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Applicant HC v Director-General, Department of Justice and Attorney-General[2022] QCAT 325

Applicant HC v Director-General, Department of Justice and Attorney-General[2022] QCAT 325

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Applicant HC v Director-General, Department of Justice and Attorney-General [2022] QCAT 325

PARTIES:

APPLICANT HC

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML361-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

14 September 2022

HEARING DATE:

12 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 10 August 2020 is confirmed.
  2. Publication of the applicant’s name, as well as those of the complainant and all children, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Publication of the documents filed by the parties as evidence in these proceedings is prohibited, save as was and is necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons, under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue card – where applicant issued with negative notice – whether exceptional case

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

Human Rights Act 2019 (Qld), s 13

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

Re FAA [2006] QCST 15

RPG v Public Safety Business Agency [2016] QCAT 351

Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142, [52].

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

R Johnson

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General made on 10 August 2020, to issue a negative notice and to refuse the applicant’s application for a blue card.
  2. [2]
    Blue Card Services undertook a criminal history check in relation to the applicant. This check disclosed the following criminal history:
    1. (a)
      Common assault (DV) – T2 and Stalk/intimidate intend fear physical etc harm (domestic) – T2 on 14 July 2014. 
  3. [3]
    At first instance, the applicant was placed on a good behaviour bond for two years.  Conditions were placed requiring the applicant to report to a nominated probation and parole service and to comply with the Apprehended Violence Order (AVO) imposed. 
  4. [4]
    On appeal, the Applicant was re-sentenced to a 12 month good behaviour bond, no conviction was recorded and he was no longer supervised by New South Wales Probation and Parole.  An AVO was made on the same terms, but the duration of the order was reduced from five years to 12 months to coincide with the good behaviour period.

The “blue card” legislative framework

  1. [5]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act). The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [6]
    A child related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [7]
    As applicable to this case, the Working with Children Act requires that a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’

  1. [8]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [9]
    Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [10]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [11]
    The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

Evidence relied upon by Blue Card Services

  1. [12]
    Blue Card Services summarised the information contained in the police brief as follows:
    1. (a)
      The applicant and complainant had been in a relationship for approximately eight years at the time of the offence.  They share three children, aged six years, five years, and two years.  The oldest child has been diagnosed with Asperger’s syndrome.  The complainant also had a child from a previous relationship, aged 12 years, who was diagnosed with ADHD and Pervasive Development Disorder.
    2. (b)
      The applicant had been diagnosed with Asperger’s syndrome approximately 18 months prior to the offence and had been placed on anti-depressant medication to assist him with his anxiety.  The applicant had decided to come off the medication about four weeks prior to the offence.
    3. (c)
      At approximately 8:30am on 24 April 2014 the complainant was in the kitchen and the children were in the living room.  The complainant told the applicant that they needed to get ready to leave for a scheduled appointment.
    4. (d)
      The applicant replied that the children had not cleaned up enough yet and called out to the children to turn the TV off and clean up.
    5. (e)
      The children went outside a short time later and the complainant heard one of them scream.  The child came running inside a short time later, followed by the applicant who said in a loud voice, ‘I’m going to teach you a lesson, do you like it when people shout at you, this is how I feel when you shout at me’.  The complainant advised police she was fearful that the applicant was having a ‘brain snap’ due to coming off his medication.
    6. (f)
      The complainant walked over to the applicant to distract him from yelling at the child, however he continued to yell over her shoulder.  The complainant attempted to knee the applicant in the groin before slapping him in the face.  He did not respond to this, so the complainant went over to the child in an attempt to shield him.
    7. (g)
      The applicant grabbed the complainant by the shoulders and pushed her aside.  The complainant then pushed the applicant in the chest while he was bent over, which caused him to fall over.
    8. (h)
      The applicant then picked up the child and carried them outside.  The child was seen to be kicking and screaming during this.
    9. (i)
      The applicant continued to carry the child in the direction of a neighbour’s house.  The other children were distressed by these events.
    10. (j)
      The complainant followed the applicant and could hear the child calling out to her.  The complainant saw the applicant sitting on the ground restraining the child.  When the child saw the complainant he struggled and eventually broke free, running off.
    11. (k)
      The complainant could hear the applicant running and then a scream from the child.  The complainant told the child to run to the cubby house where the other children were.
    12. (l)
      The applicant approached the complainant and said ‘good one’ and made a threatening gesture and noise that he usually makes before he hurts her.  The applicant was angry and described to be barely controlling himself.
    13. (m)
      The complainant was frightened and let out a shriek while cowering.  The applicant spat on her and said ‘I spit on you’.
    14. (n)
      The applicant then walked off to the house and took the complainant’s phone and car keys.
    15. (o)
      The complainant attempted to get into the house to retrieve her phone and the applicant pushed her over.
    16. (p)
      The complainant was scared and decided to be compliant with the applicant.  The applicant told the complainant that what she had done was wrong and that she had to apologise to him in front of the children.  A short time later the applicant got in the car with the children and left.
    17. (q)
      At approximately 2:30pm the same day, the complainant attended the police station in a distressed state to report the incident.  She indicated that she wanted the applicant’s behaviour to stop and that when the applicant is aggressive she becomes fearful for her safety and submissive in an attempt to stop the attacks.
    18. (r)
      The complainant had been attending a Women Entering New Directions course to assist her in dealing with previous incidents of domestic violence with the applicant.  She indicated that she did not want her children to grow up thinking that behaviour is normal.
    19. (s)
      The applicant was interviewed by police and made admissions to the assaults and intimidation.
  2. [13]
    Judge Ellis of the New South Wales District Court judge made the following comments on appeal:

Having read all of the material, it’s fairly clear that there is fault on both sides over the whole incident.  I think if one is trying to teach a child a lesson about shouting, the shouting doesn’t have to go on for more than a few words, one would have thought, to get the point across.  Thereafter, one would have thought it just started to become intimidating or frightening for the child.

…

[F]or someone who says she doesn’t want a house with children raised for violence, she’s the one who actually instigated the physical violence before you did and in any event, your violence was fairly minor, on the scale of things.  More a push away, rather than an aggressive, physical act.

The reality is though, you’re fit, healthy, your (sic) large as male and seeing such an individual moving towards a rage is confronting for most people, more than confronting, no doubt, for children and a female, especially when you know that she does have poor responses to these things because of her conditions and at the end of the day, you have to deal with people as you find them.

…

I think that you’re doing the right thing, in terms of your own attendance at the MENS program and also your regular sessions with the psychologist, [omitted].  I think you probably need those issues.

The applicant’s evidence and submissions

  1. [14]
    The Applicant provided the Tribunal with his life story filed on 4 January 2021.  He also gave oral evidence at the hearing. 
  2. [15]
    Relevantly, the Applicant’s response to the allegations are set out in his life history as follows:

I admit to being very wrong in my response to [the complainant] and that is why I presented to the police when she gold me she had reported it.  [The complainant] and I were in a very unhealthy relationship where [the complainant] herself was violent towards me and often threatened suicide.  Attached are letters from [the complainant] and her father submitted as references to the district court appeal where [the complainant] stated ‘When applied for an AVO my understanding was that it would be placed on both of us as a framework to stop us behaving abusively towards each other’ and ‘[the applicant] and I have reviewed my incident report with the children’s psychologist, [omitted] and she pointed out that I was over-reacting to [the applicant’s] disciplining of the boys as I had PTSD from witnessing their challenging acts of self-harm when they were toddlers’.  [The complainant’s father] wrote that I ‘always attempted to negotiate and resolve issues with [the complainant]’, and ‘responded out of character in an aggressive and unacceptable manner’.  I appealed the conviction to the District Court of NSW in September 2014 where Judge Ellis stated (court transcript attached) ‘it’s fairly clear there is fault on both sides over the whole incident’ and ‘On top of that, for someone who says she doesn’t want a house with children raised for violence, she’s the one who actually instigated the physical violence before you did and in any event, your violence was fairly minor on the scale of things.  More a push away, rather than an aggressive, physical act’.  Mostly though is a statement of ‘A section 10 bond, there is finding of guild for the offences but there is no conviction recorded and you are legitimately entitled to say, if it’s necessary for instance on official documents, that you have no criminal convictions’.  This is further reiterated in the attached ‘Advice of court result’.  I admit this is what I am finding as most confusing in my negative notice.  In ‘Reasons for the decision to issue a negative notice’ it states 5.1 ‘the applicant has convictions for the following offences – Common Assault (DV) – T2; and Stalk/intimidate intend fear physical etc harm (domestic) – T2.’  And 6. ‘The applicant has two convictions recorded on his criminal history for violent and threatening behaviour that was directed towards his partner and child.’  All communications received in regards to the negative notice only refer to the police report and the original court findings from Tweed Heads, and nothing in regards to the District court appeal and the section 10.

…

Post the incident in 2014 I attended MEND (Men Exploring New Directions) which was a group therapy program.  I also sought help from a psychologist at Tweed Heads.

  1. [16]
    In his oral evidence before the Tribunal, the applicant gave the following evidence:
    1. (a)
      The applicant denied that there had been any previous incidents of domestic violence with the complainant.
    2. (b)
      The applicant had an incomplete recollection of the domestic violence incident that took place in 2014.  However, he admitted that he raised his voice, restrained a child and assaulted the complainant.
    3. (c)
      The applicant disputed other aspects of the allegations put to him.  For example, he denied having spat on the complainant, but admitted saying to her that ‘I spit on you’.
    4. (d)
      The applicant emphasised the ‘one-off’ nature of the incident.
    5. (e)
      The applicant focussed on the complainant’s conduct in instigating the violence, and on her mental health issues.  He adopted Judge Ellis’ description of his conduct was ‘fairly minor’.
    6. (f)
      The applicant currently sees a psychologist, approximately every three months. 
  2. [17]
    The applicant did not obtain any evidence from his psychologist or from the MEND program he completed.  However, he provided a report dated 6 November 2012 in relation to a possible diagnosis of Asperger’s Syndrome.
  3. [18]
    The applicant also gave evidence that he currently provides full-time care to the three children.
  4. [19]
    The applicant’s wife also provided a character reference and gave oral evidence at the hearing.  Her evidence was favourable, and she spoke in positive terms about the applicant’s parenting skills.

Is this an exceptional case?

  1. [20]
    The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
  2. [21]
    In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[9]
  3. [22]
    There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[10]
  4. [23]
    Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

Whether the offence is a conviction or a charge

  1. [24]
    The applicant’s criminal history includes two findings of guilt in respect of Common assault (DV) – T2 and Stalk/intimidate intend fear physical etc harm (domestic) – T2.  Although no conviction was recorded, this is regarded as a conviction as defined in Schedule 7 of the Working with Children Act.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

  1. [25]
    The offences with which the applicant was found guilty were not serious or disqualifying offences.

When the offence was committed or is alleged to have been committed

  1. [26]
    The applicant’s offending took place in 2014.

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

  1. [27]
    The applicant’s offending took place in the presence of children.  Children are entitled to be cared for in an environment which is free from domestic violence.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

  1. [28]
    The applicant was placed on a good behaviour bond and an AVO for a period of 12 months.  No convictions were recorded.

Other relevant circumstances

  1. [29]
    It is not in dispute that the applicant committed an act of domestic violence in 2014.  Despite suggestions in the material to the contrary, there is no cogent evidence before the Tribunal to support a finding that he committed acts of domestic violence prior to that incident.
  2. [30]
    In Vaeau v Director-General, Department of Justice and Attorney-General, the Appeals Tribunal rightly stated:[11]

Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm.

  1. [31]
    In assessing whether an exceptional case exists, my task includes a consideration of whether the applicant has provided sufficient evidence to adequately address the possibility of future risk to children.
  2. [32]
    In my view, the factors in this case are finely balanced.  On the one hand, eight years have passed without any further acts of domestic violence took place.  The applicant has full custody of his three children, and his wife has provided favourable evidence in relation to his parenting skills.
  3. [33]
    However, on the other hand, I am concerned about the applicant’s minimisation of his behaviour and focus on the complainant’s conduct and mental health issues.  This raises questions as to the level of insight the applicant has into the harm caused by his behaviour, not only to the complainant but to the children present.
  4. [34]
    What could potentially have tilted the balance in the applicant’s favour is if he had provided a psychological report expressing favourable views in relation to his level of insight, as well as his management of triggers and stressors.  The applicant’s evidence is that he has attended the MEND program and continues to see a psychologist.  No explanation was provided as to why he did not provide supporting evidence in respect of either treatment.
  5. [35]
    In the circumstances, I have placed considerable weight on the absence of such a psychological report in assessing whether an exceptional case exists.  The assessment of risk by the Tribunal can only be conducted on the basis of the evidence before it, including the limitations of the evidence adduced by the applicant.  It may be that such evidence could lead to a different application in any future application for a blue card made by the applicant.

Conclusion

  1. [36]
    Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
  2. [37]
    I have considered the provisions of the Human Rights Act 2019 (Qld), and I am satisfied that any limitation on the Applicant’s human rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.[12]
  3. [38]
    I therefore confirm the decision under review.

Non-publication order

  1. [39]
    Given that the offences involve children related to the applicant, I order that the publication of his name, as well as the names of the complainant and all children in the proceeding, be prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. [40]
    I also order, pursuant to s 66(1)(a) of the QCAT Act, that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.

Footnotes

[1]  Working with Children Act, s 5.

[2]  Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

[3]  Working with Children Act, s 360. See also s 6.

[4]  Working with Children Act, s 221.

[5] Re FAA [2006] QCST 15, [22].

[6]  Working with Children Act, s 226(2)(a).

[7]  Working with Children Act, s 226(2)(f).

[8] Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.

[9]  [2004] QCA 491, [30].

[10]  Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27].

[11]  [2021] QCAT 142, [520] (footnote omitted).

[12] Human Rights Act 2019 (Qld), s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

    Applicant HC v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Applicant HC v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2022] QCAT 325

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    14 Sep 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
Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 142
1 citation
Jump To
Cite 1 - [2021] QCAT 142
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 351
2 citations
Jump To
Cite 1 - [2016] QCAT 351
Cite 2 - [2016] QCAT 351
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
1 citation
Jump To
Cite 1 - [2021] QCATA 142
Zipside Pty Ltd v Anscor Pty Ltd [2004] QCA 491
1 citation
Jump To
Cite 1 - [2004] QCA 491

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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