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ED v Director-General, Department of Justice and Attorney-General[2021] QCAT 56

ED v Director-General, Department of Justice and Attorney-General[2021] QCAT 56

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ED v Director-General, Department of Justice and Attorney-General [2021] QCAT 56

PARTIES:

ED

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML288-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

9 February 2021

HEARING DATE:

8 and 21 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 19 July 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the following decision:

This is not an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld)

  1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant or any relevant child.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has criminal history – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has history of domestic violence – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld)

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 15, s 6, s 221, s 226, s 360, s 580, Schedule 2, Schedule 7

AD v Director-General, Department of Justice and Attorney-General [2017] QCAT 99

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

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

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

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

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

Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

G Carrington, Department of Justice and Attorney-General

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The applicant applied for a working with children clearance, referred to as a blue card, under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) so that he could volunteer as a chaplain in Queensland. The applicant engages in similar work inter-state for which he holds the equivalent of a blue card enabling him to do so.
  2. [2]
    The applicant has ten (10) convictions, all, in effect, which stem from his strained relationship at the time with his ex-wife. Most of the offences relate to harassment or other contraventions of domestic violence orders committed between 2015 and 2017 against his ex-wife. One offence of common assault occurred when the applicant visited his ex-wife’s employment with flowers and was asked by his ex-wife’s employer to leave. The applicant then struck the employer to the right shoulder with his right palm, threw the flowers at him and then punched him once to the face.
  3. [3]
    As none of the offences are categorised as “serious offences”, the default position is that a blue card must be issued unless the chief executive is satisfied the applicant’s case is an “exceptional case” in which it would not be in the best interests of children for the applicant to be issued with a blue card.[1]
  4. [4]
    The chief executive was satisfied the case was exceptional within the meaning of the WWC Act and, on 19 July 2019, issued the applicant with a negative notice.
  5. [5]
    A person who is not a ‘disqualified person’[2] is entitled to apply for review of a ‘chapter 8 reviewable decision’[3] within 28 days.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.[5]
  6. [6]
    The applicant is not a disqualified person and applied for review on 7 August 2019, within the statutory timeframe.

The statutory framework

  1. [7]
    In undertaking this review the Tribunal must apply the amended WWC Act, which came into effect on 31 August 2020.[6]
  2. [8]
    The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the WWC Act.[7] The purpose of the review is to produce the correct and preferable decision,[8] on the evidence before it and according to the law current at the time of the review.
  3. [9]
    In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[9] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the original decision-maker.[10]
  4. [10]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[11] It is protective legislation.
  5. [11]
    A child related employment decision, which is defined to include a ‘chapter 8 reviewable decision’,[12] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[13] The overriding concern is the potential for future harm to children.
  6. [12]
    A ‘chapter 8 reviewable decision’ is defined to include a decision as to whether or not there is an exceptional case for the person if, because of the decision, a negative notice was issued.[14]
  7. [13]
    Section 221 provides, relevantly:
  1. (Subject to subsection (2), the chief executive must issue a positive notice to the person if —

  1. the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [Emphasis added]
  1. [14]
    The term ‘exceptional case’ is not defined in the WWC Act. It has been observed, by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher[15] that:

‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … . All these matters are matters of discretion’.[16]

  1. [15]
    Thus, what might be an exceptional case is a question of fact and degree, to be decided in each individual case having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[17]

  1. [16]
    In deciding whether there is an exceptional case in circumstances where the applicant has been convicted of, or charged with, an offence, the Tribunal is obliged to consider the factors in s 226(2) of the WWC Act. These factors, unlike the position under differently worded, equivalent legislation in other States[18] are not exhaustive.[19]
  2. [17]
    The mandatory s 226 factors are as follows:
  1. The chief executive must have regard to the following—
  1. in relation to the commission, or alleged commission, of an offence by the person—
  1. whether it is a conviction or a charge; and
  2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. when the offence was committed or is alleged to have been committed; and
  4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. any information about the person given to the chief executive under section 318 or 319;
  2. any report about the person’s mental health given to the chief executive under section 335;
  3. any information about the person given to the chief executive under section 337 or 338;
  4. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [18]
    In Maher the Court of Appeal, had to consider whether irrelevant matters had been taken into account in determining whether there was an exceptional case. The section then provided:
  1. If the commissioner is aware of a conviction or charge of the person for an offence, the commissioner must decide the application having regard to the following matters relating to the commission, or alleged commission, of the offence by the person –
  1. whether it is a conviction or a charge;
  2. whether the offence is a serious offence;
  3. when the offence was committed or is alleged to have been committed;
  4. he nature of the offence and its relevance to child-related employment;
  5. anything else the commissioner reasonably considers to be relevant to the assessment of the person.
  1. [19]
    The Court held:

In its written submissions the Commissioner asserted that the irrelevant considerations which the Tribunal took into account were the considerations:

  1. that “work in the aboriginal community... is extremely demanding and results in a high turn over of staff” (see para 37);
  2. concerning Mr Maher’s reaction to his dismissal from the Murri school (see para 38).

In oral submissions this ground was expanded to one that many of the matters stated as forming part of the exceptional case were irrelevant because they were unrelated to the offence for which Mr Maher was convicted.

In support of its submission that each of subsections 102(5)(a) to (e) of the Act are to be construed as qualified by the words “relating to the commission or alleged commission of the offence” which appear in the opening part of s 102(5), counsel for the Commissioner referred to the Commission for Young Children and Young People and Young Guardian Act 2004, which provides in s 102A for a new provision to replace s 102(5) as follows:

  1. This section applies if the commissioner is deciding whether or not there is an exceptional case as mentioned in section 102(4) or (7).
  2. If the commissioner is aware that a person has been convicted of, or charged with, an offence, the commissioner must have regard to the following -
  1. ...
  2. anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.

While that provision clarifies the position under the Act, I do not consider that it is of assistance in the interpretation of s 102(5) of the Act. In any event, I do not consider it necessary for the purposes of this appeal to determine that issue of construction of s 102(5), as I do not consider that the matters to which the Tribunal had regard fell outside s 102(5)(e) on either view, nor do I consider that s 102(5) precluded the Tribunal from having regard to the considerations in question, even if they did fall outside the parameters of that provision.

If the correct interpretation of s 102(5)(e) is that contended for by the Commissioner, I am nevertheless of the view that the matters to which the Tribunal had regard were relevant matters “relating to the commission or alleged commission” of an offence and “reasonably ... relevant to the assessment” of Mr Maher. The manner in which the considerations complained of by the Commissioner were taken into account is identified in the Tribunal’s reasons. It is apparent that the various matters and in particular the matters complained of in the written submissions were considered by the Tribunal as relevant to Mr Maher’s ability to cope with stressful situations in a mature manner and without resorting to abuse of alcohol as had occurred in the past. Seen in that light, these matters can be regarded as matters reasonably considered to be relevant to the assessment of Mr Maher and as “relating to the commission of the offence” in a broad sense, in that they related to an inquiry as to whether circumstances present at the time of the commission of the offence are now absent.

Furthermore, even if that were not the case, I do not consider that s 102(5) of the Act is to be construed as prescribing the only matters to be considered by the Commissioner in determining an application under s 102(4). Section 102(5) does not expressly or impliedly confine the Commissioner to considering only the matters specified therein and there is no basis for construing the provision in such a restrictive manner. In my view, s 102(5) merely specifies certain particular matters which the Commissioner is obliged to consider in deciding the application. (emphasis added)

  1. [20]
    In AD v Director-General, Department of Justice and Attorney-General[20] the Tribunal observed:

Although the factors in the Queensland Act are not exhaustive and there appears no express constraints on the matters that may be taken into account when considering whether there exists an “exceptional case”, the Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations (AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171).[21]

  1. [21]
    The s 226 factors will not necessarily be given equal weight in the evaluative process to be undertaken. The weight accorded to each factor will depend upon the facts and circumstances of each particular case.[22]
  2. [22]
    Further, it has been held by the Tribunal that, when conducting a review of a child-related employment decision, the Tribunal is a ‘public entity’ under the Human Rights Act 2019 (Qld).[23] Accordingly, pursuant to s 58 of the HRA, except where a different action or decision is required because of a statutory provision or other law, the Tribunal must:
    1. (a)
      act or make a decision in a way that is compatible with human rights; and
    2. (b)
      in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[24]
  3. [23]
    A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is reasonable and justifiable under the HRA.[25]
  4. [24]
    To conclude, in determining whether a case is an exceptional one within the meaning of s 221(2), the Tribunal must:
    1. (a)
      apply the ‘paramount principle’ under the WWC Act;[26]
    2. (b)
      consider the mandatory factors in s 226(2) of the WWC Act;
    3. (c)
      consider other factors relevant to the decision;[27] and
    4. (d)
      give proper consideration to a human right relevant to the decision.[28]
  1. [25]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[29]

Is this an exceptional case?

  1. [26]
    The applicant submits that he will be unable to undertake regulated employment involving children and that his ‘right to work’ as recognised by Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is relevant to this decision, notwithstanding it is not expressly listed as a human right protected by the HRA.[30]
  2. [27]
    The respondent submits that this is not relevant in determining whether the applicant’s case is an exceptional case, given the ‘paramount principle’ which means such consideration “must ‘yield’ to the consideration of whether the applicant having a blue card is consistent with the welfare and best interests of children. Further, the respondent submits that “any hardship or prejudice suffered by the applicant as a result of not obtaining a blue card is of no relevance” (referring to Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, Buss J at [109]).
  3. [28]
    In my view, it is relevant to consider the applicant’s human rights, which includes, relevantly, the right to work. However, although this may be a factor to take into account, the paramount principle, namely, the welfare and best interests of children, means that their interests, as opposed to the applicant’s will take priority where those interests conflict.
  4. [29]
    I turn to consider the mandatory factors in s 226(2) of the WWC Act.
  5. [30]
    The applicant has ten convictions for the following offences:
    1. (a)
      four (4) convictions for contravene prohibition/restriction in AVO (domestic), in Lismore Local Court;
    2. (b)
      two (2) convictions for contravention of domestic violence order, in Coolangatta Magistrates Court;
    3. (c)
      three (3) convictions for breach of violence restraining order, in Perth Magistrates Court; and
    4. (d)
      one (1) conviction for common assault, in Perth Magistrates Court.
  6. [31]
    The applicant also has one (1) charge for breach of violence restraining order, which was dismissed in the Perth Magistrates Court.
  7. [32]
    Addressing each of the factors which must be considered and factors I consider relevant, I make the following observations:

Whether it is a conviction or charge: s 226(2)(a)(i).

  1. [33]
    The applicant has ten convictions and one charge.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence: s 226(2)(a)(ii).

  1. [34]
    The offences with which the applicant was convicted and charged are not ‘serious offences’ under the WWC Act.[31]

When the offence was committed: s 226(2)(a)(iii).

  1. [35]
    The offending was all committed between August 2015 and October 2016.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children: s 226(2)(a)(iv).

  1. [36]
    The nature of the offences can be summarised as follows:
  • 4 offences of contravene prohibition/restriction in AVO (domestic) for which he was fined $800 and placed on a 2 year good behaviour bond, related to a series of phone calls he made to his ex-wife from 4 August 2015 to 9 August 2015. All stemmed from his strained relationship with his then ex-wife. The phone calls were the applicant attempting to have a conversation with his ex-wife with his ex-wife hanging up on him almost straight away. On each of 4, 6 and 7 August the applicant called his ex-wife twice, however, on 9 August, the applicant called 8 times between 11:56am and 1:56pm when his ex-wife turned her phone off. On 6 August 2015, when the applicant’s ex-wife did not answer, he then called his ex-wife’s father, and sent text messages to his ex-wife’s sister and to her son, one of this stated “Hey…I am expecting to get 30 days jail out of this.”
  • 1 offence of contravention of domestic violence order, convicted on 18 December 2015 and fined $300. The applicant used his knowledge of his ex-wife’s passwords for her facebook account (which included a business page for her beauty business) to access those sites, changed the passwords and email address associated with the profile, replaced her profile photo with one of her undressed in a spa bath (I note the applicant maintains she was dressed) and then proceeded over the next 20 hours to post dozens of photos and comments about her.
  • 1 offence of contravention of domestic violence order (aggravated offence), convicted on 5 December 2016 and fined $500. The applicant contacted his ex-wife on 26 January 2016 and stated: “I’d like to learn more about you. “Would you be interested in chatting further?” and again approximately 15 minutes later, “Hi, I hope life is treating you well, take care, Scott.
  • 3 offences of breach of violence restraining order and 1 offence of common assault, convicted on 21 June 2017 and fined $3, 500. The applicant had also been charged with 1 further offence of breach of violence restraining order. On 21 September 2016 the applicant attended his ex-wife’s home address and asked her son where she was. He also told her son that he had a job in Perth and chances were they (meaning he and his ex-wife) would run into each other. On 23 September 2016 the applicant approached his ex-wife at her workplace, was asked to leave by her employer and work colleagues and left, leaving flowers and gifts. On 12 October 2016 the applicant jogged past his ex-wife’s address and made eye contact with her son. On 28 October 2016 the applicant approached his ex-wife at her workplace and tried to give her flowers. She then moved to her employer’s office. The applicant followed her through the office. His ex-wife’s employer stopped the applicant at the door and asked him to leave. The applicant then struck his ex-wife’s employer to the right shoulder with his right palm, threw the flowers at him and punched him to the face.
  1. [37]
    The applicant’s offences are relevant to working with children. They have involved domestic violence, including harassing, controlling and coercive behaviour against his ex-wife. The offences have also included harassment of his ex-wife’s son, sister and father. The respondent submits that the nature of the harassing and violent behaviours raises concerns about the applicant’s ability to judge appropriate behaviour and present as a positive role model. The behaviours, it is submitted, are relatively recent and indicate he may have difficulty in showing restraint and exercising self-control in situations where children may be present.
  2. [38]
    The respondent also notes that the presence of family violence within a relationship has been recognised by the Family Court as relevant to the determination of the welfare of the child, there being multiple potential negative effects for children who witness domestic violence. I accept that is the case. However, I am satisfied that the domestic violence the subject of the offences, occurred after the applicant’s ex-wife left the family home and that no children were directly affected. I also note that there was no evidence that the ex-wife’s son had witnessed any physical violence or that he had been intimidated or threatened by the applicant’s actions.
  3. [39]
    That said, I accept that the domestic violence committed by the applicant is conduct which, by its nature, shows a loss of self-control and an inability to respect a person’s right to privacy and, importantly, to feel safe.

In the case of conviction, the penalty imposed and, if the court decided not to impose an imprisonment order or a disqualification order under s 357, the court’s reasons for its decision: s 226(2)(a)(v).

  1. [40]
    In terms of penalties imposed, the courts have ordered fines and good behaviour bonds.[32]

Any information about the person given to the chief executive under ss 318, 319; any report about mental health given under s 335; any information given under ss 337 or 338: s 226(2)(b), (c), (d)

  1. [41]
    I note no information has been provided under ss 318, 319, 335, 337 or 338 of the WWC Act.[33]

Anything else relating to the offence that the chief executive reasonably considers to be relevant to the assessment of the person: s 226(2)(e)

  1. [42]
    In relation to other matters relating to the offences reasonably considered to be relevant to the assessment of the applicant that the applicant was aged 58 to 59 years at the time of his offending behaviours and was, as the respondent submits, of sufficient maturity to have known the wrongfulness of his behaviour and its impact on others. I also note the applicant’s evidence that at the time of his offending he was “short tempered, angry, exhausted, depressed, volatile and impatient”[34] and had taken “medication for anxiety/depression”. [35]
  2. [43]
    I also consider it relevant that the applicant has undergone extensive counselling and chaplaincy training. The applicant has provided evidence of having completed various training and counselling, including:
    1. (a)
      Diploma of Chaplaincy, completed in Perth in 2018;
    2. (b)
      Certificates of completion for Elijah House Prayer Ministry Units, completed in Perth in 2017 to 2018. The Keys to Transformation course includes 8 Modules, each Module consisting of 16 hours training;
    3. (c)
      Certificate of graduation from unit of Clinical Pastoral Education as an intern chaplain at Royal Perth Hospital, completed in Perth in 2018. The course is described as a 400 hour mall group learning experience where students mix placement as a chaplain intern on the wards of the Royal Perth Hospital with classroom time focussed on learning pastoral care through reviewing one’s own responses in pastoral and group interactions. The group facilitator and supervisor gave evidence that the applicant “seemed well liked”, that the nurse manager had attended the graduation ceremony, a relatively unusual occurrence, which indicated a positive relationship and that his time on the ward had been appreciated and that she had observed him in his interactions with others and that he now applied a “Christian response” in how he interacted with those with whom he did not necessarily agree, remaining open to their views;
    4. (d)
      Completion of numerous first aid courses for the purpose of Street Chaplains, Chaplaincy Australia working in rehabilitation centres and the Red Cross;
    5. (e)
      Completion certificates for 3 mental health courses: Sniffing, Huffing and Chroming (responding to Volatile Substance Abuse) completed through WA Mental Health Commission in 2018, Let’s Talk Suicide completed through Street Chaplains, Perth in 2018, Dual Diagnosis Training completed through Optimal Health Group Surfers Paradise in Queensland in 2019. The Dual Diagnosis training included a refresher anger management course;
    6. (f)
      Completion certificates for completing the facilitators domestic violence course “Circuit Breaker” through the Pacific Islands Council, Queensland held in Brisbane in February 2020;
    7. (g)
      Certificate of completion for the Australian Christian Churches Safer Churches Induction completed in Perth in 2018.
  3. [44]
    The applicant also relied on evidence of his character by people in the church who had witnessed his “transformation” and life-changing encounter with God. Pastor N gave evidence that:

In my opinion, the true understanding and acknowledgement of his actions and the effect of his actions have had on people have been a positive catalyst to him desiring the future he desires and his determination to help people, rather than harm them.[36]

  1. [45]
    Further, Mr PD, psychologist, gave evidence as to the applicant’s significant progress over the past 11 years, reporting:

At the personal level, …has resolved his mental distress, and healed his hurt and emotional trauma by taking personal responsibility for his part in the failure of his marriage. He has also reflected deeply since his call to faith in 2016 and through compassionate insight has sought to make amends (by being of humanitarian service to others through his ministry work) for the tawdry war of emotional attrition and intimidation that he previously waged against his ex-wife as he stumbled through periods of deep depression, heavy drinking and anxiety in the past.

…He has ceased to drink alcohol, undertakes regular physical activity and is 30kg lighter and healthier than he was during his period of offending behaviour in past years. I am not ware of any current risk factors that would indicate a likelihood of …re-offending.[37]

  1. [46]
    I was satisfied, during the Hearing that the applicant was deeply remorseful for his conduct towards his ex-wife, following the disintegration of their marriage. I consider that, while the behaviour was unacceptable, it was triggered by severe emotional trauma and financial issues serious enough to lead to his bankruptcy in 2017. I am also satisfied that the applicant genuinely believes he has undergone an emotional and spiritual transformation. This is also reflected in the complete change of focus for the applicant to a life now dedicated to chaplaincy and other volunteer work. The applicant’s colleagues in the Chaplaincy gave strong evidence in support of the view that he has, in effect, turned his back on his past, understands and accepts he was wrong and is now fully committed to a life based on helping others. Pastor N gave oral evidence at the hearing that the applicant had undergone a “complete, authentic transformation as a person.” Further, that because it was a “values driven transformation” that it was more genuine and permanent than one based solely on a change of behaviour.
  2. [47]
    This evidence is consistent with the evidence from the applicant’s psychologist of 11 years, Mr PD, who said, in effect, that the applicant was no longer suffering from anxiety/depression and was a much healthier and robust person physically and mentally. He said that the applicant had shown remorse and that over a series of consultations in early 2020 he had seen significantly increased levels of empathy, and insight and that there had been a “genuine and positive transformational shift in terms of [the applicant’s] emotional awareness and insight.” Mr PD also said that he had seen thousands of clients over the course of his 30 years as a practising psychologist and that “this man’s change is authentic and real”.
  3. [48]
    The offences that were committed also occurred over a discreet time period. While I accept that the applicant may have exhibited controlling and coercive behaviour over the course of the marriage, the offending behaviour was in 2015 and 2016. I also note that the type of behaviour engaged in by the applicant was not at the worst end of the domestic violence spectrum which is reflected in the penalties imposed. That said, I also take into account the deeply negative impact that the offending conduct would most certainly have had on his ex-wife and perhaps on members of her family.
  4. [49]
    A review of this nature is not, however, an opportunity to further punish a person for domestic violence offences. The object is to determine whether, in view of those offences (and the factors in s 226) the applicant’s case is an exceptional one such that it would not be in the best interests of children to give him a blue card.
  5. [50]
    In this case, I do not see that such an exceptional case exists, so as to preclude the issue of a blue card to the applicant. While I do not in any way condone the way the applicant behaved following the demise of his marriage, I do not think the case is an exceptional one which removes the applicant from the default position in cases involving offences of a non-serious categorisation, namely, that a positive notice should be issued.
  6. [51]
    Accordingly, I set aside the decision of the Director-General, Department of Justice and Attorney-General made on 19 July 2019 and substitute it with the decision that there is no exceptional case within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). I also find it necessary, given the nature of the applicant’s convictions and the potential impact of the publication of information relating to those convictions on his ex-wife and other family members, to make a non-publication order pursuant to s 66(3) of the QCAT Act to avoid endangering their mental health or safety. Accordingly, I make an order prohibiting the publication of the names of the applicant, any witnesses appearing for the applicant or any relevant child.

Footnotes

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

[2]WWC Act, s 169.

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

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

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

[6]WWC Act, s 580.

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

[8]QCAT Act, s 20.

[9]QCAT Act, s 20.

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

[11]WWC Act, s 5.

[12]WWC Act, s 358.

[13]WWC Act, s 360. See also s 6.

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

[15][2004] QCA 492.

[16]Ibid at [34], adopting the approach of Luxmore J in Perry and Browns Patterns (1993) 48 RPC 200.

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

[18]For example, Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8).

[19]AD v Director-General, Department of Justice and Attorney-General [2017] QCAT 99, [33] citing Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42].

[20][2017] QCAT 99.

[21]Ibid at [33].

[22]Ibid at [30].

[23]SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [109]; Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152, [44].

[24]HRA, s 58(5)

[25]HRA, s 8.

[26]WWC Act, s 6(a), s 360.

[27]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 (per Philippides J)

[28]HRA, s 58(1)(b).

[29]Ibid at [39] citing Maher at [30].

[30]Applicant’s submissions handed up at the Hearing on 21 October 2020, 8 citing Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152 at [357].

[31]WWC Act, s 15; Schedule 2.

[32]WWC Act, s 226(2)(a)(v).

[33]WWC Act, s 226(2)(b)-(d).

[34]Applicant’s statement, 4.

[35]Ibid, 6.

[36]Letter of Reference by Pastor N dated 7 April 2020.

[37]Report by Mr PD of 17 March 2020.

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Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 56

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    09 Feb 2021

Appeal Status

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