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AMD v Director General, Department of Justice and Attorney-General[2022] QCAT 4

AMD v Director General, Department of Justice and Attorney-General[2022] QCAT 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

AMD v Director General, Department of Justice and Attorney-General [2022] QCAT 4

PARTIES:

AMD

(applicant)

V

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML157-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

4 January 2022

HEARING DATE:

8 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The decision of the Director General, Department of Justice and Attorney-General made 6 April 2020 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 Qld and to issue a negative notice is confirmed. 

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – where a breach of a domestic violence order exists – where workplace misconduct involving children is alleged – whether exceptional case exists – whether not in the best interests of children to issue a positive notice

Domestic and Family Violence Protection Act 2012 s 10

Human Rights Act 2019 (Qld), s 13(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 9(1), s 17(1), s 19, s 20, s 21, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

Cabal v United Mexican States (2001) 180 ALR 593

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

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13

JA v Chief Executive, Public Safety Business Agency [2015] QCAT 215

K v Cullen (1994) 126 ALR 38

McKee v McKee [1951] AC 352

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

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

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

YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 139

APPEARANCES &

REPRESENTATION:

 

Applicants:

Self-represented

Respondent:

A Sanders, Solicitor

REASONS FOR DECISION

What is this application about?

  1. [1]
    The Working with Children (Risk Management and Screening) Act 2000 (Qld) (“the WWCA”) provides a regime for the issuing of positive and negative notices which in turn govern whether a person can hold a blue card allowing them to work with children in Queensland.
  2. [2]
    AMD previously held a blue card and worked with children in disability services.
  3. [3]
    On 6 April 2020, following a notification from the Queensland Police Service, The Director General, Department of Justice and Attorney-General (“Blue Card Services”) made a decision on 6 April 2020 to cancel AMD’s positive notice and blue card, and to issue a negative notice.    This involved a finding by Blue Card Services that AMD’s case is an “exceptional case” in which it would not be in the best interests of children for AMD to hold a blue card.
  4. [4]
    By an application for review filed 22 April 2020, AMD asks the tribunal to review the decision of Blue Card Services to cancel AMD’s positive notice and blue card and to issue a negative notice.
  5. [5]
    The role of the tribunal in these proceedings is to review the circumstances afresh and to produce the correct and preferable decision[1].
  6. [6]
    The role of Blue Card Services is to assist the tribunal in making that decision,[2] rather than to take an adversarial role or to defend the decision under review.
  7. [7]
    The following decision and the reasons for it are published in a de-identified format as the tribunal in these proceedings has previously ordered so.[3] 

Does the tribunal have jurisdiction to hear this application?

  1. [8]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) or by an enabling Act[4] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[5] 
  2. [9]
    Under sections 353 and 354 of the WWCA, AMD is an eligible person who can apply for a review of a decision to issue a negative notice on the basis that his is an “exceptional case”.
  1. [10]
    In all of the circumstances, I am satisfied that the decision is one the tribunal has jurisdiction to review.

What factors need to be considered in making the tribunal’s decision?

  1. [11]
    The WWCA provides:

5 Object of Act

The object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring—

(a) the development and implementation of risk management strategies; and

(b) the screening of persons employed in particular employment or carrying on particular businesses.

6 Principles for administering this Act

This Act is to be administered under the following principles—

(a) the welfare and best interests of a child are paramount;

(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.

  1. [12]
    As early as the decision in McKee v McKee[6] Viscount Simonds noted that in laws governing children, their welfare and best interests are the paramount consideration “to which all others yield”.
  1. [13]
    A child-related employment decision must be reviewed under the principle that the welfare and best interests of children are paramount.[7]
  2. [14]
    Under the WWCA, a blue card must be issued unless the decision-maker is satisfied that an “exceptional case” exists and that it would not be in the best interests of children to do so:

221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence

(1) Subject to subsection (2), the chief executive must issue a positive notice to the person if—

(a) the chief executive is not aware of any police information or disciplinary information about the person; or

(b) the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—

(i) investigative information;

(ii) disciplinary information;

(iii) a charge for an offence other than a disqualifying offence;

(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv)—

For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).

(c) the chief executive is aware of a conviction of the person for an offence other than a serious offence.

(2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. 

  1. [15]
    The expression “exceptional case” is not defined in the WWCA but it is settled law that the determination of whether a case is exceptional involves the exercise of a board discretion that should be “unhampered by any general rule and is to be construction in the particular context of the legislation”.[8]
  2. [16]
    In Cabal v United Mexican States (2001) 180 ALR 593, Justice Kirby expressed the view that for something to be unusual and extraordinary it “is necessary to depart from [the normal] rule.”
  3. [17]
    Justice Moore said in K v Cullen (1994) 126 ALR 38 that “exceptional” implies something out of the ordinary and that the test is to compare “the circumstances of the case and what might be thought to be usual circumstances.”
  4. [18]
    Justice Fullagher in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions[9] adopted the warning of Justice Luxmore in Perry and Browns Patents[10], that “it would be most unwise to lay down any general rule with regard to what is an exceptional case […] All these matters are matters of discretion.”
  5. [19]
    The tribunal exercises a board general discretion in deciding whether an exceptional case exists, which is not confined by a general rule.[11]
  6. [20]
    Where a person has been charged with, or convicted of, an offence, the tribunal must have regard to suitability factors set out in section 226 of the WWCA in determining whether an “exceptional case” exists:

226 Deciding exceptional case if conviction or charge

(1) This section applies if the chief executive—

(a) is deciding whether or not there is an exceptional case for the person; and

(b) is aware that the person has been convicted of, or charged with, an offence.

(2) The chief executive must have regard to the following—

(a) in relation to the commission, or alleged commission, of an offence by the person—

(i) whether it is a conviction or a charge; and

(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and

(iii) when the offence was committed or is alleged to have been committed; and

(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and

(v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;

(b) any information about the person given to the chief executive under section 318 or 319;

(c) any report about the person’s mental health given to the chief executive under section 335;

(d) any information about the person given to the chief executive under section 337 or 338;

(e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

  1. [21]
    The application “must” then be decided “having regard to” the matters specified in paras (a) to (e) of section 226, but the list is not exhaustive, and the tribunal is not confined to considering only those matters and no others.[12]  
  2. [22]
    The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Lister (No 2)[13] said that:

The prescribed matters should not be considered in isolation. There may well be other factors that are relevant to determining whether a case is an exceptional one. Ultimately the determination is a matter of discretion on a consideration of the merits of the case, having regard to those factors that must be taken into account.

What factors weigh against AMD?

  1. [23]
    AMD has never been charged with or convicted or a serious offence or a disqualifying offence.[14]
  2. [24]
    However, AMD:
    1. (a)
      was named as the respondent in a Domestic Violence Protection Order (“DVO”) issued on 30 October 2018.  AMD was present in Court when the order was made and understood that it contained an order that he be of good behaviour towards the aggrieved; and
    2. (b)
      has been twice charged with a breach of the DVO, details of which are as follows:
      1. (i)
        On 20 June 2019, AMD was convicted of contravening the DVO on 16 May 2019 in relation to threats made during a heated argument. The outcome of these charges was an $800 fine, with no conviction recorded.
      2. (ii)
        On 29 July 2021, AMD was convicted of contravening the DVO between 21 and 25 July 2021 in relation to the sending of abusive text messages.  The outcome of the charges was 9 months’ probation, no conviction recorded.  The probation order will expire on 29 April 2022. 
  3. [25]
    The reasons for the penalties imposed by the Court for the DVO offences were not available to the tribunal for the hearing.
  4. [26]
    I am satisfied that the offences were committed by AMD and, given that one of the offences occurred within the presence of a child, that the circumstances of the offending are relevant to and involve children.
  5. [27]
    In addition to domestic violence, the evidence also raises concerns regarding AMD’s suitability for a blue card with respect to historical drug use, allegations that he produced a false or misleading statement to police, and allegations of inappropriate workplace conduct, including involving children.
  6. [28]
    I will discuss each in turn, below.

Allegations of Domestic Violence and the Making of a DVO

  1. [29]
    AMD says that as a child he was witness to his father being physically, verbally and emotionally violent towards his mother and his siblings. He says he was not taught how to or allowed to express his emotions in a healthy way, and believes his upbringing had an effect on how he dealt with anger as an adult and has resulted in outbursts of anger towards his partner.[15]
  2. [30]
    On 30 October 2018 a DVO was made by a Magistrates Court local to AMD, naming AMD as the respondent and protecting his then eight-month pregnant partner as the aggrieved.
  3. [31]
    The circumstances giving rise to the DVO were said to be as follows:
    1. (a)
      AMD and his partner had an ongoing argument over his use of cannabis.
    2. (b)
      On the morning of 28 October 2018 AMD woke his sleeping partner asking for money to “buy smokes”. 
    3. (c)
      When she refused, believing his intention to be to purchase cannabis, he ripped the sheets from her (the police observed the mattress had been moved off the bed frame[16]) and poured a bottle of water over her.
    4. (d)
      AMD was then punched in the head several times by his partner, so he left the room and called the police. 
    5. (e)
      Police formed the view that “both sides have been responsible for the conflict” however, that the aggrieved was heavily pregnant and that a verbal argument escalated to tipping water on the aggrieved and forcibly removing her from bed indicated that the aggrieved needed protection.
    6. (f)
      AMD was belligerent and uncooperative when police attended the scene.
  4. [32]
    AMD said in cross-examination on this incident that:
    1. (a)
      He ripped the sheets from the bed but did not flip his partner out of bed;
    2. (b)
      He did not wake her;
    3. (c)
      There was no discussion of money;
    4. (d)
      He “may have” yelled at her to get out of bed; and
    5. (e)
      He denies being belligerent or uncooperative with police.
  5. [33]
    On 4 June 2019, in the presence of AMD, the Court varied the terms of the DVO to name the child now born as an aggrieved and continuing conditions through to 3 June 2024.
  6. [34]
    The grounds for the variations included “escalating threats towards the aggrieved” that included “causing harm to the aggrieved’s family members and direct threats to harm the aggrieved”.
  7. [35]
    Specifically, it was alleged that whilst AMD and the aggrieved were driving interstate, they began arguing over parenting issues and that, during the argument, the aggrieved recorded a video (sighted by police) in which AMD is said to have called the aggrieved a “bitch”, a “slut” and stating “you’re dead” and “I am in control”.[17]   AMD’s infant child was present at the time.[18]
  8. [36]
    Of these allegations AMD says[19] that:

The argument was soon resolved between my partner and I and it did not escalate further than a verbal argument.  This event happened at a time when my partner and I were both very tired and feeling stressed.   Unfortunately, what could have remained as a simple discussion over parenting duties escalated into an argument as we were both very tired due to lack of sleep from having a baby, as many other parents experience… the argument was soon resolved, and no charges were made.

  1. [37]
    In cross-examination AMD said that he did not intend his words as threatening but accepted that they could be taken as such.  When asked if his conduct distressed his infant child who was present during the argument, he said “I wouldn’t say no, but she was only one”.
  2. [38]
    In his personal history statement dated 11 June 2020, AMD said the 2019 incident occurred when he was experiencing workplace stress and that the change in behaviour is something “I wish I could take back” and that “I understand that my actions were not ok, they were wrong and there is no excuse for that type of behaviour”.[20]
  3. [39]
    AMD says in his 11 June 2020 statement that he engaged with DV Connect Mensline and Uniting Care to seek help, to learn from his actions and ensure that he makes better choices when he is faced with stressful or challenging times.[21]
  4. [40]
    In an updated personal history dated 23 November 2020,[22] AMD produced a letter to the tribunal from Uniting Care evidencing that he attended two sessions of the “Men Choosing Change” program.  In his updated statement AMD said that he felt he had “come a long way since my offending behaviour in May 2019”.
  5. [41]
    AMD said in the hearing that he completed most of the program but that Uniting Care “decided not to have him in the program anymore”.
  6. [42]
    AMD also produced a letter from an Accredited Mental Health Social Worker confirming that AMD had been receiving support for issues related to workplace stressors, with related symptoms of anxiety.  Although the letter produced does not mention domestic violence strategies, AMD said in his 23 November 2020 statement that his counsellor was helping him with strategies to “enable me to control my thoughts and emotions appropriately and express myself in an effective way rather than losing control of myself”.   He concluded that “I can honestly say I will never be the person I used to be and will never display that type of behaviour again”.
  7. [43]
    None of AMD’s treating practitioners or counselling were called to give evidence at the hearing so it is difficult to place much weight on their letters as evidence.
  8. [44]
    On 25 July 2021 the aggrieved made a police report regarding multiple abusive text messages she had received from AMD on 22 July 2021 and 24 July 2021.
  9. [45]
    On 26 July 2021 AMD was charged with breaching the DVO by sending the aggrieved “abusive and threatening text messages” and was incarcerated for four days.
  10. [46]
    Of this allegation, AMD says:
    1. (a)
      At the time he sent the messages he was homeless, the aggrieved having unilaterally emptied their joint account of $30,000, transferred a newly purchased vehicle to her sole name and evicted AMD from their home; and
    2. (b)
      He reacted poorly when informed, about a week later, that the aggrieved had planned the separation to maximise her entitlement to social security benefits.
  11. [47]
    AMD said on cross-examination that he has developed a number of strategies to help him to avoid emotional responses to stressors, including writing a daily journal to record how he is feeling, what he is thinking and what he is doing to do about it.  He said he practices mindfulness.  He goes for a “time out” if he recognises that a conversation is escalating.
  12. [48]
    Blue Card Services raised concerns that AMD minimises his perpetration of domestic violence.  AMD mentioned in the hearing that he felt bullied by his former partner and the police through the process.
  13. [49]
    Blue Card Services submit that AMD’s perpetration of domestic violence and his contravention of domestic violence orders:
    1. (a)
      raises concerns in relation to his ability to make appropriate behavioural choices, to exercise judgment and to resolve relationship conflict in a calm and non-aggressive manner; and
    2. (b)
      reflects a disregard for the aggrieved, and an inability to abide by Court orders,

and submit that children rely on adults responsible for their car to manage stressors appropriately and to role model appropriate behaviour. Therefore, AMD’s offending raises concerns as to his eligibility to engage in child related employment.   

Allegations of inappropriate behaviour working with children

  1. [50]
    On 24 February 2020 AMD’s former employer notified Blue Card Services that his employment had been terminated due to inappropriate behaviour with staff members and children.  They provided an updated complaint on 26 February 2020 that AMD had supplied alcohol and cannabis to a minor in his care. 
  2. [51]
    The allegations against AMD included that:
    1. (a)
      On a public holiday shift (New Year’s Day, 2020) when caring for a disabled client in the presence of the client’s brothers, one aged seventeen, that AMD consumed alcohol and marijuana whilst working and supplied it to the boys present;
    2. (b)
      He had intimidated and bullied adult staff on various occasions from March 2019 until when his employment ended on 10 January 2020; and
    3. (c)
      Whilst rostered on to care for a client, he left the client and went home for a shower.
  3. [52]
    AMD says of these allegations:
    1. (a)
      Between May 2019 and January 2020, he was subjected to unreasonable management direction, unsafe work conditions and bullying which had a negative effect on his mental health and contributed to a change in his behaviour towards his partner that resulted in a change in police information regarding domestic violence.[23]
    2. (b)
      AMD says he experienced anxiety and depression from May 2019, that in September 2019 he began to raise his concerns with management and in November 2019 he was prescribed medication to treat his depression.
    3. (c)
      AMD was stood down from his role on 14 November 2019 and did not return to his role before his employment was terminated on 10 January 2020.
    4. (d)
      AMD says he was managed out of the company and summarily dismissed on 10 January 2020.  On 30 January 2020 he submitted an unfair dismissal application with Fair Work Australia, which was resolved in a conciliation that took place on 29 February 2020.
  4. [53]
    Evidence produced by AMD including Dreamworld gate entry records, date-stamped photographs and accommodation information indicate that AMD was holidaying with his family on the Gold Coast when the New Year’s Day allegations are said to have occurred during a shift.
  5. [54]
    The context and timing of the allegations against AMD by his former employer are concerning.  AMD’s employment was terminated on 10 January 2020.  He made an application to Fair Work for unfair dismissal on 30 January 2020 and a conciliation was scheduled for 29 February 2020.  In the conciliation, whilst the terms of his settlement with his employer were confidential, the outcome of AMD’s unfair dismissal claim resulted in a substantial payment to him and the reversal of his termination to be recorded as a resignation.  In the days prior to the conciliation his employer notified Blue Card of their complaints against him. 
  6. [55]
    AMD’s former employer were not called to give evidence so none of their very serious allegations against AMD could be tested.
  7. [56]
    It is difficult to see how the tribunal can lend any weight to the untested evidence of a former employer who terminated the applicant’s employment on certain grounds, where those grounds are untested in these proceedings, and were abandoned or adverse findings were not made against AMD in another Court or tribunal.
  8. [57]
    AMD’s employer made the drug and alcohol allegations to Blue Card Services on 24 February 2020.  This is within days of the employer receiving notice of AMD’s unfair dismissal claim and despite the fact that the incidents said to have occurred some eight weeks prior.
  9. [58]
    AMD points out that if he in fact provided alcohol to a minor and illicit substances to any person, including a minor, these would be criminal offences.  Yet, there is no evidence that AMD’s employer made any complaint to authorities regarding what they assert AMD did, suggesting that the complaint lacks merit and was made vexatiously.       There is considerable merit in this argument by AMD. 
  10. [59]
    Blue Card Services submit that there are several reasons why the tribunal should nevertheless afford weight to the workplace accusations against AMD, namely:
    1. (a)
      the information provided by the anonymous informant suggests that AMD is known to the informant and that the informant is familiar with his roles and responsibilities;
    2. (b)
      it is open to conclude from the information supplied by AMD’s employer and AMD that he was providing care during the period in which the alleged conduct took place;
    3. (c)
      there is no independent evidence to support a finding that the assertions were fabricated.
  11. [60]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale.  According to Justice Dixon in Briginshaw v Briginshaw[24]:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.

  1. [61]
    The evidence against AMD with respect to his workplace is at best, untested and lacking in substantiation and, at worst vexatiously fabricated by his employer during the unfair dismissal proceedings.  In any event, it does not satisfy me to the requisite standard that the very serious allegations against AMD are made out or are sufficiently substantiated to be considered in these proceedings.  Accordingly, I lend no weight to them.

Allegations of producing a false or misleading statement

  1. [62]
    AMD’s police history indicates an interstate charge on 30 November 2020 of knowingly producing a false or misleading statement for which a $200 fine was imposed.
  2. [63]
    The factual basis of the charge is unknown. 
  3. [64]
    Of this incident AMD says the charge is recorded on his criminal history as an administrative error/case of mistaken identity and that he believed he had it removed.   
  4. [65]
    Whilst there is no independent evidence before the tribunal to support AMD’s assertion, there is also no reason to disbelieve him, and he spoke frankly about all other matters noted on his criminal history.   
  5. [66]
    Further, there is no evidence to suggest that AMD was interstate at the time of the charges.   On balance, AMD presented as genuine when discussing the charge as an error and I accept it as such and lend no weight to this particular charge in making the decision under review. 

Allegations of drug use

  1. [67]
    AMD says:[25]

I have never been dependent on drugs or alcohol in my life and have never been addicted to any substance.  I have also never been involved in any illegal activities.

  1. [68]
    However, he concedes to using cannabis in the time leading up to the DVO order in 2018 despite saying in the hearing that his use of cannabis ceased when he immigrated to Australian in 2016.
  2. [69]
    Blue Card Services submit that the material before the Tribunal and AMD’s oral testimony suggests that he has had experienced recent substance abuse issues.   They say that AMD has failed to substantiate the steps and strategies he employs to manage his cannabis consumption, such that it does not manifest in future behaviours of concern. 
  3. [70]
    It is certainly true that AMD’s evidence does not address his former drug use or any strategies he has engaged in to prevent recurrence.  There is insufficient evidence before the tribunal that AMD has addressed his prior drug use issues and that he has strategies in place to avoid relapse.

Discussion and findings - is AMD’s case exceptional?

  1. [71]
    The tribunal has observed that “a person’s behaviour takes on greater magnitude when viewed in the context of protecting children”.[26]
  2. [72]
    Working with children includes an obligation to act responsibly and to protect them, including from potentially stressful or threatening situations.[27]
  3. [73]
    Further, children are entitled to be cared for in a way that protects them from harm, or the likely risk of harm[28] and children also rely upon adults to be positive role models:

It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[29]

  1. [74]
    Whilst AMD is to be given credit for the efforts he has made to return to employment, and to secure accommodation from a position of homelessness, and for the efforts he continues to make to improve upon his past behaviours, to achieve sobriety from his cannabis use and for his enthusiasm for working in the challenging field of disability services, AMD has not acted protectively in relation to his own child, having committed an act of domestic violence in breach of an existing DVO within the presence of his infant daughter, and having committed an act of domestic violence when the aggrieved was eight-months pregnant with his daughter.  
  2. [75]
    As the tribunal has previously observed:

It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm.[30]

  1. [76]
    Although AMD said in November 2020 that he sought treatment to manage anxiety and anger and stressors, and that he would not return to past behaviours, he then committed a further breach of the DVO in July 2021, namely, during the currency of these proceedings and after he says he had undertaken counselling and treatment. 
  2. [77]
    That these proceedings were on foot as a consequence, in part, of police information regarding domestic violence, and that AMD’s behaviour was under scrutiny, did not influence or alter his behaviour or choices and did not prevent him from committing further acts of domestic violence. 
  3. [78]
    When asked about this during the hearing and to explain why his offending conduct would not happen again, AMD said that he couldn’t say it won’t happen again, but, rather, that he doesn’t want it to happen again.  This is deeply concerning.
  4. [79]
    Whilst AMD’s situation in July 2021 was grave, it does not excuse the perpetration of domestic violence and certainly not in the context of an assessment for blue card eligibility.  
  5. [80]
    AMD has not established that his treatment and counselling was targeted at anger management and domestic violence, nor that it has given him successful strategies for managing his anger during stressful experiences and times of hardship.  In fact, he committed an act of domestic violence after completing the treatment and counselling referred to in his evidence.
  6. [81]
    Even if the tribunal were to accept that any current strategies employed by AMD to manage emotions, anger and stressors, may be effective in the long term, not enough time has passed since the last incident of domestic violence in July 2021 to test those strategies to any satisfactory degree[31].
  7. [82]
    There is also no evidence before the Tribunal of counselling or strategies to avoid AMD relapsing to his prior use of cannabis.   
  8. [83]
    Finally, AMD gave evidence that he was diagnosed with anxiety and depression and that when his situation was at its worst in July 2021 that he had thoughts of ending his life.  Although it is a requirement of AMD’s probation that he seek mental health treatment, and there was evidence of recent engagement the tribunal was not able to explore with any current or treating practitioner how, if at all, AMD’s attendances upon and treatment by those practitioners may be seen to prevent further behaviours of concern.
  9. [84]
    I am not satisfied that the best interests of children are served by issuing AMD with a positive notice.   His case, therefore, is an exceptional one.

What of AMD’s human rights?

  1. [85]
    As required by the Human Rights Act 2019 (Qld) I have had regard to AMD’s human rights, including the right to freedom of expression[32] and the right to not have his reputation unlawfully attacked,[33] however, in the circumstances I am satisfied that any limitation on these rights is consistent with the proper purpose of promoting and protecting the human rights, interests and wellbeing of children[34] and with the paramount nature of those interests.

What is the “correct and preferable” decision? 

  1. [86]
    As AMD’s case is exceptional, he should not be issued with a positive notice.
  2. [87]
    The correct and preferable decision is to confirm the decision of the Director General, Department of Justice and Attorney-General made 6 April 2020 that AMD”s case is “exceptional” within the meaning of section 221(2) the WWCA and that a negative notice be issued accordingly.

Footnotes

[1]Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

[2]Section 21, ibid.

[3]Direction made 4 December 2020 pursuant to section 66(1) of the QCAT Act.

[4]Section 9(1) of the QCAT Act.

[5]Section 17(1), ibid.

[6][1951] AC 352 at 365.

[7]Section 360 of the WWCA.

[8]Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142 at [27], citing Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492.

[9][1983] VR 1.

[10](1930) 48 RPC 200.

[11]Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13, [42].

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

[13][2011] QCATA 87 at [16].

[14]Essentially child sex and exploitation offences, serious assaults, rape, kidnapping, dangerous drug offences, and offences of a similarly heinous nature as listed in Schedules 2 – 5 of the WWCA.

[15]Personal History dated 11 June 2020, marked Exhibit 1.

[16]Application for a Protection Order dated 28 October 2018, page 3 of 8.

[17]Statement of Reasons, paragraph 3.1.1.

[18]BCS-13.

[19]Letter AMD to Blue Card Services dated 25 August 2019 titled “Request for Submissions”.

[20]Personal History dated 11 June 2020, marked Exhibit 1.

[21]Personal History dated 11 June 2020, marked Exhibit 1.

[22]Exhibit 2.

[23]Personal History dated 11 June 2020, marked Exhibit 1.

[24](1938) 60 CLR 336 at 362.

[25]Personal History submitted by AMD, page 3 of 4.

[26]YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 139 at [23] per Member Hughes.

[27]JA v Chief Executive, Public Safety Business Agency [2015] QCAT 215 at [48]-[50].

[28]Queensland, Parliamentary Debates, Legislative Assembly, 22 June 2000, 1985 (Anna Bligh, Minister for Families, Youth and Community Care and Minister for Disability Services).

[29]CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [67].

[30]Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142 at [58], citing the preamble to and section 10 of the Domestic and Family Violence Protection Act 2012 (Qld).

[31]SWJ v Director General, Department of Justice and Attorney-General [2021] QCAT 165 at [24].

[32]Section 21, Human Rights Act 2019 (Qld).

[33]Section 25(b), ibid.

[34]Section 13(2(b), ibid.

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Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 4

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    04 Jan 2022

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