protection order, including the non-threatening nature of the messages, the police decided that it was not in the public interest to proceed with the prosecution of those charges. The charges were withdrawn.
- In undertaking an analysis of the new evidence, the domestic violence allegations raised by both SRJ and IFF concern issues surrounding verbal, emotional and physical abuse. Although the evidence contained in their respective applications and affidavits was not tested in Court, it nevertheless provides an insight into their bitterness towards each. For example, prior to her relationship with SRJ, IFF was in a relationship with SOS. During her relationship with IFF, SRJ knew that IFF used SOS’s Facebook account. SRJ deposed in her affidavit to support her domestic violence protection order application that she was a proud Torres Strait Islander woman, yet she on Facebook she was subjected to insulting, derogatory and racially toned references posted on SOS’s Facebook page.
- On the other hand, IFF’s allegations were equally concerning. She deposed in her affidavit to support her application for a domestic violence protection order that she was subjected to a physical attack by SRJ. SRJ attacked her with a butcher’s knife, cutting her finger. She had to wrap a tea towel around the wound to stem the flow of blood. Neighbours called the police. When they arrived, IFF lied to the police about what had taken place.
- At that time, SRJ was the holder of both a blue card and a yellow card. IFF accepted she mislead the police to prevent action being taken against SRJ which possibly meant that she could have lost those cards and her employment. Notably, there is an identifiable similarity in a number of events discussed in these reasons where IFF mislead the police and/or hindered their investigation so as to protect others, whether that be her own family or former partners. By those actions, poor judgement and a lack of insight is the only conclusion that can be drawn from her behaviour.
- Notwithstanding the evidence raised further domestic violence concerns relating to IFF, what is troubling is IFF’s deliberate contravention of the temporary protection order, not once, but twice in quick succession. Although no prosecution action was taken against her, and the circumstances may place her actions at the lower end of the scale of offending, both contraventions occurred soon after the Court made the order, and she knew the implications of her disregard of the Court’s order as she told SRJ in a text message, “I don’t want to get in trouble by texting you”. Despite knowing it was wrong to do so, she went ahead and sent the message anyway. That in itself indicates a clear example that IFF had very little insight into the consequences of her behaviour.
- IFF has not previously held a positive notice and a blue card. The material provided to the Tribunal by the respondent reveals a significant amount of child protection history involving IFF as a parent, as well as information relating to domestic violence including examples of IFF recorded as both the victim and the perpetrator of domestic violence.
- The history recorded by the department over a significant amount of time regarding IFF’s family reflects poorly on her ability to protect her children from physical, sexual and emotional abuse. Between 1999 and September 2015, the department received a large number of notifications relating to IFF’s family, of which several matters were substantiated. Child protection orders were made for the protection of her children, and it was necessary to remove them from her care. Although the children were later returned to her care in 2015, over the next four years the department continued to receive notifications of child protection concerns.
- Concerningly, IFF’s past history reflects a propensity for gambling, alcohol consumption and drug use. It seems those concerns had a flow on effect and exacerbated issues such as the insufficient provision of food for the children in the family home, as well as physical harm, neglect and emotional harm to the children. Significant concerns existed regarding SOS sexually abusing one of IFF’s children, and Court orders preventing him from returning to the family home were ignored. Alarmingly, despite overhearing SOS confess to sexually assaulting her daughter, IFF kept this information to herself and did not report it to the police or the department.
- IFF has a history of exposing her children to domestic violence and the department’s records indicate that sixty-four incidents involving domestic violence were reported to the police. That domestic violence history included disclosures made by one of IFF’s children that SOS choked at least two of the children. He also choked IFF until she vomited. Other disclosures related to IFF being pushed to the ground by SOS and he then stomping on her face. On another occasion, a baby received facial injuries after being struck by a fork thrown at IFF by SOS.
- Additionally, it seems that IFF is also the perpetrator of domestic violence, and notwithstanding the Court putting in place an order preventing IFF from contacting SRJ; she ignored that order and twice contravened the temporary protection order by contacting SRJ. This all took place within the first 10 days after the order was made. Historically IFF has displayed a propensity to completely disregard Court orders and this propensity was displayed on this occasion without insight into the impact of domestic violence upon others.
- Returning to the information provided to the Tribunal during the hearing, there was an example given that one of IFF’s children was serving a custodial sentence for unlawfully using a motor vehicle. The Tribunal also heard of a recent incident where another of her children, who although only aged twelve, was allowed to attend a suburban shopping centre on her own to mingle with, and roam around the shopping centre with other unsupervised children. This was a frequent event on late night Thursday trading. The child, along with other children left the shopping centre one night and ran across a busy intersection towards adjacent parkland. The child was struck and injured by a motor vehicle on the intersection. She received substantial injuries and required hospitalisation. From what IFF told the Tribunal, she appears to have lost parental control of this child.
- Notwithstanding IFF’s recorded child protection and domestic violence history, she also has a significant criminal history spanning more than two decades. Some of that offending has taken place in the presence of children.
- The respondent suggested IFF demonstrated limited insight into her concerning behaviour throughout these proceedings, either showing no understanding of the impact of her own behaviour upon her children; or she attempted to minimise and justify her own behaviour; and nor has she engaged in education or counselling to gain sufficient insight into providing a protective environment for children. On any reasonable assessment of those propositions, the Tribunal would have to concur.
- Insight is a critical issue for the Tribunal determination. Helpfully, a previous Tribunal in the decision of Re TAA carefully explained that good insight is a protective factor. A person who is aware of the consequences of their actions upon others is less likely to re-offend than a person devoid of insight into the effect of their actions. The Tribunal went on to say insight is particularly important with children because they are wholly dependent on adults around them having insight into their actions and the likely effect upon children.
- On the face of the evidence presented to the Tribunal, IFF’s overall conduct across a lengthy period of time provides very little comfort that she displays insight into her participation in the identified concerning behaviour.
- For the Tribunal to reach a decision that favoured IFF’s application, it would have to be satisfied of the existence of protective factors to adequately alleviate any concerns of a risk to children. Afterall, the object, purpose and nature of the provisions of the Working with Children Act all encourage a precautionary approach to making decisions in these types of matters.
- The Tribunal is entitled to be satisfied of the existence of protective factors that satisfactorily diminish any concerns of a risk to children. In regard to situations involving applicants in blue card matters who expose children to or failed to protect children from domestic violence and other child protection related issues, the Tribunal is entitled to know what, if any, is a risk of the repetition of that concerning behaviour. That is significant for any assessment as to whether the risk of harm to children is adequately nullified so that a conclusion can be reached that there was little or no likelihood of a risk to children.
- IFF wants the Tribunal to accept that she is a changed person, but she failed to exhibit any tangible evidence that supported that suggestion. Nor has she provided any supporting material or evidence to satisfy the Tribunal she is able overcome any urge to act in an inappropriate manner as she has previously displayed.
- Notwithstanding that it is somewhat difficult to predict any future risk with confidence, the best gauge of any potential risk is quite often past behaviour. Any assessment of the evidence relating to IFF’s past history does not support any hypothesis that she possesses a requisite standard of protective competency to meet the threshold of negating the identified risk factors to children.
- Therefore, the Tribunal’s correct and preferable decision is to confirm the decision of the Director General, Department of Justice and Attorney-General dated 24 April 2019 that IFF’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children Act.
- In respect of whether a de-identifying order is warranted, consideration has been given to the facts and circumstances relating to the identification of vulnerable people engaged in prior domestic violence and child protection proceedings.
- A further consideration is the existing prohibition within the Domestic and Family Violence Protection Act in respect to the publication of certain information regarding domestic violence proceedings. That prohibition prescribes a penalty for any person who publishes information that identifies or is likely to lead to the identification of IFF, SRJ and SOS who were all parties to domestic violence proceedings under the Domestic and Family Violence Protection Act.
- Therefore, having regard to those circumstances, The Tribunal orders that the publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness should be prohibited to the extent that it could lead to the identity of IFF, SRJ or SOS, or any member of their family and/or any non-party to these proceedings.
Negative notice issued on 24/04/2019.
The certificates were titled ‘Introduction to better Workplace Communications’ and ‘Introduction to Workplace Effective Relationships’.
Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353 and 354.
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492,  endorsing Re Imperial Chemical Industries Ltd’s Patent Extension Petitions  1 VR 1 in adopting the warning of Luxmore J in Perry and Brown Patents (1930) 48 RPC 200.
Kent v Wilson  VSC 98,  per Hedigan J.
On 05/10/1989. These offences were all committed on the same day.
Between March and May 2009
Convicted on 12/10/2009 in the Magistrates Court at Townsville.
Respondent’s material, BCS-36. IFF pleaded guilty and was fined $150.
SOS was the applicant’s former partner and father to seven of her children. He passed away on 30/12/2016.
Respondent’s material, BCS-64. Submissions dated 15/09/2018.
On 26/08/2011. IFF was convicted and fined $350.
Respondent’s material, BCS-38.
Respondent’s material, BCS-10.
On 05/08/2013. IFF pleaded guilty and fined $440.
Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.
Between 1999 and 2015.
Notice to produce documents, NTP-459.
Respondent’s material, BCS-5. On 21/06/2001.
The term ‘exposed to domestic violence’ involves circumstances where a child sees or hears domestic violence or otherwise experiences the effects of domestic violence; Domestic and Family Violence Protection Act 2012 (Qld), s 10.
Respondent’s material, BCS-12.
Respondent’s material, BCS-5.
Respondent’s material, BCS-12.
Respondent’s material, BCS-6.
Respondent’s material, BCS-12.
Respondent’s material, BCS-6.
Respondent’s material, BCS-12.
Respondent’s material, BCS-6.
Notice to produce documents, NTP-78 to NTP-79.
Respondent’s material, BCS-12.
Respondent’s material, BCS-6 to BCS-7.
Respondent’s material, BCS-12 to BCS-13.
Respondent’s material, BCS-7.
Respondent’s material, BCS-13.
Notice to produce documents, NTP-10.
Notice to produce documents, NTP-102.
Respondent’s material, BCS-7.
Respondent’s material, BCS-13.
Respondent’s material, BCS-7.
Respondent’s material, BCS-13.
Notice to produce documents, NTP-1 to NTP-89 and NTP-459.
Application made 04/05/2010.
The court made the domestic violence protection order on 06/05/2010.
Notice to produce documents, NTP-74 to NTP-76. The police application was made on 04/07/2010.
Notice to produce documents, NTP-75.
Notice to produce documents, NTP-83 to NTP-89.
Notice to produce documents, NTP-87.
Notice to produce documents, NTP-75. The court made the protection order on 04/11/2010.
Application made on 20/04/2011.
Notice to produce documents, NTP-68 to NTP-73.
Application struck out by the court on 11/05/2011.
Notice to produce documents, NTP-57 to NTP-66.
Notice to produce documents, NTP-52 to NTP-56.
Notice to produce documents, NTP-42 to NTP-51. Application made on 07/11/2011.
Notice to produce documents, NTP-50. Application struck out on 02/12/2011.
Application filed 22/07/2013.
Notice to produce documents, NTP-33 to NTP-40.
Notice to produce documents, NTP-32. Application dismissed on 12/08/2013.
The applicant was convicted in the Magistrates Court at Townsville on 12/10/2010 for possession of a dangerous drug; and was further convicted by the same court on 15/09/2011 for possession of utensils or pipes used in connection with the smoking of a dangerous drug.
Notice to produce documents, NTP-459.
Statement dated 19/02/2020.
Statement dated 19/02/2020.
Statement dated 21/02/2020.
Statement dated 18/09/2018, Respondent’s material, BCS-66.
Kioa v West (1985) 159 CLR 550, 585.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
Murray v Figge (1974) ALR 612 considering Watson v Metropolitan (Perth) Passenger Transport Trust  WAR 89.
Separation dated confirmed by SRJ in her affidavit to support her application for a domestic violence protection order. Notice to produce documents, NTP-626.
On 09/11/2020. Notice to produce documents, NTP-597 to NTP-607.
Temporary protection order made on 11/11/2020. Notice to produce documents, NTP-596.
IFF’s cross application for a domestic violence protection order was filed on 23/11/2020.
SRJ’s complaint made to the police on 16/02/2021. Notice to produce documents, NTP-703.
Both undertakings consisted of identical conditions. IFF signed hers on 30/03/2021 and SRJ signed hers on 31/03/2021. Notice to produce documents, NTP-701 to NTP-702.
Both IFF and SRJ withdrew their applications on 06/04/2021. See Verdict and Judgment Record contained within the notice to produce documents, NTP-594.
On 16/04/2021. Notice to produce documents, NTP-703.
On 28/05/2021. Respondent’s material, BCS-124 to BCS-125.
On 10/06/2020. Notice to produce documents, NTP-614.
Notice to produce documents, NTP-673.
Notice to produce documents, NTP-459 and NTP-501.
Notice to produce documents, NTP-459.
Notice to produce documents, NTP-336.
Notice to produce documents, NTP-328.
Respondent’s outline of submissions, p. 34, paragraph 77.
Re TAA  QCST 11, .
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.
Information includes a photograph, picture, videotape and any other visual representation.
Domestic and Family Violence Protection Act 2012 (Qld, s 159(1).
Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.
- Published Case Name:
IFF v Director General, Department of Justice and Attorney General
- Shortened Case Name:
IFF v Director General, Department of Justice and Attorney General
 QCAT 301
07 Sep 2021