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JIS v Director General, Department of Justice and Attorney General[2023] QCAT 251

JIS v Director General, Department of Justice and Attorney General[2023] QCAT 251

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JIS v Director General, Department of Justice and Attorney General [2023] QCAT 251

PARTIES:

JIS

(applicant)

v

Director- General, Department of Justice and Attorney- General

(respondent)

APPLICATION NO/S:

CML054-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 July 2023

HEARING DATE:

16 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Matthews

ORDERS:

That the decision of the Director General, Department of Justice and Attorney General that JIS’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

CHILD WELFARE – APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant represents a risk of harm to children including the likelihood of future risk – whether protective factors outweigh risk factors – where applicant has no criminal charges – where information received from the Department of Child Safety of substantiated harm – carer

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24, s 66

Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 360

Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87

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

TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Catherine Davis - Respondent

REASONS FOR DECISION

  1. [1]
    The applicant, JIS applied for a working with children clearance (‘Blue Card’) on 10 February 2021 pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (“WWC Act”).
  2. [2]
    A brief time after, in June 2021, notification of disciplinary action against the applicant was received by the respondent which resulted in a reassessment of the applicants’ eligibility to hold a blue card.
  3. [3]
    The applicant was advised that the respondent was intending to issue a negative notice and advised the applicant to address whether this was an exceptional case by way of written submission.
  4. [4]
    Upon assessing JIS’s eligibility and the submissions he provided, the Respondent issued a negative notice by way of letter dated 31 January 2022.
  5. [5]
    Following a copy of the reasons and outcome being provided to the applicant, the applicant filed an application to the Tribunal filed 14 February 2022 to review the decision on the basis that the applicant considered this to not be an exceptional case.
  6. [6]
    The matter was set down for a two day hearing and was heard on 15 and 16 February 2023.

The law and legislative framework

  1. [7]
    Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), the purpose of the Tribunal in its review jurisdiction is to make the correct and preferable decision by standing in the shoes of the decision maker[1] whereby the Tribunal is not bound by the rules of evidence.
  2. [8]
    This is based on a fresh hearing on the merits[2] and when presented with the evidence, is for the tribunal to determine by weighing the evidence of both parties on a balance of probabilities to reach a final decision in accordance with the test in Briginshaw having regard to both the WWC and the QCAT Act.
  3. [9]
    Pursuant to section 24 of the QCAT Act, the tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter for reconsideration to the decision maker with any necessary directions the tribunal considers appropriate.  In making a decision, the Tribunal must have regard to both the QCAT Act and the paramount considerations within the WWC Act.
  4. [10]
    The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children and is a paramount[3] consideration “to which all others yield.”[4]
  5. [11]
    Therefore, any hardship or prejudice the applicant may suffer if not successful in obtaining a blue card is of no relevance.

Disciplinary information:

  1. [12]
    JIS at the time of the hearing had been a foster carer in Queensland for almost 20 years.
  2. [13]
    Prior to the issuing of the negative notice, JIS had held a blue card and been an approved carer.
  3. [14]
    Throughout the past 20 years as a foster carer, JIS and his wife were subject to notifications and investigations pertaining to the level of care provided to children in their home commencing in 2003 to 2019, which allege firstly, that JIS sexually abused children in his care, and secondly, JIS failed to act protectively of the children in his care in relation to the risks posed to children by his son [B].
  4. [15]
    In or about 2003, a notification was made against JIS alleging sexual harm towards 2 children in his care. [T] and [A]. At the time [T] was young and department staff were unable to get information from him due to poor speech development.
  5. [16]
    In 2005 the department received advice that the two children from the 2003 notification disclosed to their therapist that JIS touches their bum and willy when they sleep and watch them sleep, and the therapist is reported to have been asked about the allegations by JIS’s wife.
  6. [17]
    At the time, the therapist was unable to definitively give a response about whether the allegations were true, but stated that “anything is possible, however it would seem that the family have good protective measures in place since the last allegation.”[5]
  7. [18]
    In 2006 additional allegations were made against JIS and his son sexually abusing 2 boys in JIS’s care. Concerns were raised in relation to JIS’s son [B] where it was alleged, he inserted his finger into another child’s anus and played with his willy. At that time [B] was assessed to be a risk to his sibling [A] and an action plan was formulated which stated that JIS and his wife were to monitor their sons’ interactions with other children, which JIS claims, was more to protect [B] from further allegations being made against him, and not considered required protective measures.
  8. [19]
    In 2019 [B] made disclosures to the police about a sexual offence he had committed upon a number of children in 2018. Additionally, further allegations were made regarding JIS and his son [B] by his step grandchild involving acts she was alleged to have witnessed.
  9. [20]
    In August of 2019 the department commenced a standards of review care, a harm report was finalised in November 2020 where it was substantiated that standards are not met.
  10. [21]
    Subsequently, children were then removed from JIS and his wife’s care, and their carer certificate of approval was cancelled as it was deemed JIS was not a suitable person to be approved as a foster carer.
  11. [22]
    Regarding the notifications received, written submissions of the respondent contend that the Tribunal should have regard to all the notifications, concerns, and untested allegations in the materials before it when deciding if this is an exceptional case.
  12. [23]
    This position is well established in many decisions from QCAT and the appeals Tribunal.
  13. [24]
    In Lister (No 2) it was determined that untested allegations are relevant to the question of whether there is an exceptional case. It was held that,

The fact the authors of the statement have not been cross examined will affect what weight should be placed on them but does not render them irrelevant. Even untested allegations made in sworn statements to the police bear on the question whether this is an exceptional case.[6]

  1. [25]
    Additionally, Volkers[7] and TNC also observed:

The Tribunal’s role is not to make findings as to whether or not the allegations made against the applicant are substantiated. My findings in this case[8] (TNC) are limited to a far narrower proposition, namely that allegations of the nature made against the applicant are capable of raising the possibility of future potential harm to children.

My task then is to assess where [there is] sufficient evidence to displace the possibility of future risk to children.

  1. [26]
    In contrast though, JIS contends that the case against him relates to disciplinary action relating to his role as a foster carer, and given the burden of proof required by the Department to substantiate a matter of harm (balance of probability) the evidence before the Tribunal, he says, supports that he has not committed any offences against children, and he is not a risk to children in any way as he ‘[does] not have any criminal history, nor Domestic violence history’.[9]
  2. [27]
    JIS further submits, that too much emphasis has been placed on his son [B] and his ability to hold a blue card should not be determined by his son’s actions[10] – “we reported his behaviour, and therefore, the evidence before the tribunal is that I have acted protectively.” 

Filed proceeding materials.

Applicant:

  1. [28]
    The applicant filed and relied upon the following:
    1. (a)
      A life story as requested by Blue card services undated;
    2. (b)
      Personal statement dated 18 September 2020;
    3. (c)
      A 216 page bundle of documents filed at the Tribunal on 24 October 2022; and
    4. (d)
      An expert report of Mr WD, forensic Psychologist, filed 15 February 2023 during the first day of the hearing;[11] and
    5. (e)
      An undated written submission of JIS; and
    6. (f)
      Written references from 9 people.
    7. (g)
      Of those, 3 people provided oral evidence at the hearing.

Respondent BCS:

  1. [29]
    The respondent relied primarily upon two bundles of documents marked BCS 1-231 and NTP 1-201.
  2. [30]
    Those bundles of documents contained materials produced to the tribunal by Queensland Police service and the Department of Children Youth justice and Multi Cultural affairs including correspondence; and a DVD of a record of interview which is subject to view only directions of the Tribunal dated12 September 2022.
  3. [31]
    Additionally, both parties relied upon written and oral submissions addressing the evidence throughout the hearing on 15 and 16 February 2023.

The reviewable decision

  1. [32]
    The decision under review is whether JIS’s case is an “exceptional case.” 
  2. [33]
    Given disciplinary information has been received, the Tribunal must have regard to the prescribed considerations set out in the WWC Act when determining whether an exceptional case exists.[12]
  3. [34]
    The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case by case basis underpinned by the legislative framework, and all other relevant factors that are available to the Tribunal at the time of the hearing.
  4. [35]
    When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in sections 228(2) of the WWC Act, all filed and oral evidence, and application of the Human Rights considerations, namely, as a public entity, it is unlawful for the Tribunal (public entity):
    1. (a)
      to act to make a decision in a way that is not compatible with Human Rights; or
    2. (b)
      in making a decision, fail to give proper consideration to a human right relevant to the decision.
  5. [36]
    The tribunal’s decision was informed by the materials before the tribunal, the considerations of risk and protective factors, submissions throughout the hearing and the oral testimony of the witnesses, with the primary regard being the paramount principle of the best interest of children, and whether JIS would present a risk to children if he were reissued a blue card.
  6. [37]
    The tribunal is fully aware of the transferability of the blue card and consideration was given accordingly when reaching this decision, that JIS would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction.
  7. [38]
    JIS contends that Blue card services have erred in their decision to not issue a blue card and placed heavy emphasis on the outcomes of prior child safety investigations, and that he has no criminal or Domestic violence history, and that he has acted protectively.
  8. [39]
    The respondent disagrees and stands by their position that it would not be in the best interests of children for JIS to be issued a blue card due to the failings of JIS to act protectively towards the children in his care and that he poses a risk to children.

Witness testimony

JIS

  1. [40]
    JIS confirmed that his application to review, life story, statement dated 18 October 2022 as true and correct.
  2. [41]
    The appeal process regarding his approval as a carer in Queensland is still pending and on hold pending the outcome of this hearing.
  3. [42]
    He was aware in 2006 that there were concerns about [B] when around children and confirmed that son was charged with 5 charges sexually abuse of children [MR], [P] and [J] following omissions in 2018. When questioned about 2006, JIS stated [B] was almost 15 years old, and sensualised, he took issue when it was put that he was aware of his sexuality, JIS took issue when questioned about [B] alleged masturbation.
  4. [43]
    He claims he was not aware this was occurring, and denied he has ever sexually abused any children in his care. When questioned that if a child does not report, does not mean that it did not happen, JIS retained his denial having ever sexually abusing children in his care, and additionally stated, that it would have been impossible to have done what was alleged because of his work arrangements as a cleaner at the time, which were at the time of the alleged abuse 7 days a week, from 5:30pm to between 6am to 8am and JIS claims to have never been home when the boys went to bed, or were asleep. 
  5. [44]
    When requestioned about the materials before the tribunal that disputed his testimony. JIS changed these details to 3 days per week to arrive home at 2-3am.
  6. [45]
    In 2006, JIS confirmed that there were concerns raised that [B] was a risk to children, in particular his sibling [A] and that an Action plan was developed.
  7. [46]
    The Action plan included that JIS, and his wife were to monitor and review [B] around children, but it was not followed through.
  8. [47]
    JIS states that initially they monitored [B] interactions for a time, but due to what they considered being no alarm, they stopped after a brief period, but in hindsight, if faced with a similar situation again would monitor indefinitely, and that when considering protective factors, not allow him around children.
  9. [48]
    JIS recalled the incident where [B] has put a child in their care in a bear hug and denies he did not do anything as alleged in the reports. JIS adds that [B] had done so to stop the child from hurting the other children around him.
  10. [49]
    JIS in his evidence voiced his criticism of the Forensic Psychologist report as it was based on the asking of questions only, and that a full history was not provided prior. JIS also contends that in the request for that report by him and his wife they had only requested it be done to allay the concerns of the Department and not that he considered himself to be a risk.
  11. [50]
    JIS further states, that regarding some of the allegations they are vexatious, and he is of the belief that child [P] only said what her mother had told her to say. [P] was 5 at the time of interview.
  12. [51]
    JIS also voiced his criticism of the department of child safety in what he considered was there alleged failings. JIS considered that if the department had concerns with [B] they should have taken the children out of his care and or provided services to his son.
  13. [52]
    JIS claims that the QPS recorded interview with [P] also further supports that he has not sexually abused a child. He claims that the answers given by [P} that scored him 10 s in how much she loved him, shows that she was not scared of him, but rather, the opposite. Further, he suggests that if the abuse as claimed had occurred, there would have been injuries to the child, which is not the case.
  14. [53]
    JIS asserts that when [B] made admissions about the sexual abuse, JIS’s wife took the son to the police station immediately as ‘our family does not tolerate this type of behaviour.’

CD

  1. [54]
    CD is the paternal grandmother of a child once in JIS care until removal.
  2. [55]
    She states that she was aware of the allegations against JIS relating to sexual abuse, was aware of [B] and his convictions.
  3. [56]
    CD did not agree when asked if JIS failed to protect child from [B] as she considered that it was just the departments position, and that the sexual abuse allegations against JIS were only hearsay.
  4. [57]
    CD confirmed she was aware [B] had been reported, and that JIS’s wife has spoken to her about [B], and the previous allegations when [B] was 15, but stated they were never proven.
  5. [58]
    CD was not aware of the responsibility of JIS to monitor [B]. but was aware of JIS being assessed. Without having read the report, CD considered the expert opinion that JIS was a risk to children was not correct as she did not consider that JIS would do what they had said he had done.
  6. [59]
    During cross examination, CD confirmed that she has seen child [J] and he is reserved. At the time of the hearing, CD provided that she saw [J] a couple of month ago and had only saw him 3 times in the last 4 years. She claims that she is being denied a right to see her grandchild which was not the case when in JIS’s care,
  7. [60]
    CD states that he was well looked after and there was nothing out the ordinary and disagreed with the respondent when it was put to her that the fact JIS and his wife allowed her visitation is why she supported JIS.

EK

  1. [61]
    EK knows the JIS family as the past CSO for the children in their care in 2009. EK would attend at the home for 1 hour monthly or as needed dependent on what was going on in the home but could not explain why there were no notes authored by her on the file during that period as she considered herself diligent. EK claims there are notes though but may not have been provided to the Tribunal.
  2. [62]
    EK claims to be aware of the allegations pertaining to the review application and was aware of substantiated allegations against [B].
  3. [63]
    EK claims that there were no concerns she was aware of in 2009 regarding [B] nor aware of a safety plan to monitor [B] nor the sexual allegations against JIS.
  4. [64]
    During cross examination EK again confirmed that she was not aware of any safety plan but had been the CSO for 4 years. EK stated if she had of been aware of significant risks, they would have not placed children in their care, especially if considering [B] a risk.
  5. [65]
    EK states that if there were concerns it should have been included in the renewal report of 2005-2007.
  6. [66]
    On double cross, EK confirms that she supports JIS because of what she saw, and what he told her, but if the allegations substantiated it would change her opinion of JIS.
  7. [67]
    EK, in her capacity and knowledge as a CSO, when asked what her opinion was when more than one allegation was raised, she said it would be considered on a case by case basis, and that the JIS family had complex children. She suggested that if a pattern of behaviour exists, where there is smoke there is fire.  Ek also stated to that with her contact with the family, she did not see JIS much and dealt primarily with his wife.

SL

  1. [68]
    SL knows JIS through her capacity as the JIS family’s fostering and kinship practitioner from October 2018 to April 2021.
  2. [69]
    SL states that she aware of the review application, and it was her understanding that it was due to removal of children form their care over safety concerns of a sexual nature. SL states that it involves JIS, [B], and his stepchild, and that JIS was present when [B] has placed a screwdriver in the child’s anus but was not aware of any other allegations against JIS of a similar nature.
  3. [70]
    SL was aware that the allegations against [B] were substantiated and that [B] was convicted and that this led to allegations against JIS that he had failed to act protectively.
  4. [71]
    SL has not had an opportunity to view the reasons of Blue card services, but in her time with JIS claims there were no concerns raised. She considers she did a thorough investigation and there were no supervision issues, and no mention of any prior history and had there been concerns, there would have been restrictions. SL recalled the harm report meeting, where it was viewed that the child was to be returned, but additional allegations needed to be investigated as there were some concerns as additional support was required due to [MR] and her scratching herself, it was raised during the hearing that scratching may have meant masturbated, to which it was disputed.
  5. [72]
    SL also agreed that if there had of been an action plan she would have expected it to follow on with the next agreement because if not added, it would make it hard to support the carer, as there is shared responsibility of the carers and the department and if allegations are made counselling would be provided, and as to the provision of those services, it is discussed and decided between the parties.

MW

  1. [73]
    Is the grandmother of children who have been removed from JIS’s care.
  2. [74]
    MW claims to be aware of the refusal of Blue card due to the inappropriate touching of children.
  3. [75]
    MW stated that she found that claim to be hilariously ridiculous, as she had never saw them hit any child and found JIS’s wife to be very insightful with children.
  4. [76]
    MW alleges that [C] wants to return to JIS’s home but was not aware of the allegations that JIS had failed to protect children in his home.
  5. [77]
    MW claims that JIS loved all the children, and she would support him through all the allegations.
  6. [78]
    She states that her grandson [C] fears [B] and was aware of his convictions but not the safety plan.
  7. [79]
    MW states she had no suspicions of [B] but she considers it would be hard to tell if someone abuses a child and confirms she was not aware that JIS was assessed but would not have expected him to disclose that as she considered that private.
  8. [80]
    JIS then asked MW to provide to the Tribunal any changes she has noticed with [C]. She claims that he is quiet, more sexually active and she considers he did not like where he was placed after removal from JIS and his wife.
  9. [81]
    MW considers that if anything had happened, [C] would have spoken to her as he confides in her all the time, however, states that regarding the sexual abuse, [C] did not speak to her about this, she only became aware due to the notification from the psychiatrist.

WH

  1. [82]
    WH claimed to be aware of the information and the information he received dates from 2003-2019.
  2. [83]
    He states that his understanding of the facts and allegations is that JIS was said to have penetrated a child on a change table, and an assault by [B], and an incident with a guinea pig.
  3. [84]
    WH provides that he was not aware of other allegations, and it would not change his opinion of JIS today, even when aware of the assessment report.
  4. [85]
    WH claims that he had not experienced any behaviours from [B] to raise alarm. And that he has training in behavioural observations.
  5. [86]
    WH is of the opinion as a police officer, that if there was any concern, JIS would have been spoken to and questioned.
  6. [87]
    WH also confirmed that [B] had babysat his 2 children in 2017 and 2018 on the recommendation of JIS and his wife.  Following the 2019 disclosures by [B] WH claims that his wife has spoken to his two children and there were no disclosures.

LC

  1. [88]
    LC provided that she is aware and understands the basis of the blue card refusal.
  2. [89]
    It is her understanding that JIS has been accused of placing a screw driver in the anus of a child, and that JIS had grabbed [C] by the arm to stop him throwing a guinea pig, and that accusations were made by 2 brothers that JIS watched them sleep and that he played with one of the boys penis.  LC Only became aware when the children were removed.
  3. [90]
    LC is aware of [B] and other historical allegations.
  4. [91]
    LC confirms that the [C] and [S] had visited her home without JIS present, and that she considered that they did not present adversely. She considered them to always be well dressed, and that [S] could not understand why they could not be with their mother. She considered them happy and beautiful children.
  5. [92]
    She states that she never suspected [B] but also did not spend a lot of time with him and has only met him once and was not aware of the safety plan to monitor [B]
  6. [93]
    From all the oral lay witness evidence, it is evident that JIS has support and trust from those who provided testimony. Of note though, is the lack of pertinent details that was not provided to the by JIS before providing their witness statements and oral testimony.
  7. [94]
    All witnesses claim to still support JIS even when pertinent details were omitted. The Tribunal has given thoughtful consideration to such and has weighted the evidence accordingly in particular to what they were aware of, and there opinions based on speculation.  There was no evidence provided by the witnesses to attest to how much time they had spent in JIS was home and present with the children, nor any evidence in relation to JIS parenting over an extended period of time.  JW had only started to spend time with JIs and his aunt upon his return to Australia from NZ, and as such did not spend much, or any time with [B] in his formative years, nor JIS around the time of the first allegations.
  8. [95]
    Regarding the considerable number of additional witness statements provided, they have also been weighted accordingly as the respondent was not afforded an opportunity to properly test their evidence.
  9. [96]
    The tribunal also factors how each witness accounts varied differently to what information was disclosed prior to providing evidence, the tribunal does not consider that JIS was honest when alleging that he didn’t provide the reasons document as he thought it was confidential,  but rather,  the Tribunal is of the opinion that JIS instead chose to disclose to who he chose to disclose it to or not,  JW was provided with all the documents as confirmed in his testimony, but others were not which the Tribunal considers if full disclosure was provided, may have altered peoples evidence, or potentially, there willingness to support him and in following on, that witnesses were willing to class the allegations as ridiculous when only spending minimal time in the home, or on social perceptions was also weighted accordingly, including in the case of one witness, who in her testimony claims she had no real dealings with JIS, but Moreso his wife.
  10. [97]
    The tribunal while considering that the witnesses who provided evidence were forthcoming in their evidence with the disclosure they were provided, did not fully understand the protective jurisdiction and the concerns held by Blue Card Services which led to the negative notice.
  11. [98]
    The evidence of the lay witnesses provided support to JIS, outlined his history as a carer, and his character on their past dealings with him.

Forensic Psychological Evaluation of WD

  1. [99]
    A psychological assessment report dated 18 September 2020 was filed with leave of the Tribunal at the hearing by WD, Forensic Psychologist. JIS had failed to file a copy and the tribunal directed JIS to do so as the Tribunal considered it pertinent information needed to make a fully informed decision.
  2. [100]
    WD opined that JIS is a risk and given there are no further independent expert reports before the tribunal to dispute that opinion the Tribunal places considerable weight on the report, and the expert opinion contained within.
  3. [101]
    The tribunal considers that when the opinion of WD is coupled with the historic allegations, and the substantiated harm outcomes, the tribunal is firm that JIS would pose a future risk to children and young people if placed in his care.

Risk factors

  1. [102]
    JIS has failed to demonstrate to the tribunal that he has insight. JIS has not sought any treatment following the report of WD, nor after the initial allegations were made to dispute that he does not pose a risk to children or is willing to fully consider the concerns of harm that were held by the department of Child safety and BlueCard.
  2. [103]
    Whilst JIS states that by his wife taking [B] to the police when he disclosed that he had perpetrated sexual abuse upon children in their care is evidence they acted protectively, the tribunal does not disagree, however, it was not JIS who acted protectively immediately thereafter, but his wife. JIS has not provided any details to the Tribunal as to his actions when advised, nor, how the matter was managed regarding the children to ensure that their safety and wellbeing was maintained. thereafter, and there is nothing before the Tribunal that outlines what changes they made to ensure better safety measures where in place and initiated after.
  3. [104]
    Whilst the tribunal is aware that JIS and his wife no longer let [B] at their  home, and allege they placed the welfare of the children over the relationship with their son,  however that is not enough to convince the Tribunal that JIS acted protectively in the past, or has sought appropriate engagement with professionals to better build the requisite skills, identify his triggers and stressors to satisfy the Tribunal he should be reissued a BlueCard.
  4. [105]
    JIS has not demonstrated that he has any insight. JIS continued to assert that given there was no substantiated allegations against him that this proves he did not perpetrate sexual abuse upon children. The Tribunal makes no opinion as to whether the allegations are true, however, the tribunal did take issue how JIS throughout the Tribunal used his own narrative and spin on events to substantiate his position. His narrative was that because no child had reported the abuse, shows that the claims are vexatious, children he cared for as adults still visit their home, which is not disputed, but in the children that do so, there were no allegations that they had been subjected to the sexual abuse.
  1. [106]
    The tribunal considers that when JIS chose to ignore the action plan to monitor his son after allegations were made does not demonstrate that JIS acts protectively. JIS instead chose to point out the failings that he considers were made by the Department which demonstrated to the Tribunal that JIS is willing to accord blame on others when criticism and concerns are laid against him and deflect.  The tribunal considers that this shows that JIS is willing to minimise his actions and that he lacks the requisite skills to recognise issues and risks that could or are likely to cause children harm which is imperative when dealing with highly vulnerable children in care.
  2. [107]
    The tribunal does not discount that there may have been failings in the handling of the matter by the department in not including the action plan to monitor [B] but regardless, this does not change the fact that JIS chose to not remain vigilant to ensure that the children in his care were safe. JIS in his comments when he continued to stop mentoring [B] demonstrates to the Tribunal that JIS is not able to make proper risk assessments, nor take the welfare of the children entrusted into his care seriously. Even when considering the potential failings of the department and their handling of the matter, does not change the view of the Tribunal. JIS was present in the home, had been placed on notice about the potential for harm about a significant and critical concern but considered it not important enough to ensure safeguards where in place and remained in place long term.
  3. [108]
    JIS as a carer knows what is expected of him, and the tribunal considers that he has considered the welfare of his son in 2009 over that of the children in his care which is a significant failing and oversight on JIS and his wife part, that in hindsight JIS even stated, he would now monitor indefinitely.
  4. [109]
    JIS also failed to demonstrate to the tribunal that he understood the gravity of the matter, nor the underlying concern of Blue card services, JIS focused considerably on the decisions of the department not substantiating claims, and that he had no criminal or domestic violence history which is not a basis of the concerns held.
  5. [110]
    The tribunal considers the following as pertinent to the matter.
    1. (a)
      JIS lack of insight into the concerns held by Blue card services, and whilst it is not disputed that JIS showed remorse for his son’s behaviours, it does not erase the fact that testimony before the tribunal further supports his failure to make considered decisions to ensure the safety of the children in his care.
    2. (b)
      Following the expert report, JIS has not considered it important nor necessary to seek professional counselling or help to mitigate the concerns held or seek training or supports to ensure that alike issues if raised again could be addressed differently with more considered insight
  6. [111]
    Therefore, the tribunal is not satisfied that JIS would not pose a risk to children if issued a blue card.

Orders

  1. [112]
    That the decision of the Director General, Department of Justice and Attorney General that JIS’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is confirmed.

Footnotes

[1]  QCAT Act Section 20(1).

[2]  Ibid s 20(2).

[3]  S 360 WWC Act.

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

[5]  Report of Mr Whittingham at 3.1.5

[6] Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87.

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

[8] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489.

[9]  Statement of JIS (undated) page 1.

[10]  Ibid 9 at page 2.

[11]  Commissioned by the Department of Children, Youth Justice and Multicultural Affairs.

[12]  s 228(2) WWC Act.

Close

Editorial Notes

  • Published Case Name:

    JIS v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    JIS v Director General, Department of Justice and Attorney General

  • MNC:

    [2023] QCAT 251

  • Court:

    QCAT

  • Judge(s):

    Member Matthews

  • Date:

    07 Jul 2023

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
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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