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ST v Director General, Department Of Justice and Attorney General[2022] QCAT 1

ST v Director General, Department Of Justice and Attorney General[2022] QCAT 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ST v Director General, Department Of Justice and Attorney General [2022] QCAT 1

PARTIES:

ST

(applicant)

v

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO/S:

CML244-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

4 January 2022

HEARING DATE:

1 December 2021

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

ORDERS:

  1. 1.The decision of the Director General, Department of Justice that the applicant’s case is an exceptional one within the meaning of s 221 of the Working with Children (Risk Management Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
  2. 2.Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the applicants, any complainants, any witnesses appearing for the applicant and any relevant child, and accordingly, these reasons have been de-identified.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE LAW – CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – blue card – where the applicant issued with a negative notice – whether an exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 360, Schedule 2, Schedule 4

Human Rights Act 2019 (Qld), s 13, s 31, s 58

Commissioner for Children and Young People v Maher & Anor [2004] QCA 492

RE FAA [2006] QCST 15

TNC V Public Safety Business Agency [2015] QCAT 489

Chief Executive Office, Department of Child Protection v Grinrod (No2) (2008) WASC 28

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Ms Saunders, in house lawyer, Blue Card Services Department of Justice and Attorney General

REASONS FOR DECISION

  1. [1]
    ST held a positive notice for a blue card until a negative notice was issued on 1 June 2020, following charges for breach of a domestic violence order being laid. The Respondent determined that the applicant’s case was an exceptional case under s 221(2) of the Workplace Screening Risk Management Act 2000 (Qld), in which it was not in the interests of children for ST to hold a blue card.
  2. [2]
    The Respondent’s reasons for the decision were issued before the charges were finalised. In their view, information obtained from the police around domestic violence in the home reflected ST’s engagement in level of violence, which they considered was inconsistent with providing a protective environment to children.[1]
  3. [3]
    ST sought review of this decision in the Tribunal’s review jurisdiction, filing her application on 29 June 2021.

The Legal Framework

  1. [4]
    QCAT is empowered by the Queensland Civil and Administrative Tribunal Act 2009 to exercise the functions of the decision maker,[2] to produce the correct and preferable decision.[3] The Tribunal conducts a fresh hearing on its merits to determine the outcome of the review.
  2. [5]
    The Tribunal must apply the enabling Act in making the decision, the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWC Act). The paramount principle guiding decisions made under this Act around child related employment decisions is stated at s 360 of the WWC Act.[4]

Child related employment decision is to be reviewed under the principle that the welfare and best interest of the child are paramount.

  1. [6]
    The Tribunal must also apply the principles at s 6 WWC Act, that “every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.”
  2. [7]
    The decision-making framework of the legislation provides a gatekeeping function to ensure that children are protected from harm.  The decision-maker is required to issue a positive notice for a blue card unless it is satisfied an exceptional case exists where it would not be in the interests of children to do so. Specifically, s 221 provides: 
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  2. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  2. (ii)
    disciplinary information;
  3. (iii)
    a charge for an offence other than a disqualifying offence;
  4. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence; or
  2. (d)
    the chief executive is aware of other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person
  1. (2)
    If subsection (1)(b), (c) or (d) 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 working with children clearance, the chief executive must issue a negative notice to the person.
  1. [8]
    In considering whether exceptional case exists where charges have been laid, I must have regard to the mandatory considerations stated at s 226 WWC:

The chief executive must have regard to the following-

  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  2. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. (iii)
    when the offence was committed or is alleged to have been committed; and
  4. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. (v)
    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. (b)
    any information about the person given to the chief executive under section 318 or 319;
  2. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  3. (d)
    any information about the person given to the chief executive under section 337 or 338;
  4. (e)
    information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
  5. (f)
    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. [9]
    The Tribunal can take other factors into account[5] and must apply the Human Rights Act 2019 (Qld).
  2. [10]
    Exceptional case is not defined in the WWC Act, but case law states it is a question of fact, to be determined on a case-by-case basis.[6] The Tribunal must be satisfied whether an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[7]

The Evidence

  1. [11]
    ST relied on her statement and life story, as well as statements from two witnesses, her psychologist, MR, and friend SG, who gave evidence. A written statement from her former partner who was complainant in the contravention of the domestic violence order offence, but he was not available for cross examination at the hearing. Her witnesses gave oral evidence and she made oral submissions.
  2. [12]
    The Respondent relied on its reasons for decision dated 11 June 2021 and attachments at BCS1- BCS 43, as well as documents produced under a notice to produce at NTP1- NTP 303.The respondent also cross-examined ST and ST’s witnesses and made oral and written submissions.
  3. [13]
    ST is a mother of two children aged 7 and 9 years old. She was, prior to cancellation of her blue card, employed as a disability support worker. Her yellow card enabling her to do this work was automatically cancelled as a result of the issue of a negative notice for a blue card.[8]
  4. [14]
    She was born in (de-identified) and moved to Australia in 2006 with her then partner, whom she married in 2007. She was granted Australian citizenship and has undertaken studies in English and a Certificate III in aged care. English is her second language. She is an active member of her cultural community, having been a Board member of the Cultural Association for some time and being a very active participant in supporting members of the community.[9]
  5. [15]
    ST has been the victim of domestic violence on many occasions from the actions of her now former husband.  There are since 2010, multiple domestic violence orders naming her as the aggrieved, dated: 15 July 2010 (for 2 years);[10] 9 October 2012, (for 2 years),[11] 4 February 2015, (for 2 years),[12] 5 June 2018 (for 2 years).[13]   
  6. [16]
    She has also been named as the respondent in 2 domestic violence orders, where her former husband was the aggrieved dated 8 January 2016[14] and 30 January 2018.[15] The children of the relationship were not named in either of these orders which named her as respondent. 
  7. [17]
    It was charges for breaches of the most recent order of 30 January 2018 that triggered the issue of a negative notice and subsequent cancellation of her blue and then yellow cards.  On 20 December 2019 ST was charged with one offence of contravention of domestic violence order.  The order required her to be of good behaviour and not commit domestic violence.
  8. [18]
    This charge was dismissed with no evidence to offer when it came before the court on 20 July 2020.[16] Apart from this, ST has no other criminal history.
  9. [19]
    The Respondent contends that despite this, this is an exceptional case where ST’s domestic violence history, which has involved disputed allegations that she has been aggressive and used weapons, should be taken into account. In particular, they submit the willingness to engage in violent acts in front of ST’s children makes this a case where it is not in the best interest of children for ST to be issued a blue card.
  10. [20]
    ST’s evidence is that these incidents occurred in the context of her seeking to defend herself when being attacked by her former husband, and have generated accidental injuries. She has denied the use of weapons and denied the children being witness to the violence in the home.
  11. [21]
    The police material indicates that there is a longstanding history of ST being subject to significant violence by her former partner DT, and that on three occasions she is accused of causing injury to ST during violent incidences in the home. These instances have included injury to DT from a hot water burn,[17] a scratch,[18] and an allegation, now withdrawn, that ST attempted to wrap a cord around DT’s neck. The police also record allegations of kitchen utensils being used against DT.[19]
  12. [22]
    The police information records inconsistent versions of events given by DT and ST in relation to these matters.[20]
  13. [23]
    The child protection material produced indicates that a notification received suggested that one child was present during a violent incident in January 2018. In an interview with ST, Child Safety recorded that ST had said that there was a “bit of fighting in front of the kids”, but that “we go into a room and put the kids in another room.” Child safety’s investigation resulted in a finding of unsubstantiated harm, where the assessor stated:

It is my assessment that this violence is sporadic and completely contained between the parents. There is no information gathered that suggests that unacceptable harm to (de-identified child), and information suggests that protective factors are in place to ensure that there is no future risk of harm.[21]

  1. [24]
    On 9 October 2019, the notifier stated that the while DT was hitting ST’s head against the wall and dragging her by her hair and attempting to strangle her, ST’s son was present and kicked the father. It is noted in the Child Safety Assessment, the assessor found that ST had demonstrated that ST was willing to protect children, with an awareness that they may experience emotional harm due to the conflict, and has implemented strategies and engaged support to reduce the conflict. Observations of the deidentified children “produced no evidence of physical or emotional harm.[22]

Consideration: Is this an exceptional case?

  1. [25]
    I am required to exercise decision making considering with primacy, the welfare and best interest of children. I must have regard to the mandatory considerations at s 226(2) WWC Act, and other factors relevant[23] in determining whether an exceptional case exists. In making an administrative decision the Tribunal is acting as a public entity and must have proper regard for human rights relevant to the decision. The Tribunal may only limit human rights where it is reasonable and demonstrably justified.[24]

Considerations S226(2)

Whether the offence is a conviction or a charge

  1. [26]
    ST’s criminal history reflects that charges for breach of a domestic violence order were dismissed with no evidence to offer.
  2. [27]
    The prosecution provided no evidence the offence of breach of domestic violence order. Accompanying the ST’s application is a copy of an open letter from DT dated15 June 2020 which states that he had fabricated the complaint.[25]She indicated that this was provided to the prosecution. Charges were dismissed.
  3. [28]
    The Respondent submits that the fact that there was no conviction does not mean there is no risk to the welfare and best interest of children, but that charges must be taken into account.
  4. [29]
    The Respondent directs the Tribunal to the case of TNC, where Member Rodgers stated that it was sufficient for the decision maker to be satisfied that “possibility of risk to children, and the totality of the evidence was to be considered, not merely the charges.[26] Member Rodgers was quoted:

A charge is not the same as an allegation. Before a charge is brought, evidence is given to the available supporting charge. This gives it more weight than an unscrutinised allegation. The legislation allows the charges to be considered because Parliament recognises the difficulties in obtaining a conviction.[27]

  1. [30]
    Similarly, Member Cowdroy, referring to Grinrod (no2)[28] is quoted in Volkers v Commission for Children and Young People and Child Guardian:

It is not the Tribunal’s function to adjudicate upon whether the Applicant is in fact and at law guilty or not guilty of the non-conviction in question. The relevant function involves an evaluation of risk. It is not concerned with proof of offences but the prevention of harm.[29]

  1. [31]
    I wholeheartedly endorse these references. However, this is not a merely a  matter of non-conviction.  This matter concerns charges which were based on allegations now identified by the complaint to be false. While it is clear that Parliament intended all offences in a person’s criminal history to be considered,[30] when acting as a public entity, QCAT is required to have regard to human rights affected by the decision.[31] It would be an unreasonable incursion on ST’s right to a fair hearing[32] for the Tribunal to place any weight on charges that have been dismissed with no evidence to offer, particularly where evidence exists that the charges were based on false allegations.

Other Considerations under section 226(2)(b)- (f)

  1. [32]
    The offence which ST was charged with is neither a serious[33] or disqualifying offence.[34] The alleged offence was claimed to be committed in 2019, although with DT’s admission that these were not truthful, there is insufficient evidence that the offence in fact occurred. 
  2. [33]
    There is no information before the Tribunal provided under sections 318, 319, 337 or 338 of the WWC Act. Nor under s 138ZG of the Disability Services Act. There no mental health report obtained in pursuant to section 335 of the Act.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[35]

  1. [34]
    DT’s made allegations, to the police, now withdrawn as false, that there was a verbal and physical altercation, where he alleged that ST had thrown cooked rice on him, and attempted to wrap a cord around his neck.
  2. [35]
    The police record of DT’s version of events is recorded:

The respondent (DT) has stated to police … she has thrown cooked rice on him… The respondent has said to the aggrieved ‘why don’t you grab a knife and do it properly so that the police can deal with one of us dead’. The aggrieved (ST) has then tried to choke the respondent (DT) by having a cord around his neck, however the respondent had his fingers under the cord so she couldn’t do it. The respondent further stated that he believes that he got a scratch on his shoulder when the aggrieved had a cord around his neck.[36]

  1. [36]
    The Respondent submits that these allegations raise concerns about ST’s ability to make behavioural choices, exercise judgement and resolve conflict in a calm and non-aggressive manner, and to act as a role model for children.” They submitted her inability to restrain her aggressive conduct in the presence of children places the children’s emotional and physical well-being at risk.
  2. [37]
    However, ST stands by her statement that these events did not occur. This is evident in her statements to police

The respondent (DT) has said to the aggrieved (ST) that he hates her and he wants to kill her. The aggrieved has then thrown down cooked rice away from her and some of them ended up on the respondent’s stomach. The respondent ended up with minor burns to his stomach from the cooked rice. The aggrieved was so terrified she urinated in her pants and could not stop crying.

  1. [38]
    Under cross examination in the Tribunal, ST gave a version consistent with that given to police.
  2. [39]
    ST’s version of the facts were not accepted by the police when charges were originally laid. They preferred and took action upon DT’s version of events which have since been accepted as false allegations.
  3. [40]
    There is insufficient evidence that the offence occurred. I do not accept the Respondent’s submission where there is evidence that the allegations pertaining to the charges were not true.

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. [41]
    The Respondent contends that the following matters are relevant to determining whether an exceptional case exists here: ST’s domestic violence history; ST’s use of weapons; Willingness to engage in violence in the presence of children ST’s mental health; ST’s insight and understanding into the harm caused.

Domestic Violence History and use of weapons

  1. [42]
    The Respondent raises concern that ST has been named respondent in two Domestic Violence orders issued 8 January 2016,and 18 January 2018, and that her failure to comply with the latter demonstrates that she has not addressed triggers for her past domestic violence behaviours. They submit that the material produced from the Magistrates Courts demonstrates previous violent and threatening behaviour.
  2. [43]
    The Respondent submits that for the court to issue a domestic violence order it has been satisfied that the order is necessary or desirable to protect the aggrieved from further domestic violence.
  3. [44]
    Of course, of these orders, only the 2016 order was contested. The order of 18 January 2018 was made by consent and without admission.[37] In the latter case, ST told the tribunal that she had consented to the latter order because, she did not have the time availability to contest the order, so agreed to the order because the personal costs of disputing it were more than she considered would be of accepting the order without admission. 
  4. [45]
    The Respondent submit that these instances raise concerns about ST’s ability to make appropriate behavioural choices, exercise judgement and resolve conflict in a calm and non – aggressive manner.
  5. [46]
    In 2016 the court made a protection order upon police application arising from an incident in 2015. DT sustained an injury from hot water burns during a domestic dispute between ST and DT. There is no court transcript available in the material before the Tribunal.
  6. [47]
    The Police Statement indicates that ST had told the injury to DT occurred accidentally when she was attacked from behind by DT. She had stated that she was holding a cup of tea, and that this spilt on him when he grabbed her. She denied that she had thrown hot water on DT. She gave a consistent description of these events under cross examination in the Tribunal.
  7. [48]
    DT had told police that ST had thrown “something over him”[38] which he later learnt was hot water. Injuries were apparent and ST sought treatment for these.  It is noted that the Police Statement relating to this incident[39] states: due to the different versions given by ST and DT

We agreed a police protection notice was appropriate in this case due to the nature of the aggrieved injuries, which were inconsistent with the version given by the respondent.

  1. [49]
    In a text exchange between ST and DT immediately after the incident, ST questioned DT why he had told the police that that act was purposeful and that she had resultantly had to go to court.[40]
  2. [50]
    Although ST denies throwing hot water, the court found that that it was reasonable and necessary to protect DT from harm or risk of harm in that instance.
  3. [51]
    In 2018, she consented to the protection order without admission, therefore there was no finding that her actions placed DT in need of protection. On this occasion she was alleged to have threatened the DT with a metal spatula causing scratches. Before the Tribunal she gave evidence that she was preparing dinner, and because of that had a cooking utensil in her hands. She wasn’t sure what it was, but suggested it may be a spatula, spoon or knife, as this would be a commonly held utensil while she was cooking. She is frequently cooking when she is attacked, and this is the reason she held a cooking implement in the 2018 incident.
  4. [52]
    The police application for a domestic violence order report DT told him ST smashed the bowl, and “came at him” with “kitchen utensils”, leaving a small cut to DT’s right hand and a scratch on his neck. ST told the police that the scratch must have occurred when he was in her face and was holding the utensils.[41]
  5. [53]
    Given there has been no court finding and the evidence of the parties is disputed, I can see no reason why the Tribunal should place more weight on the statements of DT to police than those of ST.
  6. [54]
    I do not accept that there is adequate evidence that she has used weapons in an aggressive manner against DT or that there is behaviour which is aggressive and threatening.  I accept that there has been a level of self-protection involved when ST has been under attack.

Willingness to engage in violence in front of children:

  1. [55]
    The Respondent relied on evidence that ST has engaged in physical violence on at least one occasion in the presence of the children. The Respondent relied on information in a child protection notification from an undisclosed party[42] and  submits that this raises concern that her ability to create a safe and protective environment and present as a positive role model is thereby compromised.
  2. [56]
    ST in her evidence denies the children being witness to physical violence, stating that the children are removed to a room at the far end of the house with the television loudly playing, or engaged with electronic devices. She stated that she makes sure that the children do not see arguments.
  3. [57]
    The Respondent contends that the concern remains that children may have been exposed to violence in these disputes and repeatedly. Child protection interviews conducted indicate consistent statements about the children being removed from direct witness.[43] ST in evidence contemplated the possibility that the children may hear and be aware for the altercations from the far room, but have not shown signs that they have heard.
  4. [58]
    She consistently indicated insight into the requirement to protect children from such emotional harm. Her oral evidence indicated that she was mindful of protecting the children from witnessing the aggression between she and her former partner. The child protection assessments note this also.[44] The oral evidence of ST’s treating psychologist also indicated that she was conscious of the children’s emotional needs.[45]
  5. [59]
    I consider that while there is a risk that the children may have been exposed to overhearing the interpersonal violence, ST has conscious strategies to avoid the children’s exposure and risks of harm.
  6. [60]
    I do not accept that the evidence indicates a consistent pattern of exposing the children to violence, but conscious efforts to remove them from exposure to the same. I do not accept the Respondent’s submission that ST has been a poor role model around regulating her behaviour.

Coping Skills

  1. [61]
    The Respondent submit that the applicant has not developed adequate coping skills and risk management strategies and her psychological treatment has been insufficient to prevent behaviours of concern.
  2. [62]
    ST noted a range of counselling that she had attended over the years including MS in 2021, MC a counsellor who she visited around 2012,[46] engagement with a domestic violence support service from 2019, and previous support from Women’s legal service counselling service.[47]
  3. [63]
    ST shares the home with her former husband to some extent, with him visiting the children on weekends from his jobs out of Brisbane.  They maintain a co-parenting arrangement. She stated that she has developed a less reactive approach to responding to ST’s aggression, than she had in previous instances. She claims that since she has accessed psychological support, she has developed strategies which assist her to maintain her calm in the face of aggression. She says she now walks away from escalating aggression. It is noted that these strategies were consistent with those discussed by her treating psychologist, MR.
  4. [64]
    The Respondent questioned ST about her triggers for the behaviours linked with the 2016 and 2018 domestic violence orders. She stated that her actions had been in response to her life being threatened, for example when she was being choked, and her actions had been for self-protection. She indicated accidental harm had occurred to DT on these occasions and DT had falsely reported it as and the police had accepted his version of the events. She stated she thought that her language skills sometimes had influenced this outcome, with the police misinterpreting her on occasions. She stated that DT had only been harmed during these incidents when he hurt himself while attacking her or when she was defensively protecting herself.
  5. [65]
    ST stated that DT has had professional intervention for his aggression and has improved toward her. He is kinder to her, but she knows to walk away and give him time and space if he becomes angered. She said that she had learnt to put in place self-care, which she elaborated upon as “relax time”, time for looking after oneself and space in the brain to think and plan more. She said in the past she would talk back, but she has learnt to be non-reactive. She considers it has been an effective way for her to manage the interactions.[48]
  6. [66]
    ST relied on the evidence of her witnesses. SG, a friend and member of ST’s cultural community said she had known ST for approximately 13 years. She expressed that she was a good mother and had a good character. She had not known her to be an aggressive person. She described ST as a calm person.  She was not aware of any criminal charges having been laid and had not been provided with the Statement of Reasons for the decision. The respondent says that little weight can be placed on SG’s evidence given this. I accept that SG was able to provide limited information about the nature of the concerns, and place little weight on this. I do however, accept that SG knows ST to be a calm person of good character.
  7. [67]
    ST did not provide a psychological report which addressed her insight, triggers, and remorse per the directions of 10 November 2020.[49] Her psychologist, MR, however, gave oral evidence and provided a brief letter.
  8. [68]
    MR said that she had been aware that ST had been the victim of domestic violence and that there was a violent incident in 2018, where ST’s former partner had lied to police, and police had charged her. She had been aware that ST was the victim of violence, but not aware that she had perpetrated domestic violence. She said she was aware that ST would fight back “in terms of words”. She said that she provided four sessions to ST the focus of which was to de-escalate the situation when the former partner was becoming angry. She said she focused on mental strengths and gaps and how to make sure ST’s parenting was “solid with the kids”. She stated that they worked through strategies to self-regulate, and she encouraged ST to walk away if emotional, to remove herself and the children, speak in a monotone voice, not engage, and seek help.  She said all victims of domestic violence require ongoing support around self-esteem and education around attachment theory. She said she observed ST with her children in a structured observation at her clinic. MR shared that she had assessed ST as having insight into the need for healthy relationships and wants what’s best for her children. She said that ST understands the seriousness of providing a protective environment for children.
  9. [69]
    The Respondent submits that the Tribunal should place less weight on MR’s evidence where she had not read the reasons for the decision, and that the four sessions attended were not sufficient to prevent further behaviours of concern. 
  10. [70]
    Notwithstanding MR’s not having read the reasons, she was aware that ST had been charged for breach of a domestic violence order and consequences had flown from that.[50] I accept that the evidence indicates that MR has confidence that ST has taken on board these strategies around self-regulation.[51] In ST’s own evidence, she gave clear statements which reflected that she had drawn upon this support had implemented concrete strategies, that reduced the likelihood of her becoming aggressive in retaliation to the violence she has had inflicted upon her.

Conclusion

  1. [71]
    I accept the evidence of ST. I do not accept that ST has initiated violence in the home, but consider the evidence demonstrates that ST has been a victim of a high level of violence, and there has been consequential injuries to the perpetrator of this violence in the context of this. I do not accept that because of this ST is not an appropriate person to work with children.
  2. [72]
    I find that the charges for breach of a domestic violence order which have been dismissed with no evidence to offer were based on information now stated DT to be false, and that raises questions about the reliability of evidence he has previously provided to the police about ST.
  3. [73]
    I find that the evidence indicates that ST has worked with professionals to develop skills to de-escalate and self-regulate in the face of impending interpersonal conflict and that her children have been a central focus of this. She was able to articulate clear strategies that have been effective in reducing the violence in her home and steps to protect the children. In making this finding I have been guided by the Principle that the welfare and best interests of children are paramount.
  4. [74]
    I am not satisfied that an exceptional case exists where it is not in the interests of children to issue a positive notice. I find that the correct and preferable decision is that this is not an exceptional case in which it would not be in the best interests of children for ST to be issued a blue card. I set aside the decision of the Respondent.
  5. [75]
    I have had regard to the Human Rights Act 2019 (Qld), and consider the neither the human rights of children nor ST are affected limited by this decision.
  6. [76]
    I consider that it is not in the public interest for identifying information to be released of the applicant or her witness, and consequently have de-identified this decision, and prohibit the publication of information pursuant to section 66 of the QCAT Act.

Footnotes

[1]  Reasons BCS1-38.

[2]  QCAT Act, s 19.

[3]  Ibid, s 20.

[4]  Restated at s 6 WWC.

[5] Commissioner for Children and Young People v Maher & Anor [2004] QCA 492.

[6] RE FAA [2006] QCST 15[22].

[7] Commissioner for Children and Young People v Maher & Anor [2004] QCA 492, [42].

[8]  Exhibit 2.

[9]  Exhibit 2.

[10]  NTP15.

[11]  NTP15.

[12]  NTP29.

[13]  NTP199.

[14]  NTP40 Exhibit 9.

[15]  NTP143 Exhibit 13.

[16]  BCS39.

[17]  NTP81.

[18]  NTP227.

[19]  NTP155: Exhibit 14.

[20]  NTP81: Exhibit 11, NTP 191.

[21]  NTP247 Exhibit 23.

[22]  NTP 225.

[23]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[24]  Human Rights Act 2019 (Qld), s 13.

[25]  Exhibit 3.

[26] TNC V Public Safety Business Agency [2015] QCAT 489, [89].

[27]  Ibid [83].

[28] Chief Executive Office, Department of Child Protection v Grinrod (No 2) (2008) WASC 28.

[29]  [2010} QCAT 243[58].

[30]  Explanatory notes to the Commission for Children and Young People Bill 2000, p 11.

[31] Human Rights Act 2019 (Qld), section 58.

[32]  Ibid, section 31.

[33] WWC Act, Schedule 2.

[34]  Ibid, Schedule 4.

[35]  Ibid, s 226 (2)(a)(iv).

[36]  NTP191- paragraph 8.

[37]  NTP-40 – Exhibit 9.

[38]  Exhibit 10.

[39]  Exhibit 10.

[40]  NTP-12.

[41]  NTP155 Exhibit 14.

[42]  NTP 224.

[43]  NTP 224 Exhibit 15; NTP 225; NTP 227; NTP 247, Exhibit 23.

[44]  Exhibit 23.

[45]  MR oral evidence.

[46]  Exhibit 3.

[47]  ST’s oral evidence.

[48]  ST oral evidence.

[49]  Exhibit 25.

[50]  MR’s oral evidence.

[51]  MR’s oral evidence.

Close

Editorial Notes

  • Published Case Name:

    ST v Director General, Department Of Justice and Attorney General

  • Shortened Case Name:

    ST v Director General, Department Of Justice and Attorney General

  • MNC:

    [2022] QCAT 1

  • Court:

    QCAT

  • Judge(s):

    Member McDonald

  • Date:

    04 Jan 2022

Appeal Status

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