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SH v Director-General, Department of Justice and Attorney-General[2023] QCAT 293

SH v Director-General, Department of Justice and Attorney-General[2023] QCAT 293

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SH v Director-General, Department of Justice and Attorney-General [2023] QCAT 293

PARTIES:

SH

(applicant)

V

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML 248-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

31 July 2023

HEARING DATE:

23 April 2021

7 May 2021

9 September 2021

15 December 2022

Written Submissions 24 February 2023 and 8 March 2023

HEARD AT:

Townsville – April, May, September 2021

Cairns (via MS Teams) – December 2022

DECISION OF:

Member Taylor

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant seeks to review a decision to not cancel his negative notice – where the applicant has an extensive criminal history – where the applicant is a veteran of military service and subject to post-traumatic stress disorder – where the applicant has on numerous times perpetrated domestic violence and violence in general – where the applicant has been under the influence of excessive alcohol consumption at the relevant times

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 294, s 304 I, s 354

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66

Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s 25, s 26, s 48

Chief Executive, Public Safety Business Agency v Masri [2016] QCAT 86

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

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33

LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373

Re TAA [2006] QCST 11

SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392

SWJ v Department of Justice and Attorney-General [2022] QCATA 119

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C. Davis – Advocacy Officer for Blue Card Services

REASONS FOR DECISION

  1. [1]
    On 16 February 2021, this Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any innocent third party to the proceeding. Accordingly, these reasons are published in a de-identified format.

Overview

  1. [2]
    The applicant is the holder of a negative notice under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such prevents him from holding a ‘Blue Card’ and in turn working with children and young people.[1] 
  2. [3]
    He applied to the respondent to have that negative notice cancelled.[2] He was unsuccessful in that application. (the Decision)
  3. [4]
    If he were successful in that application, the nett effect would be that a working with children clearance, and in turn a Blue Card, must issue save only in circumstances where there was any new assessable information about the applicant not known to the decision-maker at the time the notice was cancelled.[3] It would seem that for this reason the applicant applied to this Tribunal for a review of the Decision. Whilst he stated in his application he did not consider the Decision to be totally wrong, he stated that what was important is that, he has changed his lifestyle and living arrangements, his relationship status is stable, he now has legal access to his young child, he has taken ownership of his mistakes, and he has no desire to put himself in a situation to make major failures again.[4]
  4. [5]
    I did not accept that to be entirely correct. The overwhelming evidence before this Tribunal is that the applicant continues to have difficulty with excessive alcohol consumption, such having been an issue when he has perpetrated domestic violence and violence in general on numerous occasions, the latest being during the time when his application was before this Tribunal. For the reasons that follow here, the applicant fails in his application. Accordingly the Decision is confirmed.

The Nature of this Review Proceeding

  1. [6]
    This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and the Human Rights Act 2019 (Qld) (the HRA), and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[5]
  2. [7]
    The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[6] It is not necessary for me to consider whether the decision-maker made an error in making the Decision, rather the focus is on the cogency of the case as presented in this hearing, such as relevant being the applicant’s case for being permitted to have his negative notice cancelled.[7]
  3. [8]
    At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[8]

Background

  1. [9]
    On 18 August 2015, the applicant was issued with a negative notice under the WWCA. On 29 January 2019, the applicant applied to the respondent to cancel the negative notice. On 16 June 2020, the respondent informed the applicant of the Decision, giving reasons therefor such which was said to be based on the applicant’s extensive criminal history,[9] much of which is said not to have been disclosed to the respondent at the time the applicant was issued with the negative notice in August 2015.
  2. [10]
    On 30 June 2020, the applicant applied to this Tribunal for a review of the Decision. What then followed was unfortunately an extended period in which this proceeding unfolded, with various directions being given for the filing of relevant material, many of which were varied extending the time for compliance therewith. The duration of time between application and this decision being given was also extended by adjournments of earlier hearings, and the resulting need, for reasons that need not be discussed, for the Tribunal to be reconstituted for the final hearing.
  3. [11]
    For matters such as these it is common that the hearing occupies one day only, sometimes two. But on this occasion a total of four days was required. The first three days of hearing time was heard by Member Pennell. The first of those occurred on 23 April 2021 but it was adjourned early when the applicant informed the Tribunal he had to collect his son from school at 2:45 pm. It was then reconvened on 7 May 2023, but that hearing day also was adjourned early to provide the applicant a further opportunity to call his psychiatrist  who was unable to be contacted during the second hearing day. The third hearing day occurred on 9 September 2021 for a half day starting shortly after 1:30 pm during which the psychiatrist gave oral evidence and some further questioning of the applicant occurred. Following the completion of that evidence the hearing remained part-heard, it being once again adjourned. On that occasion it was as a result of charges against the applicant pending in the Magistrates Court for incidents which had occurred after the applicant commenced this proceeding. The respondent proposed that time be afforded for those charges to be finalised and then for the cross-examination of the applicant to be reopened so as the respondent could ask further questions about the conduct that gave rise to those charges.
  4. [12]
    The proceeding then did not continue until 15 December 2022 when it came before me to conclude the hearing. In doing so I had the benefit of transcripts from the previous three hearings which I have read. Whilst the cross-examination of the applicant in terms of those further charges then occurred, and as such there was an effective close of the evidence, yet a further complication arose such being the absence of sentencing remarks for many of the applicant’s convictions, including the most recent convictions for breaches of a domestic violence order being those latest charges.
  5. [13]
    That complication arose from the decision of the Appeal Tribunal in SWJ v Department of Justice and Attorney-General [2022] QCATA 119 delivered on 25 August 2022 which emphasised the mandatory requirement under s 226(2)(a)(v) of the WWCA for consideration to be given to the court’s reasons for its decision not to impose an imprisonment order for the offence. Accordingly, I gave orders for the respondent to obtain, file, and serve, all available sentencing remarks with corresponding orders for any applications to be made to this Tribunal which could include an application for re-opening the hearing if required as a result of the content of those sentencing remarks. I also gave orders for the filing of closing written submissions should no such application be made
  6. [14]
    No such applications were made. As such the parties proceeded and filed their respective written closings, although with yet again an extension of time from the timetable I had set. The final material was received by this Tribunal on 17 March 2023.
  7. [15]
    Regrettably, due to a number of issues arising unexpectedly before me since then, my consideration of this matter has been substantially delayed such that it has taken until now to reach a decision and provide these reasons. To some degree this has been a result of dealing with a backlog for me that arose from the Covid pandemic.

The Issues

  1. [16]
    The primary issue is whether the applicant’s conduct in terms of the offences with which he was charged, and the convictions that arose from them, is such as to fall within the category of an ‘exceptional case’ such that his negative notice should not be cancelled. The applicant’s case was effectively it was not. The respondent’s representative submitted it was.
  2. [17]
    In order to resolve that contest, consideration of WWCA s 226(2) was necessary, together with s 228(2) because the conduct involves domestic violence. These provisions set out that which must be considered in deciding whether it was appropriate to not cancel the negative notice.  In doing so, the following must not be overlooked:
    1. The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[10]
    2. The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[11] and
    3. The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[12] such being a principle that I must apply in this review.
  3. [18]
    In my opinion, the outcome of this proceeding turns on a singular issue. Whilst I was satisfied that the applicant had developed a degree of insight into his extensive criminal history and the domestic violence aspects of it such that it was socially unacceptable and caused harm to others, I was able to readily conclude that a substantial portion of that history arose as a consequence of the applicant’s drinking habits and adverse levels of intoxication. That being so, what was very apparent to me was that the applicant lacked insight into the connection between the two. I was left with the impression that he simply failed to conceive the notion that his excessive alcoholic intake was a contributing factor to his conduct, such that he should abstain from drinking alcohol, and that until he does so the rights, interests and wellbeing of children and young people would be at risk and thus not protected if he were afforded the entitlement of holding a Blue Card.

The Relevant Law

Working with Children (Risk Management and Screening Act) 2000 (Qld)

  1. [19]
    As is relevant in this proceeding, the pathway through the WWCA is found starting in Chapter 8 Part 5A Division 5 at s 304G which provides the premise for the applicant’s application to cancel the negative notice. That application is to be determined under s 304I which in turn leads to s 294 of the Act such that it is to be determined as if it were a decision about a working with children application.
  2. [20]
    This therefore requires a consideration of Chapter 8 Part 4 Division 9, starting at s 221 which sets out that which the decision-maker is required to consider in determining an application for a Blue Card. In the circumstances of a conviction or charge being part of an applicant’s history it requires a consideration of that contained in s 226(2) and s 228(2)(a) to which I referred earlier.
  3. [21]
    Given that the applicant has been convicted, but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[13] If that starting position stood without exception, then it would be in order for me to set aside the Decision. However, it is that exception which looms large in this proceeding. It is that the starting position is subject to the exception, that exception being if I am satisfied that it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued, or as more precisely in this proceeding the existing negative notice should not be cancelled, and so it would be in order for me to confirm the Decision.[14]
  4. [22]
    That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a Blue Card.[15] But the WWCA does not define an exceptional case, thus creating a degree of complexities in matters such as these.
  5. [23]
    In order to deal with that complexity, it required consideration of fact and degree with such to be decided having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 in reference to the predecessor legislation to the WWCA:

It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.

There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said 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’.

We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[16]

  1. [24]
    Neither party bore an onus in determining whether an ‘exceptional case’ exists.[17] It was a matter of discretion ultimately afforded me as the effective decision maker, such that I was required to decide the question of whether an exceptional case exists on the balance of probabilities, albeit one to the Briginshaw standard in making any findings of fact such that I must have been reasonably satisfied of the facts based on the evidence before me whilst always having borne in mind the nature of the reviewable decision.[18] As the learned Members of the Appeal Tribunal expressed the observation in Director-General, Department of Justice and Attorney-General v CMH :[19]

… To the extent that it is necessary to make findings in relation to past conduct, the Tribunal might consider evidential principles and take into account the considerations outlined in Briginshaw. However, the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children.

  1. [25]
    But in saying that, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case was an exceptional one. In terms of such an approach, the following was noted in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:

The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.

The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.

At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.

The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.

In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.

The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.

It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.

What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[20]

  1. [26]
    The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) and s 228(2) of the WWCA. However, the matters listed therein are not exhaustive, those provisions merely specifying particular matters which I must consider in deciding the application.[21] Accordingly what follows later in these reasons is my consideration of each of those particular criteria.

Human Rights Act 2019 (Qld)

  1. [27]
    My consideration of this application is not limited to merely the WWCA. I must also consider the Human Rights Act 2019 (Qld) (HRA),[22] the main objective of which is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only so far as is reasonable and justifiable.[23] That being said, all statutory provisions, so far as is possible consistent with their purpose must be interpreted in a way that is compatible, or most compatible, with human rights.[24] Such includes the WWCA.
  2. [28]
    In my opinion there are a number of human rights relevant in this proceeding, such which include the applicant’s right to recognition and equality before the law, the right to freedom of expression, the right to take part in public life, and the right to privacy and reputation.[25] But there is a competing right that cannot be overlooked in a proceeding such as this, and one that is permissibly considered in this proceeding. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[26]
  3. [29]
    In that regard, in my opinion a decision that the applicant’s case is an exceptional case, such which might be said to infringe the applicant’s rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on the applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA inter alia because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people. Furthermore, any limitation on the applicant’s human rights remain consistent with the object, purpose and paramount principle of the WWC Act, being that the welfare and best interests of children are paramount.
  4. [30]
    As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[27]
  5. [31]
    That being so, it must be recalled that the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right pursuant to the HRA, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant finds himself in is an exceptional case such as to continue to deny him an entitlement to a Blue Card under the WWCA. Such would not be inconsistent with s 13 of the HRA.

The Evidence & Submissions

  1. [32]
    This proceeding was not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented to this Tribunal, both documentary and oral, and the closing submissions which followed.
  2. [33]
    The respondent was not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role was to use its best endeavours to help me in making my decision on the review.[28]
  3. [34]
    As it was required to do, the respondent provided relevant material to this Tribunal.[29] The respondent did not seek leave to produce any further material, nor did it call any witnesses. At the commencement of the fourth hearing day, being the only one before me, the respondent’s representative confirmed this was the entirety of the respondent’s material. At the commencement of the hearing before me, the applicant confirmed receipt of this documentation. The respondent did however provide additional material following the final hearing day in accordance with my directions given at the conclusion of that last hearing day, namely the ‘Sentencing Remarks’[30] and its ‘Closing Submissions’.[31]
  4. [35]
    The applicant provided a written statement of evidence,[32] and two letters from his attending Psychiatrist (Dr L).[33] At the commencement of the fourth hearing day, the applicant confirmed this was his evidence in chief although he did alert me to the fact that there were character references provided previously to the respondent and seemingly was expecting me to consider them.
  5. [36]
    Reference to the use of those as part of the applicant’s case was opposed by the respondent’s representative given that none of the referees were being presented for cross-examination. In my opinion that was an appropriate course to take. However, after close of the evidence on completion of the further cross-examination of the applicant, it was left for the applicant to consider the use of the character references further after he had been provided a copy of the sentencing remarks which were the subject of my Directions should he be of the view that a re-opening of his case was required to deal with issues in those sentencing remarks.  Ultimately, the applicant did not seek a re-opening of his case nor press for those references to be considered. Thus the entirety of his evidence was simply that referred to in the last paragraph. Similar to the respondent, he also provide additional material in accordance with my directions, namely his written closing submissions.[34]
  6. [37]
    In my opinion it is not necessary for me to set out the evidence or the submissions in detail in these reasons, it being sufficient to address the relevant parts thereof later herein where I discuss it together with the application of the relevant law. But, before doing so, I will note here what I understand to be the essence of the competing arguments before me. 
  7. [38]
    From the respondent:[35]
    1. The material before the Tribunal reflects poorly on the applicant’s ability to exercise restraint, prioritize interests of children and young people in his care over his own feelings, act in the best interests of children and young people, and to present as a positive role model to children and young people;
    2. The applicant has repeatedly engaged in domestic violence related behaviour exposing children to domestic violence;
    3. The applicant’s failure to address his alcohol consumption as an offending trigger, together with the recency of his inappropriate behaviour, reflects adversely on him to provide a protective environment for children; and
    4. The material suggests the applicant has poor insight into his offending behaviour and offending triggers and the impact his offending has had on his children and ex-partner, such having been exposed to such behaviour.
  8. [39]
    From the applicant, he makes this impassioned plea in his written closing submissions:[36]

… I know I am on my last chance before imprisonment and must separate myself from my ex as I am no good to her and she is no good for me and I will fail her and our son if I’m not around.

If you hang around bad people you have a bad life and if you do bad things you have a bad life. I know deep down I am a good person and want to help myself and others. I know with children it [is] unacceptable to have anyone that may be a threat to them or abuse them around them (sic) and that has to be adhered to 100%. I give my honour and work I am only about helping and teaching children who are at vulnerable stage of their life. I believe I can change lives for the better. Please I ask you if you can re issue my blue card. Thank you.

  1. [40]
    My consideration of the issues in this proceeding thus proceeded on those premises.

Discussion on the Evidence, Submissions, and the Relevant Law

  1. [41]
    On my reading of the transcripts and that which I heard on the fourth hearing day, whilst the cross-examination of the applicant was extensive, it was at times repetitive and seemingly at times ‘jumping all over the place’. It was also readily apparent to me that the applicant’s answers to many of the questions posed of him were confused with him on many occasions endeavouring to tell the same or a similar story explaining why he acted the way he did when questioned about many of the offences for which he was charged and convicted. Much of it concerned what seemed to me to be explanations of turbulent relationships between the applicant and his life partners from time to time.
  2. [42]
    This raised some challenges for me in being able to follow the evidence as it unfolded and discern with clarity that which the respondent and the applicant was seeking to convey in terms of relevant evidence. But, as I discuss it in later in these reasons, what became very apparent to me that there was a common thread which developed through the oral evidence, that being issues concerning the applicant’s drinking habits and the occurrence of the applicant being adversely intoxicated which brought about many of the inappropriate conduct that led to him committing domestic violence and other circumstances leading to his convictions.
  3. [43]
    Whilst Ms Davis for the respondent did seek to identify some relevant parts of the oral evidence when she gave her oral closing submissions, such assisting me in some degree to comprehend it, the majority of the oral evidence that was before me was by way of the transcripts for the first three hearing days and regrettably the presentation of the respondent’s closing written submissions did not, as I expected it would, identify with clarity the relevant oral evidence contained therein. However, that being said, in the paragraphs that follow here, based on my reading and understanding of that contained in the transcripts for the first three days of hearing, and that which I heard directly on the fourth day, I have commented on those parts of the oral evidence which I considered relevant and germane to the decision I ultimately was required to make, and in terms of the evidence and submissions before me I have done so by reference to the  relevant criteria under s 226 and s 228 of the WWCA. But before doing so I make these three short observations.
    1. The applicant did not make any submissions to me, orally at the end of the hearing or in his written closing material, specifically addressing these criteria;
    2. The applicant’s closing submissions, both oral and written, were of little assistance to me, the net effect of them being that contained in the impassioned plea he made to which I referred in paragraph [39] herein.
    3. The respondent’s representative addressed them in her written closing submissions, and to the extent any of those submissions are in my opinion relevant to the outcome of this proceeding I have commented on them in the paragraphs that follow here.

The circumstances of the domestic violence order or police protection notice, including conditions imposed on the person by the order or notice[37]

  1. [44]
    Whilst there is substantial material before this Tribunal which deals with domestic violence matters concerning the applicant, in my opinion the relevant material for this criterion is found in the Police Protection Notice dated 8 January 2021 (the PPN) concerning the incident that occurred that same day resulting in a Domestic Violence Protection Order (the DVO) naming the applicant as respondent issued 13 January 2021, the aggrieved person in that instance being the applicant’s ex-partner, mother to his youngest son.[38]
  2. [45]
    The following appears in the PPN Annexure 1:[39]
    1. Under the heading ‘Current Incident’:

Police attended [redacted] and spoke with the respondent. Police observed the respondent to be extremely intoxicated. Police observed him to have slurred speech and he struggled to form sentences. … Due to the respondent’s level of intoxication, police did not serve the Police Protection Notice as it was unlikely that the respondent would have understood the document.

  1. Under the heading ‘Reasons why it is necessary/desirable to protect the aggrieved’:

Police believe that it is necessary and desirable to protect the aggrieved based upon the following risk factors identified through this investigation: previous incident/breaches; severity; alcohol misuse and the respondent history of violence. … As the respondent’s alcohol consumption appears to have a significant impact upon his behaviour and he appears to show [no] (sic) indication that he will discontinue consuming alcohol, police believe that domestic violence is highly likely to continue if the aggrieved is not protected.[40]

  1. [46]
    The relevant term of the DVO is that the applicant was:
    1. Prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved:
    1. ….
  2. [47]
    Yet, notwithstanding that very clear and precise terms, what is also relevant in my opinion is the applicant’s conduct which followed in the months immediately following the making of the DVO by which the applicant contravened the order on fifteen separate occasions, starting 20 February 2021 ending 20 May 2021, at which time he made direct contact with the aggrieved.[41] When questioned under cross-examination on the fourth hearing day about these contraventions, whilst the applicant confirmed he pleaded guilty to the charges, he explained that plea and his conduct in the following manner: [42]
    1. He pleaded guilty because his solicitor told him to;
    2. He sought to explain the reason for them as being concerned for his children that were in the care of their mother and their exposure to adverse circumstances involving drug addicts etc with whom their mother was associating;
    3. When asked about some of the contraventions:
    1. he admitted to being drunk at the time or saying that it was possible he was;
    2. he said he did not think about the conduct at the time, letting his emotions get the better of him;
    3. he accepted that some of his conduct was intentionally designed to be threatening to those other persons with whom the mother was associating.
  3. [48]
    Reading this material and having observed and listened to the applicant giving evidence before me, it seems to me that the presence of excessive alcohol consumption is at the core of this behaviour and the circumstance of the domestic violence issues. I return to the issue and relevance of alcohol consumption later in these reasons.

Whether the offence is a conviction or a charge[43]

  1. [49]
    The applicant has an extensive criminal history spanning a period of 24 years from 1991 to 2015, such which was as referred to by the decision maker in reaching the Decision.[44] Such includes multiple convictions for assault, drunk or disorderly behaviour, public nuisance, and  contraventions of domestic violence orders. There was however further incidents in 2021.
  2. [50]
    Whilst the examination of the applicant by the respondent’s representative during the hearing covered most of this history, in my opinion for the purposes of these reasons in terms of this criterion and the decision I am required to make, I need only refer to one aspect of the applicant’s criminal history, such being the applicant’s conduct subsequent to the Decision, it occurring in 2021 whilst the application in this Tribunal was pending. It was once again contraventions of a domestic violence order arising out of a domestic violence incident which occurred on 8 January 2021 (the 2021 Offences).[45]

Whether the offence is a serious offence, and whether it is a disqualifying offence[46]

  1. [51]
    The offences committed by the applicant are neither serious nor disqualifying offences under the WWCA. Notwithstanding that, in my opinion it is relevant to consider all offences on a person’s criminal history in determining their eligibility to work with children in regulated employment.[47] I have done so.

When the offence was committed[48]

  1. [52]
    As I have noted, the 2021 Offences, and the domestic violence conduct which gave rise to the PPN relative to which those offences arose, all occurred after the Decision and whilst the applicant’s application to this Tribunal for review of that Decision was pending. In my opinion that simple fact immediately raises serious concerns as to the applicant’s suitability to hold a Blue Card. I say that because it seems to me the applicant should have been well aware that his past conduct and criminal activity was a reason for the Decision being adverse to him and accordingly he should have been conscious of the fact that further inappropriate conduct could only be viewed adversely to his case. Yet, he allowed himself to be in that position. As will become apparent on reading that which follows later in these reasons, in my opinion such was as a result of excessive alcohol consumption, at least in terms of the conduct on 8 January 2021 which brought about the DVO.
  2. [53]
    As to the other offences, much of them are of a substantial historical age and whilst I will make some brief comment at times about them later in these reasons, in my opinion I need say no more about them in terms of when they were committed. Nothing turns on it.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[49]

  1. [54]
    The respondent’s representative has helpfully referred to the applicant’s criminal history under this heading in her written closing submissions in a manner which assists in summarising that history in terms of its relevance to employment etc involving or which may involve children. In my opinion it is not necessary to set it out here in any detail, it being sufficient to note that much of it involves offences for assault and for breach of domestic violence orders. As already noted, the conduct which gave rise to the DVO, the PPN, and then ultimately to which the 2021 Offences relate, are all of the same ilk.
  2. [55]
    If not already apparent, what will become apparent in the reasons that follow here, there is a common underlying circumstance in the applicant’s offending, such being the effect of excessive alcohol consumption and the evidence of him being intoxicated when committing many of these offences, and as is critical in my opinion the conduct of the 8 January 2021 which gave rise to the DVO and the PPN. As I read and heard the evidence as it was presented before me, and also read and understood the evidence presented in the earlier hearings before Member Pennell which I was informed of my reading of the Transcripts, it was very clear to me that the applicant had difficulties in controlling his behaviour after drinking an excessive amount of alcohol, something he seemingly has been doing with a degree of frequency.
  3. [56]
    All that being said, in my opinion there was sufficient material before me to raise questions as to whether, in an employment or business situation, the applicant could act properly in the best interests of children. This is because, in my opinion his criminal history, and in particular the circumstances of the incident giving rise to the DVO and the PPN, and in turn the 2021 Offences, and his inebriated state in many of those instances, gives rise to a question that remained unanswered – is there a chance the applicant could be in an inebriated state when called on to care for children or young people in an employment or business situation? In my opinion the answer to that question is  - Yes.

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 … the court’s reasons for its decision.[50]

  1. [57]
    The respondent has provided this Tribunal with copies of sentencing remarks for penalties imposed on the applicant on 1 December 2011, 20 June 2013, 21 February 2014, 22 July 2014, 23 April 2015, and 10 December 2021, the last of these being relevant to the 2021 Offences.[51] The respondent’s representative informs me that sentencing remarks for the earlier offending are not available.
  2. [58]
    On each of these occasions, at no time did the Court impose an imprisonment order, rather imposing probation orders or fines. As I have read the transcripts of the various sentencing Magistrates, as I understand that stated therein at least one reason is a recognition of the applicant’s military history and the effect it has had on him in terms of post-traumatic stress disorder. There were however two aspects of the sentencing which I considered relevant to the decision I was ultimately being required to make when considered in conjunction with all the evidence presented.
  3. [59]
    The first of these concern the applicant’s offence of assault occasioning bodily harm on 17 February 2012 wherein the applicant was placed under a two year probation order. Therein the sentencing Magistrate made these comments:[52]

Ordinarily, an offence involving the facts that I have heard about today may very well attract a period of actual imprisonment. It was an unprovoked assault on your female partner. … It is of particular significance that you were in the armed forces for eight years. You undertook three overseas tours of duty. You have, as a result of your time with the service, suffered post-traumatic stress disorder. …

… So there is very clear evidence that have been treated for this condition which may, in part, explain what is, otherwise, some inexplicable behaviour on your part. You have no previous history of a like nature in your criminal history. I say, in part, because you were extremely drunk, from drinking the night before, however, it seems that … perhaps as a consequence of the alcohol and the PTSD, you suffered an episode …

Given all those matters, it is, in my view, appropriate, both for you and also it is the community interest that you be given the benefit of assistance to at least manage this condition. It does seem as if it can be solved but it would have to be managed over a lengthy period of time. So therefore, it is appropriate that that assistance be afforded to you by way of a probation order … .

  1. [60]
    The next occurred on 21 February 2014 in terms of the offences of a contravention of a domestic violence order, and contravention of a probation order, being the order to which I have just referred. Therein, when the sentencing Magistrate gave the applicant a fine and a further probation order, the following exchange occurred with the applicant:[53]

His Honour … I do not know where you have been or what your held is like. You need to get it straight, though, because the community cannot … tolerate this. And to be fair, nor can your partner. No-one can live in that sort of fear, okay?

Defendant Yes, your Honour.

His Honour … It is when you are on the soup you just lose it. It does not take rocket science to know what you have to give up ---

Defendant I know.

His Honour --- you know what I mean ?

Defendant Yes, your Honour.

His Honour I am going to leave it with you, but at some point, it is going to finish, you know what I mean?

Defendant Yeah. Yes, your Honour..

  1. [61]
    In terms of the 2021 Offences the outcome was a fine. On my reading of the sentencing remarks on that occasion, I did not see anything therein which I considered germane to the decision I am required to make in this proceeding.

Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant[54]

  1. [62]
    It is within this criterion that the issue of insight more fully falls. As to what insight means in this regard, [55] it seems to me appropriate to consider it in the following manner:
    1. As per dictionary definitions, namely “the capacity for understanding hidden truths etc”;[56] or “the ability to perceive clearly or deeply the inner nature of things ; a penetrating understanding as of a complex situation or problem.”[57]
    2. As per the meaning given it in psychotherapy, such being an awareness of underlying sources of emotional, cognitive, or behavioural responses and difficulties in oneself or another.
  2. [63]
    The applicant’s possession of genuine insight is an important factor in the process of considering his application to have his negative notice cancelled thus opening the door for him to obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA [2006] QCST 11:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.[58]

  1. [64]
    There are however other cases which highlight the importance of insight in assessing whether the risks associated with an applicant’s past conduct have been reduced.
  2. [65]
    The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 wherein the Appeal Tribunal considered the issue and expressed this observation:

Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….

Ms Lister continues to minimize and justify her conduct …

These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.[59]

  1. [66]
    I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by the applicant. Therein I made this observation:

Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable.[60]

  1. [67]
    In my opinion these comments are equally applicable to the circumstances of the applicant now before me. Whilst I was readily able to accept, with the passage of time, the applicant had developed and possessed a substantial degree of insight into his conduct for which he was ultimately convicted, which if that was all it would have persuaded me in his favour in terms of the Decision being set aside, I was not able to reach the same conclusion that he possessed the requisite degree of insight into why much of that offending conduct arose, more particularly and specifically insight into the effect his excessive consumption of alcohol is having on him. There are specific aspects of the oral evidence which leads me to that conclusion. I set that out here.
  2. [68]
    On the first occasion of the hearing on 23 April 2021 the following exchange occurred between the respondent’s representative and the applicant, and later the presiding Member and the applicant, when discussing the conduct on 1 September 2013 which brought about the convictions on 21 February 2014 to which I referred earlier when discussing the sentencing remarks.[61]

Member And you contravened – you accept that you contravened the previous probation order put in place by the court, okay; is that right?

Applicant Yes, that right, Member.

Member Tell me this: reflecting back on your activities that night and your behaviour on that night, how do you feel now?

Applicant I shouldn’t have – I know I shouldn’t have done it; I shouldn’t have gone – shouldn’t have gone there in the first place. Should’ve stuck to my guns but I felt sorry for her; she makes me feel sorry for her and want to help her.

Member Should’ve, could’ve, would’ve. Right. Hindsight’s (sic) a great, wonderful thing.

Applicant Yeah.

Member But what did you learn out of it?

Applicant Like with her, you need witnesses, and you don’t be on alcohol.

Member Well, the big part there is just do be an (sic) alcohol, isn’t it?

Applicant Yeah.

Member And alcohol played a big part during your life.

Applicant Yeah, that’s right.

Member And it seems that any offences you’ve committed – well, majority of the offences you’ve committed have been alcohol based.

Applicant Yeah, that’s right.

Member Or related to alcohol, and you – okay. Sorry, Ms Davis, I might’ve taken away some line of questioning, but I think I have enough in regard to that incident.

Ms Davis So are you saying that this event was motivated by jealousy?

Applicant No. I’m over jealousy with here; its just mind games – bad mind games. I don’t know, just provocation and its no excuse being drunk, but I told her to leave me alone, I turned off my phone and that. She knew I was not in a good way because of Father’s Day …

Ms Davis How were you not [indistinct]

Applicant It was being stupidly intoxicated, and me being stupid …

…

  1. [69]
    On the second occasion of the hearing before Member Pennell, this being 7 May 2021, there was a similar discussion, on that occasion concerning the incident on 8 January 2021 that gave rise to the DVO and PPN, and from which the 2021 offences arose when the DVO was breached by the applicant. This is as I have extracted it from the Transcript:[62]

Ms Davis Do you think you showed restraint on the 8th January? And self-control?

Applicant I could have shown more …

Ms Davis So your saying that you showed sufficient self-control and restraint, but you could have shown more?

Applicant Definitely, yes.

Ms Davis You showed sufficient self-control and restraint on that date?

Applicant Yeah, I could have done it better. But in that circumstance – you know, hindsight is a great thing. But she knew I was intoxicated, …

Member Look, I’m not sure he’s fully understanding what the question was, Ms Davis. But I get the picture that … it was a heightened situation … not made any easier or better because he was intoxicated on that occasion.

Applicant Yeah.

Member Is that right?

Applicant Yeah, that’s correct.

  1. [70]
    During that hearing there was another occasion of a similar conversation, this one concerning an earlier offence for contravention of a domestic violence order which occurred on 31 January 2015, and for which the applicant was convicted on 23 April 2015. It is as follows:[63]

Ms Davis All right. And you bought a carton of beer …

Applicant Yes. Silly mistake. Yes.

Ms Davis All right. Do you recall how much of the carton you drank that night?

Applicant The majority of it would have been.

Member Were you drunk ?

Applicant Yes, I was drunk.

Ms Davis All right. And at the last hearing, you acknowledged that drinking makes you less likely to put up with stuff; correct?

Applicant Yes. I am pretty jovial, but yeah, when people want to antagonise me and just – yeah, I – I love a joke, actually, when I drink, but around the wrong company – it depends on people you hand around in life, you know?

Ms Davis All right. It lowers inhibitions, alcohol, doesn’t it?

Applicant  Yes, it does. Yes.

Ms Davis All right. I probably don’t need to ask you how you reflect on your decision to drink. Do you accept it was a poor decision?

Applicant Around her, yes.

…

Ms Davis All right. So in your submission, you say that you should not have gotten drunk around your ex and the boys, and you put yourself in a vulnerable situation?

Applicant Yeah. I don’t know. I just trust sometimes too much. …

  1. [71]
    Shortly later in the hearing the discussion on this incident returned, on the later occasion between the Member and the applicant as follows:[64]

Member Even after the … 2013 incident we spoke about earlier, you did a mentor program.  Okay.  You’d have to accept, wouldn’t you, that even after doing that mentor program there has been other domestic violence incidents where - you’ve been involved in.  Do you think it worked?

Applicant I took some positive stuff out of it, yes.

Member Yes.  All right?

Applicant Definitely.  I know what I’ve got to do.  Like, I’ve just got to minimise her out of my life, and not let her around my place, and have witnesses, and be at public meet - meetings, and not let her be around when I drink. …

Member Can I make an observation to you, sir?

Applicant Yes, Member.

Member There’s a common theme, it appears, in these DV matters, and that’s alcohol?

Applicant Yes.

Member All right. Eighth of January, you were drunk, this year. Thirty-first of January 2015, you were drunk as well. Twenty-fifth of May 2014, you were drunk as well?

Applicant Yes.

Member 1st of September 2013, you were drunk as well. That’s ---

Applicant I know.

Member - - - four domestic violence incidents all involving alcohol. Is there - I’m going to ask, is there something in the material that suggests to me that you’ve done some alcohol rehabilitation programs?

Applicant I did, but I haven’t been to Al-Anon and that, and I’d be - if you suggested it or whatever, I’d take - definitely take that on board and do the course.

Ms Davis [Applicant’s name], have you considered doing those courses, addressing your triggers, and then applying for a blue card once the two-year period elapses?

Applicant Yeah, and then my son’ll be - - -

Ms Davis When you can show that you’ve addressed the triggers?

Applicant Then my son will be older. And I’ve got a person that I help train, but I’m not allowed to call him at the moment. He’s got the chance to go to the Commonwealth Games. He used to work here at the courthouse, and now he’s a [indistinct] but I can’t - I’ve got to get other people to corner him. I’m allowed to be there. But it’s embarrassing, because he’s got to join another association and I’m not allowed to. So - you know.  And another fellow I’ve got professional, he - he’s - was in the navy for 11 years, worked at Cleveland for three years, and now he’s a support officer for the Flexible Learning Centre. Like, I’ve totally changed my life with the people who I used to hang around.  Like - and my housemate is a prison warden.  Like, I never used to hang around people like that, and the people you hang around is sort of who you become.  So I’ve got more positive influences in my life.  And, you know, [son’s name] - I couldn’t even help him at soccer the other day, and I wanted to get on the field and - like, because his couch was run under with the seven year olds, and you just want to say, are you getting a little bit of space, and - you know.  I know you don’t want pieces of crap working with children and that, and I - I would look like that. And with the new sort of stuff - - -

Member [Applicant’s name], I don’t consider that you are what you just described yourself as. All right?

Applicant Well - well, you look at that - - -

Member I don’t think that. All right? I see before me a human being who has struggled with some - certain issues in his life. One of those is a significant bout of PTSD. [Doctor’s name] has clearly articulated that in his reports. Okay? ---

Applicant and ---

Member You have an issue with alcohol?

Applicant Yes.

Member You don’t shy away from that particular - do you?

Applicant No.

Member You don’t - - -?

Applicant That’s why I was trying to isolate myself.

Member You don’t deny that. That is one positive thing I could take out, that you don’t deny your vulnerabilities to alcohol. What I have to consider is what is the risk of harm to children in the future. Okay? Is that risk of alcohol so great that it would impact upon any rational decision to issue you a blue card?---

Applicant You’d think it may, but I’ve got to make changes here, don’t I?

Member No, no, I’m just putting it out to you that that’s what I have to consider?

Applicant Yes. You’d think it may, but - so I have to make changes, whether it be along - I went to ATODS and that, and then they thought I had it under control. But I don’t want to make excuses. I should be able to deal with anyone in life, yeah. But my ex, we’re toxic, so I can’t be around her. Like, I’ve got to get the law in place so I - I - I’ve finally got a leg to stand on with her.

Member Ms Davis, can I make a general observation at this particular point in time.

Ms Davis Yes.

Member Is that the only issues or flare-ups, if I can use those - term, is really the interaction - when he’s intoxicated and he interacts with his former partners.

Applicant Yeah.

  1. [72]
    The conversation again returned to the topic of alcohol later in that hearing wherein the following was said:[65]

Member Have you ever interacted with your ex-partner - I mean - and when I say “interacted” I mean been with her at any place, you know, for changeovers for your child, a catch up when you have not been intoxicated?

Applicant Yeah - majority of the time.

Member When you’ve been sober, yes?

Applicant Majority of the time, yeah.

Member Sorry?

Applicant I had to go to a parent-teacher interview with her yesterday about our son. Like - yeah.

Member How was that?

Applicant Oh, it was - yeah. Fine and dandy. She acted like we were still together sort of - and - yeah. Nah - yeah. But - yeah.

…

Member So you’d have to accept, wouldn’t you, that these incidents seem to flare up when you were intoxicated?

Applicant Definitely, yeah. And when I’m put in a situation. Like, when I’m told my son’s not coming around and - yeah. It’s my weakness. I’ve just got to work on that and realise some people aren’t out for your best interests and - - -

Member Would one part of your weakness be when these things happen, you try to put a bit of blame back on her?

Applicant At times, yeah. But I know now, I can’t have anything to do with her except for [son’s name]. Like, drop off, pick up; that’s it. Like I said, hopefully she gets on with her life and is happy. Everyone deserves happiness, but - - -

Member Ms Davis, you started off talking before about risk factors. I’ve got three down:  interactions with ex-partner, not adhering with his medication regime and his alcohol consumption. But I think the interactions with his ex-partner, the only risk factor with that is when alcohol is involved.

Ms Davis Yes.

Applicant No. Even without alcohol there is toxicity.

Member Well, I haven’t read anything in the material that says you were sober in any of those DV matters?

Applicant Yeah. I know, but still - yeah. Well, when the police were called to my place in two - yeah.

  1. [73]
    There was yet another occasion for discussion during that hearing when the topic of alcohol and domestic violence conduct by the applicant was raised. It was as follows:[66]

Member Well, this is just - isn’t this another situation - the 2nd of August 2011 - which is documented that you were intoxicated on that occasion?

Applicant Yeah.

Member This is the evidence before me. It’s another domestic violence-related incident where alcohol’s involved? Okay? I’m just explaining it to you. So, would you accept, [applicant’s name], that throughout your history with relationships, with not only [name], but other women?

Applicant Yeah.

Member Is that - any domestic violence incident that arises, which impacts upon them, or impacts upon children of the relationships, is that is punctuated with you being intoxicated?

Applicant Yes, definitely Member.

Member And over that long period of time, it would seem that, although you have addressed those issues, with regard to ATODS and other substance - interventions - interventionary type programs, it seems that those frustrated feelings that you may have towards your ex-partner, [name] still manifest themselves by - when you are intoxicated.  For example, the incident that took place in January this year?

Applicant Yep.

Member Will you accept that?

Applicant Yeah, totally. Yeah.

  1. [74]
    On the third occasion of the hearing before Member Pennell, on that occasion being 9 September 2021, a lengthy discussion took place with the applicant’s Psychiatrist, Dr L. Whilst it was extensive and much of it was in my opinion not relevant, there are certain aspects of the oral evidence given by Dr L on questioning from Ms Davis for the respondent. The following is as I have extracted it from my reading of the transcript of that hearing:[67]

Ms Davis [Dr L] you comment in your report of the 18th of May 2021 on the risk of repetition of concerning behaviour and by concerning behaviour, do you mean breaking the law [indistinct]?

Dr L Breaking the law or – and not only recidivism but, also, the risk to [applicant’s name]’s children when they’re in his care, as it were. That’s the most important part of those charges, I think.

Ms Davis All right. And in terms of what you specifically mean by the phrase “concerning behaviour”, would that be engaging in domestic violence?

Dr L The primary concern, then, would be domestic violence. Also, I would be concerned about alcohol consumption and its effects on – in terms of disinhibition, which can lead to violence. I’m also referring to the issue of violence itself, in that the only reliable fact that [indistinct] found from research that predicts future violent behaviour is past violent behaviour. So the – the term concerning behaviours was not – not my term. It’s not one that I would usually use because it’s very, very vague. But primarily, in this case, I’m referring to [the applicant’s name]’s risk to his children.

Ms Davis All right. And when you say “domestic violence”, what behaviours are you including?

Dr L Domestic violence is a very broad [indistinct] range from texts to phone calls to stalking to actual physical violence, smashing children, all – all – very, very, very broad. So – so I’m afraid that it’s a hard battle.

Ms Davis All right. So when you talk about the risk of repetition of concerning behaviour, you include in that domestic violence, and that means any type of domestic violence, not just violence?

Dr L That – that’s – that’s correct.

Ms Davis All right. Would the recency of having committed a concerning behaviour be relevant to your assessment of the likelihood that the behaviour will be repeated?

Dr L Sorry, I do beg your pardon. I missed the first part of your question.

Ms Davis Would the recency of someone engaging in domestic violence or a different concerning behaviour affect your assessment of how likely it is that they would repeat the behaviour?

Dr L Yes, it does. Clearly, more recent behaviour is [indistinct] and that indicates the – the tendency for future such behaviour is – is a lot higher than [indistinct] 10 years ago for – for [indistinct].

  1. [75]
    There were some other comments made by Dr L that in my opinion are directly relevant and germane to the issues which I must consider in terms of my review of the Decision. This is as I have extracted those from the transcript:[68]

Dr L … in my opinion, [applicant’s name] doesn’t have a personality disorder, but he does have, in my opinion, some cluster B personality traits. And to be – help you a bit further, I will explain what they are. In my opinion, they would fall under the – or be extracted from the diagnosis of antisocial personality disorder which is defined as follows, and I quote:

A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 as indicated by three or more of seven subsections.

Which I will read out to you:

Firstly, failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest. Secondly, 20 deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure. Thirdly, impulsivity or failure to plan ahead. Three, irritability and aggressiveness, as indicated by repeated physical fights or assaults. Five, reckless disregard for safety of one’s self or others. Six, consistent irresponsibility as indicated by repeated failure to sustain work 25 behaviour or honour financial obligations. And lastly lack of remorse as indicated by being indifferent to or rationalising having hurt, mistreated or stolen from another.

And of the aforementioned, that’s borderline – sorry, that’s antisocial personality 30 disorder. And I must stress – I can’t stress too much that it’s my opinion that [the applicant] doesn’t have antisocial personality disorder. But the traits that concern are the irritability and aggressiveness. That – that is one thing which is – has been a repeated issue in [the applicant]’s life for one reason or another. …

  1. [76]
    Shortly thereafter, the discussion with Dr L then turned to the issue of the applicant’s alcohol consumption wherein the following was raised:[69]

Ms Davis Can you tell the tribunal whether there’s anything else that’s relevant to whether a concerning behaviour may be repeated that you haven’t already [indistinct]?

Dr L Consumption of alcohol. I think I mentioned that already. But that has been an issue that has been a – what we call an area of clinical concern in this case. When one consumes alcohol – I don’t know whether [indistinct] I suppose, but initially there’s a feeling of euphoria, then there’s a feeling, if one keeps consuming the substance, of disinhibition, so one might say something that one wouldn’t say whilst intoxicated, and similarly, one might act in a different way to when sober. So the concerning effects of alcohol used in [applicant’s name]’s case is the exacerbation of disinhibition, if you will, of behaviour that – that might lead to the repetition of previous behaviours, including domestic violence.

Ms Davis All right. [Dr L], I think that what you just said is very similar to what [applicant’s name] himself said at that previous hearing, and that is this - - he says he finds it difficult to relax, which he believes is due to the PTSD, and that alcohol relaxes him, but then it also makes him less inhibited or less [indistinct] put up with stuff, he says?---

Dr L Yes. Exactly. Spot on. That’s a very good subjective account from [the applicant] of what I’ve just said.

  1. [77]
    Finally, there was a discussion with Dr L concerning one of the incidents concerning the applicant’s adverse behaviour which in my opinion is telling in terms of the issues I must consider in this proceeding. It is as follows:[70]

Ms Davis Right. [Dr L], are you aware that [applicant’s name] has stated in the police material to have gone into the bedroom of his ex-partner’s 10 year old son and said to him that his mother was nothing but, “a fucking whore and a prostitute”, on that night?

Dr L No.

Ms Davis Other than the drinking of alcohol that night, what’s your assessment of any other reasons that [the applicant] was unable to stop himself in engaging in that behaviour?

Dr L  I think it relates to the disinhibition, of which we’ve discussed, of the effects of alcohol on an underlying psychiatric condition.

Ms Davis All right. Is there any other strategies that he could have used but he didn’t use on that occasion?

Dr L Well, the strategies that he tried to use were obviously unsuccessful. So there’s probably a myriad of strategies that he could have tried, but – but which didn’t, and the reason for that, in my opinion, is [indistinct] his intoxication.

  1. [78]
    When the matter came on for final hearing before me on 15 December 2022, with further cross-examination of the applicant being undertaken, the conversation returned once again to a discussion with the applicant concerning his alcohol consumption wherein I asked him some questions. The exchange between us was as follows:[71]

Me Do you still drink?

Applicant Yes – I have cut it down it not totally ceased.

Me How much do you drink?

Applicant A carton a week – full strength. I binge drink. I get drink. It is an escape – usually by myself.

Me What do you escape from?

Applicant Life issues.

Me What is the effect?

Applicant I relax and have a good time. 

Me What is your long term place re drinking.

Applicant I could give it up if I wanted to.

Me There has been negative behaviour by you in the past – to what extent is it contributed to by drink

Applicant  Allot of it.

  1. [79]
    In my opinion this evidence is telling against the applicant. Not only does the evidence of his Psychiatrist leave me with the conclusion that the applicant’s excessive alcohol consumption, when combined with the fact of his PTSD, is a root cause of much of the applicant’s behavioural issues and violent conduct, the oral evidence of the applicant himself shows me he has a lack of insight into the effect alcohol consumption has on his ability to control his emotions in times of stress when inebriated, such which manifests in violence. Such is as I understand it to be a view held by his attending Psychiatrist Dr L. I also note the opinion of Dr L that the evidence of his recent offending behaviour whilst under the effect of excessive alcohol consumption suggests the very real possibility of further such conduct in the future. When combined with Dr L’s opinion of the applicant having issues concerning irritability and aggressiveness, heightened when effected by excessive alcohol consumption, leaves me with the impression that it would be a risk to the protection of children and young people to permit the applicant to be the holder of a Blue Card.
  2. [80]
    The issue of his alcohol consumption was pointed out to the applicant during sentencing by the Magistrates as shown in the comments from the Magistrates as I have noted it earlier in these reasons. It was also as pointed out at some length in the discussions Member Pennell had with him as I have noted them herein. Yet, whilst he seems to have acknowledged in his discussions with the Magistrates and Member Pennell the need for change, in the discussion I had with him of a similar vein I was left with the impression that it has not yet totally struck home with him if at all.
  3. [81]
    Although he once again seemed to acknowledge that it was an issue, at its highest his position was he could give up alcohol consumption if he wanted to. That comment left with me the opinion that the applicant did not want to give it up, thus showing a lack of insight into the issue and its relationship with his inappropriate and unacceptable conduct as demonstrated by repeated domestic violence and then his contraventions of domestic violence protection orders.
  4. [82]
    This bears adversely on his suitability to hold a Blue Card..

Conclusion

  1. [83]
    What is relevant is this proceeding is the applicant’s failure to have demonstrated possession of insight into the effect his alcohol consumption has on his ability to manage his behaviour, or to put it more precisely the evidence shows he does not possess that insight.
  2. [84]
    Contrary to much of what the applicant stated as being the premise for his application to this Tribunal which I noted in paragraph [4] herein, in my opinion the applicant has not demonstrated that he has changed his lifestyle, or that he has taken ownership of his mistakes, nor that he has no desire to put himself in a situation to make major failures again. This is because of his demonstrated failure to understand his circumstances as they arise from his alcohol consumption. In my opinion if he had done so he would be abstaining from consumption of alcohol, and be engaged in programs to assist him in managing his desire / need for alcohol.
  3. [85]
    As I have understood the evidence before this Tribunal and based on the short opportunity I had to engage with the applicant in the hearing, he does not present as the person he seemingly considers himself to be. As I noted it from the transcript of the hearings before Member Pennell in paragraph [71] herein, it appears to me that Member Pennell held the same view.
  4. [86]
    In my opinion such is sufficient to dispose of this application. It left me with the conclusion that the applicant would simply be unsuitable as a holder of a Blue Card, such being a person who must be trusted to ensure the welfare and best interests of a child would be protected should he find himself in a position of caring for children in an employment of business setting.
  5. [87]
    In the absence any proper demonstration of the requisite degree of insight, I am left with the conclusion that the applicant could readily be in a situation where he had children and/or young people under his care whilst he was inebriated, and/or suffering the effect of excessive alcohol consumption, and if a situation might arise at that time which triggers a repetition of previous behaviours, including domestic violence, then he would be unable to provide for proper and effective safety of the children left in his care. Until such time as the applicant can demonstrate the requisite degree of genuine insight, which in my opinion would most likely entail a sufficiently lengthy period of time abstaining from alcohol consumption and a demonstration that any desire for alcohol consumption has been subdued and can be controlled, in my opinion it is entirely inappropriate for him to be entitled to hold a Blue Card and accordingly entirely inappropriate for his negative notice to be cancelled.
  6. [88]
    Having considered the evidence, the submissions, and the relevant law, overall I found the applicant’s case to be an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a blue card. In my opinion the applicant’s circumstance does not conform to the general rule such that a working with children clearance must issue.
  7. [89]
    It therefore follows that the Decision is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct. There will be an order to that effect.

Footnotes

[1]WWCA s 233(c). The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’.

[2]Such is an application under WWCA s 304G.

[3]See WWCA s 223 (2), (3) and (5). Later in these reasons I extract the final part of the applicant’s written closing submission wherein he makes an impassioned plead for this Tribunal to re-issue his Blue Card. I pause here to make this observation for the applicant’s benefit – it is not within this Tribunal’s jurisdiction to issue a Blue Card. It is for the respondent to do so, such which is governed by the provisions of the legislation to which I have just referred.

[4]See Part C of the ‘Application to review a decision’ filed 30 June 2020.

[5]QCAT Act s 19.

[6]QCAT Act s 20.

[7]LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373, [10]; see also DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33; [31], [32].

[8]QCAT Act s 24.

[9]As I will discuss it later in these reasons,  that criminal history spans a period of 24 years from 1991 to 2015.

[10]WWCA s 5.

[11]WWCA s 6.

[12]As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld):  “Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.” 

[13]See WWCA s 221(2) and s 221(3)(a)(iii). Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.

[14]WWCA s 221(2).

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

[16]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.

[17]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34]; Chief Executive, Public Safety Business Agency v Masri [2016] QCAT 86, [54].

[19]Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16]. Footnote omitted.

[20]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.

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

[22]I pause here to observe that the decision maker considered the HRA in reaching the Decision (see Ex 1 BCS 11) but that the applicant did not raise any issue in his closing submissions or at any other time during the hearing as to his human rights or the application of the HRA.

[23]HRA s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.

[24]Ibid s 48(1) & (2).

[25]Ibid s 15, s 21, s 23, and s 25. I note that the de-identification of these reasons is consistent with the right to privacy.

[26]Ibid s 26.

[27]HRA – s 13.

[28]QCAT Act s 21(1).

[29]See QCAT Act s 21(2). Ex 1 – Respondent’s Statement of Reasons and accompanying documents BCS 1 to BCS 93; Ex 2 – Respondent’s Notice to Produce Documents NTP 1 to NTP 98. Ex 3 – Statement of the applicant’s criminal history as at 2 September 2021.

[30]SR filed via e-mail 3 February 2023 referenced as BCS 94 to BCS 111 (Referred to via Footnote references herein as ‘SR’).

[31]Respondent’s Outline of Submissions dated and filed 24 February 2023 (Referred to via Footnote references herein as ‘RCS’).

[32]Ex 4 – Applicant’s statement dated 7 October 2020.

[33]Ex 5 – Letter from Dr L addressed to QCAT dated 8 January 2021; Ex 6 - Letter from Dr L addressed to QCAT dated 18 May 2021.

[34]E-mail from the applicant to this Tribunal dated 8 March 2021. (Referred to via Footnote references herein as ‘ACS’). In my directions given, the respondent was afforded the opportunity of reply to the ACS, but it informed this Tribunal via e-mail dated 17 March 2023 that it would not be filing any further submissions.

[35]RCS para 150

[36]ACS – last two paragraphs.

[37]WWCA s 228(2)(a)

[38]See Ex 1 BCS 90; Ex 2 NTP 13 to 21.

[39]Ex 2 NTP 20 and 21. Emphasis added.

[40]The word ‘no’ as inserted in this quote in brackets does not appear in the original document. However in my opinion the extracted portion of the PPN must be read as if the word ‘no’ appears where I have inserted it because it otherwise does not make logical sense in terms of the expressed conclusion therein.

[41]Ex 1 BCS 87 to 93.

[42]Oral evidence of the applicant on 15 December 2022 in regard to

[43]WWCA s 226(2)(a)(i).

[44]See Ex 1 BCS 14 and 15. See also Ex 3 which provides a more complete history incorporating the later conduct to which I refer in the following paragraph in these reasons.

[45]Notwithstanding that the latest charges resulted in a fine with no conviction recorded, for the purposes of the WWCA such is still considered a ‘conviction’ such being defined in the legislation as meaning “a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded” – See Schedule 7 – Dictionary to the WWCA.

[46]WWCA s 226(2)(a)(ii).

[47]Consider the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.

[48]WWCA s 226(2)(a)(iii).

[49]WWCA s 226(2)(a)(iv).

[50]WWCA s 226(2)(a)(v).

[51]BCS 94 to BCS 111 filed via e-mail 3 February 2023.

[52]See BCS 97. Emphasis added.

[53]See BCS 100. Emphasis added.

[54]WWCA s 226(2)(f).  I need not have regard to ss 226(2) (c) to (e) as they are not relevant.

[55]Consider dictionary definitions of ‘insight’ being “the capacity for understanding hidden truths etc”- See Australian Oxford Mini Dictionary – 4th Ed – Oxford University Press 2010; or “the ability to perceive clearly or deeply the inner nature of things ; a penetrating understanding as of a complex situation or problem.” – Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London - 1989.

[56]Australian Oxford Mini Dictionary – 4th Ed – Oxford University Press 2010.

[57]Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London - 1989

[58]Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].

[59]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [53] to [55].

[60]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, [68].

[61]T1-76 Line 11 to T1-75 Line 11.  The discussion starts at T1-72 Line 9.

[62]T2-14 Line 23 to T2-15 Line 46. Emphasis added.

[63]T2-23 Lines 14 to 46. The discussion concerning the incident starts at T2-21 Line 46.

[64]T2-25 Line 35 to T2-27 Line 21. Emphasis added.

[65]T2-38 Line 26 to T2-39 Line 9.

[66]T2-47 Lines 24 to 42. Emphasis added.

[67]T3-9 Line 19 to T3-10 Line 9. Emphasis added.

[68]T4-11 Lines 8 to 34.

[69]T3-12 Lines 19 to 37. Emphasis added.

[70]T3-25 Lines 1 to 14. Emphasis added.

[71]This is not taken from a transcript, rather it is from my notes made during the hearing. Thus it is not to be read as being verbatim.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2023] QCAT 293

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    31 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 Eales [2013] QCATA 303
3 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Cite 3 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
3 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Cite 3 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
3 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Cite 3 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
5 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Cite 5 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
2 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33
2 citations
Jump To
Cite 1 - [2022] QCAT 33
Cite 2 - [2022] QCAT 33
GM [2016] QCAT 86
2 citations
Jump To
Cite 1 - [2016] QCAT 86
Cite 2 - [2016] QCAT 86
LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373
2 citations
Jump To
Cite 1 - [2012] QCAT 373
Cite 2 - [2012] QCAT 373
McKee -v- McKee (1951) AC 352
1 citation
Jump To
Cite 1 - (1951) AC 352
Re OAA (2006) QCST 14
1 citation
Jump To
Cite 1 - (2006) QCST 14
Re TAA (2006) QCST 11
3 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Cite 3 - (2006) QCST 11
SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392
3 citations
Jump To
Cite 1 - [2021] QCAT 392
Cite 2 - [2021] QCAT 392
Cite 3 - [2021] QCAT 392
SWJ v Department of Justice and Attorney-General [2022] QCATA 119
2 citations
Jump To
Cite 1 - [2022] QCATA 119
Cite 2 - [2022] QCATA 119
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
2 citations
Jump To
Cite 1 - [2021] QCAT 121
Cite 2 - [2021] QCAT 121

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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