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SWJ v Director-General, Department of Justice and Attorney-General (No 2)[2024] QCAT 128

SWJ v Director-General, Department of Justice and Attorney-General (No 2)[2024] QCAT 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SWJ v Director-General, Department of Justice and Attorney-General (No 2) [2024] QCAT 128

PARTIES:

SWJ

(applicant)

V

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML 342-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

25 March 2024

HEARING DATE:

5 October 2023

20 October 2023

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

  1. 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(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set-aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled following a conviction for contravention of domestic violence orders – where the applicant had later been the subject of a temporary protection order and a final protection order – where the applicant had made substantial changes in his life as a result of the conduct which gave rise to these events – whether the applicant demonstrated insight into his offending conduct

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 25, s 26, s 48

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

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

Re TAA [2006] QCST 11

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

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

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:

P. McNiell – Advocacy Officer

REASONS FOR DECISION

  1. [1]
    On 3 July 2023, 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 the applicant, any family member of the applicant, any child, or any non-party to the proceeding. For this reason, this document is published in a de-identified format.

Overview

  1. [2]
    In 2016 the applicant was a holder of a Blue Card under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA).[1]  In that year he was charged at various times for eight alleged contraventions of domestic violence orders. Only four of these resulted in a sentence albeit without a conviction recorded. This led to the respondent cancelling his Blue Card and issuing him with a negative notice.
  2. [3]
    Ultimately the applicant applied to this Tribunal to have this decision reviewed and set-aside. He was unsuccessful with the Tribunal confirming the decision. He appealed to this Tribunal’s Appeal Division. During this time he was the subject of further domestic violence allegations with both a Temporary Protection order and a substantive Protection Orders having been issued.
  3. [4]
    He was successful in the appeal, with the matter remitted to the Tribunal for rehearing before a different Member. That is the hearing which occurred before me.
  4. [5]
    As discussed in these reasons, on this occasion the applicant succeeds. The reason for this is that, from the evidence as it was presented before me together with the applicant’s presentation of his case and his responses to the questions posed of him by the respondent’s representative, notwithstanding the Protection Orders raised in 2022, I formed the view that with the passage of time since the offending conduct in 2016 and later in 2022 the applicant had developed a sufficient degree of insight into it and the causes for it. Thus, I was satisfied that he demonstrated his circumstances at the time of the hearing were such as to not fall into the category of being an exceptional case.
  5. [6]
    In my opinion, it could not be said it would not be in the best interests of children for him to be issued a Blue Card. I was therefore satisfied that the applicant’s case is not ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly I gave an order setting aside the respondent’s decision and substituting it with the decision that the applicant’s case was not exceptional.

Background

  1. [7]
    Between December 1991 and July 1994 the applicant was the subject of various charges, namely ‘attempted break and enter with intent’, ‘stealing’, ‘drug possession’, and ‘weapon possession’ for which he was found guilty with various sentences imposed, but on only the weapons charge was a conviction recorded.
  2. [8]
    Commencing at various times in the years 2001 to 2014 he held a Blue Card under what is now known as the WWCA,[2] such permitting him to work with children and young people.
  3. [9]
    From early April 2016 to September 2016 the applicant was charged at various times for eight alleged contraventions of domestic violence orders. Only four of these resulted in a sentence, that occurring on 6 December 2016 being a six (6) month probation with no conviction recorded. All other charges were effectively dismissed on the basis of no evidence to offer. (the DV Offences)
  4. [10]
    Ultimately, in April 2017 after having been notified of the DV Offences the respondent cancelled his then current Blue Card and issued him with a negative notice.
  5. [11]
    At that time, resolution of the last of the eight charges was still pending in the Court. This was resolved the following month in May 2017. With that occurring the applicant then applied to the respondent to have his negative notice cancelled. He was unsuccessful in that regard with the respondent issuing a decision to that effect on 2 January 2019. (the Decision)
  6. [12]
    Whilst the letter from the respondent’s decision maker communicating the Decision informed the applicant he had 28 days after receiving the letter within which to apply to this Tribunal for a review of the decision, it was not until 6 September 2019 that he made such an application. As best I can make out from the file as it has been prepared for me in advance of the hearing, the applicant simultaneously filed an application for extension of time, such which was granted on 10 October 2019.[3]
  7. [13]
    His substantive application was subsequently heard over three separate days on 11 May 2020, 21 July 2020, and 23 September 2020. Ultimately, it was determined by a different Member of this Tribunal following the unfortunate ill-health of the Member which conducted those hearings, with the decision therein being issued on 4 May 2021. It confirmed the respondent’s decision.(the First Tribunal Decision)[4]
  8. [14]
    The applicant then appealed the First Tribunal Decision to the Appeal Division of this Tribunal. The premise for that appeal was that the Tribunal at first instance had failed to consider one of the mandatory matters under s 226 of the WWCA, namely in the case of a conviction the penalty imposed by the court and, if the court decided not to impose an imprisonment order or not to make a disqualification order under s 357 of the WWCA, the court’s reasons for its decision.[5]
  9. [15]
    That appeal was heard on 11 August 2022. It was successful, the decision therein being delivered on 25 August 2022 (the Appeal Decision).[6] The First Tribunal Decision was set aside and the matter was returned to the Tribunal for re-hearing before a different Member, with orders that evidence of the matters referred to in s 226(2)(a)(v) and any further evidence that the parties may put before it to be considered.
  10. [16]
    It was that re-hearing which occurred before me over two days on 5 and 20 October 2023. During that hearing, I was informed that shortly after the First Tribunal Decision was delivered, and then again after the hearing of the appeal but shortly before the Appeal Decision was delivered, there had been further domestic violence incidents involving the applicant that had resulted in a Temporary Protection Order and a Protection Order being made against him, such occurring on 16 May 2022 and 19 August 2022, the Protection Order expressed as remaining current up and including 3 April 2027.[7] (the Further DV Issues).
  11. [17]
    In conclusion of the hearing, the parties each filed a written outline of final submissions,[8] both expanding same with oral submissions. Regrettably, whilst I had indicated to the parties following receipt of those submissions anticipated having my decision made and reasons published by the end of January 2024, due to a number of issues arising unexpectedly before me since then and more particularly in January and February 2024, I was delayed such that it has taken until now to reach a decision and provide these reasons. I offer my apologies to the applicant for that unfortunate delay.

The Nature of this Review Proceeding

  1. [18]
    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 was required to exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the HRA). In doing so I had all the functions of the decision-maker in terms of the decision to be made.[9]
  2. [19]
    The purpose of the review was to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[10] It was not necessary for me to consider whether the respondent’s decision-maker had made an error in making the Decision, rather the focus was on the cogency of the applicant’s case as presented in the hearing before me. At the conclusion of the review, I was empowered to confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter to the decision-maker for reconsideration with directions I considered to be appropriate.[11]

The Issue

  1. [20]
    As I comprehended the voluminous filed material, and the competing arguments as they were raised before me, the issue in this proceeding was whether the DV Offences and the Further DV Issues, the background to them, and that which has transpired for the applicant since, are such as to lead to the conclusion that the applicant’s case falls within the category of an ‘exceptional case’ so as to deny him a Blue Card. The applicant argued it was not. The respondent’s representative submitted it was.
  2. [21]
    In order to resolve that contest, consideration of WWCA s 226(2) was necessary. It provides a mandatory list of factors to be considered in deciding whether it was appropriate to issue a negative notice. It also required the following to be observed:
    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;[12]
    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;[13] and
    3. The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[14] such being a principle that I was mandated to apply in this review.
  3. [22]
    Because it involved domestic violence information, it was also necessary that I consider WWCA s 228(2).
  4. [23]
    All that being said, a critical factor in this proceeding, as is the case in any proceeding such as this one, was the question of the degree of insight into the DV Offences and the Further DV Issues that was held by the applicant at the time of the hearing. It is the criteria under both s 226(2) and s 228(2) of the WWCA that must be considered and in turn that issue determined, but in doing so always having regard to the interests of children.

The Relevant Law

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

  1. [24]
    The Decision in issue in this proceeding is to cancel a Blue Card and issue a negative notice. That invoked the operation of s 294 of the WWCA such that, on the review arising from the application to this Tribunal, the issue was to be decided as if it were a decision about a working with children check application, or in more colloquial terms, an initiating application for a Blue Card. That led to s 221 of the WWCA which sets out that which I, as the effective decision-maker, was required to consider.[15] For present purposes, in the circumstances of a conviction or charge being part of the applicant’s history, and relevant domestic violence information, as I noted earlier herein it required a consideration of that contained in s 226(2) and s 228(2).
  2. [25]
    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 Blue Card unless it is an exceptional case.[16] If that starting position stood without exception, then it would be in order for me to set aside the Decision. It is this which is in issue in this proceeding, such being that if I am satisfied the applicant’s case is one in which it would not be in the best interests of children for him to be issued with such a clearance, then a negative notice must be issued.[17] In turn, in the circumstances of this case, that would mean it would be in order for me to confirm the Decision. 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.[18]
  3. [26]
    But the WWCA does not define an exceptional case. It thus creates a degree of complexity in matters such as applications of this type. In order to deal with that complexity, it requires consideration of fact and degree with such to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC in reference to the predecessor legislation to the WWCA:[19]

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.

  1. [27]
    Neither party bore an onus in determining whether an ‘exceptional case’ existed.[20] It was a matter of discretion ultimately afforded me as the effective decision-maker in this review, such that I was required to decide the question of whether an exceptional case exists on the balance of probabilities.[21]
  2. [28]
    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 observed in Commissioner for Children and Young People and Child Guardian v Eales:[22]

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 [be] (sic) seen 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.

  1. [29]
    The criterion to which the Appeal Tribunal in Eales was referring is that now set out in s 226(2) of the WWCA, and to the extent domestic violence is involved, in turn then s 228(2). However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[23] Accordingly later herein I discuss my consideration of that criteria.

Human Rights Act 2019 (Qld)

  1. [30]
    There is also the application of the Human Rights Act 2019 (Qld) (HRA) that I was required to consider.[24]
  2. [31]
    The main objective of the HRA 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 as far as is reasonable and justifiable.[25] That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with human rights.[26] Such includes the WWCA.
  3. [32]
    In my opinion a number of human rights were relevant in this proceeding. Such included the applicant’s right to recognition and equality before the law and his right to privacy and reputation.[27] But there was a competing right that could not be overlooked, and one that permissibly was considered by me in limiting the applicant’s rights in the circumstances of him seeking to be the holder of a Blue Card. 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.[28]
  4. [33]
    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 s 13 of the HRA. This is because inter-alia 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 principle of the WWC Act, being that the welfare and best interests of children are paramount.
  5. [34]
    As is expressly provided for in the HRA, a human right may be subject 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.
  6. [35]
    That being so, it must be recalled that the welfare and best interests of a child are paramount, a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right under the HRA, in making the correct and preferable decision, 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 found himself in is an exceptional case such as to deny him an entitlement to a Blue Card. Such is consistent with s 13 of the HRA. Notwithstanding my decision in this proceeding was that his case was not exceptional, I applied that approach given that it was open for me to find his case was exceptional.

The Evidence & Submissions

  1. [36]
    This proceeding was not a traditional 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.
  2. [37]
    The respondent was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker. The respondent’s representative’s role was to use his best endeavours to help me in making my decision on the review.[29] As he was required to do,[30] he provided material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant,[31] including an ‘Outline of Submissions’ filed after the first day of the hearing and which became his written closing submissions elaborated on by way of oral closing submissions at the end of the second day of the hearing.[32] The respondent’s representative did not otherwise seek leave to produce any further material at the hearing, nor did he call any witnesses.
  3. [38]
    The applicant provided a ‘Brief Life Story’ and two written statements to this Tribunal, affirming it as his evidence in chief,[33] and in turn presented himself for cross-examination. He did not call any other person as a witness, nor seek to tender any statement by any other person.
  4. [39]
    My decision turned on the evidence and submissions presented to me in the hearing, both documentary and oral, as well as my observations of the applicant in the conduct and presentation of his case and his responses to questions posed of him by the respondent’s representative. That being so, before turning to a discussion on the application of the evidence in terms of the relevant criteria under s 226(2) and s 228(2)of the WWCA, it seemed to me it could be beneficial to any reader of these reasons for me to first set out those parts of the evidence presented which I considered relevant and of assistance in reaching my decision.

The applicant’s evidence & submissions

  1. [40]
    The applicant’s evidence-in-chief was of assistance to me. Certain aspects of it stood out as identifying, and possibly explaining, some of the reasons for the DV Offences and the Further DV Issues.
  2. [41]
    First, in his ‘Life Story’ he explains his childhood years in the following manner:[34]

My childhood was traumatic, being raised in [place named] by a violent alcoholic Father and co-dependent Mother, witnessing and enduring regular beatings and emotional abuse till the age of 15 when I left my family home. This abuse made it difficult for (sic – infer ‘me to’) reach my development milestones relating to independence, trust and self-worth.

  1. [42]
    Second, therein he explains he originally partnered with his wife when he was only 17, married her ten years later, and then separated after 13 years marriage.
  2. [43]
    Third, therein he explains the situation with his ex-wife as follows:[35]

The breakdown of the long term relationship with the mother of my children was not unexpected having seen that space becoming toxic for several years. In that relationship I struggled to deal with [person named]’s drug use, physical and verbal violence towards me, control and manipulation of social factors and lack of identity. …

  1. [44]
    I pause here to observe that this is said to have occurred in March 2016, such which I consider to be a relevant fact given that the occurrence of the applicant’s conduct which ultimately gave rise to the DV Offences commenced in the immediately following month of April 2016. This was then followed in 2017 with proceedings in the Federal Circuit Court seeking access to his children.
  2. [45]
    Fourth, therein he also explains his drug use in the following manner, the reference therein to ‘that relationship’ being, as I understand it, the relationship with his wife:[36]

During my marriage I began to participate in occasional recreation use of cannabis. I ceased using that substance upon leaving that relationship and no longer participate in such activities for recreation. …

I believe my previous substance use to be in relation to masking/avoiding the effects of early childhood trauma. Cannabis assisted me to disassociate from the overwhelming feeling of loss and grief associated with growing up under such violent toxic circumstances. …

  1. [46]
    Fifth, in the first of his two statements, it being one which was framed as being ‘submissions’ to the respondent in response to the request for same, which I understand to have been done during the process of considering whether to cancel his positive notice, he states:[37]

… I remain stable and focused on a positive future. I have no desire to engage with my ex-partner outside of the legal system for anything other than the welfare of our children due to her apparent negativity towards me and have made no attempts to do so since mid-2016. I have completely disengaged from that relationship … .

  1. [47]
    He also gave some oral evidence-in-chief; namely that:.
    1. Since 2020 he had obtained lawful access to his children, with one of them starting to reside with him permanently since June 2020[38] and the other since May 2023, such that are now both under his care full-time;
    2. He was once again single, and now employed as a farm labourer;
    3. As to his mental health he considered he is ‘well-adjusted’ and has been able to disengage with his past toxic relationship, stress, and anger; and
    4. Whilst he still get angry/stressed about the past, he can reflect on the circumstances and takes responsibility for it such that it does not have an adverse effect on him.
  2. [48]
    The remainder of his evidence-in-chief was general in nature, in part describing his views of the reasons for the behaviour which led to the DV Offences. Overall that remainder was not of assistance to me.
  3. [49]
    The cross-examination of the applicant was extensive. A vast majority of it involved testing the applicant’s understanding of the events giving rise to the DV Offences, including the extensive and at times derogatory text messages he had exchanged with his ex-wife.[39] Many of his answers informed me of his current views on what had occurred previously. Of particular relevance is when he was asked generally about his conduct and whether there were any factors / triggers in his life at the relevant times, his answers were generally as follows:
    1. He was the primary carer for his children since their birth, and then they were taken away from him;
    2. He was desperate to see his children;
    3. He considered his wife to be violent, bullying, and dysfunctional, and so was concerned for his children whilst in her care; and
    4. He blamed her for the circumstances as they existed, not acknowledging his own dysfunction at the time.
  4. [50]
    After a lengthy review of his reported domestic violence history, the applicant was also asked how he reflected on it, to which he answered in words to the effect of:

I do not approve of it. I have changed my behaviour.

I am now much more aware of my behaviour, and notwithstanding that history it is not indicative or my current character.

It reflects a period of time in my life in which I could not cope

  1. [51]
    The applicant was also extensively cross-examined on comments he had made in various digital conversations with his ex-wife in 2022 via a messaging application referred to as ‘Talking Parents’. Two in particular warrant comment and observation:[40]
    1. On 8 February 2022 he made this statement:

And you and your whole family are the most toxic pieces of garbage i (sic) have every (sic) had the pleasure to lay my eyes on. You really are so gross and so horrible. Yucky yucky people.

Now we are divorced, this is my promise to you you liece (sic) of filth. I will never ever speak to you again. Your absolutely horid.(sic)

  1. On 27 February 2022 he made these statements:

… But you don’t abuse me and you dont (sic) scare me with your “the current order” rubbish. … Its (sic) pathetic for a full grown woman to be living such a lie so get over it and move on with your pitiful life now please.

Full parental responsibility … yeah, you keep telling yourself that.

Stop messaging me with you (sic) wants and your bleeding. I don’t serve you.

  1. [52]
    When he was asked what his present day views were of those messages, his response was words to the effect that he did not consider these to be ‘domestic violence’ but acknowledges they were ‘assertive’ and in part ‘abusive’, and said they were a manifestation of his thoughts and opinions at that time.
  2. [53]
    He was also questioned by the respondent’s representative on the content of a digital conversation he had engaged in with one of his children in March 2022, it ultimately leading to a Protection Order as part of the Further DV Issues. I return to that in some detail later in these reasons.
  3. [54]
    As to his reported drug use, when questioned about it his responses were generally:
    1. He started use of recreational drugs when he was 17 years of age;
    2. His wife had coerced him to engage in drug use;
    3. His use was generally stable until around 2007/2008 when he started to reject the idea of smoking;
    4. He successfully ended his use of such drugs in around April to June 2016 when he and his wife separated, and in turn he stopped engaging with the group of friends and others he and his wife were part of.
  4. [55]
    The applicant was also cross-examined at length regarding many of the Protection Orders that were put in place, in particular those the subject of the Further DV Issues. Under cross-examination he explained his view of the current Protection Order as being:
    1. It demonstrates his wife’s view only of his conduct;
    2. He did not engage in any conduct that was ‘domestic violence’;
    3. He consented to this order as a means of getting to an end, that being to place a barrier between him and his ex-wife which he could rely on as a reason not to communicate with her when she was consistently, and seemingly in ignorance of her complaint and thus the PO, contacting him.
  5. [56]
    I will return to this particular issue later in these reasons in some detail because it is here that there was an inconsistency in the applicant’s evidence that caused me concern.
  6. [57]
    In my opinion it is not necessary for me to set out any of the remainder of that extensive cross-examination as to what was asked and answered. Much of it was not of assistance to me in terms of specific events and circumstances. However, importantly it did assist me to observe the applicant in terms of his body language and his emotional reactions to some of the issues as they were raised. In turn this enabled me to understand more clearly the associated context of his answers. This afforded me the first hand ability to gain what I considered to be a thorough understanding of the applicant’s mindset, both at the time the relevant event occurred and at the time of the hearing. Such is not something that can readily be gained solely from written statements, written submissions, or transcripts of interviews and the like.
  7. [58]
    As noted earlier, the applicant also gave me a written Outline of Submissions in closing.[41] In many parts therein the applicant seemed to be focussed on arguing errors made by the respondent’s decision maker in reaching the Decision, such which I have explained is not an issue for consideration or determination by me in this proceeding. He also seemingly endeavoured to dismiss, as being relevant, any of the respondent’s documentary material filed in this proceeding related to the Further DV Issues on the premise that it related to matters occurring after the Decision was made. In that regard the applicant apparently had misunderstood the fact that the hearing before me was not simply to consider the relevant facts and circumstances at the time of the Decision, but rather was to consider all relevant fact and circumstances at the time of the hearing given that once the matter proceeded to review it was in effect a hearing de-novo, with me standing in the shoes of the effective decision maker for his application to have his negative notice cancelled. Thus the further material was entirely relevant in the same way as was the development of his insight with the extended passage of time was relevant. For these reasons, his written closing outline was of limited assistance to me.
  8. [59]
    In contrast however his oral closing submissions, albeit short, were of assistance. The essence of that closing was that whilst his behaviour within relevant circumstances had not changed because those circumstances had not changed given the situation which created them had not changed (which I understood to be a reference the situation with his ex-wife), the relevant fact is that he had by then learned to not engage with his ex-wife such that his behaviour of the past was not being repeated.
  9. [60]
    When I asked him when the ‘light-bulb’ moment was in this regard, he said it was when the Police visited him in May / June 2016, and so from that time he realised he needed to do something different.

The respondent’s submissions

  1. [61]
    In his closing submissions, both written and oral, the respondent’s representative contended for an outcome which confirmed the Decision as being correct. Whilst those submissions were relatively extensive in their content, as I read, heard, and understood them, the following may be said to be the primary issues raised, namely that the applicant’s offending:[42]
    1. suggests he is unable, or unwilling to prioritise the welfare and best interests of his children over his own feelings;
    2. across the board raises questions about his ability to present as a positive role model to children and young people in his care;
    3. raises questions as to whether he possesses the skills and abilities to be necessary to work with children and young people; and
    4. reflects adversely on an evaluation of the potential risk he poses to children and young people placed in his care in the future.
  2. [62]
    As to the question of insight having been gained by the applicant, the respondent’s representative made these submissions, which whilst extensive I chose to extract them in full as in my opinion they seem to me to ‘wrap up’ the respondent’s argument:[43]

The Respondent accepts that the Applicant, in his oral evidence, appeared to demonstrate some level of insight into the impact of domestic violence and the impact of his own conduct on other persons. Despite the Applicant’s oral evidence, the respondent continues to hold significant concerns regarding the degree to which the Applicant’s insight is genuinely held.

In oral evidence the Applicant accepted that his conduct in 2016, as it related to the charges for which he was convicted, constituted domestic violence. The Applicant also gave evidence that he had not been domestically violent in 2022 or 2021. In the Respondent’s submission, the existence of a temporary and a final domestic violence order granted in 2022 suggests that there was domestic violence occurring. More significantly, however, the Respondent submits that the transcripts of the ‘Talking Parents’ conversations in addition to the Instagram conversations that the Applicant had with his child, as referred to previously, demonstrate that he has continued to behave in a manner that is largely unchanged from 2016 when he was convicted of domestic violence offences.

As such, while it is acknowledged that the Applicant has not been convicted of or charged with an offence since 2016, the Respondent submits that there is a significant quantity of evidence before the Tribunal to support the conclusion that the Applicant has continued to behave in a domestically violent manner, and in those circumstances, the Respondent submits that serious concerns are raised about the genuineness of the Applicant’s insight in this regard.

In the Respondent’s submission, concerns about the genuineness of the Applicant’s insight are also raised by an affidavit of the Applicant dated 06 June 2022. This affidavit appears to have been created to contest the making of the domestic violence order naming him as the respondent in 2022, and appears to respond to the aggrieved’s affidavit. The Respondent highlights the following points:

  1. a)
    In response to the message recorded at paragraph 77(d) of this outline of submissions, the Applicant stated, “I affirm that other comments the Aggrieved indicated under this heading were of my opinion only and do not represent an attack on the Aggrieved or her family. The comments represent a closing monolog and are not representative of ongoing harassment and abuse. The comments reflect my dislike for the Aggrieved and her family in the face of consistent and significant parental alienation and reputation destruction and family violence perpetrated against my children and I by the Aggrieved and her family since I separated from the Aggrieved six years ago.”
  1. b)
    In response to the message recorded at paragraph 77(a) of this outline of submissions, the Applicant characterised his message as “reasonable and necessary” and further “I affirm that at no time did I refer to the Aggrieved as a disappointment to her child as she stated. My message was intended to provide a space for reflection for the Aggrieved around her actions as well as a clear indication that not supporting me to provide a practical level of safety to [redacted] by stating her intentions would hinder the child’s ability to travel comfortably and represent a chronic disappointment to her child and mean that (due to his anxiety) he couldn’t attend the event as planned.”
  1. c)
    In response to the messages recorded at paragraphs 77(e)-(h) of this outline of submissions, the Applicant stated, “I affirm that comments under this heading were made in response to what I perceived to be constant badgering and harassment in relation to the process being undertaken to have [redacted] assessed for Tourette’s syndrome… They show frustration due to being overwhelmed at the time because what I perceived to be the abusive behaviour of the Aggrieved…. I was feeling belittled and bullied into taking further unnecessary action to please the Aggrieved.”

In the Respondent’s submission, the Applicant’s explanations of his messages seek to minimise the seriousness of his conduct, refuse to accept the impact on the Aggrieved of his conduct, and seek to deflect blame for his own conduct onto the Aggrieved. In the Respondent’s submission this demonstrates a lack of genuine insight on behalf of the Applicant.

  1. [63]
    On these bases, the respondent’s representative submitted that the applicant’s case remained an exceptional case.
  2. [64]
    For the reasons I explain in the paragraphs that follow here when discussing the relevant criteria, and on the premise of the applicant’s evidence to which I have just referred, I do not agree with that submission. Whilst the documentary evidence as it was presented before me, and to which the respondent’s representative referred at length but with only a small part of it referenced in these reasons, does on one reading convey the message that could readily lead to that conclusion, in my opinion it does not derogate from the circumstances the applicant was in as I observed and understood them to be at the time of the hearing before me.
  3. [65]
    What I observed and understood from his oral answers to the questions posed of him and the expression of his views, both by way of spoken and body language, and at times the physical expression of emotion, in my opinion he demonstrated his development of insight since that light-bulb moment and moreover since the Further DV Issues and the extent to which he has improved having appropriately reflected on what caused him / led him to the conduct which brought about not only the DV Offences but the Further DV Issues. That being so, as I discuss in the paragraphs that follow here in terms of the relevant criteria, I could not reach the conclusion that the applicant’s case was exceptional.
  4. [66]
    I thus now turn to those criteria,[44] but before doing so for completeness make these two short observations.
  5. [67]
    Firstly, it should be noted that the respondent’s representative properly addressed me in his written Outline of Submissions on each of these criteria.[45] However, the applicant did not make any such submissions by express reference to such criteria.
  6. [68]
    Secondly, whilst the Further DV Issues are separate from what is ordinary the subject of consideration in terms of convictions and/or charges under s 226, and so more properly considered under s 228, I have discussed them here within the criteria under s 226 because in my opinion there is a sufficient relationship between them and the DV Offences given the background circumstances as they were explained to me so as to warrant that common discussion. However I have later in these reasons also discussed the Further DV Issues in terms of s 228 provisions.

The Relevant Criteria

Section 226(2)

Whether the offence is a conviction or a charge[46]

  1. [69]
    The DV Offences gave rise to a conviction.[47] The applicant also has a number of other earlier and later charges for alleged contraventions of Protection Orders, as well as now substantially historical charges for drug and weapons offences, stealing, attempted break and enter etc.[48]
  2. [70]
    In my opinion, given the nature and age of the historical charges, in particular those which I have just mentioned, in contrast to the more substantive and more recent DV Offences and other domestic violence related issues recorded in his criminal history, they did not carry any great weight as a relevant factor in my consideration of the matter in issue in this proceeding, namely whether his case was an exceptional one.
  3. [71]
    In contrast however, the fact that the DV Offences went beyond merely a charge weighed in favour of his case being an exceptional one, yet, as I discuss later in these reasons it was not sufficient to weigh against the positive findings I reached on other criterion.

Whether the offence is a serious offence, and whether it is a disqualifying offence[49]

  1. [72]
    The DV Offences and the Further DV Issues are neither a serious nor a disqualifying offence under the WWCA. Notwithstanding that, the nature of such remains relevant in determining the eligibility of the applicant to work with children in regulated employment, such being the intention of parliament in enacting this provision within the legislation.[50]
  2. [73]
    Although, that being said, in the same manner as I have just indicated under the last criterion, the conduct that led to the DV Offences and the Further DV Issues was not sufficient to weigh against the positive findings I otherwise reached.

When the offence was committed[51]

  1. [74]
    The DV Offences occurred in 2016. The Further DV Issues occurred in 2022. That being said, it could not be said that a significant passage of time has passed since, which if it had in some instances it might diminish the weight to be attributed to the conduct giving rise to the DV Offences and/or the Further DV Issues when considering the question of an exceptional case.
  2. [75]
    In this case, the relatively short period of time since those events is important because it is within that passage of time the applicant should have, if he was going to, gained the requisite degree of insight into his offending behaviour. As I have said in other similar matters, the longer the passage of time, the greater should be the prospect that the applicant would have, and should have, gained that insight.
  3. [76]
    In terms of this criterion, the respondent’s representative drew my attention to evidence that was before me to suggest otherwise, namely evidence which shows the applicant has continued to consume illicit drugs,[52] and the circumstances in part which brought about the Further DV Issues.[53]
  4. [77]
    I do not accept the submission that there is evidence of continued consumption of illicit drugs in the manner the respondent’s representative submitted the evidence should be viewed. The documentary material to which he referred me is an Independent Medico Legal Report produced to the Federal Circuit Court and dated 15 January 2018 based on an examination of the applicant on 19 December 2017, in which it is recorded that the applicant admitted to such drug use. However, those are not the present circumstances based on the oral evidence the applicant gave during the hearing before me, which I accepted as being accurate. He has for some time abstained from the use of illicit drugs. As to the information contained in the material to which he referred which was related to the Further DV Issues, this was merely the complaint of an aggrieved person whom I understood to be the applicant’s ex-wife. I do not consider this to be indicative of a continuing pattern of adverse behaviour being engaged in by the applicant such as to fall for consideration under this criterion. In my opinion the documentary evidence to which the respondent’s representative referred does not support his submission.
  5. [78]
    Unlike what I have seen in many other matters such as these, in the relatively short passage of time since these events, in my opinion the applicant has developed a sufficient and adequate degree of insight into what brought him to the conduct which led to both the DV Offences and the Further DV Issues. As I discuss in some further detail later in these reasons, I am satisfied that within that time he had learned more about his past behaviour and the impact it had on others, and has taken steps to be able to manage and correct it so as not to repeat it.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[54]

  1. [79]
    At paragraph [61] herein I summarised what I understood to be the primary aspects of the respondent’s representative’s submissions and argument as to why the Decision should stand. Much of what I summarised therein fell within this criterion within the respondent’s written closing submissions.
  2. [80]
    The seriousness of what transpired in the events that led to the DV Offences and the Further DV Issues cannot and should not minimized in terms of it being entirely unacceptable behaviour in any normal aspect of society, and in my opinion would ordinarily weigh heavily against an applicant for a Blue Card in consideration of this criterion. However, what I observed of the applicant during the hearing indicated to me that, as I have already discussed earlier in these reasons and continue to discuss later herein, the applicant has progressed beyond the circumstances as they existed at those times and now recognises the unacceptability of such conduct.
  3. [81]
    As I often hear the argument from applicants in these types of matters, the relative offences did not involve children, thereby seemingly seeking to distant it from being relative in their case for holding a Blue Card. But, thankfully this is not one of those occasions and the applicant recognised that his past conduct was entirely relevant even if his conduct was not directed towards any child. I was also able to readily conclude that such recognition extended to the manner in which such relates to him being in an employment or business situation concerning and involving the care of children.
  4. [82]
    For these reasons I do not accept the respondent’s submissions on this criterion as carrying sufficient weight to show me that the applicant’s case was exceptional. In all respects, whilst the circumstances of the DV Offences and the Further DV Issues are directly relevant to employment, or the carrying on of a business, that involves children and/or young people, on the applicant’s case as he presented it, and the respondent’s material presented to assist me in evaluating that case, I was unable to find anything within this criterion that led me to a conclusion the applicant’s case was an exceptional one.

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.[55]

  1. [83]
    As noted earlier herein it was the absence of any consideration of this criterion that brought about the applicant’s successful appeal of this Tribunal’s earlier decision and its return ultimately for hearing before me with a direction that the relevant material be placed before this Tribunal. The relevant sentencing remarks concerning the DV Offences were accordingly put before this Tribunal for the purposes of that hearing. They appear with a Transcript of Proceeding of 6 December 2016.[56]
  2. [84]
    The applicant made a fairly general reference to these remarks in his written closing submissions, arguing that they do not support the findings which led to the Decision, and asserting that the sentence imposed was for reasons other than as considered by the original decision-maker.[57]
  3. [85]
    Curiously, the respondent’s representative did not make any submission concerning the content of these remarks, merely noting the existence of them.[58] Given the degree of importance which the applicant placed upon them, and the fact that the absence of same was what caused the first decision of this Tribunal to be effectively aborted, such was not helpful. I had expected the respondent’s representative to have at the very least identified where, if at all, there was a relevant comment.
  4. [86]
    Notwithstanding the absence of that assistance which should have been provided, on my reading of the sentencing remarks I considered the following passage to be  relevant. Whilst lengthy, I extract it here because in my opinion it appropriately sums up the circumstances the applicant found himself in, and although the circumstances have moved on since then in my opinion the learned Magistrate’s comments made therein are consistent with the view I took of the applicant and his present circumstances upon conclusion of the hearing after having heard from and observed him in person:[59]

I have regard to the facts in relation to these matters. All offences can be categorised as contraventions by virtue of communication with your ex-wife, if I can put it that way, or your wife that you are separated from. There are, as was rightly pointed out, some instances of numerous message – multiple messages or phone calls being attempted over periods of time …

Now, it is true that none of these offences involve an allegation of physical violence directed towards the aggrieved. This is about communication. It does, in the scheme of the legislation, amount to intimidation or harassment not only by virtue of the messages, but also by the sheer number of those messages and the persistence of that communication.

You come before the Court with a minimal history. … I acknowledge that this – the breakdown of this relationship is something that you have obviously struggled with when it occurred, and to your credit, you have managed to obtain full-time employment and you are now seeking to establish some contact with your children the means that you have to, and this is by virtue of Court proceedings.

In the circumstances, … I did give consideration to a fine, but I think given your circumstances, I think a short period of probation, the bare minimum is six months, and that is all that I intend to impose in the circumstance … because this is all about, [applicant named], you being able to deal with your circumstances as they are and … to be able to … establish some type of contact with your children, whatever that contact may ultimately be, but it is important … that you not breach domestic violence orders, because that will severely diminish your prospects … of establishing some type of contact with your children.

I think with respect to the observations that [name redacted] made with respect to text and electronic media, if I can put it that way, or electronic devices, that are easy to use, particularly when one uses them in anger, and obviously there is a need … to take a minute to think about it and then do not send it, and that is ultimately the type of behaviour that you [sic – have engaged in] because there will be challenges in the future, [applicant named]. There will be frustrations in the future with respect to these circumstances. The point is that you do not resort to this type of behaviour, and the purpose of probation is to help to ensure that you do not resort to this type of behaviour in the future.

  1. [87]
    As I comprehended his Honour’s remarks, the court was conscious of the fact that the applicant found himself in a complicated, challenging, and difficult situation concerning his relationship with his then ex-wife together with issues concerning him being able to have access to his children. Moreover, it seemed to me that the court recognised that the applicant’s conduct was, albeit entirely socially unacceptable and not to be condoned in any way, such that it arose in anger and out of frustration.
  2. [88]
    For this reason, in my opinion the sentencing remarks made by the learned Magistrate do not lend any weight against the applicant in this proceeding, but rather support his case. I return to these remarks again in my concluding remarks in these reasons.

Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant[60]

  1. [89]
    Given that the applicant’s conduct in issue in this proceeding involves domestic violence matters, any further specific consideration of this aspect is reserved to the discussion later in these reasons on the application of s 228 of the WWCA. The discussion which proceeds here deals thus only with one specific issue. As I read the written closing submissions from the respondent’s representative, he approached the task of addressing this criterion in a similar manner.[61]
  2. [90]
    In my opinion it is within this criterion that the issue of insight more fully falls. This is particularly so in terms of whether the requisite degree of insight has been shown to exist to the extent it is relevant to assessing the reduction of the risk demonstrated by the applicant’s conduct that gave rise to DV Offences and the Further DV Issues.
  3. [91]
    That being said, whilst I have already discussed the other criteria in terms of the issue of insight being shown, here I discuss the issue of insight more fulsomely because, as I have already indicated earlier in these reasons, in my opinion it is the applicant’s possession of genuine insight which is the critical factor in the consideration of his application to once again effectively obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA:[62]

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.

  1. [92]
    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. [93]
    The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) wherein the Appeal Tribunal considered the issue and expressed this observation:[63]

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.

  1. [94]
    I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by an applicant, stating:[64]

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.

  1. [95]
    Whilst these comments were made in terms of circumstances where there had been a lengthy passage of time between the relevant offending conduct and the application before the Tribunal where the views of the applicant had not seemingly changed over that time, such which might suggest they are distinguishable from the applicant’s case before me, in my opinion these comments are still relevant. This is because, in this proceeding not only has the applicant not expressed a view that his conduct was either socially acceptable, or at the very least not socially unacceptable, having listened to him and observed him during the hearing I was left with the clear impression that his current view is that his conduct that brought about the DV Offences and the Further DV Issues was entirely unacceptable, not just personally but in society in general. That being so, unlike the circumstances in the cases of Lister and SS to which I have just referred where the applicants therein had not demonstrated that they had in any way become aware of the true nature of their conduct, here the applicant before me has demonstrated to me the development of that awareness.
  2. [96]
    Earlier in these reasons I noted, by way of short reference, some of the respondent’s representative’s submissions to me that raised the concern over insight. I extract those more fulsomely here:[65]

The Respondent accepts that the Applicant, in his oral evidence, appeared to demonstrate some level of insight into the impact of domestic violence and the impact of his own conduct on other persons. Despite the Applicant’s oral evidence, the Respondent continues to hold significant concerns regarding the degree to which the Applicant’s insight is genuinely held.

In oral evidence the Applicant accepted that his conduct in 2016,  as it related to the charges for which he was convicted, constituted domestic violence. The Applicant also gave evidence that he had not been domestically violent in 2022 or 2021. In the Respondent’s submission, the existence of a temporary and a final domestic violence order granted in 2022 suggests that there was domestic violence occurring. More significantly, however, the Respondent submits that the transcripts of the ‘Talking Parents’ conversations in addition to the Instagram conversations that the Applicant had with his child, as referred to previously, demonstrate that he has continued to behave in a manner that is largely unchanged from 2016 when he was convicted of domestic violence offences.

As such, while it is acknowledged that the Applicant has not been convicted of or charged with an offence since 2016, the Respondent submits that there is a significant quantity of evidence before the Tribunal to support the conclusion that the Applicant has continued to behave in a domestically violent manner, and in those circumstances, the Respondent submits that serious concerns are raised about the genuineness of the Applicant’s insight in this regard.

  1. [97]
    There are two aspects of those submissions that trouble me.
  2. [98]
    Firstly, in my opinion it is incorrect to assert that the existence of a Temporary Protection Order (TPO) means there has been domestic violence engaged in. It is nothing more that a record of an allegation being made by a claimed aggrieved. Moreover, what the evidence before me shows is that the TPO which formed part of the Further DV Issues did not manifest into a Protection Order. As I understand the nature of the complaint that gave rise to the TPO, it was in terms of the communications recorded via the ‘Talking Parents App’, and the absence of there being a Protection Order following it seems to suggest that the learned Magistrate dealing with that complaint was not convinced that such amounted to domestic violence in the circumstances in which the communications occurred, although I make no positive finding about that, and the comments I have just made are not germane to the decision I reached in this proceeding.
  3. [99]
    Secondly, whilst there was a Protection Order made concerning the applicant’s child, and from which it may readily be concluded that there was enough to satisfy the learned Magistrate that some contravention in terms of domestic violence had occurred given the content of text messages sent by the applicant to his child, in my opinion it is not enough to say that because of this the applicant had not developed a sufficient degree of insight at the time of the hearing which was before me. This is because The relevant conduct which brought about the Protection Order occurred in March and April 2022 such which, on the evidence, upset his child.[66]
  4. [100]
    Of this conduct and the content of the relevant messages, the applicant made this statement in an affidavit sworn 6 June 2022, albeit seemingly in response to a statement given by his ex-wife in support of her application for a protection order which initially gave rise to the TPO, although given the confusing nature of the material as it was bundled in the respondent’s documents filed it is possible that I overlooked something and the ex-wife’s affidavit was given in support of the application for what became the Protection Order naming the applicant’s child as the protected person:[67]

… the comments indicated by the Aggrieved are taken out of the context of the conversation being had with my son [name redacted] which related specifically to insurance fraud concerning the alleged theft of a camper trailer in 2017 by the Aggrieved.

… in the context of the conversation … these messages do not represent an attack on the Aggrieved or a threat to her safety or her work in any way.

… on a recent visit to Brisbane where I spent time with my son [name redacted’ I had a conversation with him around these types of messages and have come to an agreement with him around what is appropriate and acceptable in relation to my communication with him.

  1. [101]
    Moreover, on the applicant’s unchallenged evidence as noted in paragraph [47](a) herein, that child now resides with him and has done so since 2023, a point to which I return later in these reasons when I comment on the continued relevance of the Protection Order.
  2. [102]
    Together with what I heard from the applicant during cross-examination on the second day of the hearing about the messages he had sent to his child, and about the content of this affidavit, and observed of him at that time, I accept this statement as being accurate. In that regard he explained the ‘context’ in the following manner:[68]

It relates to a stolen camper trailer my ex-wife put on another property.

Accusations had been made about me having stolen it in 2017 when our trailer went missing. Police visited and asked me if I stole it. I said no. I later found out it was on another property put there by my wife.

I lashed out at my son when my son kept telling me she did not do it.

  1. [103]
    About this and subsequent messages involving references to the engagement of a Private Detective, under cross-examination the applicant was asked whether he was prioritizing the best interests of his child, to which he responded with words to the effect of:

I felt I needed to inform him and explain/support his views at the time. He as being alienated. He needed to know the facts.

  1. [104]
    When then asked whether he now considers the conversation and words used appropriate, his response was:

Yes – but could have been better chosen.

  1. [105]
    All that being so, I do not accept the respondent’s representative’s submission that the applicant’s conduct which brought about the Further DV Issues, when explained to me as it was, demonstrated that he continued to behave in a manner that was largely unchanged from 2016. Nor do I accept the submission that there is a significant quantity of evidence before me to support the conclusion that the applicant has continued to behave in a domestically violent manner, and in those circumstances, there are serious concerns raised about the genuineness of the applicant’s insight in this regard. What was relevant in this proceeding in terms of the decision I was being asked to make is whether the applicant demonstrated insight into the DV Offences and the Further DV Issues such that he possessed the ability to perceive clearly or deeply the inner nature of things, or a penetrating understanding of a complex situation or problem.[69] In my opinion, in all respects he did so.
  2. [106]
    In the applicant’s presentation of his case, as I read his material, heard his oral evidence both in-chief and under cross-examination, and observed him during the hearing in terms of body language and the manifestation of emotion when being questioned on various issues, in my opinion he demonstrated that he readily understood the circumstances that brought about the conduct which led to the DV Offences and the Further DV Issues.
  3. [107]
    Because he did so I was readily able to conclude that, at the time he appeared before me, he had gained the requisite degree of insight. Accordingly, I was satisfied that he could afford a child or young person the necessary guidance to assist them in reaching a similar understanding if faced with similar circumstances and thus the steps necessary to take so as to avoid being in those circumstances. It was thus my conclusion that he presented as a person in whom the care of children or young people in an employment or business circumstance could readily be entrusted.

Section 228(2)

  1. [108]
    Whilst consideration of the provisions of s 226(2) are mandatory in all cases such as the one before me, even where domestic violence is not an issue, and as I have discussed already that consideration was sufficient for me to reach the conclusion I have just expressed, because the issues in this proceeding involve domestic violence it is also necessary for me to consider the provisions of s 228(2) of the WWCA.
  2. [109]
    Therein, it provides that I must consider the circumstances of a domestic violence order or police protection notice, including the conditions imposed on the person by the order or notice. I must also consider the circumstances and gravity of the behaviour or conduct the subject of the asserted domestic violence. Finally I must also consider respectively the length of time that has passed since the event or conduct in issue, the relevance of it to carrying on a business that involves or may involve children, and anything else I reasonably believe is relevant to the assessment of the applicant.
  3. [110]
    The respondent’s representative addressed me extensively on these provisions in his written closing submissions.[70] Similar to his submissions being absent an express address on s 226, the applicant did not address me specifically concerning s 228.
  4. [111]
    Whilst I have considered these mandatory requirements, in my opinion it is not necessary for me to go through the detail of the respondent’s submissions in terms of these provisions, nor my consideration of the provisions together with those submissions and the evidence. In my opinion my discussion on the s 226 provisions and the extent to which I have therein addressed the relevance of the domestic violence issues sufficiently and adequately covers the s 228 provisions.
  5. [112]
    But that is not to say I did not consider these requirements to the extent necessary. There is a voluminous amount of documentary material filed before this Tribunal, which on one reading it alone portrays a lengthy history of domestic violence perpetrated in various forms by the applicant. However, in my opinion, that reading alone cannot and does not convey the whole story. To properly be appraised of all issues necessary to comprehensively address the criterion mandated by s 228(2), it was necessary to have heard the explanation given by the applicant, as he did for the most part in the two days of hearing before me, as to the circumstances he found himself in which brought about the relevant conduct.
  6. [113]
    As I have already discussed it earlier herein, the applicant explained the circumstances of that conduct. For that reason I need not discuss it further, although should for completeness once again say, the conduct was not acceptable socially and even though it arose given such circumstances it is not to be condoned or excused, and my decision made in this proceeding and the reasons for it should not be viewed as doing so.
  7. [114]
    I will however make three specific comments about the Further DV Issues and the applicant’s oral evidence given under cross-examination, such which I briefly touched on in paragraphs [55] and [56] herein noting my ‘concern’ about it and to which I said I would return, which I do here.
  8. [115]
    Firstly, in terms of the protection orders raised which are the Further DV Issues, there was some confusion in his evidence. As I understood what he was saying, they both dealt with his ex-wife as the aggrieved person the subject of the orders. But on my reading of them, it was only the Temporary Protection Order that named his wife as the aggrieved, the Protection Order dealing with his child, and that he simply consented to the Final Order so as to place a barrier between himself and his wife in terms of her having repeatedly contacted him. I do not accept that evidence as being correct, although I do I accept that such an error is one that can readily be made in the tenseness of a hearing and cross-examination with a lapse of memory or other general confusion.
  9. [116]
    Secondly, he asserted that the court held there was no domestic violence. Once again I do not accept that as being correct. As I have already mentioned earlier in these reasons, it is evident the learned Magistrate found sufficient evidence existed which fell within the definition of domestic violence to have made the Protection Order on 19 August 2022  naming the applicant's child as the person protected.[71] The learned Magistrate was also seemingly sufficiently satisfied that at least on an untested basis there was enough raised by the allegations made in the application for a protection order that conduct falling within that definition appears to have occurred such that he was inclined to issue the Temporary Protection Order dated 16 May 2022 naming the applicant’s ex-wife as the aggrieved. That being said, whilst I did not accept the applicant’s evidence in this respect it did not weigh against him. He readily explained to me the circumstances of the conduct which brought about these orders which I accept as being relevant and correct.
  10. [117]
    Thirdly, I note that the conditions imposed by the Orders were in essence only a condition of ‘good behaviour’ and ‘no-contact’, with the Protection Order remaining in force until 3 April 2027, such which in my opinion were entirely appropriate given the circumstances until a resolution to them could be reached.[72]
  11. [118]
    All that being said, notwithstanding my non-acceptance of his evidence about the Further DV Issues in that regard, in my opinion nothing turns on it. It of itself did not lead me to a conclusion different to that which I have reached concerning the development of the applicant’s insight and in turn whether his case as an exceptional one.

Conclusion

  1. [119]
    For completeness I repeat the earlier observation I made. There was a voluminous amount of documentary material filed before this Tribunal which portrays a lengthy history of domestic violence perpetrated by the applicant. But that did not convey the whole story. To properly and comprehensively understand circumstances in which domestic violence has arisen, it is necessary to explore the circumstances more deeply that can be ascertained from reading the written words alone.
  2. [120]
    That is what occurred in the hearing before me affording me the opportunity to not just hear from the applicant in terms of his spoken words, but to observe him in terms of his body language, facial reactions, and emotional reactions as a manifestation of this feelings when certain issues were being raised with him. In my opinion this is not merely beneficial, it is critical, and thus essential in being able to not just be informed of the relevant circumstances but to understand the causes for the conduct which resulted in relevant domestic violence orders.
  3. [121]
    It is on that premise that I return to the sentencing remarks of the learned Magistrate when sentencing the applicant on the DV Offences, as I indicated I would in paragraph [88] herein. I formed a similar view to that which can be gleaned from reading the Magistrate’s remarks as I comprehended them to be and I discussed in paragraph [87] herein. Such arose from my observations of the applicant during the hearing and listening closely to what he had to say in terms of his descriptions / explanations of what had occurred between himself and his ex-wife, and at times his children, in the past where protection orders were issues, be they temporary or final. Notably this was before I had read in detail the transcript of the learned Magistrate’s reasons for imposing the probation order for the DV Offences.
  4. [122]
    In all respects, having read the applicant’s material, listened to him in the hearing and considered his responses to that raised with him under cross-examination, as well as having observed him during the hearing, I was left with the impression and so reached the conclusion that the applicant would be suitable as a holder of a Blue Card, such being a person who could be entrusted 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. I was unable to find 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 him to be issued with a Blue Card.
  5. [123]
    In my opinion, whilst it may very well have been the case when the Decision was made, and even when the First Tribunal Decision was given, being the one ultimately set-aside on appeal, his present circumstance as I found it to be at the time of the hearing before me does conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is not an appropriate one, and that it should be set aside. There was an order to that effect.
  6. [124]
    For completeness I make this one final observation for the applicant’s benefit. It is not for this Tribunal to issue a Blue Card to him. What must now follow is that it will be for the respondent via Blue Card Services to deal with that matter.

Footnotes

[1]  That terminology was abandoned with amendments to the Act from 1 April 2016, it then becoming known solely as a ‘positive notice’ but now known as a ‘working with children clearance’. However the previously used terminology of ‘Blue Card’ has survived given its well-known reference.

[2]  Previously the statute was known as Commission for Children and Young People and Child Guardian Act 2000, and originally Commission for Children and Young People Act 2000.

[3]  I pause here to observe that his submissions for an extension of time were contained in one of his statements he tendered in the hearing before me as part of his evidence-in-chief (Ex 5). Therein he asserted that whilst the Decision was made in January 2019 he was not notified of it until September 2019.

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

[5]  This is found in s 226(2)(a)(v) of the WWCA.

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

[7]  See Ex 2 pg’s NTP 455 & 463. See also Ex 1 pg’s BCS 81 and 86.

[8]  Ex’s 6 and 7.

[9]  QCAT Act s 19.

[10]  QCAT Act s 20.

[11]  QCAT Act s 24.

[12]  WWCA s 5.

[13]  WWCA s 6.

[14]  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.” 

[15]  This is the applicable provision because the DV Offences and the Further DV Issues are not ‘serious offences’ for the purposes of the WWCA. Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.

[16]  See WWCA s 221(2) and s 221(3)(a)(iii), and s 221(3)(c).

[17]  WWCA s 221(2).

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

[19]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.

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

[21]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].

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

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

[24]  I pause here to observe that the respondent’s decision-maker recorded consideration of the HRA in reaching the Decision (see Ex 1 BCS 12), and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HRA in the respondent’s written submissions (Ex 7 para’s 75 to 77), 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.

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

[26]  Ibid s 48(1) & (2).

[27]  Ibid s 15 and s 25. I pause again to note that his right to privacy is protected by the de-identification of these reasons.

[28]  Ibid s 26.

[29]  QCAT Act s 21(1).

[30]  QCAT Act s 21(2).

[31]  Ex 1 & Ex 2.

[32]  Ex 7.

[33]  Ex’s 3, 4 & 5.

[34]  Ex 3 pg 1.

[35]  Ex 3 pg 3.

[36]  Ex 3 pg 4.

[37]  Ex 4 last paragraph.

[38]  I pause here to observe that in an affidavit the applicant swore on 6 June 2022 in response to the allegations which brought about the Further DV Issues, the applicant states that his child had resided with him since 2 July 2020. (See Ex 2 pg NTP 50 para 5). In my opinion nothing turns on this slight inconsistency, such being I infer nothing other than an issue of memory over time. In terms of the other child, as noted in that affidavit that child lived at that time with his ex-wife.

[39]  For example – see Ex 2 pg NTP 100 onwards.

[40]  See Ex 2 pg’s NTP 551 and NTP 574.

[41]  Ex 6.

[42]  Ex 7 para’s 54, 56, 58

[43]  Ex 7 para’s 84 to 87. Footnotes omitted

[44]  I turn first to the criteria under s 226(2) of the WWCA, addressing separately later in these reasons the criteria under s 228(2) of the Act.

[45]  Ex 7 para’s 42 to 74.

[46]  WWCA s 226(2)(a)(i).

[47]  Whilst no conviction was recorded for the DV Offences (See Ex 2 BCS 27) for the purposes of the WWCA the decision of the Court is a ‘conviction’.

[48]  Ex 1 BCS-27 and 28.

[49]  WWCA s 226(2)(a)(ii).

[50]  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.

[51]  WWCA s 226(2)(a)(iii).

[52]  Ex 2 NTP 300.

[53]  Ex 2 NTP 495 to 505

[54]  WWCA s 226(2)(a)(iv).

[55]  WWCA s 226(2)(a)(v).

[56]  Ex 1 BCS 77 to 79.

[57]  Ex 6 para’s 6, 7, and 8.

[58]  Ex 7 para 61.

[59]  Ex 1 BCS 78. T1-2 Lines 6 to 46.

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

[61]  Ex 7 para 63 and 81 to 95. Whilst in para 63 of the outline the reference was to “the analysis below”, such which on one reading of the outline could include the discussion on s 228(2) of the WWCA, I read the outline as that discussion, contained in para’s 64 to 80 therein, being an address separate from this criterion.

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

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

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

[65]  Ex 7 para’s 84 to 86. Footnotes omitted

[66]  Ex 2 pg’s NTP-512 and 513.

[67]  Ex 2 NTP-524 para’s 32 to 34. Ther references herein to alleged ‘fraud’ and ‘theft’ are as they appear in the affidavit. My referencing of them is not to be read as giving such allegations any weight or expressing any view about them, rather it is merely an extract of that which appears in the affidavit. I also pause here to observe that the manner in which the respondent’s material was presented in a bundle of NPT documents created challenges for me to read and comprehend which documents related to which others, thus the reference to ‘seemingly in response’. It would have assisted me greatly if the respondent’s representative could have, at the very least, created a working Reference Table of the documents identifying them in chronological order with relevant short remarks / comments as to which documents relate to each other.

[68]  Oral evidence on Day 2 under cross-examination. This is not taken from a Transcript but rather is that which is noted by me during the hearing. Thus his explanation must be read as being ‘words to the effect of’.

[69]  These are two dictionary definitions of the word ‘insight’ – see Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London – 1989. The applicant also offered a definitions of ‘insight’ in his written closing (ACS para 18) said to be ‘in the ordinary sense’, such being similar

[70]  Ex 7 para’s 64 to 80.

[71]  Ex 2 pg NTP 455.

[72]  Such material is mandated to be considered under s 228(2)(a) of the WWCA. I also pause here to observe that the relevance and purpose of the PO, particularly given the condition of ‘no-contact’, has seemingly been overtaken by the events which have unfolded since it was issued, namely that the child named as the protected person now lives with the applicant.

Close

Editorial Notes

  • Published Case Name:

    SWJ v Director-General, Department of Justice and Attorney-General (No 2)

  • Shortened Case Name:

    SWJ v Director-General, Department of Justice and Attorney-General (No 2)

  • MNC:

    [2024] QCAT 128

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    25 Mar 2024

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
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
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
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
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392
2 citations
Jump To
Cite 1 - [2021] QCAT 392
Cite 2 - [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
SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165
2 citations
Jump To
Cite 1 - [2021] QCAT 165
Cite 2 - [2021] QCAT 165
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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