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RWD v Director-General, Department of Justice and Attorney-General[2022] QCAT 17

RWD v Director-General, Department of Justice and Attorney-General[2022] QCAT 17

  QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RWD v Director-General, Department of Justice and Attorney-General [2022] QCAT 17

PARTIES:

RWD

(applicant)

v

Director-General, department of justice and attorney-General

(respondent)

APPLICATION NO/S:

CML115-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 January 2022

HEARING DATE:

10 September 2021

HEARD AT:

Toowoomba

DECISION OF:

Member Hemingway 

ORDERS:

  1. The Decision of the Director-General, Department of Justice and Attorney-General 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 confirmed.
  2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of
    1. (a)
      the contents of a document or thing filed in or produced by the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to issue a negative notice – where applicant has a criminal history without any serious or disqualifying offences – where there are convictions for domestic violence and drug charges and charge for assault occasioning bodily harm whilst in company – where child protection history whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice.

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

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 226

Human Rights Act 2019 (Qld) s 8, s 58, s 31

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

Re TAA [2006] QCST 11

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

Briginshaw v Briginshaw (1938) 60 CLR 336

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

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

Kent v Wilson [2000] VSC 98

Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (Grindrod) [2008] WASCA 289

SWJ v Director General, Department of Justice and Attorney General [2021] QCAT 165

PML v Director-General, Department of Justice and Attorney General [2019] QCAT 88

APPEARANCES &
REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms J Capper

REASONS FOR DECISION

Background

  1. [1]
    The Applicant applied for a review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of RWD (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant applied for a working with children clearance and blue card under the WWC Act. The Applicant was issued with a positive notice in 2015 and during the period for which the blue card was issued, his eligibility changed, and he was subject to a re-assessment. The Respondent invited the Applicant to provide submissions concerning the changes to his eligibility. The Applicant made submissions on 3 July 2018, 30 September 2019 and made an oral submission on the 20 November 2019.
  3. [3]
    The Applicant was advised by letter dated 24 February 2020 that his eligibility to hold a blue card had been assessed and that the Respondent had issued him a negative notice under the WWC Act.
  4. [4]
    The Applicant was provided with written notice of this decision to issue a negative notice, reasons for the issue of the negative notice decision and the relevant review information.
  5. [5]
    On 22 March 2020, the Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the decision of the Respondent to issue her with a negative notice.

Legislative Framework

  1. [6]
    In Queensland, Blue Card Services manages the screening of individuals who work with children or in regulated employment under the WWC Act. The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews the decisions of the Respondent in these proceedings. The Tribunal does this in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). Without a blue card, an individual may not apply for, or engage in regulated employment or be a foster or kin carer of children.[1]
  2. [7]
    The purpose of the review by this Tribunal is to produce the correct and preferable decision, after an ‘on the merits hearing”[2] exercising all the functions of the original decision–maker.  [3]
  3. [8]
    The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children in Queensland with the entitlement of children to protection from harm. [4]
  4. [9]
    The WWC Act must be administered in accordance with the paramount principle that the welfare and best interests of children is paramount.[5] The Tribunal must apply the paramount principle in its review of the Decision as to whether a finding of exceptional case is justified.
  5. [10]
    Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 of the WWC Act is rebutted.
  6. [11]
    To issue a negative notice to the Applicant, the Tribunal must also be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case exists in which it would harm the best interests of children for a positive notice to be issued.[6]
  7. [12]
    The primary consideration in child-related applications is whether an exceptional case exists. The legislation does not define, ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.[7] Generally, the term has been interpreted by the Courts to mean, “unusual, special, out of the ordinary”.[8]
  8. [13]
    In reaching a decision, the Tribunal must also consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6 (a) of the WWC Act and any other relevant factors.
  9. [14]
    It has been long established that any hardship or prejudice suffered by the Applicant due to the determination is not relevant to the finding of an exceptional case. [9] This is based upon the paramountcy of the best interests of children which must prevail over all other considerations.
  10. [15]
    In making its decision the Tribunal must consider the paramount principle, and the mandatory factors under section 226 (2) of the WWC Act and other relevant factors as determined by the Tribunal.
  11. [16]
    The provisions of the Human Rights Act 2019 (Qld) apply to the Tribunal in making its decision.[10] 
  12. [17]
    Section 226 of the WWC Act requires the Tribunal to consider the following mandatory matters in determining if an exceptional case exists.

Criminal History and Circumstances of the Offending

Whether the Offence is a serious and whether it is a disqualifying offence

  1. [18]
    The Applicant is not charged or convicted with any serious or disqualifying offences, but the Tribunal is required to consider all offences in the criminal history in determining if a person meets the eligibility criteria to work with children in regulated employment.

Whether it is a conviction or charge

  1. [19]
    The Applicant  has  three convictions for breach of domestic violence orders and one conviction for produce a dangerous drug. In 2018, the Applicant was charged with assault occasioning bodily harm whilst armed in company. This charge was finalised due to no evidence being offered. Defences of trespass, defence of another and accident were offered by the Applicant and the prosecution lacked appropriate evidence to refute these defences.

When the Offence was committed

  1. [20]
    The Applicant’s criminal history related to offending in the periods 1996 and 1997 and in 2018. The offending behaviour occurred when the Applicant was aged between 26 and 48 years of age.
  2. [21]
    The Applicant contends that the offences were committed long ago apart from the charge in 2018 which did not result in a conviction. The Tribunal must consider the relevance of the passage of time and any submissions from the Applicant regarding this aspect of the review. The Applicant states that he has reformed but the Tribunal has decided in other cases that the passage of time alone does not reduce the significance of offending relevant to the Tribunal’s decision and so does not necessarily negate the existence of an exceptional case.[11]
  3. [22]
    The Court Briefs contain the following information regarding the offences:
    1. (a)
      6 February 1996 Breach of a Domestic Violence Order

The Breach arose from a Domestic violence order made in the Y Court on 6 April 1995 where the Applicant, aged 26 was the Respondent. The Applicant and his wife had three children and had been married for four years. The Complainant stated that, in the course of an argument, the Applicant threw a salad sandwich at the complainant and struck her on the neck and the salad went into her hair and down her nighty. The complainant stated that the Applicant continued with verbal abuse of her and she called police. The Applicant left the premises, but on 13 February 1996 he participated in an electronic interview with police confirming that he threw the salad sandwich at his wife and struck her in the facial area. He was subsequently convicted of this and another breach and was ordered to be of good behaviour with a $500 recognisance. No conviction was recorded.[12]

  1. (b)
    13 February 1996 Breach of a Domestic Violence Order

Police attended the home of the Applicant and his wife at 8.50am. The Complainant stated that she and the Applicant threw items at each other in course of an argument. The complainant stated that the Applicant then pulled her hair being on top of her while she was lying face down on the bed and then pulled her by the hair slamming her head onto the floor next to the bed. The Applicant participated in an electronic interview with police confirming they had argued and thrown things at each other. He said he pulled her hair in the course of leaning over the complainant and she fell to the floor and hit her head. He was subsequently convicted of this and another breach and was ordered to be of good behaviour with a $500 recognisance. No conviction was recorded.

  1. (c)
    31 July 1996 Produce a dangerous drug

Police attended the home of the Applicant who advised police that he knew he was growing a marijuana plant but said he grew it as an experiment. He was fined $600, and no conviction was recorded.

  1. (d)
    14 January 1997 Breach of a Domestic Violence Order

A Domestic Violence Order was made at Y Court on 9 October 1997. Police attended a home where the complainant was receiving first aid. She told police that she and the Applicant argued over their eldest son’s behaviour and the Applicant became violent to her, punching her in the head, arm and stomach areas.  Police observed injuries including bruising to right forehead near her temple and right upper arm and she expressed to them that she felt pain where she had been punched in the stomach. The Applicant participated in an electronic interview with police confirming that he had punched his wife when enraged with a closed fist but was unsure where he had hit her. The Applicant stated that the argument was because the complainant had ordered his parents to leave the home after a verbal argument and that she then discussed the matter with her parents. He was convicted and placed on a two-year probation order and ordered to complete 100 hours of community service.

  1. [23]
    A further Domestic violence order was made by the Y court on 6 December 2001. The Applicant in this Application was a police officer.
    1. (a)
      21 March 2018 Charge of Assault occasioning bodily harm whilst armed and in company

Police attended as address following a 000-emergency call.  The police brief stated that they located a male person with facial injuries and bleeding. Two baseball bats were located at the scene. The injured person was transported to hospital where he told police that he and his father-in-law went to the property to confront his brother-in-law who had damaged his garage door earlier in the night. He said he went to the property to check on the welfare of children. An altercation ensued and the Applicant (defendant) became involved stating that he tried to disarm the parties. He took a baseball bat from the those fighting when a third party tried to intervene in the argument, he swung the baseball bat which connected with the third party. The Applicant (defendant) stated that he did not mind if two people wanted to have a fight “one on one”, but he did not think it was fair if a third person came in from behind and he saw it as his “duty of care” to step in. He said it was not in a vindictive way but to stop the fight.  The injured person was airlifted to another hospital with bleeding to the brain. His injuries were an extra Dural haematoma on the right-hand side of the brain, seizures secondary to brain trauma facial bone fractures to the right frontal bone and left maxillary sinus facial lacerations and facial contusions. The Applicant defendant initially declined to be interviewed, but then participated in an electronic interview at Y police station on 26 March 2018 with his legal representative. He stated that he obtained the baseball bat from the persons fighting to stop anyone using it and swung it low towards the victim. He was concerned to protect a certain person during the fight. After the complainant was injured that he threw the bat away and asked for an ambulance to be called.

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

  1. [24]
    The domestic violence offences occurred in a domestic setting and involved violence against the Applicant’s then wife. The 2018 charge arose from a violent dispute between the Applicant and others in a dispute related to the welfare of children. This event occurred in a domestic setting at the Applicant’s home. The violence on this occasion was extreme, involving fighting by armed adults, with weapons, in the yard of the Applicant’s home. It occurred in the long school holiday period and numerous children were present, but the Applicant states they were inside at the time. However, an ambulance attended the property following an emergency call. Police also attended and spoke to the Applicant. It is more probable than not that the children were aware of the altercation. It is likely that the children would subsequently be aware of the significant injuries to one of the people involved in the physical fight. It is understood that the fight was primarily about the children. 

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 decision.

  1. [25]
    Sentencing remarks are available for the sentence imposed for the offence on 29 December 1997. On 14 January 1998, His Honour, Magistrate Yorkston stated as follows:

It was, as I was saying, a particularly and vicious rather savage attack upon your spouse. The community cannot tolerate this kind of violence, in fact the community must be protected from violent offenders. It appears to me that the sentences handed down to you in the past have had no deterrent effect upon you. But notwithstanding that, the fact that you’re still living with your wife, I will give you one last chance and I do so reluctantly. As an alternate to sending you to jail today, I will give you the benefit of community-based orders. In relation to the matter, you will be convicted. You will be released and be required to be under the supervision of the probation service for a period for two years from this date ….

…. clause that you participate in any programs as directed … I will include anger management and relationship counselling. In addition, you will perform 100 hours of community service. ...As I said, in light of the vicious nature of the attack upon your wife, I felt a term of imprisonment was warranted. ...If there is any breach of this community service order or there is any breach of the probation order and you are brought back before me you will be looking at a term of imprisonment.

Any information about the person given under sections 226(e)318, 319, 335, 337, 338 of the WWC Act and under sections 138 ZG of the Disability Service Act (Qld) 2006

  1. [26]
    There are no reports or information available to the Tribunal under these provisions.

Other relevant Matters

Child protection Concerns

  1. [27]
    A bundle of documents was produced to the Tribunal by the Department of Children, Youth Justice and Multicultural Affairs which detail the Applicant’s child protection history with this Department. It relates to the period 1993-2020. It details notifications of child safety concerns, investigations, interviews and assessments about the Applicant related to his care of his children and stepchildren. The concerns raised in notifications to the Department relate to episodes of excessive physical discipline, physical and emotional harm and exposure to domestic violence.
  2. [28]
    In in periods 1993 and 2011, there are two substantiated notifications against the Applicant concerning physical abuse and exposure to domestic violence. The substantiated incidents include where the Applicant hit his two-year-old son and exposed him to domestic violence and in 2011 where he hit his 15-year-old son out of frustration and inability to manage the behaviours of this young person.
  3. [29]
    However, despite numerous notifications and following child concern reports about the Applicant's treatment of children in his care, they were not removed at any stage. The Department stated on several occasions that the children were not at an unacceptable risk of harm and that the children had a parent who was both willing and able to meet their care and protection needs. This assessment by the Department was made in 2016.
  4. [30]
    The child protection history disclosed in the material from the Department is as follows:
    1. (a)
      In May 1993, the Applicant admitted backhanded and punching his two-year-old child in the chest in the presence of his pregnant partner.
    2. (b)
      In July 1994, there is an allegation that the Applicant hit his child, but this was denied by the Applicant and the child’s mother. In this context the report indicates that the child was aggressive to his mother possibly as a result of witnessing domestic violence. The reason for the child’s behaviour is supposition.
    3. (c)
      In November 2001, both the Applicant and the children’s mother were physically aggressive to the children (punching and kicking the children) twisting them by the ears and pulling their hair verbally abusing them and calling them by derogatory names. The notifier stated that the actions of the parents were escalating and were of concern as the parents regarded this as normal discipline.
    4. (d)
      Further concerns of this nature were noted in March 2003 and in February 2010 police attended the home and were told by a child that the Applicant had tried to choke him and had punched him in the face twice. The child declined to make a formal complaint. The Police stated they observed redness in the child’s face.
    5. (e)
      In March 2010 and in December 2010 the police investigated an allegation that the Applicant had slapped a child over a dispute about cigarettes. In  December 2010 the Applicant was alleged to have physically assaulted his child who was homeless. A concern was expressed that the Applicant failed to source help for two of the Applicant's children who were self-harming.
    6. (f)
      In December 2010, the Applicant's children were reported as self-harming including suicidal ideation and that the young person aged 19 was treated as a punching bag by the Applicant.
    7. (g)
      In April 2011, the Applicant's child ran away from home and in May 2011 and when the child returned, he was told to move out and that he was no longer welcome.
    8. (h)
      In January 2012, the Applicant is alleged to have assaulted a child who did not wish to make a complaint. In June 2012 there is an allegation that the Applicant grabbed a child by the throat. In November 2015, the Applicant is alleged to have pushed the child’s face into a plate following an incident over spilt water and the child crying.
    9. (i)
      In 2015 there continue to be allegations that the Applicant was flogging his children daily and that they were in fear of him.
    10. (j)
      In March 2017, it is alleged that the Applicant was continually nasty, had flogged one of the children causing the child to fall up the stairs and grabbed another by the throat and held him against a wall.
    11. (k)
      In September 2020, it is alleged that the Applicant caused a child to have a black eye.
    12. (l)
      Following a lengthy investigation, in 2016 the Department noted that any inappropriate discipline and verbal abuse by the Applicant had ceased. It was further observed by the Department that the Applicant’s child protection history was in respect of his biological children with a different partner and was considered to have no parenting responsibility for any of the subject children and had little involvement in their lives.  

Violent behaviours and Domestic Violence

  1. [31]
    The Applicant has convictions in regard to domestic violence, one of which saw him narrowly avoid a term of imprisonment. Despite this being a considerable time ago, the charge in 2018 for assault occasioning bodily harm demonstrates a continuing concern of his capacity for violent responses to situations. The psychological harm to children of exposure to domestic violence is well understood. It represents an on-going risk factor for children in the Applicant’s care if the Tribunal finds that the Applicant’s attitudes and responses remain unchanged.
  2. [32]
    The Applicant has a child protection history with two substantiated notifications of harm. The child protection concerns indicate a lack of conflict resolution skills when he is triggered by the conduct of others including children. The child protection history shows a propensity to respond with physical and verbal aggression to the exigencies of family life.
  3. [33]
    The Applicant's understanding and insight into his history of violent responses is of concern as it appears superficial. He continues to demonstrate a belief that his conduct was provoked by the actions of others, his former wife and his children. He does not demonstrate insight into his conduct and the self-harming behaviours of his children
  4. [34]
    The Applicant consistently dismissed the allegations of inappropriate treatment and use of harsh discipline. He denied the allegations, stated that some notifications were malicious and that he “never raised a hand in anger and would only smack a child on the backside.” His remarks are in direct contrast with the findings of the Department already referred to and so demonstrate a disturbing lack of insight into his behaviours by the Applicant.

Respondent’s Case

  1. [35]
    The Respondent submits that the material discloses longstanding and extensive history of violence and domestic and family violence; the most recent example relating to the charge having occurred in 2018.
  2. [36]
    The Respondent states that the case is exceptional, and the Tribunal should be satisfied on the balance of probabilities bearing in mind the gravity of the consequences for children, that the Applicant should not be issued with a blue card.
  3. [37]
    The Respondent states that the reason (to be a kinship carer) the Applicant seeks a blue card is not relevant for the Tribunal in determining if this is an exceptional case. The Respondent cites the paramount principle as being the primary consideration over all other considerations such as the right to the Applicant to seek a chosen occupation. Hardship to the Applicant is not a relevant factor for the Tribunal.[13]  
  4. [38]
    The Respondent submits that the Applicant’s history pursuant to the considerations in section 226 of the WWC Act demonstrate a history of domestic and family violence. The Respondent contends that the criminal history shows the Applicant as a person who responds violently to situations of conflict and stress in the home. The 2018 incident calls into question the Applicant's judgment, self-control and attitudes to violence.
  5. [39]
    Regarding the 2018 incident, the Respondent concedes that the Applicant was not convicted but the circumstances of this assault remain of significant concern despite it being a charge. The Applicant used a weapon and intervened in the fight when other alternatives were available to him. He admits in his statement that at the time there were eight children present at his property. The Respondent contends that the Applicant ought to be able to exercise “good judgment and resolve conflicts calmly without resorting to violence”.
  6. [40]
    The Respondent submits this as evidence that the anger management issues of the Applicant are not resolved and that he may react violently to situations of stress and conflict. The Respondent contends this to be directly relevant to eligibility to work with children.
  7. [41]
    The Respondent contends that effective stress management and conflict resolution skills are critical for persons working with or caring for children and young people. The Applicant is expected to behave in a manner which protects and promotes a child’s physical and psychological well-being and safety. The Respondent states that children are entitled to be cared for by adults who do not engage in violent behaviour, regardless of the circumstances.
  8. [42]
    The Respondent states the proposition that children model their behaviour on the adults in their lives and so aggressive responses to conflict are harmful and should not be modelled to children. 
  9. [43]
    The Respondent refers to Magistrate Yorston's remarks to the Applicant in sentencing that he would receive a term of imprisonment if he breached his sentence.  The Magistrate regarded the attacks as serious and described them as ‘vicious. The Respondent observes that the earlier penalties did not deter the Applicant from offending and that his conduct led to a more serious offence of violence against his spouse.
  10. [44]
    The Respondent submits that although his children were not removed at any time and the Applicant has shown some insight that it is not satisfied that the triggers have been addressed and so he remains a risk to children when faced with difficult behaviour or challenging relationship issues. This remains a concern even though the Applicant has completed anger management training and a course in strategies to avoid domestic violence.
  11. [45]
    There are two substantiated child safety concerns in 1993 and in 2011. In between are numerous notifications of verbal and physical abuse involving choking, use of excessive force, flogging, derogatory name calling and sustaining a black eye. The Respondent notes that one child attempted suicide by hanging and others engaged in self- harm and truancy. One child, then a young adult was dealing and using drugs and served terms of imprisonment.
  12. [46]
    The respondent submits that the risk of harm is increased when stressors such as unemployment are an issue for the Applicant. The Department in a 2016 interview observed that the Applicant can manage his emotions better and cope with the daily stressors of life when the financial pressure is eased.
  13. [47]
    Despite the inquiries of the Department into allegations against the Applicant, the children were not removed however, the Department summarised the Applicant's child protection history as “a history of destructive parenting practices...including verbal and physical abuse of his own children to the extent of causing injuries."
  14. [48]
    The Respondent cited the case of PML[14] in this regard as authority for the proposition that the Tribunal on review, was able to make a finding contrary to the finding of the Department. In that case the Tribunal was held to not be bound by the conclusions of the Department who apply different criteria in their inquiries concerning the welfare of children.
  15. [49]
    The Respondent submits that the repeated concerns relating to the Applicant’s care of children still supports a finding that the Applicant should not receive a blue card as it is not in children's best interests. 
  16. [50]
    The Respondent considers that the Applicant has not accepted responsibility for his actions and deflects blame onto others and minimises his own role.
  17. [51]
    The Respondent notes that the Applicant states that he has no further issues with his current wife and family despite there being several notifications of concern between 2012 and 2020.
  18. [52]
    The Respondent has considered previous submissions by the Applicant in 2004 in which he claims his anger issues to be resolved. The Respondent however notes the substantiated concern in 2011 against his 15-year-old son which contradicts his submissions regarding his reformed anger control.
  19. [53]
    The Respondent submits that the Applicant minimises his behaviour in exposing his children to domestic violence and physically assaulting his children when under stress. The Respondent contends that this demonstrates a lack of insight into his offending. The Respondent also contends that the Applicant attempts to deflect blame for his actions.
  20. [54]
    The Respondent agrees that the Applicant is well respected in the community and in his work as a disability worker. The Respondent submits that the Applicant provided references which are qualified. They do not evidence any detailed knowledge of the Applicant’s offending in a domestic setting. For this reason, the weight given to the evidence of the witnesses, though positive and supportive should be reduced.
  21. [55]
    The Respondent notes that the Applicant has not produced any evidence to support his claim that he can effectively manage his anger issues. The respondent notes that the Applicant claims he has strategies to manage his anger. The Respondent states that the strategy of walking away from a situation is not one which a blue card holder can use,[15] because when caring for children, it is not possible to remove oneself from the situation. These techniques are not appropriate strategies when one has care and control of children.
  22. [56]
    The Respondent states that the Applicant has failed to outline what his strategies are for managing his responses to stress in a non-violent way.
  23. [57]
    The Respondent states that the Applicant’s offending and show a lack of judgement and insight in acting as a positive role model for children and young people and any insight into the gravity of his offending. The Respondent expresses concern about the capacity of the Applicant to sustain positive change and to promote the health and well-being of children in the longer term.
  24. [58]
    In this regard the charge brought against him because of his intervention in the fight in 2018 are concerning. The way the Applicant attempted to de-escalate a grave situation together with his assessment that it was his duty of care to step in and that he did not mind the fight if it was one on one are concerning if they are indicative of how the Applicant manages conflict. The remarks are ill-informed and show a concerning attitude to the resolution of violent conflict.
  25. [59]
    The Respondent’s submissions state that the Applicant does not display appropriate insight or awareness into his personal anger issues and the potential for harm to children cared for by a person who is subject to violent outbursts. The Respondent cites the failure of the Respondent to appreciate the seriousness of his behaviour and the need to address his behaviour as reflecting poorly on his insight.
  26. [60]
    The Respondent refers to the fact of the transferability of the blue card so that it cannot be made subject to conditions. This means that if the Applicant were issued with a positive notice, he could potentially work unsupervised in child-related areas of employment. The Respondent argues that the Tribunal must consider this aspect in this review.
  27. [61]
    The Respondent states that the role of the Respondent is not to impose further punishment upon the Applicant, but to determine whether it is in the best interests of children for the Applicant to be given unsupervised access to work with or interact with children in activity regulated under the Act should he receive a blue card.
  28. [62]
    The Respondent submits that the provisions of the Human Rights Act 2019 (Qld) (HR Act) are applicable to the Tribunal's deliberations. The Respondent refers specifically to section 26(2) which states the right of the child to protection because of being a child.[16] The limitation of the Applicant's rights can be justified pursuant to section 13 of that Act because the limitation is for the purpose of protecting the rights, interests and well-being of children and young people which is a human right.[17]

Applicant’s Life Story

  1. [63]
    As requested, the Applicant provided written submissions including a life story dated 7 January 2020[18]. In the Life Story he states as follows:
  2. [64]
    He left home at 16 moving to Melbourne. He is one of a sibship of five and they get on well. He returned to Queensland after three and half years. He states that he had a difficult relationship with his first wife who was verbally abusive to him on a regular basis. He states that, at this time, he took whatever work was available and he also helped with the children; bathing and feeding them and putting them to bed. He describes working long hours and wanting to wind down after work. In relation to the domestic violence breach on 6 February 1996, he stated that his wife commenced verbal abuse of him and as he was about to eat dinner, he threw his sandwich at her in frustration. He stated that he retreated to his bedroom to calm down and that then the police arrived.
  3. [65]
    He stated that he attempted to get his first wife to go to relationship counselling, but she refused to participate. He wanted to remain in the relationship for the sake of the children. To improve his behaviour, he stated that he completed a course designed to prevent Domestic Violence (‘DV’) course. He stated that now he walks away and takes time to calm down when a situation arises to de-escalate the situation. He stated that he walks away as he does not want to be that person he was in the past.
  4. [66]
    He stated that in 2002 he commenced Brazilian jiu-jitsu (martial arts). He states that it taught him discipline and control and is a positive influence in his life. He states that on reflection he understands that he could have handled situations differently and that his first relationship was toxic, and he should have left sooner. He states that his main priority now is his children and grandchildren, and he regrets the effects of past conduct on them.
  5. [67]
    He states that he does not recall the 1993 assault upon his two-year-old son. Regarding the 2011 incident, he states that he was attempting to defend himself from his son who was mentally unstable at the time. He states that he should have handled it differently. He was only attempting to calm the situation.
  6. [68]
    Regarding the 2018 incident, he states that:

On the night of this incident, we received a phone call from the friend’s wife and children advising that they were in need of accommodation. We invited these people to stay with us for the night. The father-in-law of the friend who was staying with us attended my residence later that evening.

My current wife has experienced severe abuse in the past and I was conscious of protecting her as well as the other children of our household.

On the night we received a phone call from a friend's wife that her and there 2 kids were kicked out of where they were staying. We could not see them on the street at 9.30pm. My step-daughter was threatened with a baseball bat when picking up the kids as she was getting their clothes. The friend’s wife arrived sometime later as she was chased by her dad and brother-in-law. She managed to lose them. About 30 minutes later they found our house as they had no idea where we lived. My wife went out and the friend's brother-in law swung a baseball bat at my wife. As she told them not to enter our property at all. They wanted was to take the kids. My wife ran into our house terrified as this brought back horrific memories of what happened to her from her Dad as he was violent with weapons. At the time there were 8 children at our house, under the age of 16. I went outside and there were two people on the ground fighting and a third person trying to take the baseball bat and threatening him to hit him with it. I managed to get the bat away and told the brother-in-law to stay away off my property. The other person continued fighting and somehow ended up on the front lawn and the brother-in law ran around me to hit my friend from behind. I moved between them at swung bat low as the brother-in law dived towards where I swung the bat this is how he got hit with the baseball bat, he fell then stumbled towards the road as I stated again to stay off my property. Brother-in-law dropped in the gutter and had a seizure this is when I threw the bat into bushes and proceeded to administer first aid and called out to get medical aid. I spoke to QAS, but they said they needed police presence before coming. Police arrived and I was directed to return inside which I did without hesitation. I do not associate with people such as those present on the night of the 2018 incident in my regular dealings. There was at no time any intention to harm anyone. I was attempting to deescalate the situation only. There was no malice of violence behind my actions. Reflecting on the situation I would have asked someone to remove the baseball bat entirely. I rendered first aid as soon as I realised, he was injured. I was immediately very worried and concerned for his well-being as it was not my intention nor in my nature to hurt someone.  I understand how serious the injuries were and if I had known this would have been the outcome.  I would not have become involved in the situation. Given my anger management coping techniques gained through my martial arts training and anger management course I realise it was inappropriate to physically respond to this behaviour.

  1. [69]
    The Applicant states that he is now in a stable relationship with good communication. He states that he is looking to the future hoping to have child with his current partner and wanting to work again in disability support. Several children and grandchildren reside with him. He has worked in disability support for ten years, but it not currently employed after losing his blue card. He volunteers with Y organisation.
  2. [70]
    He states that he regrets his previous offences and is now a better person with improved conflict resolution strategies. He further states that he regrets his previous actions. He now removes himself and has learnt to talk through issues and not have violent outbursts. He has a positive attitude now which helps him and the goal of caring for his grandchildren.

Witness A

  1. [71]
    Witness A is a doctor and has contact with the Applicant in the context of her patient, a young man for whom the Applicant was a carer. She stated that the Applicant had been a carer for 6-12 months and that she sees the patient and carer very regularly usually fortnightly or monthly. She stated that the patient has behavioural issues and that it appears that his behaviours appear to be managed satisfactorily by the Applicant. She states that reduced calls to Police and the Ambulance service indicates that her patient was making some progress in regard to his challenging behaviours. She stated that there was no evidence of him being frightened or anxious when he has attended appointments with the Applicant.  She stated that the Applicant is one of three carers for her patient. She was unable to specify the behaviours of the patient due to confidentiality issues for her doctor patient relationship. 

Witness B

  1. [72]
    This witness has observed the Applicant at work to be always polite and courteous and professional.  She has known him professionally for three years. He adheres to the Code of Conduct. She states that he is a really good support worker, supporting adults with disabilities. This witness stated that the Applicant displayed patience and empathy. He has displayed understanding of special needs clients; communicating with short sentences, doing activities such as bowling, colouring in, and collage. He demonstrates an understanding that a person with a disability takes time and they cannot be rushed.  He took a disabled person on a holiday which was good experience for the person with the disability.  The witness said that the reference was for professional purposes only. She is unaware of the detailed reasons for the negative notice.

Witness C

  1. [73]
    This witness stated that the Applicant is person he has known for 25 years and that they were involved together with martial arts training and PCYC.  He stated that the Applicant worked well with children and that their sons went to school together. He stated that he socialised with the Applicant and his first wife. He was aware generally of the reasons for the negative notice and was very surprised. He was unaware of any domestic violence issues or child safety issues and had seen the Applicant and first wife together and did not think there were any issues.

Witness D

  1. [74]
    He stated that he had known the Applicant for 27 years as a friend. She knew the family and stated that the Applicant's first wife was aggressive towards the Applicant. She stated that she saw a lot of yelling and swearing between them, but nothing physical ever.  She stated that a lot of yelling happened and in front of the children. She was not aware of any child protection history and believes there was a period when the former couple were not talking, but believes they are talking now. She states that the Applicant was regularly confronted by his wife on coming home. In public they presented as one big happy family.  She does not know about the 2018 incident, but knows that something happened, but not the details.

Applicant’s submissions

  1. [75]
    The Applicant states that he is seeking a BlueCard as it is required for him to be a kinship carer. He also states that he understands that the issue of a BlueCard entitles the holder to work in any child-related employment.
  2. [76]
    The Applicant states that his circumstances are changed from when he committed the offences. He now has a supportive partner and strong family connections and commitment. He provided four character references and his life story, and relies on earlier submissions made to Blue Card services prior to the 2018 incident.
  3. [77]
    The Applicant maintains that he regrets his past mistakes and on reflection he would not make the same decisions. He describes his first married relationship as toxic and that this factor led to the domestic violence charges. He states that he was working in numerous jobs and had a family to support and that this stress created additional pressures. He considers that he acted in response to his wife’s verbal abuse as he regarded it at the time. He states that now he does not believe it was acceptable to harm children or his partner.
  4. [78]
    The Applicant states that he has increased awareness and insight and is unlikely to reoffend. The Applicant's material identifies certain protective factors. These include his strong relationship with his current wife with whom he has good communication and that they are trying to have a child. He describes that he has had very positive outcomes of his anger management course and his course in avoidance of domestic violence as well as a positive effect form his martial arts training. He describes maintaining good relationships with his children and grandchildren and building relationships now as he considers that he does not want to be that person he was.
  5. [79]
    He states that he is distressed at being unable to continue with his role as kinship carer which is a strong incentive for him to remain aware of acting appropriately around children. He states that he would give up this role if required to prioritise his grandchildren's interests.
  6. [80]
    His witnesses attest to his skills as a carer and working patiently with people with a disability. He worked in this role as a disability carer for ten years with positive results. He describes being passionate about this role and wanting to continue to help people with disabilities to achieve their goals.
  7. [81]
    His witnesses include long-term term friend, Witness D who described his intense first marriage with which the Applicant struggled. Witness D spoke about the volatile family situation then but that the family appeared outwardly to be happy at the time.
  8. [82]
    All witnesses evidence a person who is respected in various roles in the Community. He also has progressed in leadership within the B organisation and Witnesses give positive remarks about him in this context.
  9. [83]
    The Applicant states that many of the notifications about him were fabricated and that a relative encouraged the children to defy him. He does not recall the incident in 1993 which is a substantiated concern and states that in regard to the 2011 substantiated concern that it was his son who was the aggressor.

Cross examination Of Applicant  

  1. [84]
    The Applicant was referred to numerous child protections concerns by the Respondent. The Applicant stated that he had not read the child protection concerns in detail.
  2. [85]
    The Applicant was asked about the exposure of his children to domestic violence. The Applicant responded that the children were present during yelling between their parents, but they would be in bed. He stated that the arguments did not always lead to physical violence.
  3. [86]
    He stated that he does not recall the 1996 incident where he grabbed the complainant, his then wife by the hair. He stated that he had had enough and that his wife was violent as well. He said he left his first wife in 2010.
  4. [87]
    He confirmed that he had done a course through Lifeline on domestic violence and a course in Anger Management in 1998. He stated that he has a Certificate Four in Positive Behaviour Support Plans for Carers. It included Behaviour Management Conflict Resolution, Behaviour Triggers, Redirection, Mabo (restraint by blocking), Talking with client. He agreed that the triggers kept happening despite the training. He stated that the domestically violent behaviour becomes normal.
  5. [88]
    He described many distressing aspects of his first marriage. When taking a holiday, he stated that his son was always left behind because they only had a five-seater car. He said he wanted to take both cars, but he and his wife argued over this. He said the domestic violence had affected the children but not all the children. He regarded his wife as unwilling to change.
  6. [89]
    He was asked about smacking and stated that this was okay. He agreed that one Child Safety notification, dated 16 November 2001, documents extreme and escalating violence by both parents who the notifier states considered their behaviour to be normal discipline.
  7. [90]
    He agreed that on 27 January 2010 there was an argument with one son whom he choked and punched in the face. Police attended and noticed some redness but no bruising. The child did not wish to make formal complaint. Children were in viewing or hearing range of the incident. Police did not refer the case to the Scan Team as it did not meet the threshold for referral.
  8. [91]
    He further agreed that he had slapped a stepdaughter across the face when he removed cigarettes from her.
  9. [92]
    The Applicant stated that many of the complaints to Child Safety were fabricated. He said that the child’s grandmother and his step- children were the source of a lot of conflict. He stated that because of the conduct of the grandmother, giving the child everything, that this created problems for the household. He stated that he believed that the grandmother told the children to make complaints.
  10. [93]
    He stated that one child was very defiant. He tried to intervene at a time in 2012 when she was involved with a married man, and this led to more conflict.
  11. [94]
    He did not agree with the content of the notification on 6 November 2015, which stated that he was controlling of his wife and that he taunted and abused the children such that they would rather run away then live with him.
  12. [95]
    He agreed that in the period 2002-2016 there were four child concern reports and two child protection notifications.
  13. [96]
    The Applicant agreed that his children had engaged in self-harm. The Applicant agreed that he was involved with the school when one of the children attempted suicide by hanging on school grounds on 22 February 2011. He agreed that he was aware that his children were frequently truanting.
  14. [97]
    He agreed that one son G, was involved in using and selling drugs and refusing his prescribed medication. He agreed that he had punched this child but, in an effort, to say, "wake up to yourself. He stated that G was a drug addict and had been to jail. He denied that the domestic violence had an impact on another son, T.
  15. [98]
    The Applicant denies pushing a child’s face into a plate as a result of them crying over spilt water saying that this incident was fabricated.
  16. [99]
    The Applicant stated that he believed he did not physically hurt the children but gave them the odd smack. He denied grabbing a child by the throat, using a child as a “punching bag”, flogging the children, using derogatory names, or giving a child a black eye in the week preceding the 17 September 2020 when the notification was received. He stated that his alleged abuse of the children are false allegations.
  17. [100]
    He denied that the children were scared of him. He states that he believed that if he was aggressive that they would retaliate. He stated that he has a great relationship with all the kids, but one daughter was trying to discredit him. He stated the allegations about his abuse of the children is fabrication.
  18. [101]
    He agreed that he raises his voice but that he is not controlling of his wife. He stated that he helps his wife to have a voice by doing things for herself. As an example, previously she would not talk on the phone but now she is taking control and could telephone and make a complaint.
  19. [102]
    He agreed that there had been an investigation and report in 2016 but the children were found to be cared for properly. In the 2016 investigation report, the children report improvements since the Police came and the Family and Child Connect (‘FaCC’) became involved with the family since 2016.
  20. [103]
    In relation to the 2016 interview with the Department he stated that he has to manage a child with a disability.  Now the discipline involves removal of iPad or being made to sit on a chair. The child is now medicated. He stated that he rarely gets a smack on the bum and that it is mainly his wife who does this.
  21. [104]
    He described an exceedingly difficult situation with his mother-in-law who is reported to have told the children not to listen to the Applicant as he is not their biological father. For example, she told them fish fingers will kill them, so the kids won't eat them. He describes the mother-in-law as very manipulative and dominant over her daughter.  Contact with her is now restricted or supervised.
  22. [105]
    He spoke about the step-children not liking phone restrictions. FaCC and the school have made great improvements for the family individually. He confirmed he believes a smack is acceptable discipline.
  23. [106]
    He was asked about his current discipline methods and says that he leaves his wife to deal with it. He will walk away and encourage his grandchild to play with toys or go to their room or watch TV. He says he manages the adolescents by treating them as equals and taking each situation as it comes. He tries to remain calm and set boundaries. He uses his communication skills and does not believe that he is aggressive anymore. He says that previously he was distressed by an exceedingly demanding situation facing his son who was on drugs and feels he did not have self-control then. Now he uses his martial arts training 5-6 days week as a great discipline and has changed his attitude. He can't put it into words, but he is much more positive.
  24. [107]
    His strategies now are to stop and think about a situation. He thinks about how to respond when children do not do as they are told.  He stated that the children do not like doing jobs. He no longer reacts in violent way, as previously he and his partner “did their own thing”.
  25. [108]
    In regard to the 2018 charge, he stated that he did martial arts training so this helped him to manage the children and the situation. He said it made him a better person because of focus and control. He denies the children were more scared because of his martial arts training. He went to training and tournaments.
  26. [109]
    He agreed that his previous behaviour was domestic violence and stated that he was ashamed of himself. He agreed that her behaviour did not justify his response. He would walk away if he had realised the relationship would be toxic. He stated that he does not want to be that person he was in the past. He wished he could have picked up on his son's signs of distress. He is now building a good relationship with his kids
  27. [110]
    He was asked about a notification on 17 September 2020 where a child was reported to have a black eye because of the Applicant hitting him. The investigation found the report to be unsubstantiated. The Applicant maintains that they, he and his wife have accessed help and that he does not use the previous disciplinary methods with the children.
  28. [111]
    When asked about his family, he stated that he had not spoken to his parents for seven years.

Consideration of the Evidence

  1. [112]
    The Applicant has been married twice and has four children, now adults, with his first wife. There are no children with his present wife, but she has six biological children, two of whom are adults. There are five children living in the home with the Applicant and his wife. The Applicant is a grandfather to two children who currently reside with he and his current wife. Some of the children have special needs and one attends a paediatrician.
  2. [113]
    He commenced work at 16 and has done numerous jobs with some periods of unemployment. He was most recently employed as a disability worker for a period of ten years. He is currently unemployed which has previously been a risk factor. He has been active in  B Organisation as a volunteer, progressing to a leadership role and is an enthusiast for martial arts.
  3. [114]
    The Respondent contends that the criminal history and child protection history shows the Applicant as a person who responds violently to situations of conflict and stress in the domestic setting. The charge for assault occasioning bodily harm whilst in company brough in 2018 calls into question the Applicant's judgment, self-control and attitudes to violence. He was charged with assault occasioning bodily harm, but not convicted regarding an incident on 21 March 2018. The complainant suffered a traumatic brain injury.
  4. [115]
    The Applicant as conceded that he did strike his first wife after an argument about her treatment of his family. The Applicant conceded that children were exposed to domestic violence in the home. He gives his reasons for the domestic violence as that he and his wife had problems with each other's families and financial factors were a stress. He said that he had little time to socialise as his wife was possessive and insecure and did not allow him to enjoy himself much. He describes his first relationship as toxic. His current wife describes him as being “cranky” when unemployed.
  5. [116]
    Following sentence for the Domestic Violence convictions, the Applicant completed his probation period in January 2000.
  6. [117]
    The Applicant has a child protection history with numerous notifications of harm, two of which were substantiated. These were notifications of physical harm to a child on the 14 May 1993 and 25 February 2011. There are numerous unsubstantiated complaints of harm to children by the Applicant between 1993 and 2020.
  7. [118]
    The Department did not remove the children at any time in this period. Many of the concerns after investigation by the Department at the relevant times did not result in any action by the Department. The Department concluded that the children were not in need of protection in accordance with their criteria.
  8. [119]
    The Respondent contends that the Tribunal should view the totality of the child protection history in terms of the decision in PML,[19] where it was stated that the approach to be taken by the Tribunal:

Was to apply an independent mind and deliberation to the concerns raised irrespective of the Department's findings that the concerns about PML’s care of children were substantiated or not ...

  1. [120]
    In the instant case, the concerns of harm made against the Applicant are numerous and over a long time period. Many are unsubstantiated. Some involve a circumstance where injury was noted by Police, but the child declined to make a complaint. These factors are relevant for the Tribunal in assessing risk. Whether the harm was substantiated is one issue, but another is the fact of the child declining to bring a formal complaint. Another factor is that it appears clear that the Applicant consistently had difficulties with his partners’ extended families. The Applicant regards this strained relationship as the basis of fabricated complaints against him. In regard to the 1993 complaint, he states that he does not recall this incident.
  2. [121]
    The Tribunal finds this reasoning in PML to be persuasive, notwithstanding that in the case of PML the decision of Blue Card services of exceptional case on the facts was replaced with a decision of the Tribunal that the case was not exceptional. The case of PML is especially relevant as it considered the issue of the weight to be given to unsubstantiated notifications of child safety concerns. In PML, the Member considered that only the notifications upon which the Applicant was cross examined were able to be taken into account by the Tribunal, in accordance with the Rule in Browne and Dunn.[20] 
  3. [122]
    The Tribunal is satisfied that this is the correct approach in weighing the evidence contained in the child protection material. In this case, each instance described in the notifications has been put to the Applicant during the hearing. The Applicant has given his responses and therefore the Tribunal has given significant weight to the content of all notifications together with the Applicant’s responses.
  4. [123]
    The Tribunal is satisfied from this inquiry in cross-examination that the Applicant minimised the events and deflected blame to others for his inability to manage challenging conduct and extended family relationships.
  5. [124]
    The Respondent submits that the history of child protection notifications together with the events of 2018 demonstrate that the Applicant continues to represent a risk to children as his anger management issues are unresolved. The Respondent submits that the risk is increased because of the lack of insight into this aspect of his interaction with family displayed by the Applicant in the hearing.
  6. [125]
    The Applicant contends that the charges regarding domestic violence are part of his past circumstances which no longer apply as he is settled in stable marriage. He and his wife and family report that they are supported by various services for family support and police intervention which have brought stability and there have been no further notifications.
  7. [126]
    The Applicant also contends that many of the reports of harm have been fabricated and that a grandmother of the children encouraged them to be oppositional to the Applicant as he was not their biological father. This undermined his authority and family discipline became extremely difficult.
  8. [127]
    The Applicant continues to assert that he has not harmed his children and never raised a hand in anger. He continues to maintain that a smack is acceptable discipline.
  9. [128]
    It is established however that his children were self-harming in December 2010 and one attempted suicide by hanging at school. One became a drug addict. He attempted to prevent one child from using cigarettes in March 2010 which led to a confrontation. There was constant conflict with the children about mobile phone use. Police attended the home in response to a 000 call in January 2012. There are repeated complaints of excessive discipline, name calling and verbal abuse and of advice that the children were truanting and absconding, and would rather not return home to the Applicant.
  10. [129]
    These circumstances undermine his claim that the issues with violence in a domestic setting related to his prior relationship. The Applicant states that he sought help for the children with psychological counselling and those behaviours escalated after separation in 2010.
  11. [130]
    The Department interviewed the Applicant in February 2011 and in March 2016. The 2016 Interview concluded that the Applicant had ceased his inappropriate physical discipline and verbal abuse. The Department found no drug, alcohol or mental health concerns or current DV issues. The family were engaged with Act for Kids and FaCC, and counselling through Headspace. A support worker was working with the parents and organising relationship counselling for them. The children reported at interview that there had been an improvement since these interventions, suggesting that the circumstances prior had been troubled.
  12. [131]
    His assertion that the notifications ceased since he re-partnered is not accurate and he continued to manage challenging behaviours with violent outbursts. The allegations on December 2010 that a child was treated as a punching bag; that in April 2011, after running away, a child was not allowed to return home; that in January 2012, a 000 call was made in regard to a child’s refusal to discontinue use of a mobile phone; that in June 2012 the Applicant grabbed a child by the throat, that in November 2015, a child grabbed the child by the back of the head an slammed his face into a plate; that in November 2015 the Applicant was flogging his stepchildren daily; and that in March 2017, the Applicant was constantly yelling and nasty. In September 2020, the Applicant is alleged to have caused the child to have a black eye.
  13. [132]
    The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue. The test is not simply whether the Applicant poses a threat to children or not. The threat must be an appreciable threat.
  14. [133]
    The standard of proof is that the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
  15. [134]
    The Tribunal accepts the view that it is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[21]
  16. [135]
    The Applicant has significant history of violence in a domestic setting and one conviction for producing a dangerous drug. He has a child protection history including two substantiated notifications. These are significant risk factors. He has a drug-related offence, but it is a single offence and occurred on 31 July 1996. There has been no re-offence of this nature.
  17. [136]
    The Tribunal is asked to consider that the triggers for violence remain an issue for the Applicant. These include conflict with his extended family, financial pressures and difficulties with appropriate discipline for adolescents and children with special needs. His actions show a consistent pattern of risky responses to the commonplace behaviour of children for which parents must develop management strategies avoiding violent responses.
  18. [137]
    The obligation of a bluecard holder remains to understand and provide a protective environment for children. The 2018 incident shows clearly that the Applicant’s priority is his own view of what’s fair (for the adults) not what is in the best interests of children.
  19. [138]
    The Respondent contends that although the Applicant has engaged successfully with his period of probation and been trained in anger management that he remains a risk. This view is supported by his conduct in the violent incident at his home in 2018 where a person sustained life threatening injuries requiring airlifting to hospital. The Ambulance Service declined to attend the victim without a police presence. The victim suffered a seizure at the scene. The Tribunal considers that although the Applicant was charged for assault occasioning bodily harm whilst in company he was not convicted.
  20. [139]
    The chief concern of the Tribunal concerning risk is the attitude displayed by the Applicant in this incident in 2018. His propensity for a violent response is still a continuing concern for the Tribunal, despite his anger management training and alleged insight and remorse.
  21. [140]
    The events of 2018 show that the Applicant has serious problems with appropriate judgement in acting protectively towards children. The Applicant told the Tribunal that he was concerned for the safety of others in his actions.  His decision to take in   other adults and children late at night into his home was an extreme risk in the circumstances.  This decision was made in an already inflammatory situation against a background of domestic disputation with another family over children. The Applicant did not appear to weigh the dangers of this initial decision against the risk to those he stated he was protecting. This decision of itself shows a deficiency in the ability to judge a situation and act protectively towards the children already in his care. The Applicant consistently overestimates his capacities and abilities, and this represents a substantial risk for children. His conduct lacks discretion and caution necessary for the protection of children.
  22. [141]
    The 2018 charge against the Applicant’s shows a clear risk to children in his care due to his decision to make an armed response to the fight and failure to consider alternatives to the actions he took. The Applicant chose to attempt to settle the dispute with weapon and the reason he gave was that it was a part of a duty of care. As the Respondent points out, severe injury was a reasonably foreseeable outcome of his actions, and this remains a grave concern and insurmountable risk factor for the Tribunal. The Applicant's judgment raised serious concerns about his capacity to act protectively towards children and what that entails. This is a high-risk concern for the Tribunal mitigating many protective factors because of the violence and injury involved and because the Applicant brought violent conflict to his home by his decision.
  23. [142]
    Though not convicted, the Tribunal gives significant weight to how the Applicant handled the 2018 event. The Tribunal does not seek to seek to determine whether he is guilty of the charge. As noted in the decision in Grindrod, it was not the Respondent’s function or the Tribunal's function to adjudicate on whether the Applicant is guilty of the charges.
  24. [143]
    The Tribunal’s function involves an analysis and evaluation of risk. The arrival at the correct and preferable decision should not be concerned with proof of offences which the Applicant may have committed previously, but with the prevention of potential future harm being at the forefront of the ultimate decision.[22]
  25. [144]
    The Tribunal considers the events of 2018 represent a significant and on-going risk factor given that the Applicant shows no insight into how his actions were high risk to the children in his care.
  26. [145]
    The fact that the Applicant addressed violent behaviour concerns by completing courses is a protective factor. He also submits that his home is now stable with numerous formal supports in place. These are protective factors. A further protective factor are the Departments comments that the Applicant had sought out external help for the family of his own volition. But the risk to children remains in the features of the incident in 2018. The training undertaken by the Applicant must produce change if it is to be given significant weight.
  27. [146]
    The Applicant completed his anger management course in June 1998 but continues to lack insight, minimise his offending and to blame others. The Tribunal found this obfuscation evidenced a lack of genuine remorse and undermined the Applicant’s contention that he was not a risk to children due to his insight and management of his health concerns. He regarded himself as never likely to re-offend. 
  28. [147]
    The Applicant has had no additional entries on his criminal history for three years, but The Tribunal has decided in other cases that the passage of time alone is not determinative of whether an ‘exceptional case’ exists. Although allegations or convictions may relate to offences committed several years ago, the passage of time does not detract from their seriousness.[23]
  29. [148]
    the Applicant has attended courses to improve his behaviour and the Tribunal notes that in this current relationship, there have been no further reports of domestic violence. He states that he now will walk away from conflict. He also states that he has undertaken anger management courses as he was directed to by the sentencing magistrate.
  30. [149]
    The Applicant also submits that he has undertaken martial arts training in an effort to change his behaviour and manage his anger. This instruction (as stated by witness C in his evidence) involves “not showing aggression but being able to defend yourself. It teaches to be aware of the situation.”
  31. [150]
    The Tribunal notes the following remarks in the decision cited by the Respondent of Re TAA[24] which describes the value of insight into the harm caused by the offending as being evidence of a protective factor, as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [151]
    The Applicant states that he is seeking obtain a blue card as it is required for a kinship carer role. The Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[25]
  2. [152]
    There is no power to issue a conditional card and once issued, it is fully transferable across all areas of regulated employment and business. However, the effect of issuing the Applicant’s BlueCard is that the Applicant can work in any child related employment or conduct any child–related business regulated by the Act, not just for the purpose for which the Applicant states he seeks the card.

The Tribunal findings and decision

  1. [153]
    The Tribunal finds that the Applicant has a significant history of criminal offending involving domestic violence, against a background of child protection concerns which are significant risk factors. The most recent charge against the Applicant was in 2018 when he was aged forty-eight. Although he was not convicted of the charge in 2018, the Tribunal considers the circumstances to be exceptional when taken to together with the totality of his history of violent conduct in a domestic setting.  This clearly impacts his capacity to hold a working with children clearance.
  2. [154]
    The Tribunal finds that although the Department did not remove the children from the Applicant’s care at any time, this Tribunal is not constrained by the Department’s assessments of risk and previous decisions in this review. The Tribunal notes that the Department considered that there was a parent willing and able to care for the children, giving little weight to the role of the Applicant as stating that he has virtually no role in their care.
  3. [155]
    The Tribunal gives considerable weight to the violent conduct as a risk factor. The Tribunal is not required to weigh risk factors against protective factors. The Tribunal finds that the protective factors include the passage of time since the domestic violence convictions, the stability of the household, the community opinion of the Applicant, the choice of adult children to reside with the Applicant and the shift in discipline to his wife as opposed to him being the disciplining parent. 
  4. [156]
    The Tribunal finds that the training in anger management that the Applicant has undertaken has not improved his capacity to manage his responses to ensure children are protected and not subjected to violence. The Tribunal finds that the Applicant has not demonstrated any effective strategies to manage his responses to situations of stress and continues to make with poor choices such as in the circumstances of the 2018 violence. In this incident he was not able to prioritise the interests of children for whom he had direct responsibility. The Applicant actions show no real concern for the long-term effects of exposure of children to domestic violence. 
  5. [157]
    The Tribunal finds that the Applicant demonstrates little understanding or tolerance of the complex needs of children at different ages and those with special needs. His views are simplistic, and he stated that now he leaves discipline to others. This is of particular concern when there is said to be a two-year old child in the household. A blue card holder cannot reasonably abrogate responsibility by asserting that the safety of children rests with others.
  6. [158]
    The Witnesses for the Applicant do not assist the Tribunal regarding establishing protective factors as they are generally unaware of his history. It appears in public that his conduct led long term friends to believe the children were safe. Accordingly, their views are given little weight. 
  7. [159]
    The Tribunal finds a consistent pattern of minimisation by the Applicant of his responsibility for the harm caused to the children in his care. This tendency is not consistent with changed behaviours and constitutes a risk. The Tribunal finds no significant evidence concerning the ability of the Applicant to provide a nurturing and protective environment for children generally.
  8. [160]
    In the Tribunal’s view this is an exceptional case as it has many factors taking it out of the ordinary course of events and circumstances. The events in 2018 leading to a serious injury to another is a highly significant issue for the Tribunal. The Applicant seriously misjudged this situation with tragic consequences. Children were present when the incident took place. Together with his domestic violence offending and child protection concerns this set of circumstances is out of the ordinary course of events.
  9. [161]
    The passage of time and increased awareness of the Applicant and his desire to prioritise his grandchildren’s interests are not sufficient to enable the Tribunal to decide in favour of the issue of a positive notice to the Applicant. The Tribunal finds that the presumption under section 221(2) of the WWC Act is rebutted and that this is an exceptional case justifying the issue of a negative notice to the Applicant.
  10. [162]
    The Tribunal confirms the decision of the Director-General, Department of Justice and Attorney-General.

Orders

  1. The Decision of the Director-General, Department of Justice and Attorney-General 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 confirmed.
  1. Pursuant to section 66(1) of the Queensland Civil and Administrative tribunal Act 2009, the publication of
  1. (a)
    the contents of a document or thing filed in or produced to the Tribunal.
  1. (b)
    evidence given before the Tribunal; and
  1. (c)
    any order made or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

Footnotes

[1]  WWC Act s 257

[2]  QCAT Act s 20.

[3]  QCAT Act s 19.

[4]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.

[5]  Ibid, s 6(a).

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

[7] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].

[8] Kent v Wilson [2000] VSC 98.

[9] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

[10] Human Rights Act 2019 (Qld) s 58.

[11] Volkers V Commissioner for Children and Young People and Child Guardian [2010] QCAT 243.

[12]  Court Brief BCS 29.

[13]Chief executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 17.

[14] PML v Director-General, Department of Justice and Attorney General [2019] QCAT 88.

[15]  SWJ v Director General, Department of Justice and Attorney general [2021] QCAT 165.

[16] Human Rights Act 2019 (Qld) section 26, (s 2) section 13.

[17] Human Rights Act 2019 (Qld) section 13.

[18]  Life Story SA 001-002.

[19] PML v Director-General, Department of Justice and Attorney General [2019] QCAT 88.

[20]  PML v Director-General, Department of Justice and Attorney General [2019] QCAT 88

[21] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[22] Western Australian Court of Appeal in Chief Executive Officer, Department of Child Protection v Grindrod (No2) (Grindrod) [2008] WASAT 289.

[23] Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243.

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

[25] Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 17

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    20 Jan 2022

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (Grindrod) [2008] WASCA 289
1 citation
Jump To
Cite 1 - [2008] WASCA 289
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 17
1 citation
Jump To
Cite 1 - [2008] WASCA 17
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Grindrod v Chief Executive Officer [2008] WASAT 289
1 citation
Jump To
Cite 1 - [2008] WASAT 289
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98
PML v Director-General, Department of Justice and Attorney-General [2019] QCAT 88
4 citations
Jump To
Cite 1 - [2019] QCAT 88
Cite 2 - [2019] QCAT 88
Cite 3 - [2019] QCAT 88
Cite 4 - [2019] QCAT 88
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165
2 citations
Jump To
Cite 1 - [2021] QCAT 165
Cite 2 - [2021] QCAT 165
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
3 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243
Cite 3 - [2010] QCAT 243

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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