LJD v Director-General, Department of Justice and Attorney-General
[2023] QCAT 498
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- LJD v Director-General, Department of Justice and Attorney-General[2023] QCAT 498
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LJD v Director-General, Department of Justice and Attorney-General[2023] QCAT 498
LJD v Director-General, Department of Justice and Attorney-General[2023] QCAT 498
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | LJD v Director-General, Department of Justice and Attorney-General [2023] QCAT 498 |
PARTIES: | LJD (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO/S: | CML099-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 21 June 2023 |
HEARING DATE: | 15 May 2023 |
HEARD AT: | Southport |
DECISION OF: | Member McDonald |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where relevant information as to convictions – where offences not categorised as serious or disqualifying offences under the Working With Children (Risk Management and Screening) Act 2000 (Qld) – where relevant information pertaining to domestic violence-whether an ‘exceptional case’ warranting departure from the general rule – application of factors in s 226 and s 228 of the Working With Children (Risk Management and Screening) Act 2000 (Qld). Human Rights Act 2019 (Qld), s 8, s 13, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 360 Chief Executive Officer, Department of Child Protection v Scott [No2] [2008] WASCA 171, [109] Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 87. Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Grindrod v Chief Executive Department of Community Development [2008] WASAT 289 IHI v Director General Department of Justice and Attorney General [2021] QCAT 206 SS v Director General of Justice and Attorney General [2021] QCAT 392, [44] Vaveau v Director General, Department of Justice and Attorney General [2021] QCATA 152 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self- represented |
Respondent: | Davis, C, Advocacy Officer, Blue card Services. |
REASONS FOR DECISION
- [1]LJD has asked the Tribunal to review the decision of Blue Card services made 4 March 2022,[1] to issue a negative notice for a blue card. On that date, Blue Card Services determined that the case was an exceptional case within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (‘The WWC Act’). This decision is now before the Tribunal.
- [2]
- [3]The Tribunal must consider the matter under s 221 of Working with Children (Risk Management and Screening) Act 2000 (Qld), (‘the WWC Act’). This requires that the applicant must be issued a blue card unless an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance. The issue for determination is whether an exceptional case exists.
- [4]The meaning of ‘exceptional case’ is not defined in the legislation. Since there are criminal charges and convictions, as well as information relating to domestic violence, I am required to have regard to the mandatory factors stated at ss 226(2) and 228 in considering whether this is an exceptional case. Other factors may be taken into consideration.[4]
- [5]Case law has provided that an ‘exceptional case’ is a question of fact and degree, determined on a case-by-case basis, and risk and protective factors may be taken into consideration[5]. The Tribunal must apply the principles of the WWC Act. which require the welfare and best interests of children to be the paramount consideration in making the determination.[6] The Tribunal must also be guided by the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
- [6]The Tribunal is acting as a public entity in reviewing the decision of Blue Card Services and is required to act in a way that is compatible with human rights. [8]The Tribunal will act in a way compatible with human rights and makes a decision that does not limits human rights or limits a human right where it is reasonably and demonstrably justifiable.[9]
- [7]LJD submits that her case is not an exceptional case, and she should be issued a blue card.
- [8]She describes herself as always being protective of her own children, and relies on her witnesses who support her claims.
- [9]There are a number of offences in LJD’s criminal history and domestic violence information that the respondent claims indicate that LJD is not suitable to work with children. The respondent submits that LJD’s offending behaviour at an advanced age, raises questions about her ability to exercise restraint of her emotions to manage her anger in a stressful situation;[10] prioritise children’s needs over her own; to present as a positive role model to children;[11] and judge appropriate behaviour.[12]
- [10]LJD told the Tribunal she had immense duress from 2017 -2020, which impacted her at the time. She said she regrets her actions and now has reduced stressors and a strong base of protective factors in her family that she would not engage in similar behaviour. She said she is stronger in her mental health now, a deeply regrets the public nuisance offence that occurred when she was under severe mental stress. She made submissions that she does not tolerate abuse of children and felt that she had acted protectively towards children at all times. She told the Tribunal that she needs to have her blue card to work as a social worker, and to be able to provide for her children. She argues that the decision leaves her unable to work in her profession.
- [11]The Tribunal is not able to take hardship into consideration in deciding whether an exceptional case exist. It is well established by the scheme of the Act and caselaw, that any hardship suffered by an applicant is not a relevant consideration at law.[13] The Tribunal must make a decision based primarily upon what is in the best interest of children as the paramount consideration,[14] and the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[15]
- [12]LJD relied on the following material: application[16], Life story,[17]Statement of Evidence[18] containing statements of witnesses KW, KE, JAD, GB, Submissions filed 18 April 2023, including statements of KD, JF, DN, MD, and LJD sought leave to rely on the evidence of a further witness who had not provided a statement to the Tribunal, however, noting that the provision of a further statement was out of time, and the objections of the Respondent that it may give cause for the matte to be adjourned, leave to file any further material was not provided. Leave was granted for her specific witnesses to attend by phone. Oral evidence was taken from MD, KD, JF. JAD, DN, KE and LJD.
- [13]The respondent relied upon the documents identified as BCS 1-128, containing LJD’s criminal history, police reports in relation to LJD’s offending, transcripts of relevant proceedings, traffic history and domestic violence information. As well as this they relied upon documents produced under notice to the Tribunal from Richlands Magistrates Court, Queensland Corrective Services, Beenleigh Magistrates Court, Department of Transport and Main roads, and Department of Children Youth Justice and Multicultural Affairs identified as NTP 1-322.
- [14]There are mandatory considerations I must have regard to under s 226 where there is information relating to convictions or charges for offences, and s 228 relating to relevant information about domestic violence. I may also consider any other relevant considerations.[19]
Mandatory considerations under s 226(2) as to whether if exceptional case
- [15]The Tribunal must relevantly consider the non-exhaustive list of factors at s 226(2) in determining whether an exceptional case exists.
- Whether it is a conviction or charge;
- Whether the offence is a serious offence, and if it is whether it is a disqualifying offence.
- When the offence was committed or alleged to have been committed;
- The nature of the offence and its relevance to employment that may involve children; and
- In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision not to impose an imprisonment order for the offence or not to make a disqualification order under section 357 , the court’s reasons for its decision;
- Anything else relating to the commission of the offence that is reasonably relevant to the assessment.
There is no information relating to sections 226(2) b-e.
- [16]LJD has convictions for the following offences: Assault / obstruction of a police office (1997); Common assault and wilful damages, (2011); failure to appear in accordance with undertaking, (2017); three counts of contravene a direction or requirement (2016 and 2017); Common assault, trespass, unlawful possession of stolen property, commit public nuisance obstruction of police officer, assault of a police officer arising from an incident in on 9 June (2019); Commit public Nuisance (2020).[20]
- [17]LJD has been disqualified for driving on two occasions arising from conduct in 2017, and 2019, and convicted of unlicenced driving arising from conduct in 2007 and 2016.[21]
- [18]LJD has finalised charges for the following offences all of which were dismissed: False statement to obtain money, 2000; breach of bail 2020, possession of pipes utensils for use, 2021.[22]
- [19]The offending spans from her youth into recent times, with the most recent conviction arising from conduct engaged in in 2020, at the age of 37 years. None of the offences are serious or disqualifying offences within the meaning of Schedule 2 4 or 5 of the WWC Act.
- [20]Of particular significance in LJD’s criminal history in terms of their relevance to working with children are the offences of common assault, public nuisance and assault of police officers offences.
- [21]LJD was convicted for assault when she was 28 years of age, in 2011. The police brief identifies that the assault occurred in a visitor’s car park of her neighbourhood when LJD punched a resident of her street whom while seated in his car and kicked the car door.[23] The sentencing Magistrate took into account that she did not have proper history and LJD was placed on a $600 recognisance.[24]
- [22]Multiple convictions relate to events occurring on 9 June 2019, aged 36, where LJD failed to give correct name and address to police, and presented a false identity, being a driver’s licence in another name. At the time she was driving a vehicle without a licence having been disqualified by court order some 11 months previous. She was identified in police briefs as a “repeat offender’[25] in relation to driving while disqualified. Her vehicle was immobilised, and once this occurred, LJD’s reaction toward police resulted in convictions for public nuisance, assaulting police officers and resisting arrest. The details of this offence are significant considerations pursuant to under section 226(2) of the WWC Act. The police briefs refer to video footage of the offences where LJD was recorded yelling to police:
“the defendant had multiple outbursts of profanities which were loud. The defendant was warned that her language was not appropriate for the time of night and location due to there being residential houses within the immediate vicinity.”
She continued to yell after being warned that she would be committing public nuisance if she continued to yell and warned that she was in a public place. She is reported to have yelled:
“fuck off… I don’t care. You are committing an offence with your dipshit face. The defendant has continued to yell: Shut up” “fuck off’ and “You are not taking my car you fucking dogs.” She has been recorded as saying to police:’ You watch your back motherfucker, just because you’re a copper doesn’t mean you’re untouchable.” The brief reports: “She walked toward the officer pointing her finger at him and has raised her right hand to hit (the officer) in the arm and chest area. The police attempted to restrain the defendant. The defendant has continued to struggle against police and has resisted arrest. The defendant has continued to kick (the officer) and abuse and threaten him whilst trying to restrain her. The officer sustained grazing and minor bruising.[26]
- [23]At hearing, LJD told the Tribunal that while she did swear and scream at the police, she did not believe she said those words, but further stated that she could not specifically recall. She said that she had needed to drive on that occasion to find an asthma puffer for her child, and hence there was some urgency in her situation. She said contact with the policeman was not intentional, that she “walked into him while trying to get to her niece,’ and that she had stepped forward and been tackled to the ground.[27]
- [24]LJD acknowledges that this event occurred while in the presence of her 13-year-old niece who observed this conduct.[28] In her statement to Blue Card Services[29] she said that her niece “had had problems with the police from her previous home, became really distraught, the police kept pulling at her and she was getting more and more upset” She said she was trying to make sure her niece was ok, as she said the police had slammed her to the ground. She denied kicking the police officer and explained that she was held down by five police officers, and in thrashing around her foot hit the officer. At hearing she acknowledged that “it would have been horrendous” for her niece, and she said “I shouldn’t have done it.”[30] She told the Tribunal that she thought she was being protective because the police were man handling her niece. She said she was under stress at the time and she shouldn’t have driven, and now she is back to her normal self, removed for the stressors of that previous environment. She told the Tribunal that some police in this incident had been disrespectful to her and lack integrity. She agreed that she had been a poor role model but indicated that sometimes it was justifiable to disrespect people who lack integrity in certain circumstances.[31]
- [25]These offences are relevant to child related employment in the behaviour in so far as the applicant is modelling antisocial behaviour. Collectively the conduct on this date demonstrated disdain for the authority of the police, disrespect for the law, poor judgement and significant lack of control of anger. In the context that LJD reports that her niece had a pre-existing troubled relationship with the police on LJD’s evidence, she modelled inappropriate behaviour on how to respond to a complex relationship with law enforcement. Although stemming from a protective motive, she has nonetheless, modelled antisocial behaviour as a means of navigating this complexity. While LJD may have sought to be protective of her niece, it is not apparent to the Tribunal that this behaviour could constitute protection of the child’s emotional and social wellbeing. The behaviour also modelled to her niece at the time a disregard for the law, where she drove while disqualified, dishonestly presented a false identity to police and maintained that false identity during questioning. This conduct is significantly concerning where LJD hopes to work with children who may be looking to her to learn to understand right from wrong. She has modelled to her 13-year-old niece that it LJD considers it acceptable social behaviour to flout the legal restrictions of the court, lie to police, be verbally abusive to police and present a false identity. This conduct deviates from socially accepted behaviour of the values children should learn from those who are care providers or role models who are authorised to work with children, and likely to cause confusion for impressionable children who are developing their frameworks for understanding the world.
- [26]On 8 December 2018, conduct resulting in a conviction for assault occurred when in a verbal altercation with her neighbour LJD’s children playing on the complainant’s driveway, LJD was reported to have yelled swore and spat at the complainant through the wire screen security door on the complainant’s property. LJD denies these facts which were accepted at trial following cross examination. She received a probation order for two years with the condition that she take part counselling programs during the order, and “must submit to medical psychiatric of psychological assessment and treatment as deemed necessary – counselling.[32]
- [27]LJD’s noted that her version of the events was not accepted at trial. The Tribunal cannot go behind the conviction and must accept the finding of the court.
- [28]In sentencing LJD to a probation order and fines for related offence, for the convictions for common assault and trespass, the sentencing magistrate declined to make an imprisonment order, having regard to personal circumstances, and with letters of support from Murri sisters, and engagement with a family wellbeing program. He noted that the parole order would provide an opportunity for rehabilitation.[33]
- [29]In February 2020 when aged 37 years of age, LJD events resulting in a conviction for public nuisance arose involving LJD and her neighbour. The detail of the offence as outlined in the police brief, indicates that around 11:30pm LJD yelled profanities and threw stones and at her neighbour’s window. The neighbours two children were present in the house at the time.[34] She was reported as yelling “Get out here you fucking slut.” while standing at the boundary of the neighbour’s front yard; The brief records that she threw stones at the neighbours window, and ‘on retreating to her property saying in the direction of the neighbours “Fuckin dead the lot of ya’s”’. The events were captured on CCT footage.
- [30]She was fined $350, with the Sentencing Magistrate referred to the inappropriateness of the behaviour, and its impact on witnesses, but taking into account the early guilty plea and the context of the behaviour including bad behaviour in the neighbourhood towards LJD and her family. She also considered LJD’s pressures at home, including her son’s needs. She did not record a conviction, recognising[35] LJD as a contributing member of the community with no previously recorded convictions. She warned her that her behaviour could lead to a conviction if she continued to act in this way.
- [31]LJD told the Tribunal that she was frustrated that police reports had been made against neighbour for her antisocial behaviour towards her and nothing was ever done. She denied throwing stones.
- [32]Criminal offences were committed from 1997 to February 2020, well into LJD’s mature adult life.
- [33]The respondent submits that these aforementioned offences raise questions about LJD’s suitability for child related employment because they raise questions of her ability to regulate her emotions and exercise restraint around children, and to present as a role model for children. I accept these submissions.
Considerations Under s 228- domestic violence information
- [34]I am also required to consider the factors under s 228(2) WWC Act where there is domestic violence information. I must consider the circumstances of the domestic violence order,[36] the length of time that has passed since the event,[37] and relevance to child related employment.[38] anything else relevant to the assessment of the person.[39]
- [35]LJD was the named respondent in three Domestic violence orders.
- [36]The order of 2018 relates to events that occurred on 12 December 2017 between LJD and her sister. The police brief refers to LJD and her sister assaulting each other, and LJD bite the middle right hand finger of her sister, and later threw a bottle of beer in the direction of her sister’s vehicle, which struck and smashed the windscreen. Five years have passed since this incident.[40] LJD states that this incident did occur, but she has not had a physical altercation with her sister since then, and she apologised and they have put it behind them.[41] Irrespective of the current apology between the sister, this conduct also poses questions about LJD’s ability to manage conflict, and role model this to children as well to manage her emotions crucial in child related employment. It is noted that this occurred outside of her home in neighbourhood environment in daylight hours where children may be reasonably foreseeably in the vicinity. LJD acknowledged that this event occurred.[42] Only 5 years have passed since this event.
- [37]On 14 March 2019, the police sought a temporary protection order with LJD’s partner and children named as aggrieved. The events detailed in the application for a domestic violence order [43]occurred on 12 March 2019 and the police application alleges that a heated argument between LJD occurred and LJD punched the 37-year-old male and subsequently grabbed a large kitchen knife and ran around the house whilst in possession with the knife. The children were reported to have called the police in response to this. The report noted that the children had observed their mother threatening the aggrieved with a knife. LJD is reported to have denied having a knife but holding BBQ thongs instead.[44]
- [38]All children aged 5-17 were reported by police to be present and to have witnessed this conduct. A two-year protection order was made by consent without admissions that LJD be of good behaviour for two years to not commit or expose the children to domestic violence. It is now four years since these events occurred. It is of significant concern to the Tribunal that this event occurred in the presence of children in her care and raises concerns about LJD’s self-regulation. On this occasion LJD did not appear to be mindful of the children’s emotional safety needs and exposed them to possible emotional harm. This raise concerns around her ability to do this in child related employment. It has been only four years since this event.
Other relevant Information - s 228(1)(b)(iv)
- [39]There is other relevant information before the Tribunal contained in volumes of child safety information in documents produced from the Department of Child Youth Justice and Multicultural Affairs. The documents produced indicate seventeen Child Concern reports and two unsubstantiated notifications relating to notifications between 2005 and 2020. I note that LJD refers to vengeful notifications being made against her in the context of disputes with third parties.[45]
- [40]It is important to note that the documents produced indicate no substantiated notifications of harm. However, in 2017, in the course of their assessments, the Department assessed that the children in LJD’s care “basic necessities are going unmet by [LJD], to such an extent that the children’s health and development are affected, causing emotional harm to (one child) and places all the children at an unacceptable risk of harm.’[46]
- [41]The assessment indicated that themes of reported worries related to “domestic violence, (LJD’s) anxiety and depression, (abusing prescription and illicit substances, and verbally and physically abusing her children and the children going without food. The department records LJD denying these allegations. The department referred to police reports of JLD kicking her daughter in the chest, punching her and pulling her hair. And in another incident throwing a toaster at her daughter. LJD denied physically assaulting her daughter, and that she had always tried to do the best to protect her children from an abusive father who had at times been dangerous and drug affected. [47]. The department states:
“although there is significant concern in relation to the impact of these incidents had to those exposed to it, and (the child) who suffered the physical violence, there is no evidence to suggest it had resulted in harm that is detrimental in nature.”[48]
- [42]In light of the unsubstantiated nature of notifications potentially made in the context of ongoing disputes, and the aforementioned considerations under s 226 and s 228, I find it unnecessary to detail the confidential discussions between the children and the department produced as result of this review. I must, not only make a decision that is compatible with human rights but must act in a way that is compatible with human rights when acting as a public entity.[49] LJD is a sole carer for her four children two of whom still under the age of 18 years. I do not find it compatible with the rights to the protection of families and children contained at section 26 of the Human Rights Act 2019 (Qld) to detail the content of confidential interviews in this forum. Nor do I consider it to be in the interest of justice, where this could undermine the foundational trust necessary in child protection matters. Since there has been no substantiated notifications. I limit my consideration to those matters detailed the previous section discussion, and the matters stated below.
Other factors
- [43]I may also take into consideration other matters that may be relevant to the assessment of the applicant.[50]
- Evidence of Applicant
- [44]LJD submitted that she was living through a stressful time at the time of the offences, specifically domestic violence, and she had limited family support at the time.[51] She stated that the disputes with the neighbour contributed to a depression, for which she sought treatment[52] from MD. She stated the move away has brought her closer to family which has enabled her to have support to access the community, and she has had ongoing counselling with her psychologist on a regular basis. She said this has given her mindfulness skills to assist her to manage her emotion.[53] She is actively involved in netball and has had no trouble with the police since her move from Logan. LJD considered it was important to understand the context that the offences occurred. She said she has always been protective of her children and submitted that her witnesses had confirmed this.
- [45]LJD states that she received counselling from early 2020, just prior to lock down with MD, who gave evidence to the Tribunal. She stated that she has had regular contact with, having an indigenous mental health care plan enabling 10 hours of counselling per year. She said she has helped her to learn skills such as mindfulness and ways to cope with stress.
- [46]LJD reports a wide and engaged social support system which includes her family and friends. This may be regarded as a protective factor, although I do note that the material indicates that she has been engaged in violence with her sister,[54] and the target of violence from her brother and father[55] both of whom evidence was given by witnesses she maintains contact with,[56] despite LJD’s oral evidence to the contrary.[57]
Witness Evidence
- [47]MR has been LJD’ s treating psychologist since 2020. Her written statement (undated and unsigned),[58] described LJD to be “living with a number of pressures in her environment where she was stalked by a member of the QPS and had toxic neighbours living next door “MD recounted a version of the neighbourhood dispute given to her by LJD. She said that she had no reason not to believe her.
- [48]MD’s statement reflects improvement in her mental health when she relocated and noted that she had made significant improvement in her ability to deal with stress and problems and has future oriented goals. She said she believed that LJD would be an “amazing asset to any family dealing with family issues. Her experience is testimony to what she has learned and how to cope.”
- [49]At hearing MR advised that she has treated LJD for severe anxiety and PTSD. She has described the above statement as a letter of support, advising the Tribunal that she “does not do clinical reports”. She said the sessions were sometimes three weekly, and had continued seeing her over a three-year period. She said her support was based on what LJD had told her about her situation which included high stressors in the context of a dispute with her neighbour. She said that she had supported LJD to develop strategies to identify her strengths, and techniques to cope with stress. She said she has given her knowledge about mindfulness and meditation, to help her focus on the present. She was not able to answer whether these techniques had been used by LJD. MD was cross examined around her knowledge of the alleged behaviour referred to through the police information and domestic violence information. MD had no information about any of the allegations of physical violence, and made clear that she was not aware of any inappropriate behaviours LJD had engaged in, and was specifically questioned about her knowledge of verbal abuse to police and spitting at the neighbour trespass and throwing rock and LJD’s biting her sister finger. MD said that she could only work with what a client tells me. She said that she believed that LJD was an “excellent person” and based on what she had told she would not have concerns about her working with children.
- [50]However, given the cross examination of MD, it was apparent that she had not been treating LJD in relation to the behaviours of concern identified in LJD’s criminal history and MD was not aware that LJD had a criminal history. MD had not been fully informed, despite a term of LJD’s probation being psychological counselling of the reasons for the counselling. She has not had full knowledge of the extent of the concerns and because of this the Tribunal can place limited weight on MD’s recommendations of LJD. I accept that MD has been treating LJD for anxiety of three years and supporting LJD to develop coping strategies for this, but I do not accept that she has supported her to address the issues that led to the incidents of violence and antisocial conduct that would reduce the risk to the best interest of children.
- [51]KD, LJD’s oldest daughter, aged 20 years, gave a written statement to the Tribunal.[59] said her mother has tried her best to protect her children and advocated for them and always kept them safe. She said she made sure we had everything we needed. She said “I know that it was not always good but I never felt afraid of Mum and I could turn to her for help.” She acknowledged having disagreements with her mother over her father. She said she wanted “to focus on all the excellent and amazing things Mum has done for us and still does.” These included celebrations and gifts for birthdays and Christmases and Easter; clothes and shoes on trend, and netball coaching with three days per week training. She said in her statement “mum and I had a fight at Woodridge it was a once off, it wasn’t something regular and she didn’t call me names, she said that the notifications were based on lies in the neighbourhood dispute.
- [52]Under cross examination KD denied that her mother had thrown a toaster at her when she was a child, she said it might have fallen off the balcony, but she couldn’t recall anything about the toaster. She said she didn’t think her mother had kicked her in the chest and she couldn’t really remember. She said she was not present at the incident when LJD was alleged to have run around the house with knife in front of the children, (despite police evidence to the contrary). She said she couldn’t remember much clearly. Given her memory lapses relating to these key events, the Tribunal places limited weight on KD’s evidence.
- [53]JF is a friend, and former partner of LJD. He provided two statements.[60] These state that he has never known LJD to be unfair to a child and has helped kids. He is aware that she has used her skills and personality help his own son. in support of LJD. He said he has known her for 5 years.[61] He further stated that she was good with children and can help people in the community. He said that she was going through a lot at her former address and that she is now living a healthy life and has no issues. They see each other twice a week.
- [54]JF referred to the incidents with her neighbour aggravating and upsetting LJD. He did not believe that LJD has engaged in inappropriate behaviour in the past and stated that she had been protecting herself and her family from the neighbour and had not on other occasions been inappropriate in her behaviour. He stated she had good supports in himself, her mother and her sister. He stated that she had “changed as a person heaps” and described her as “very outgoing, bright, smart, and happy to help”.
- [55]DN lives with LJD and has since 2018. His statement tells have his being housed by LJD and provide care when leaving a stressful home environment. The care included routines, rules and boundaries described her to be very supportive to him. He notes LJD always protected himself and the other children. He was present during the stressful incidents with the neighbours and stated that LJD was “the most responsible and caring person that I know, and she doesn’t put up with child abuse at all.” At hearing, her described daily contact with LJD. He did not consider that he had seen LJD do anything inappropriate. He said he looks up to LJD like a mother. He said he didn’t hear her swear, but it may slip out at a netball game, but nothing commonly. He said she had taken care of her children.
- [56]JD is LJD’s mother. In her written statement[62] JD described her daughter as a “terrific young mother, always putting the children’s needs first.” JD identifies multiple stressors in her life when LJD was living in Logan, and the main difference now is that she is closer to her supports who can recognise what is happening. She notes that LJD reaches out for support to her mother and her family. JD described LJD as a true protector. She states LJD is a proud First Nations woman and dedicated to cultural issues regarding child protection. At hearing, she stated that she has contact with LJD every few days. She considered that she had not engaged in inappropriate behaviour in the past nor had been found guilty of any criminal offence. She noted that LJD had reached out for support and moved away and now has greater access to her support networks. She stated that LJD’s support network included her brother, sister, father and herself, and they see each other at family events. She said the stress for the neighbours gone with the move, and she should be given a chance to improve her life for herself and her family.
- [57]KE is a friend of LJD meeting in 2006. Her statement[63] indicates that she has “never seen LJD been aggressive towards anyone or speak rudely to anyone. “She described her with a caring nature who always tries to avoid conflict.” Under cross examination she said she had never seen her engage in any behaviour that she would consider inappropriate. She was not aware of any criminal offence and was not aware of LJD having been verbally abusive to police. The Tribunal notes her evidence is in contradiction to the clear evidence before the Tribunal of inappropriate behaviour extending to verbal abuse and physical aggression evidence across the police and domestic violence information, limited weight can be placed on this evidence.
- [58]It is evident from LJD’s witnesses, that her family and friends hold her in high esteem. They recognise that stressors on her of the previous residence are no longer part of her life, and that she has a network of family and friends from whom she seeks support. All of her witnesses recognise LJD as being able to provide a valuable contribution to the field of community social welfare, and consistently consider she works well with children. There is no doubt that LJD is a mother who loves her children and seeks to give back to the community.
- [59]However, the strong support and regard that her family and friends hold her does not negate the significant antisocial behaviour that she has engaged in, at times in the presence of children, which have resulted in criminal convictions and police involvement. It is significant that none of LJD’s witnesses considered she had done anything inappropriate, and this is clearly inconsistent with the evidence in the police records and domestic violence material and raises questions about the extent of information they have about the criminogenic behaviours to base their opinion.
- [60]LJD states that she has had consistent psychological intervention to help her manage her depression and anxiety that she says is related to past concerning behaviour, and that she now is equipped with skills to be mindful and manage her emotions as a result. This is protective factor in her favour. However, it is significant that MD, her counsellor for over three years, was unaware of the nature of the aggressive and antisocial behaviour LJD had engaged, which is in evidence in the criminal and domestic violence information. Given a lack of appreciation of the extent of the antisocial behaviour, it cannot be understood that she had been treating LJD for underlying criminogenic issues that led to the behaviours. The evidence indicates skills around stress management and mindfulness have been a focus of skill development and this is also a protective factor, but since MD was unable to provide feedback as to the extent these have been implemented by LJD it is not clear the extent LJD has been able to implement these strategies to manager her emotions and regulate her behaviour.
Insight
- [61]The fact that there has been three years pass since her last offence is not sufficient evidence of itself that the risks associated with working with children are reduced as was similarly considered in the case Lister.[64] In that case, the Tribunal had concerns about drawing a conclusion that the risk was reduced where the applicant displayed features that minimized and justified her conduct in question. and made statements that were at odds with her admissions. Similar concerns arise in this case, where the Tribunal was concerned that LJD gave evidence that she was “unaware that she was contravening an order” by her unlicenced driving.[65] and is inconsistent with the provisions of false identification documents[66] and the verbal provision of another person’s name to police on that date.[67] Her account of her interaction with police as relayed above at paragraphs does not reflect a full appreciation of the inappropriateness of the behaviour or its impact on others including her niece, or the children who may have been exposed to the conduct in the community, by her yelling obscenities at the police in a local community late at night. I am not satisfied that LJD’s level of insight into the offending behaviours, its causes and impacts constitutes a protective factor in this case.
Consideration
- [62]The Tribunal is concerned that there has been a pattern of aggressive and antisocial behaviour in public, and at times in front of children that has extended from 1997- 2020. While LJD’s evidence is that she has gained a greater ability to manage her reactions since removed from the stress of her previous residence, and having her ongoing counselling and family support, the Tribunal is not satisfied that this sufficiently mitigates the risk of LJD engaging in these behaviours which have formed a pattern across her criminal history.
- [63]The Tribunal has previously observed in the case of CA v Director General, Department of Justice and Attorney General:[68]
“Children are at risk of physical and psychological harm by being cared for by a person who acts aggressively and who is unable to manage their anger and respond to stressors in a safe and appropriate manner…”
- [64]I find that LJD’s conduct which has formed part of the police and domestic violence information before the Tribunal has included punching people in their cars, kicking car doors, biting fingers in public in a physical dispute with family members, verbal abuse and physical resistance of police officers in front of her 13-year-old niece, chasing her partner around the house with a knife in front of the children. These behaviours demonstrate an inappropriate means of managing stressors and models physical violence as a means of conflict resolution.
- [65]LJD has attributed some of this conduct to severe stressors from 2017 to 2020, and that she is now better able to deal with stress.[69] It is clear this has been factor. However, I find that there is insufficient reliable evidence before the Tribunal to support that LJD has developed the strategies and skills to deal with triggers to this conduct that may reduce the risk of LJD posing a risk to children’s best interests.
- [66]I further find that LJD’s actions which included verbal abuse of police and multiple offences for unlicenced driving, presenting false identity documents to police demonstrate a disregard for the law. These are not messages that are appropriate for children to learn from people in care- providing capacity who they may look up to as role models for cues on how to relate to others in society. Children should not be exposed to or at risk of exposure to antisocial behaviour from those adults who are authorised to work with them. As the Tribunal has observed in IHI:[70]
“Any child being cared for by a person has a right to have someone who has respect for the law and is aware of boundaries and is not prepared to cross them for their own needs.”
- [67]While there are protective factors in the focus on managing stress through therapy, substantial risk factors exist in the prolonged nature of LJD’s antisocial conduct, poor insight and questionable judgement of the appropriateness her behaviour across these incidents.
- [68]Blue cards are transferable meaning that holders may work unsupervised with children of any age or vulnerability. This supports a precautionary approach to be adopted where there is a long history of physical aggression in public as means to resolve disputes.
- [69]Based on the considerations on the WWC Act, the findings, the risk and protective factors, and on the balance of probabilities, I consider that this is an exceptional case in which it would not be in the best interest of children for LJD to be issued with working with children clearance. The decision of the respondent is therefore confirmed.
- [70]The Tribunal is acting as a public entity when reviewing this decision and is obligated to make a decision that is compatible with human rights and to give proper consideration to a human right relevant to the decision.[71]
- [71]A decision that results in a blue card not being issued is likely to have impact on the applicants’ human rights to privacy and reputation,[72] rights to further vocational training[73] Although not adopted into the Human Rights Act 2019 (Qld), at international law, the right to work may be considered a human right, having regard to articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and articles 8 and 22 of the International Covenant on Civil and Political Rights (ICCPR), and this right is limited by this decision where the effect of the decision limits LJD’ participation her profession.
- [72]Human Rights may only be subject to limits that are reasonable and demonstrably justifiable.[74] I have had regard to the purpose of the decision which is to apply the principles of the WWC Act to ensure that the welfare and best interests of children are paramount when determining child related employment screening decisions. Since the WWC Act is protective legislation, I find that it is reasonable and justifiable to limit these rights to ensure the protection of children in accordance with the purpose of the Act.
- [73]This is likely to be a devastating decision for LJD whose professional career where many employment options may be contingent on her holding a blue card. However, the Tribunal is not able to consider hardship that the applicant may suffer in determining this matter,[75] where the welfare and best interest of children are the paramount consideration. Further, although there is considerable evidence from her witnesses that LJD would have much to offer children and families in community welfare work, any “flair in working with children” is not relevant if it is not in children’s best interests that the applicant be issued a blue card.[76]
- [74]LJD has sought a non-publication order to protect herself and her family’s identity.
- [75]While it is desirable that matters are reported publicly, it is clear that reputational damage may occur and there may be impact on the children of the applicant. In these circumstances it is not in the interests of justice for LJD’s identity to be available on the record, and I make orders pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) accordingly.
Footnotes
[1] Application filed 31 March 2022.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2).
[4] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[5]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492
[6] WWC Act s 6, s 360.
[7] WWC Act s 6.
[8] Human Rights Act 2019 (Qld), s 58.3
[9] Human Rights Act 2019 (Qld), s 13.
[10] Respondent’s submissions filed 28 April 2023. p 19.
[11] Respondent’s submissions filed 28 April 2023, p 20.
[12] Ibid, p 20.
[13] Vaveau v Director General, Department of Justice and Attorney General {2021] QCATA 152.
[14] WWC Act s 360, s 6.
[15] WWC Act s 6.
[16] Filed 31 March 2022.
[17] Filed 28 April 2022.
[18] Filed 22 March 2023
[19] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[20] BCS 105-106.
[21] BCS 32-33.
[22] Ibid.
[23] BCS 30.
[24] BCS 108.
[25] BCS 42.
[26] BCS 43.
[27] Applicant submission to Blue card services 16 March 2021. BCS 81.
[28] Oral evidence.
[29] BCS 81.
[30] Oral evidence hearing.
[31] Oral evidence.
[32] NTP 66.
[33] BCS 124-125.
[34] BCS 38.
[35] BCS 127 – 128.
[36] WWC Act s 228(2) (a).
[37] WWC Act s 228 (2) (e).
[38] WWC Act s 228 (2) (f).
[39] WWC Act s 228 (2) (g).
[40] NTP 320-321.
[41] Applicant Submissions filed 17 April 2023, [6].
[42] Applicant Statement filed 17 April 2023 [6].
[43] NTP 313- 314.
[44] NTP 313- 314.
[45] Applicant submissions filed 18 April 2023, [3].
[46] NTP 233.
[47] Applicant submissions filed 18 April 2023, [4].
[48] NTP 304- 308
[49] Human Rights Act 2019 (Qld), s 4(b), s 58.
[50] WWC Act s 228(2) )(g) Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[51] BCS 82.
[52] Ibid.
[53] Applicant Oral evidence.
[54] NTP 320-321.
[55] NTP 52.
[56] Oral evidence of JD, and JF.
[57] Applicant’s Oral evidence.
[58] Filed 17 April 2023.
[59] Statement of KD 14 April 2023 (sic) and 14 March 2023, filed 23 March 2023.
[60] Statement of JF dated 15 March 2023, filed 23 March 2023.
[61] Statement JF dated 1 March 2021.
[62] Statement of JD, 22 February 2023, filed 23 March 2023.
[63] Statement of KE dated 15 February, filed 23 March 2023.
[64] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
[65] Applicant’s Statement dated 13 March 2023, page 2 paragraph 3a.; Applicant’s Oral evidence.
[66] BCS 42-43.
[67] BCS 43.
[68] [2022] QCAT 305 [56]
[69] Applicant oral Submissions,
[70] IHI v Director General Department of Justice and Attorney General, [2021] 206.
[71] Human Rights Act 2019 (Qld), s 58.
[72] Human Rights Act 2019 (Qld), s 25.
[73] Human Rights Act 2019 (Qld), s 36(2).
[74] Human Rights Act 2019 (Qld), s 13.
[75] Chief Executive Officer, Department of Child Protection, v Scott [No2] [2008] WASCA 171, [109]; Vaveau v Director General, Department of Justice and Attorney General [2021] QCATA 152.
[76]Grinrod v Chief Executive Department of Community Development [2008] WASAT 289; SS v Director General of Justice and Attorney General [2021] QCAT. 392 [44].