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TLP v Director General, Department of Justice and Attorney General[2021] QCAT 411

TLP v Director General, Department of Justice and Attorney General[2021] QCAT 411

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TLP v Director General, Department of Justice and Attorney General [2021] QCAT 411

PARTIES:

TLP

(applicant)

v

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO:

CML125-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

3 December 2021

HEARING DATE:

4 May 2021

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

  1. The decision of the Director General, Department of Justice and Attorney-General dated 28 February 2020 that the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the decision that the applicant’s case is not an exceptional case.
  2. 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 is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY

EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF IDENTITY – applicant previously issued with a positive notice and a blue card – change in the applicant’s police information – applicant had been charged with possession of a significant quantity of dangerous drugs – applicant’s charges committed to the District Court – Nolle Prosequi – prosecution discontinued against the applicant – domestic violence history where the applicant is the aggrieved – applicant’s child exposed to potential emotional domestic violence – whether the applicant failed to protect a child from domestic violence – whether applicant’s alleged failure to protect the child exposed the child to potential emotional  harm – whether that impacts on her case as exceptional – applicant nominated in child protection history – whether the child protection history is relevant – applicant has a criminal history – offences list on criminal history are not serious of disqualifying offences – whether there is an unacceptable risk to children should a positive notice and blue card be issued to the applicant – Tribunal exercising its own initiative to de-identifying 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(2) ), s 24(1), s 28, s 28(2), s 28(3)(a), s 63, s 66, s 66(1) and s 66(3)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 226, s 353, s 354, s 360,               s 385(4)(c) and Schedule 2

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

Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350

Foran v Bloom (No. 2) [2007] QADT 3

Kent v Wilson [2000] VSC 98

Kioa v West (1985) 159 CLR 550

Nash v Von Doussa [2005] FCA 660

Re Imperial Chemical Industries Ltd's Patent Extension Petitions (1983] 1 VR 1

Re TAA [2006] QCST 11

Russell v Russell (1976) 134 CLR 495

APPEARANCES &

REPRESENTATIONS:

Applicant:

A Carroll, Solicitor, Townsville Community Legal Service

Respondent:

C A Davis, In-House Advocacy Officer

REASONS FOR DECISION

Introduction

  1. [1]
    Over a three-year period from 2015 to 2018, the applicant (‘TLP’) held a positive notice and a blue card.  In July 2018, the Director-General, Department of Justice and Attorney-General (‘respondent’) received notification of a change to TLP’s police information.  The respondent proposed to issue her with a negative notice.  Prior to taking that action, TLP was invited to make submissions about whether or not there was an exceptional case for her. 
  2. [2]
    Subsequently, the respondent undertook an assessment of TLP’s eligibility and determined that the most appropriate action was to cancel her positive notice and blue card and issue her with a negative notice subject to the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). 
  3. [3]
    The respondent proposes that the negative notice was issued on 28 February 2020 whereas TLP submits that it was issued on 4 March 2020.  I note the respondent’s letter to TLP dated 4 March 2020 which indicates –

Please note that correspondence was sent to you advising that on 28 February 2020 you were issued with a negative notice.  This correspondence was sent to the address previously provided to Blue Card Service being [address redacted].

During a phone call with the officer of Blue Card Services on 3 March 2020 you advise that you did not receive this letter and you provided an alternative address.  I therefore enclose a copy of the material previously forwarded to you.[1]

  1. [4]
    Having regard to the contents of the respondent’s letter, I accept the negative notice was originally issued to TLP on 28 February 2020.

The respondent’s reasons for decision

  1. [5]
    When considering all the available material, and taking regard to all relevant factors, along with applying the paramount consideration under the Working with Children Act, the respondent was satisfied that an exceptional case existed in which it would not be in the best interests of children for a positive notice to be issued to TLP.  When reaching that conclusion, the respondent was concerned about a number of features relating to her police information.
  2. [6]
    The entry on her police information that was of most concern to the respondent related to drug charges preferred against her in 2018.  Concerningly for the respondent was the rather large amount of cannabis found in the bedroom she shared with her former fiancé.  Given that the cannabis was packaged in ‘pound’ lots and weighed a little over three kilograms, it appeared that it went beyond ‘personal use’; and there was a likelihood of it being supplied within the community. 
  3. [7]
    The respondent suggested that this would have had a direct impact on those who used cannabis and a potential indirect impact on those connected to the users, but also possibly of an adverse impact upon children.  Notwithstanding that, the respondent accepts that TLP was not charged with supplying the cannabis to anyone, let alone children.
  4. [8]
    The respondent assessed that notwithstanding the charges were discontinued by the Office of Director of Public Prosecutions (‘ODPP’), this was on the basis of TLP’s former fiancé accepting complete responsibility for the cannabis.  Although the respondent concedes the ODPP accepted that TLP was not involved, of concern for the respondent was the significant quantity of cannabis found, and its location. 
  5. [9]
    This raised serious concerns that TLP was, or at least should have been aware the cannabis was within the house.  A further concern surrounded the issue of children who lived at the residence being exposed to or were at risk of being exposed to the police raid, and potentially exposed to drug use.  Arising from those issues was whether TLP had the ability to protect children from situations that may cause children harm.
  6. [10]
    Of further concern for the respondent was TLP’s reported exposure to domestic violence from her former fiancé with whom she shares a child. TLP’s original submissions to the respondent indicated that her son was exposed to domestic violence on a number of occasions including her former fiancé engaging in unacceptable behaviours such as name calling, pushing, screaming, and attempting to strangle her. 
  7. [11]
    Furthermore, TLP said she noticed that her son was distressed and crying both during and after those incidents occurred and the child had remarked several times that "Daddy keeps hurting mum".  A determining factor in the respondent’s assessment of TLP was the exposure of TLP’s child to domestic violence.  The respondent said this was facilitated by TLP continuing to live with her former fiancé, even after he attempted to strangle her.
  8. [12]
    In response to the respondent’s concerns, TLP said because of financial considerations at that time, she had been unable to relocate away from her former fiancé but did move to Cairns when she was able to. 
  9. [13]
    Although understanding of the circumstances as explained by TLP, the respondent did not accept exposing the child’s emotional development, and the risk of exposing the child to a violent role model was acceptable.  Although TLP’s explanations went some way towards providing justification for remaining with her former fiancé, the respondent did not consider this mitigated the concerns.
  10. [14]
    A further determining factor for the respondent arose from TLP electing to reunite with her former fiancé for a holiday a few months later.  This potentially exposed their child to further emotional and physical harm.  During the holiday, TLP experienced further episodes of domestic violence, including an incident where her former fiancé threw a glass at her head.  She was injured and required medical treatment. 
  11. [15]
    Although their child did not directly witness this event, he was present in the holiday venue when the police responded.  The child also saw TLP’s injuries.  In the respondent’s opinion, this raised concerns about her ability to make sound decisions to protect the emotional and physical wellbeing for children who are reliant on her care and protection from harmful situations and violence.
  12. [16]
    Based on the material and other information available at the time of the original decision, the respondent’s assessment concluded that TLP failed to satisfy the respondent she possessed the appropriate skills or ability to protect children from harm, including from drugs and violence should she again be faced with similar circumstances.
  13. [17]
    The effect of issuing a blue card to TLP is that she is able to work in any child related employment or conduct any child-related business regulated by the Working with Children Act, not just the purpose for which she sought the blue card. Furthermore, there is no power to issue a conditional blue card, such as requiring her to be supervised. Therefore, the respondent was not satisfied that continuing TLP’s blue card was in the best interests of children and young people at that time.[2]

The Tribunal’s role

  1. [18]
    Because the respondent made the decision to cancel TLP’s positive notice and blue card and issue her with a negative notice, TLP is able to apply to the Tribunal for a review of that decision.[3]  When undertaking its role to review the respondent’s decision in child employment related matters, the Tribunal must carry out that review by applying the principle that the welfare and best interests of children is paramount.[4] 
  2. [19]
    In reviewing the respondent’s decision, the Tribunal effectively ‘stand 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.[5]  The purpose of the review is for the Tribunal to arrive at the correct and preferable decision based on the material before the Tribunal at the time of the review hearing.[6]   
  3. [20]
    In reaching the correct and preferable decision, the Tribunal is afforded the discretion 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.[7] 

The applicant’s case

  1. [21]
    TLP argues that the respondent failed to consider her personal circumstances of being a victim of domestic violence in 2018 and did not give proper consideration to the facts surrounding the dismissal of the drug charges the following year.  That is, the ODPP accepted that she was not aware of the existence of the drugs within the family home.  She suggests that since those incidents took place, she has put in place protective measures, including obtaining a domestic violence protection order to protect herself and her child from her former fiancé.     
  2. [22]
    Further to this, there has been no investigations undertaken by any relevant organisations, such as the police or the Department of Children, Youth Justice and Multicultural Affairs (‘the department’) to allege that she had placed her child at risk.

TLP’s police information

  1. [23]
    TLP has a recorded criminal history in both Queensland and New South Wales.[8]  None of the entries on her criminal history are classed as serious or disqualifying offences pursuant to the provisions of the Working with Children Act.[9] 
  2. [24]
    The very first entry on her criminal history occurred when she was aged 18.  She appeared in the Gosford Local Court in New South Wales on 28 June 1999 charged with the offences of destroying or damaging property and stealing as a clerk/servant.  Both of those charges were dismissed, and she was required to pay $20 compensation.
  3. [25]
    TLP told the Tribunal that she could not really remember the circumstances of those charges but did recall she was relatively young and working at a clothing store.  She reacted poorly to a situation at work and stole an item of clothing, possibly a top.  She considered her behaviour as stupid, and she felt guilty and was remorseful for what she did.  She was ordered to pay a small amount of compensation, as well as performing community service.   
  4. [26]
    Her next involvement with the court arose out of an incident at Innisfail when she was found drunk in a public place on 23 March 2013.  She appeared in the Innisfail Magistrates Court two days later where she pleaded guilty. The court did not impose any sanctions, no conviction was recorded, and she was not further punished.
  5. [27]
    In explaining the circumstances of that incident, TLP said that she had drinks with friends and was walking home with her then partner when police officers approached them.  Although she denied being abusive towards the police, it seems her somewhat belligerent behaviour at that time borne out of excess alcohol consumption led her to saying something immature and stupid in an argumentative manner.  This attitude led to her arrest for drunkenness in a public place.  I note that there is no suggestion that TLP’s behaviour on that occasion was directed towards children, or children were present or otherwise in a position to be influenced by what took place. 
  6. [28]
    Almost six years later, TLP was living in Cannonvale with her former fiancé.  Police executed a search warrant on their residence.[10]  TLP was alone at home when the police arrived, and she was allowed to contact her former fiancé to have him return to the house. 
  7. [29]
    In explaining the circumstances of that event, TLP said that in May 2018, she moved to Cannonvale with her former fiancé.  During the short time she lived with him, she experienced domestic violence.  The police were called out to their residence on at least one occasion.  She sought domestic violence counselling at the Whitsunday Counselling and Support Service to assist her in relocating back to Cairns. 
  8. [30]
    In regard to the drugs and the drug paraphernalia found within their house, TLP said that she was not aware of the drugs and those items.  When the police arrived with the search warrant, it was made out in her former fiancé’s name, not hers.  The drugs and the paraphernalia were located in their bedroom.  The drug paraphernalia consisted of digital scales and a cryovac machine.  The cannabis weighed 3.024 kilograms.
  9. [31]
    TLP said that the drugs and the associated items were found in positions within the bedroom primarily utilised by her former fiancé.  She declined to participate in a formal interview at the police station because she knew she could not assist with their investigation.  She was also concerned about what to expect from her former fiancé so far as his reaction to her speaking to the police.  This concern was borne out of the domestic violence she experienced in the period leading up to the day in question. 
  10. [32]
    TLP went on to say that she was not a drug user and had never been convicted of any offence associated with drugs.  She had only just finished a Bachelor of Applied Social Science and she intended on seeking employment with the Department of Children, Youth Justice and Multicultural Affairs where she had completed some work experience. 
  11. [33]
    TLP and her former fiancé were both charged with possessing the cannabis and the associated items and were subsequently committed to the District Court at Mackay.  At a later time, TLP’s former fiancé provided an affidavit to the ODPP where he accepted full responsibility for the drugs and other items.  After giving careful consideration to all the relevant and admissible evidence, the ODPP accepted what her former fiancé said and discontinued the prosecution action against TLP.[11]  
  12. [34]
    TLP subsequently told the respondent that insofar as she was aware, the children at the residence were not subjected to, or exposed to drug use or other drug activities and the charges did not relate to her employment, or any other place of regulated employment.  My observation on those points is that there was no evidence contrary to what TLP suggested.
  13. [35]
    As part of her case, TLP suggested that in the context in which the drug charges arose are relevant, her relationship with her former fiancé was characterised by domestic violence and while she maintains that she had no knowledge of the drugs within the residence, the dynamics within the relationship within that house should be considered.
  14. [36]
    In commenting on the decision by the ODPP to discontinue the charges preferred against TLP, I am mindful that the respondent gave due and serious consideration to the factors contained within the police information about that incident. 
  15. [37]
    I am also mindful that when undertaking a review of the respondent’s decision, it is not for me to establish TLP’s guilt or innocence regarding that matter because that determination or role remains the domain of another jurisdiction.  This point was discussed by the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28.  In that case, the Court arrived at a principle that –  

It is not the CEO's function or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question.  The relevant function involves an analysis and evaluation of risk.  It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.[12] 

  1. [38]
    Overall, my function involves an analysis and evaluation of risk.  The arrival at the correct and preferable decision should not be concerned with the proof of offences that TLP may or may not have committed previously, but more so the ultimate decision should focus on the prevention of potential future harm.  The analysis and evaluation of the risk must be based on all the evidence and other material properly before the Tribunal at the time the correct and preferable decision is made.[13] 
  2. [39]
    The respondent referred to TLP’s life story where she commented that she had not used drugs, however within her counselling sessions she acknowledged she did experiment with drugs when she was a teenager but has not used drugs since that time. 
  3. [40]
    The respondent argues that this change in her version brings into question TLP’s veracity of her assertion that she had no knowledge of the drugs found by police at the house she shared with her former fiancé.  The respondent further contends that this calls into question the true extent of her use or involvement with drugs.
  4. [41]
    The respondent went onto argue that I should add to those considerations a contemplation that if it was substantially true that TLP was partying and then sleeping all day the following day when she lived in Cairns a number of years before she lived in Cannonvale as described in other evidence, then this raises questions about her lifestyle at the time of when she was arrested for drug possession.  The respondent also contends that this casts doubt on her assertion that she knew nothing of the large amount of cannabis located in the house she shared with her former fiancé.
  5. [42]
    Respectfully, I fail to find any existing nexus between TLP’s admissions that she briefly experimented with drugs as a teenager; to never having used drugs since that time; to information suggesting she was partying all night and then sleeping all day.  In my view, to give credence to that conclusion drawn by the respondent and to accept that she had knowledge of the drugs would require the evidence to be ignored that the ODPP, as the prosecuting authority, accepted that she was not criminally involved. 
  6. [43]
    Importantly in this case, consideration and credit must be applied to the ODPP’s decision.  Afterall, it was the ODPP who was fully appraised of the information contained within the affidavit of TLP’s former fiancé which apparently led to her being exonerated.   
  7. [44]
    In my view, when applying the requisite standard of proof, the evidence given by TLP in respect to those concerning issues surrounding the illicit drugs is credible.  I am satisfied that the evidence supports the proposition that she has not participated in using or possessing illicit drugs since her teens.       

Domestic Violence

  1. [45]
    TLP acknowledged the domestic violence perpetrated by her former fiancé within their relationship.  She also acknowledged the negative impact of that domestic violence upon their child.  Her evidence to the Tribunal provided some insight into the violence she experienced following the birth of their child in 2016.  The violence commenced by verbal and emotional abuse, but this eventually escalated to property damage and physical abuse.
  2. [46]
    The Tribunal was told that TLP sought to protect herself and the child from the domestic violence by leaving the family home with the child and staying at a hotel.  She said that when it was possible, so that the child could not see or hear the domestic violence incident and to ensure the child’s protection, she placed the child into another room.
  3. [47]
    In providing a description of the event when her former fiancé tried to strangle her,[14] she said that she called the police for protection.  The child was asleep and was not privy to that incident and only woke when the police were at the house.  It was following that event that she sought assistance and counselling with the Whitsunday Counselling and Support Service.  She eventually ended the relationship and returned to Cairns.  Her former fiancé remained living in the Cannonvale area. 
  4. [48]
    The information provided to the Tribunal from the Queensland Police Service indicates that TLP and her former fiancé tried to give their relationship another chance.[15]  They agreed to meet for a holiday with their child on the Gold Coast.  TLP’s mother lived in the Gold Coast area, and she provided a form of informal support for TLP.
  5. [49]
    TLP and her former fiancé went out to dinner and drinks.  TLP’s mother babysat their child.  When they returned to the motel room, TLP’s mother left to return home.  The child was asleep in his room.  TLP and her former fiancé started to argue because she refused to have sex with him.  She wanted to go to sleep but he would not let her, so she called him an asshole.  He resented this and threw a wine glass at her face.  She put her arms up to protect herself and the glass struck and cut her elbow.  He then pushed her over.  She called police and her mother.  By this time, he left the room.
  6. [50]
    The police arrived along with officers from the Queensland Ambulance Service who treated her injury.  TLP made a complaint, and she told the police about what had happened.  She also disclosed to the police that a similar incident happened two nights earlier.  On that earlier occasion she also wanted to go to bed and refused to have sex with him.  He pulled the blanket off her and assaulted her.[16]
  7. [51]
    Arising from TLP’s complaint, police applied to the court for a domestic violence protection order (‘DVO’) naming TLP as the aggrieved and nominating her son as a named person.  The application was not opposed by TLP’s former fiancé, and the court made the DVO.  That order contained the standard conditions whereby he was to be of good behaviour and not commit domestic violence against TLP or their child or expose the child to domestic violence.[17] 
  8. [52]
    Further to this, the DVO provided for prohibitions preventing him from approaching within 100 metres of TLP, or approaching within 100 metres of her residence.  The duration of the order was for a period of five years, and it expires on 23 January 2024.[18]  

TLP’s child protection history – concerns regarding alcohol use

  1. [53]
    Produced to the Tribunal was information provided by the department in regard to TLP’s child protection history.[19] Three reports were contained within that material.   
  2. [54]
    The department assessed that TLP and [name redacted] (‘the father’) were in a shared care arrangement in regard to their children.  TLP lived separately from the father, and she lived with her then partner.  The children spent a week on/week off arrangement with both TLP and the father.[20]
  3. [55]
    The department’s involvement with the assessment of TLP and her care of her children appears to have been focused on events during January and March 2013.  In January 2013,[21] the department received a child concern report that suggested the notifier was aware that [name redacted] was not happy with TLP’s care of the children.  From that information, it could be inferred that it was the father who was not happy.
  4. [56]
    The information went on to suggest that TLP went out partying with her then partner and when she came home, she slept the next day while the children were left in front of the television.  It is also inferred that she was unreliable, the children could have been cleaner, the children always had colds and TLP had to be reminded to set [redacted child’s name] up for school.[22]
  5. [57]
    The department received a further child concern report on 22 January 2013 which provided a slight variation to the parenting arrangement between TLP and the father.  This report suggested that the children primarily resided with TLP, the children are placed into daycare every day, however the father had access to the children every weekend and on Wednesday nights. 
  6. [58]
    This report said that TLP’s then partner was charged with drink-driving (children not present).  TLP reported to her neighbour that she intended to pick up her then partner as he was probably still over the legal alcohol limit from when they were both drinking the previous night.  The neighbour suggested that she may also be still over the limit, and she then made the decision to catch a bus to collect the children.  The notifier went on to report that although there were concerns for the children because TLP had been drinking alcohol the previous night, and her then partner had been charged with drink-driving, most of the ‘dumb stuff’ that TLP did was on the weekends when the children were in the father’s care.[23]  
  7. [59]
    On 29 January 2013, the department recorded its assessment of TLP and reached the conclusion that the notified information did not constitute significant child protection concerns.[24]  Added to this was an assessment there were no child protection history for TLP or the children to indicate escalating circumstances. 
  8. [60]
    While the information provided in regard to TLP’s then partner being charged with drink-driving was concerning, the department was mindful to consider that the information provided to the notifier was hearsay.  There was nothing to suggest the children were at a significant risk of harm. 
  9. [61]
    The department went on to note that TLP demonstrated her protective ability by catching the bus to pick the children up when she may have been over the legal limit herself.  Another protective feature identified was the limited times the children were in her care because of the shared care arrangement. 
  10. [62]
    The notifier told the department that if the children were in any immediate danger, the father would have removed them from TLP’s care.  Overall, the department found there was insufficient information to suggest the children had suffered significant harm or were at risk of suffering significant harm whilst in the care of TLP.
  11. [63]
    The material provided by the department recorded a further notified concern in March 2013.  An assessment was undertaken of that report.[25]  Although the notified concern has been redacted from the department’s material; the department’s assessment was to conclude that the information did not meet the threshold of a notification and the concerns did not present as being of a significant and/or having a detrimental impact on the children’s care and protective needs.[26]
  12. [64]
    TLP said she had no contact from the department in relation to the allegations raised in the department’s material.  In discussing the allegations at the hearing, she denied the allegations made in the first two reports.[27]  She said that her children were not constantly sick, they were always bathed, and they did not sit in front of the television all day.  She also denied that she was partying all night when the children were in her care. 
  13. [65]
    In regard to her alcohol consumption at that time, TLP said that she did consume alcohol and was going to parties, but she was in a shared care arrangement with the father and although she may have consumed alcohol and gone to parties, this only happened when the children were with the father.  This evidence is support by the department’s material where I note that the notifier told the department that most of the ‘dumb stuff’ she did was on the weekends when the children were with their father.[28] 
  14. [66]
    The respondent said the child protection notifications provided to the department implied that TLP lacked the ability to act in the best interests of her children, she did not recognise issues likely to cause her children harm, and she did not provide her children with a protective environment.
  15. [67]
    The respondent also argued that because some of the various aspects of the notifications to the department were confirmed by TLP to be correct, the substance of the allegations is therefore not whimsical or implausible and the allegations are suggestive of TLP’s neglect and/or poor insight.  It is in consideration of those factors that the respondent suggested I should place weight on those child protection notifications and be cautious in accepting TLP’s denials.[29]
  16. [68]
    I do not share the respondent’s concerns in regard to the information contained within the documents produced by the department as the material refers to TLP demonstrating her protective ability.  In my view, there is insufficient information to suggest that her children had suffered significant harm or were at risk in her care.[30]  It seems that the respondent’s concerns in regard to the 2013 child protection information are contrary to the assessments arrived at by the department. 
  17. [69]
    Further to the respondent’s concerns about TLP’s use of alcohol, attention was drawn to an alcohol use disorder identification test (AUDIT) undertaken by TLP.[31] The test was administered by PS, who was TLP’s psychologist.  The respondent argues that TLP’s result from the AUDIT test was on the borderline, which suggested she required intervention for her alcohol consumption.  What TS’s report said was –

[TLP] scored seven in total, with scores of 0–7 suggesting intervention is not required.[32]

  1. [70]
    TS’s psychological report points out that notwithstanding that TLP’s score was at the threshold, based on her assessment of TLP, intervention was not required.  TLP told the Tribunal that she was not concerned about her alcohol consumption, and she did not feel she had a need for treatment.
  2. [71]
    The respondent argues that TLP’s evidence at the hearing falls short of alleviating concerns with respect to her possible abuse of alcohol. Given those concerns, the respondent suggests the circumstances of her use of alcohol in 2013 and her arrest for drunkenness, along with the AUDIT score are indicators which raise the possibility of a risk to children such that it would not be in the best interests of children for TLP to be issued with a working with children clearance and a blue card.
  3. [72]
    In respect to the position adopted by the respondent, I am of the view that the entire circumstances had to be reviewed carefully.  My assessment of what took place in 2013 which gave rise to notifications to the department arose out of events where TLP was alleged to have been using alcohol. Whether it was to excess or not is not clear on the material.  However, what is clear from the department’s material is that her use of alcohol, and her ‘partying’ took place when her children were otherwise not in her care.  The department’s material gave examples of TLP’s responsible behaviour, for example taking advice to use a bus instead of driving a car. 
  4. [73]
    Notwithstanding that the department’s material included information about TLP’s use of alcohol, the department’s assessment did not conclude or find that child related concerns existed.  The entry on TLP’s police information for drunkenness is a one off entry arising out of her behaviour that night.  No conclusion can be drawn from that incident that would give rise to a concern that her arrest that night would ultimately not be in the best interests of children, or that it somehow confirms a risk to children. 
  5. [74]
    When all of this is balanced against the TS’s findings, I note that TLP gave answers in her psychological assessment which provided an assessment of a minimal chance of recidivism.  Her current life choices strongly support the notion that her social and psychological health was positive and appropriate, and she had made positive life changes which support the idea that she is not a risk towards others, either in her personal or professional life. 
  6. [75]
    Respectfully, in my view the conclusion reached by PS in the psychological report, the police information and the department’s material provides some positivity in respect to insight shown by TLP.  Comforting was the department’s satisfaction there was insufficient information to suggest that she was a risk to children in her care.[33]   
  7. [76]
    In respect to whether TLP possesses a requisite level of insight, the psychological report undertaken by PS provides examples of insight where TLP has made positive life changing decisions, including pursuing academic qualifications and making mental and physical health choices. She has continued to work on her self-image to lessen any anxiety and has sought assistance and treatment from a psychologist.
  8. [77]
    In this matter, insight is a critical issue for my 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.  Insight is particularly important with children because children are wholly dependent on adults around them having insight into their actions and the likely effect upon children.[34]      
  9. [78]
    In establishing whether TLP has insight into her past history or behaviour which gave rise to the respondent’s determination of an exceptional case, some consideration should be given to what, if any, is the risk of repetition of that alleged concerning behaviour. 
  10. [79]
    Consideration should also be given to whether the risk of harm to children has been sufficiently negated so that it could be concluded that there is little likelihood of the risk to children; along with a query as to whether TLP has appropriately adopted strategies to enable her to deal with stressful situations.  That is, has she undertaken any counselling, and if so, what, and how often and when were the latest occasions.  Ultimately, I must consider whether it can be satisfied that there are protective factors in place that sufficiently mitigate the concerns relating to a risk to children.
  11. [80]
    It is my view that when giving due consideration to all the facts, circumstances and features of this matter, TLP has sufficiently established that she possesses the requisite standard of insight in respect to her past behaviours and how that would have potentially impacted upon children, including her own.
  12. [81]
    Returning to the contents of the psychological report from TS, I am mindful that TS was not called to give evidence, and nor was the respondent given an opportunity to test the contents of the psychological report with this witness.  However, I note that in the respondent’s submissions, reference is often made to the contents of the TS’s report, and it has been suggested that I should give due consideration to parts of the information contained therein. 
  13. [82]
    When conducting proceedings, the Tribunal has the discretion to inform itself in any way it considers appropriate[35].  In saying that though, the Tribunal is obliged to employ fair procedures adapted to the circumstances of each particular case,[36] and although not bound by the rules of evidence, it is required to act fairly[37] and comply with the rules of natural justice.[38]  Having regard to the contents of the report provided by TS, along with the remarks made by the respondent in closing submissions, I am of the view that in all the circumstances I should give appropriate consideration to the contents of the report.

 Supporting evidence

  1. [83]
    TLP v Director General, Department of Justice and Attorney General [2021] QCAT 411TLP v Director General, Department of Justice and Attorney General [2021] QCAT 411In support of her application, TLP provided examples of written character evidence from KN,[39] WLT and TED.  WLT is TLP’s mother and TED is her father.  Further to those written statements, direct evidence was provided to the Tribunal by WLT and TED. 
  2. [84]
    TED said that he was not aware of TLP’s police information, and he had not read the respondent’s reasons for its decision.  However, he was aware of the drug offences which formed part of those reasons to the extent that TLP was home when the police raided her residence.  He was not aware of the reasons the ODPP discontinued the charges against TLP.  In respect to the child protection material produced to the Tribunal, he was not aware of that information. 
  3. [85]
    TLP appears to have told her mother more about her background than what she disclosed to her father.  WLT had read the reasons of the respondent’s decision and TLP had disclosed the details of her police information and the allegations surrounding the drug charges.  WLT was also aware of the domestic violence incident.  Further to this, WLT travelled to meet with TLP and her former fiancé to babysit her grandchild (TLP’s child).  She was also aware of the domestic violence incident that led to the DVO being made. 
  4. [86]
    WLT was not present when the domestic violence incident took place between TLP and her former fiancé.  She had travelled up from Tweed Heads to spend time with the TLP and babysit her grandchild.  She said that she had stayed one or two nights at the Gold Coast and then went to see her brother.  On the night of the domestic violence incident, she drove up to the Gold Coast and babysit her grandchild.  TLP and her former fiancé went out for dinner.  When they arrived back, she left and headed home.  She later got a call from TLP and returned to the where TLP and her former fiancé were staying.  She arrived at the same time as police and the ambulance, and she observed that TLP had a cut to her elbow
  5. [87]
    Apart from the domestic violence incident that night, WLT could offer no information about other domestic violence incidents involving TLP, and there were certainly no pre-existing concerns that evening of the likelihood of domestic violence between TLP and her former partner.
  6. [88]
    KN did not give evidence at the hearing, however his statement provided information that suggested her association to drug charges and domestic violence was completely out of character. 
  7. [89]
    The evidence relied upon from KN is unsigned and not confirmed by that witness’s personal testimony whereas the written form of the evidence of WLT and TED was corroborated by their oral testimony.  Adopting a fair and balanced approach to the evidence from all of the witnesses, I am inclined to place greater weight to the oral evidence as opposed to KN’s.  Notwithstanding that, although I was not surprised that TLP’s parents had nothing but positive things to say about her, I accept that they were genuine in their support of her and there is no criticism of their evidence.

Exceptional Case

  1. [90]
    An observation of the Working with Children Act is that the intent of the legislation is not to punish people twice; it is about implementing the paramount principle in regard to protecting children from future abuse.[40] 
  2. [91]
    The Working with Children Act speaks about an exceptional case and although that term is not defined in the legislation, it has been the subject of prior discussion in many jurisdictions, including the Tribunal’s appeal jurisdiction.  The term is said to be a question of fact and degree to be decided in each individual case and is necessarily a matter of discretion.[41]
  3. [92]
    In reaching a conclusion in regard to blue card matters, regard must be given to the context of the Working with Children Act, along with the intent, purpose and design of that legislation for the protection of children. 
  4. [93]
    In Commissioner for Children and Young People and Child Guardian v FGC the Tribunal accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, along with the intent and purpose of the legislation which was designed to protect children.[42]
  5. [94]
    In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions, the court observed the frequently cited definition of exceptional case which arose out of a warning given by Luxmoore J in Re Perry and Brown's Patents (1930) 48 RPC 200 that it would be unwise to lay down any general rule about what an exceptional case is.[43]  Further to this, the approach adopted in Queensland is that discretion should be used, and each case should be considered on its own facts.[44]
  6. [95]
    In reaching a decision, I need to weigh up the competing facts and apply the balance of probabilities principle.  Neither party bears the onus in determining whether an exceptional case exists, and as it is often observed in blue card matters, a determination of whether an exceptional case exists or not is made after evaluating all available evidence without any party bearing the onus of proof that an exceptional case exits.[45] 
  7. [96]
    The question to decide in this matter is whether an exceptional case exists bearing in mind the gravity of the consequences involved in which it would not harm the best interests of children for a positive notice to be issued. 

 Conclusion

  1. [97]
    Although it is sometimes problematic in confidently predicting any future risk, my view is that the best gauge of any potential risk is quite often past behaviour.  I am not encouraged by the respondent’s concerns and nor do I consider the evidence supports any hypothesis that TLP does not possess the requisite standard of protective competency to meet the threshold of negating the identified risk factors to children. 
  2. [98]
    Therefore, I am satisfied to the requisite standard that the correct and preferable decision is to set aside the respondent’s decision dated 28 February 2020 that TLP’s case was an exceptional case within the meaning of section 221(2) of the Working with Children Act.  Having done that, I substitute the respondent’s decision with my own, that is, TLP’s case is not an exceptional case.
  3. [99]
    I have reached that position after careful examination of the features of this matter, and observing the object, purpose and nature of the provisions of the Working with Children Act and I am satisfied of the existence of protective factors that adequately alleviate any concerns that TLP is a risk to children. 

De-identification order

  1. [100]
    Any discretion exercised by the Tribunal to make a de-identification order is reinforced by the very important legal principle of open justice[46] which aims to ensure that not only are Tribunal proceedings fully exposed to public scrutiny and criticism, but to also maintain confidence in the integrity and independence of the Tribunal.[47] 
  2. [101]
    In review proceedings conducted with respect to blue card matters, the Working with Children Act expressly provides that proceedings are to be held in private.  However, the legislation does not provide authority for the Tribunal to de-identify either, or all the parties.  Therefore, consideration then turns to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) for that discretion.[48] 
  3. [102]
    The provisions of the QCAT Act support the principle that when the Tribunal is considering exercising the discretion to make a de-identification order, it may undertake that responsibility upon either an application from a party or on its own initiative.[49] 
  4. [103]
    That discretion extends to prohibiting the publication of the contents of a document or other thing produced to the Tribunal; evidence given before the Tribunal; or information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.[50]
  5. [104]
    Notwithstanding the department’s production of child protection documents which could potentially lead to the identification of a child who is a non-party to these proceedings, I am mindful of the consideration which lies in de-identifying parties who have been involved in litigating domestic violence matters.  Because TLP was a party to domestic violence proceedings, I am particularly mindful of the prohibition contained within the Domestic and Family Violence Protection Act 2012 (Qld) regarding the publication[51] of certain information[52] regarding domestic violence proceedings.[53]
  6. [105]
    Therefore, having regard to those circumstances, I intend to order 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 TLP, or any member of her family and/or any non-party to these proceedings.

Footnotes

[1]Respondent’s letter to the applicant dated 04/03/2020 filed with the Tribunal on 27/03/2020.

[2]Respondent’s material, BCS-8 to BCS-9.

[3]Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353 and 354.

[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[6]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[8]Respondent’s material, BCS-19.

[9]Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.

[10]On 19/07/2018

[11]Nolle prosequi entered on 15/03/2019.

[12]Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84].

[13]Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171.

[14]On 12/05/2018.

[15]Produced by the Tribunal’s Order dated 04/09/2020 pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  The production order directed the Registrar of the Southport Magistrates Court to produce to the Tribunal the court’s records relating to the domestic violence application filed in the court.

[16]Notice to Produce documents at NTP30 and NTP31.

[17]Notice to Produce documents at NTP37.  Domestic violence protection order made inn the Southport Magistrates Court on 24/01/2019.

[18]The court’s prohibition allows TLP’s former fiancé to approach TLP, but only in regard to any appearance in a court or Tribunal, when attending a conference, counselling or mediation and having contact with their child but only as set out in writing between him and TLP or by order of a court

[19]Produced by the Tribunal’s Order dated 04/09/2020 pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63 and the Working with Children (Risk Management and Screening) Act 2000 (Qld), s 385(4)(c).  The production order was directed to Director-General of what was formerly known as the Department of Child Safety, Youth and Women, now known as the Department of Children, Youth Justice and Multicultural Affairs. 

[20]The department’s material indicates that in January 2013 there was no formal agreement or Family Court Orders relating to the parenting of the children.

[21]On 21/01/2013.

[22]Notice to Produce documents, NTP1 and NTP2.

[23]Notice to Produce documents, NTP5 and NTP6.

[24]Notice to Produce documents, NTP8.

[25]Dated 13/03/2013. 

[26]Notice to Produce documents, NTP3.

[27]Made on 24/01/2013 and 29/01/2013.

[28]Notice to Produce documents at NTP6.

[29]Respondent’s submissions dated 18/05/2021 at paragraphs 55 – 63.

[30]Notice to Produce documents at NTP8.

[31]The Alcohol Use Disorders Identification Test (AUDIT) is a 10-item screening tool developed by the World Health Organization (WHO) to assess alcohol consumption, drinking behaviours, and alcohol-related problems.

[32]Psychological report filed 07/12/2020, page 6.

[33]Notice to Produce documents at NTP8.

[34]Re TAA [2006] QCST 11, [97].

[35]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28.

[36]Kioa v West (1985) 159 CLR 550, 585.

[37]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[38]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

[39]KN’s character statement was unsigned  and dated.

[40]Queensland Parliament Hansard, 14 November 2000 at p. 4391.

[41]FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350, [18].

[42]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] citing the determination of Hedigan J in Kent v Wilson [2000] VSC 98, [22].

[43]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1.

[44]Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34].

[45]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[46]Nash v Von Doussa [2005] FCA 660; Foran v Bloom (No. 2) [2007] QADT 33.

[47]Russell v Russell (1976) 134 CLR 495, 520 cited in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [8].

[48]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[49]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).

[50]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).

[51] Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

[52]Information includes a photograph, picture, videotape and any other visual representation.

[53]Domestic and Family Violence Protection Act 2012 (Qld, s 159(1).

Close

Editorial Notes

  • Published Case Name:

    TLP v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    TLP v Director General, Department of Justice and Attorney General

  • MNC:

    [2021] QCAT 411

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    03 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
3 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
Cite 3 - (2008) WASCA 28
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
2 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
2 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
FGC v Commisisoner for Children and Young People and Child Guardian [2010] QCAT 350
2 citations
Jump To
Cite 1 - [2010] QCAT 350
Cite 2 - [2010] QCAT 350
Foran v Bloom (No. 2) [2007] QADT 33
1 citation
Jump To
Cite 1 - [2007] QADT 33
Foran v Bloom (No. 2) [2007] QADT 3
1 citation
Jump To
Cite 1 - [2007] QADT 3
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Nash v Von Doussa [2005] FCA 660
2 citations
Jump To
Cite 1 - [2005] FCA 660
Cite 2 - [2005] FCA 660
Perry and Browns Patents (1930) 48 RPC 200
1 citation
Jump To
Cite 1 - (1930) 48 RPC 200
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
1 citation
Jump To
Cite 1 - [1983] 1 VR 1
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Russell -v- Russell (1976) 134 CLR 495
2 citations
Jump To
Cite 1 - (1976) 134 CLR 495
Cite 2 - (1976) 134 CLR 495

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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