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LC v Director General, Department of Justice and Attorney-General[2024] QCAT 415

LC v Director General, Department of Justice and Attorney-General[2024] QCAT 415

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

LC v Director General, Department of Justice and Attorney-General [2024] QCAT 415

PARTIES:

LC

(applicant)

v

director general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML086-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

27 September 2024

HEARING DATE:

9 April 2024

Submissions closed 11 June 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member JR McNamara

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 section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION OR LEGISLATION – blue cards – where the applicant appeals a negative notice issued by the respondent under s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where the applicant was charged with an offence of threatening violence – where the charge was dismissed by way of no evidence to offer – where the applicant was issued with a police protection notice – where the applicant has mental health concerns – whether this case is an exceptional case in which it is not in the best interests of children for a blue card to be issued

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226, 228

DVL v Director-General, Department of Justice and Attorney General [2023] QCATA 52

ED v Director-General, Department of Justice and Attorney-General [2021] QCAT 56

GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260

SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165

SM v Director-General, Department of Justice and Attorney-General [2021] QCAT 116

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

APPEARANCES & REPRESENTATION:

Applicant:

E Turkovic, Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd

Respondent:

L Hailstone, Blue Card Services

REASONS FOR DECISION

  1. [1]
    This is an application for review of a decision made by the Director-General, Department of Justice and Attorney-General (Blue Card Services)  on 22 February 2022 to cancel the applicant’s working with children clearance (blue card) and replace it with a negative notice. 

Background

  1. [2]
    The applicant was issued with a blue card under the Working with Children (Risk Management and Screening) Act 2000 (WWC Act) in 2008 and again in 2019.[1] The applicant required this blue card for her voluntary position as the Treasurer of a Preschool & Community Centre, a position which she has held since 7 June 2019.[2]
  2. [3]
    Blue Card Services cancelled the applicant’s blue card and issued a negative notice following notification from Queensland Police Service (QPS) of a change in the Applicant’s police information. On 5 May 2021, the applicant was charged with “threatening violence – discharge firearms or other act – domestic violence offence" under section 75(1)(b) of the Criminal Code 1899 (Qld) and section 47(9) of the Justices Act 1886 (Qld) (the charge).[3] The applicant was also subject to a Police Protection Notice issued pursuant to s 101A of the Domestic and Family Violence Act 2012 (Qld) (PPN).[4]
  3. [4]
    The charge and the PPN arose out of an incident at the applicant’s home on the evening of 5 May 2021.[5] The applicant and her partner had an argument about ice-cream which escalated.  The applicant called the police. The police attended and spoke separately with the applicant and her partner for well over an hour. The applicant was questioned in her bedroom while she sat on the edge of the bed.  She was tearful.  After some time the applicant was asked what she considered to be the long term solution because things between her and her partner seemed to have escalated.[6]  The applicant said … “it’s going to keep escalating because I am going to kill him”.  The words “I’m going to kill him” were repeated in response to further questions and statements from the officers. On 6 May 2021, the Richlands Magistrates Court issued a temporary protection order requiring the applicant to be of good behaviour towards her partner and not commit a domestic violence offence against her partner.[7]
  4. [5]
    On 3 September 2021 in the Richlands Magistrates Court no evidence was offered in respect of the charge of threatening violence.
  5. [6]
    On 18 November 2021 in the Richlands Magistrates Court the Police Protection Notice was dismissed.[8]

Decision to issue a negative notice

  1. [7]
    On 12 May 2021 and 24 May 2021, Blue Card Services sent the applicant letters which included information relevant to the assessment of her blue card and invited her to make submissions about this information, and as to why Blue Card Services should not cancel the applicant’s blue card and issue her with a negative notice.[9] On 11 June 2021, the applicant provided the respondent with written submissions and attachments which included letters of reference from the General Manager of the Preschool and Community Centre, from a childhood friend of the applicant, and from a co-worker.[10]
  2. [8]
    On 21 February 2022, Blue Card Services cancelled the applicant’s blue card and issued a negative notice. On 22 February 2022, Blue Card Services advised the Preschool and Community Centre, and the Department of Education and Training that the applicant’s blue card had been cancelled.[11]
  3. [9]
    In the 21 February 2022 reasons for the decision to issue a negative notice the decision maker took into account the police information concerning the (then) charge of threatening violence, and the personal submissions, references and medical information provided by the applicant’s legal representative.[12]  The decision maker expressed concern in the reasons arising from the reports of the applicant’s forensic psychologist Dr P in 2017 and 2021 saying: “Dr P’s assessments of the applicant are very concerning as children and young people rely on adults responsible for their care and wellbeing to manage conflicts in an appropriate manner and to role model appropriate behaviour. The material before me suggests the applicant may lack these skills, or they may be impaired by her medical condition”.
  4. [10]
    On 21 March 2022, the applicant filed an application in the Tribunal to review the respondent’s decision that the applicant’s case was an exceptional case in which it would not be in the best interests for the applicant to be issued with a blue card.[13]
  5. [11]
    On 6 September 2022, QCAT directed the respondent to advise whether the decision under review was maintained or changed on the basis of further material filed in the proceedings. On 6 December 2022, Blue Card Services filed further documents to be relied upon at a hearing of the matter before the Tribunal on 26 April 2023, being ‘Notice to Produce’ (NTP) material filed by Queensland Police Services (QPS) and the Richlands Magistrates Court. The hearing listed for 26 April 2024 was adjourned to 11 – 12 October 2023 and subsequently to 9 – 10 April 2024.
  6. [12]
    On 23 December 2022, Blue Card Services received a USB containing body worn camera footage taken by the police in relation to the alleged domestic violence incident at the applicant’s home and at the police watch-house on 5 May 2021.[14] Blue Card Services advised QCAT on 20 January 2023 that they would review the additional material and advise whether the original decision was maintained or changed.
  7. [13]
    On 1 March 2023, Blue Card Services advised QCAT that the decision was not changed, having regard to the additional material filed in the proceedings.[15] Blue Card Services remained satisfied that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a blue card. Blue Card Services acknowledged that the charge against the applicant had been finalised by way of ‘no evidence to offer’. Blue Card Services stated, however, that they had received medical reports on behalf of the applicant which “raise concerns about her mental health which appeared to be linked to her alleged offending behaviours and her calling police”. These medical reports caused Blue Card Services to “remain concerned about the applicant’s management of her mental health and its impact on her ability to control anger, social anxiety and panic attacks, suicidal ideation and her fitness for work with children”.
  8. [14]
    The only evidence now before the Tribunal that was not before Blue Card Services at any stage, is the 5 May 2023 report from Forensic Psychologist Dr P.[16] 

The statutory framework

  1. [15]
    The relevant statutory framework has been summarised in many decisions of the Tribunal including in ED v Director-General, Department of Justice and Attorney-General[17] cited with approval in SM v Director-General, Department of Justice and Attorney-General[18] as follows:
  1. [8]
    The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the WWC Act. The purpose of the review is to produce the correct and preferable decision, on the evidence before it and according to the law current at the time of the review.
  1. [9]
    In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits. On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the original decision-maker.
  1. [10]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children. It is protective legislation.
  1. [11]
    A child related employment decision, which is defined to include a ‘chapter 8 reviewable decision’, is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount. The overriding concern is the potential for future harm to children.
  1. [12]
    A ‘chapter 8 reviewable decision’ is defined to include a decision as to whether or not there is an exceptional case for the person if, because of the decision, a negative notice was issued.
  1. [13]
    Section 221 provides, relevantly:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if —

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

  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [Emphasis added]
  1. [14]
    The term ‘exceptional case’ is not defined in the WWC Act. It has been observed, by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher[19] 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.

  1. [15]
    Thus, what might be an exceptional case is a question of fact and degree, to be decided in each individual case having regard to: …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: children.
  1. [16]
    In deciding whether there is an exceptional case in circumstances where the applicant has been convicted of, or charged with, an offence, the Tribunal is obliged to consider the factors in s 226(2) of the WWC Act. These factors, unlike the position under differently worded, equivalent legislation in other States are not exhaustive.

Relevant information – s 221

  1. [16]
    Since these decisions s 221 has been amended but the highlighted words of the section that appear above remain.  The current version of s 221 is as follows:

221 Deciding application—no relevant information or conviction etc. for non-serious offence

  1. (1)
    The chief executive must issue a working with children clearance to the person if the chief executive—
  1. (a)
    is not aware of any relevant information about the person; or
  1. (b)
    is not required to issue a negative notice to the person under subsection (2).
  1. (2)
    The chief executive must issue a negative notice to the person if the chief executive—
  1. (a)
    is aware of relevant information about the person; and
  1. (b)
    is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  1. (3)
    For subsections (1) and (2), the following information about the person is relevant information—
  1. (a)
    information that the person has—
  1. (i)
    a charge for an offence other than a disqualifying offence; or
  1. (ii)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note— For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.

  1. (iii)
    a conviction for an offence other than a serious offence;
  1. (b)
    investigative information;
  1. (c)
    domestic violence information;
  1. (d)
    disciplinary information;
  1. (e)
    adverse interstate WWC information;
  1. (f)
    other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  1. [17]
    The in-force version of s 221 places primacy on the issue of a negative notice if the chief executive is aware of relevant information, and is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  2. [18]
    The in-force version of s 221 also defines ‘relevant information’ to include ‘a charge for an offence other than a disqualifying offence’.  The offence with which the applicant was charged, but for which she was not convicted - no evidence having been offered, was not a disqualifying offence.[20]    
  3. [19]
    The respondent in their outline of submissions filed ahead of the hearing say that regard must be given to the considerations prescribed by s 226 in regard to the ‘charge’ (threatening violence) despite it being dismissed, and to the considerations prescribed by s 228 in relation to domestic violence (and presumably other) information.
  4. [20]
    The case law suggests that charges that have been dismissed are nevertheless ‘relevant information’ under s 221. When Judicial Member McGill SC considered this issue last year in DVL v Director-General, Department of Justice and Attorney General,[21] he found that ‘charge’ under s 221 means ‘the basis of a criminal proceeding which has not been concluded’.[22] Applying this interpretation, once a charge is dismissed, there is no charge extant, and it does not fall within s 221. However, JM McGill’s decision was appealed to the Court of Appeal. Prior to the hearing for the application for leave to appeal, the parties compromised the proceeding on terms which included that the appeal be allowed, and the respondent ‘DVL’ conceded that JM McGill’s decision was attended by legal error. The Court of Appeal made orders by consent of the parties to allow the appeal and set aside the decision of JM McGill.
  5. [21]
    While the precise nature of the legal error is not apparent,  I am of the view that in a case such as this, information concerning the dismissed charge is ‘relevant information’ under s 221.
  6. [22]
    My reasons are briefly: Firstly, s 226, which applies when deciding if there is an exceptional case where there is a conviction or charge, uses the past tense:

This section applies if the chief executive is deciding whether or not there is an exceptional case for that person and is aware that the person has been convicted or, or charged with, an offence.

  1. [23]
    Secondly, a ‘charge’ is not the same as an ‘allegation’, as was stated by Member Rogers in TNC v Chief Executive Officer, Public Safety Business Agency.[23] Member Rogers says that:[24]

Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [24]
    Thirdly, if the prosecution were unable to discharge the relevant standard of proof required under the Criminal Code 1899 (Qld), a decision-maker may still have before them evidence relating to the charge that is relevant when considering whether to issue a blue card. This approach appears to have been followed by Member Taylor in SDS v Director-General, Department of Justice and Attorney-General,[25] in which a number of the applicant’s charges had been dismissed by way of no evidence to offer. Member Taylor considered one of those charges on the basis that the applicant had ‘effectively admitted’ the facts relating to that charge in the hearing.
  2. [25]
    If there is no such evidence, or the evidence related to a dismissed charge before the decision-maker is clearly insufficient or not compelling, the decision-maker may choose to issue the blue card anyway.
  3. [26]
    Therefore, I take into account information that surrounds the charge of threatening violence on the basis that it is ‘relevant information’ per s 221(3)(a)(i). I also take into account information that surrounds the PPN as it is ‘domestic violence information’ per s 221(3)(c) and information relating to the applicant’s mental health on the basis of s 221(3)(f). The criteria in s 226 must be considered when deciding whether there is an exceptional case where there is a conviction or charge and the criteria in s 228 where there is domestic violence information and other relevant information.

Deciding exceptional case if conviction or charge

  1. [27]
    The relevant parts of section 226 are as follows:

Section 226 – Deciding exceptional case if conviction or charge

  1. (1)
    This section applies if the chief executive—
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and
  1. (b)
    is aware that the person has been convicted or, or charged with, an offence.
  1. (2)
    The chief executive must have regard to the following—
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and

…

  1. (f)
    anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [28]
    As previously noted, the charge against the applicant was dismissed by way of no evidence to offer. The offence – threatening violence – is not a serious or disqualifying offence as defined by ss 15 and 16 of the WWC Act. The offence was alleged to have been committed in May 2021, which is now 3 years ago.
  2. [29]
    The offence of threatening violence is relevant to employment that may involve children accepting that violent people should not be allowed to work with children. However, as I describe below at paragraphs [40]-[45], on the facts before me I am of the view that the applicant’s threats were hollow. While not incapable of inflicting physical violence, the applicant’s health and frailty would limit her ability and method.  I accept however that violence can present in other forms.
  3. [30]
    Regard must also be given under s 226(2)(f) to anything else considered relevant to the assessment of LC. This would include the domestic violence information and LC’s mental health.  These matters are also considered ‘other relevant information’ pursuant to s 228 and are discussed below.

Deciding exceptional case where there is domestic violence information and other relevant information

  1. [31]
    Section 228 (emphasis added) is as follows:

228  Deciding exceptional case if other relevant information exists

  1. (1)
    This section applies if the chief executive—
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and
  1. (b)
    is aware of—
  1. (i)
    domestic violence information about the person; or
  1. (ii)
    disciplinary information about the person; or
  1. (iii)
    adverse interstate WWC information about the person; or
  1. (iv)
    other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  1. (2)
    The chief executive must have regard to the following matters in relation to the information—
  1. (a)
    if the chief executive is aware of domestic violence information about the person—the circumstances of a domestic violence order or police protection notice mentioned in the information, including the conditions imposed on the person by the order or notice;
  1. (b)
    if the chief executive is aware of disciplinary information about the person—
  1. (i)
    the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order; and
  1. (ii)
    any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in subparagraph (i), and the reasons for the decision or order;
  1. (c)
    if the chief executive is aware of adverse interstate WWC information about the person—each adverse interstate WWC decision or decision to issue the conditional interstate WWC authority mentioned in the information, and the reasons for the decision;
  1. (d)
    if the chief executive is aware of other information about the person mentioned in subsection (1)—the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information;
  1. (e)
    the length of time that has passed since the event or conduct the subject of the information occurred;
  1. (f)
    the relevance of the information to employment, or carrying on a business, that involves or may involve children;
  1. (g)
    anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.

Domestic violence information

  1. [32]
    Domestic violence information about a person means information about the history of domestic violence orders, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012.[26] The circumstances of the issue of the PPN, which are the same circumstances which gave rise to the charge of the offence of threatening violence, may be considered under s 228.
  2. [33]
    The facts and circumstances that led to the charge of threatening violence and the issue of a PPN in May 2021 are set out briefly in paragraph [4] above. 
  3. [34]
    Section 228(2)(a) requires that regard be given to the circumstances of a domestic violence order or police protection notice.
  4. [35]
    In the respondent’s outline of submissions at [18] filed after the hearing they say:

Though the applicant expressed remorse for her behaviour in May 2021, the respondent submits it remains a risk factor that an argument between two adults about ice-cream escalated to verbal taunts, the applicant threatening to kill Paul and becoming verbally aggressive and combative towards police. With respect to the alleged offending, the respondent notes:

  1. a)
    The applicant’s evidence regarding the May 2021 incident was to the effect that Paul “stirred me up” by taunting her and pressing her buttons which resulted in her hitting Paul’s laptop shut and the pair yelling at each other; and
  1. b)
    According to Dr P, the applicant then perceived police’s repeated questioning of her as “aggressive or being badgered” so she responded as a means to gain control.
  1. [36]
    The applicant in evidence at the hearing refers to the length of time the police were present, says they (the police officers) just went on and on and on … and eventually she “got jack of it and … just turned away and covered (my) face and said “Oh, I’m sick of this. See? I just want to kill him”.[27]  The applicant says in her opinion “it was sheer intimidation, and both are the type of policeman who, once they get their uniform on, it’s my way or the highway”. She says she repeated the statement when asked what she said.
  2. [37]
    In her affidavit the applicant says “I am deeply remorseful, and regret making (this) statement and believe I did so because it was due to the duress, pressure, intimidation and on-going badgering of Cameron and towards the end of me being removed from my home”.[28]
  3. [38]
    I note at paragraph [4] above that the BWC footage shows that for some considerable time the police officers spoke with the applicant in her bedroom.  They spoke with the applicant’s partner in the living spaces of the house. When speaking to the applicant the officers stood while the applicant sat on the edge of the bed. She was distressed. There was no female officer present – until the time when the applicant was to be taken from the residence to the watch-house.  The officers were in uniform. Similarly, the officers spoke with the applicant’s partner where they stood and he sat.  The spaces were quite confined. 
  4. [39]
    There was extensive body worn camera (BWC) footage both at the applicant’s house and the watch-house.  Having viewed the BWC footage, in my view LC’s comments that she would kill her partner were not made under duress, pressure or intimidation by the police officers. Although the applicant may not have felt comfortable or happy with the presence of the police officers in her home, the fact remains that LC called the police officers to check on her home and the officers had to fulfil the responsibilities of their jobs. Some exasperation on the part of the arresting officer could be sensed when the discussion between the arresting officer and the applicant moved from one about the facts and circumstances which led to the police attendance, to a discussion about a ‘way forward’.  However, this level of exasperation is not enough to amount to intimidation, pressure or ‘badgering’ of the applicant. When asked about the way forward LC said … “it’s going to keep escalating because I’m going to kill him”.  As a result of that statement the handling of the matter switched from one which would most likely proceed without an arrest, to one which required an arrest.  The statement could not be ignored, and it was not immediately retracted or explained. The arresting officer characterised this situation as placing him in a predicament.
  5. [40]
    In the BWC footage at the residence, the arresting officer is recorded in a telephone conversation with his Sergeant seeking advice about any other ways or ideas of approaching the matter.[29] He referred to the “threats” made by LC and says, “she put us in that unfortunate predicament where we are considering a PPN with her as respondent”.  The officer goes on to say that she did retract, she said “I take back everything I said, I withdraw it, I was lying, I don’t mean it at all”. She however repeated it to the other officer. Again retracting – and saying that she would deny she said it, she would say she was coerced – despite it being pointed out that everything was being recorded.
  6. [41]
    In my view there are a number of reasons to say that the “threats” were hollow – however, an explanation for the statements made did not surface until there was further questioning at the watch-house.
  7. [42]
    At the watch house when asked “why she said what she said” the applicant said that she was a “mental case” … .  When asked by the officer “why did you say you wanted to kill your partner” she said “it’s just a saying”: “It’s like that saying when you’re having a bad day you kick the dog … but do you really kick the dog?”[30]
  8. [43]
    When asked: “You said you were going to kill him, how would you do that?” The applicant replied with a chuckle “I am not going to give away my plans …”
  9. [44]
    In context, the comment about not giving away her “plans” to kill her partner could not be interpreted as evidence that a plan/s in fact existed. She then said: “I said what I said in the heat of the moment”.    She said “It’s just a stupid thing I said”.  Elsewhere she said “it’s just a saying”.[31]
  10. [45]
    The word “kill” can have a meaning other than to end the life of someone or something.  It does not always invite a literal interpretation.  If, as the applicant suggests, her use of the word “kill” was merely a way to express or emphasise how extremely angry she was with her partner then the applicant “picked the wrong audience” and it was the wrong time to express herself in that way.  It should have been clarified or retracted immediately.  To give it the most generous interpretation, the applicant, having made the statement found it difficult, perhaps due to pride, but seemingly due to her personality, to retract the words despite the consequences. In fact she called for the consequences in asking for handcuffs to restrain her. This behaviour does not place the applicant in a good light. While the applicant is not incapable of killing, she has physical limitations which would limit the possible methods. 

Management of the applicant’s mental health

  1. [46]
    Section 228(1)(b)(iv) requires me to consider ‘other information’ about the applicant that I reasonably believe is relevant to deciding whether it would be in the best interests of children for a blue card to be issued to the applicant.
  2. [47]
    Relevant to the consideration of whether I should be satisfied there exists an exceptional case (in which it would not be in the best interests of children for the applicant to hold a blue card at this time) the respondent says the key concerns are the applicant’s:[32]
  1. a)
    mental health which appears to be linked to her alleged offending;
  1. b)
    management of her mental health and its impact on her ability to control anger, social anxiety and panic attacks and suicidal ideation; and
  1. c)
    ability to manage her anger and frustration and respond appropriately to conflict or other stressors, regulate her emotions and exercise restraint.
  1. [48]
    There is no power to impose conditions on the use of a blue card. [33] Once a blue card is issued, the holder is able to work in any child-related employment or business as regulated by the Act. The respondent submits that it is therefore important to consider the eligibility of a person to hold a blue card in each category of regulated employment or business as a blue card would enable the applicant to care for children in a domestic setting where she has engaged in concerning behaviours that are inconsistent with that expected of a blue card holder.[34]
  2. [49]
    The applicant in amended written submissions refers to LC’s evidence at the hearing of working with and caring for children over her life.  Particularly commendable was LC’s work as a court support liaison officer for the Western Districts Richlands Community Justice Group at the Richlands Courthouse, a position which she held from 2005 – 2013.[35]   She gave evidence of her work with the Children’s Court as a volunteer liaison officer working with youths in detention, and how she would engage with children about their life history and the circumstances they found themselves in. LC also talked about times where children would turn up on her doorstep because of trouble in their own homes and she would feed them, provide clothes, and provide a bed.  She also spoke of providing sanctuary for a woman with a large family in a domestic violence situation. 
  3. [50]
    Two witnesses, Ms T and Ms R were both supportive of LC.  They were both genuine and credible. They were aware of the incident that led to the charges in 2021. Ms T said she did not believe LC posed any kind of threat (to children), that she (LC) was exceptional and that she would trust “my children’s life with her”, that she had never had a problem with her children or grandchildren being around LC – and she encouraged it “because of that Indigenous connection”.
  4. [51]
    However, evidence of the benefits that may ‘flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance if there exists an unacceptable risk to children in future contact’.[36] As noted in LM v Director-General, Department of Justice and Attorney-General,[37] a risk that it would not be in the best interest of children for a blue card to be issued to the applicant does not cease to be a risk because evidence suggests that her return to work with children would in other ways also be of benefit to children.
  5. [52]
    The respondent referring to LC’s evidence lists a number of events or incidents that they submit indicate that she is “not at a sufficient level of being able to handle the stress of work, to work safely with children”.[38] They include panic attacks from as early as 2013,[39] depression and Post Traumatic Stress Disorder,[40] an overdosing event,[41] anxiety,[42] and a level of agoraphobia.[43]
  6. [53]
    These behaviours suggest a high level of fragility and, the respondent submits, suggest that there is insufficient evidence to suggest that LC: is effectively able to manage her mental health independently, is able to exercise sound judgement and prioritise the immediate physical and emotional needs of children in her care, has developed coping mechanisms to handle stressful situations, and has an adequate support network in order to cope with the stresses of working with children.
  7. [54]
    Forensic Psychologist Dr P gave evidence. The legal representative for the  respondent asked Dr P directly: “… do you feel that LC as she is now poses any risk at all to children, in the event that she is liaising, working or having anything to do with children?”.  Dr P replied: “No, She poses no risk. She’s not a person naturally inclined to being antisocial or violent. She’s a person at times due to her physical condition becomes overwhelmed and – and can react impulsively in the moment, but it takes a lot. She’d have to go through a lot of stress, I think, to get to that point, and – and her response has always been to her partner and a verbal – a verbal one, or throwing something. It’s limited to that, within the house. To my knowledge, there’s never been any concern raised about her ability to care or look after children or manage children …”.[44]   When asked if there was anything in the police brief that may cause him to change his mind, Dr P said: “No. No, no, no. She is of – she is of no danger or threat towards children. She presents as someone who would be very caring and motherly, and over the years, she has cared for and worked with children and raised and – and been a mother to a lot of children.”[45]
  8. [55]
    The applicant noted Dr P’s evidence that at the hearing LC appeared “more in control” and “more relaxed” (since her last saw her).  He talked about the coping strategies he had assisted LC with.  He said “Taking time out”, “learning to relax” …”teaching her skills not to be histrionic in the sense of overreacting. Not to ruminate. Not to over-exaggerate”. 
  9. [56]
    The respondent says that there is a lack of probative evidence suggesting the applicant has adopted the coping strategies.  In evidence when asked about the strategies and skills to manage her emotional responses LC replied that she had not consciously thought about it.[46]  LC provided the same response when asked about strategies to improve her reasoning and decision making. The respondent says the theme of the conflict management strategies LC did engage were to remove herself from the situation –[47] and I note that a person in charge of children is not in a position to be able to disconnect themselves or to wait for a support person to become available.[48] 
  10. [57]
    I asked Dr P if it was his view that the incident in 2021, which he had referred to as exceptional, was behaviour that occurs specifically in her relationship with her partner, as opposed to another person.[49]  He said he was unaware of incidents other than with the police or her partner where she becomes aggravated.
  11. [58]
    LC began consulting Dr P in 2017, and she appears to have not sought treatment from him since 2023. Her support network consists of her partner, Dr P, and two friends who gave evidence at the hearing, her sisters and a cousin.
  12. [59]
    The respondent raises concern about LC’s ability to resolve conflict, pointing to what appeared to be a comparatively trivial issue (an ice-cream) escalating into an aggressive verbal argument where the police were called.
  13. [60]
    I pause to note that the incident at the house in 2021 was “in the time of Covid”.  Although this was not explored with Dr P, it was a time where vulnerable people, in particular those with the sort of health conditions LC suffered were quite isolated physically, with quite likely emotional impact.
  14. [61]
    The Respondent says that an inability to manage anger and frustration and respond appropriately are skills critically important because adults are expected to regulate their behaviour and provide a protective environment for children, situations of conflict may be expected to occur in child related employment either with or in the presence of children, and if issued with a blue card LC may find herself in a situation where she feels triggered or badgered by a child’s behaviour towards her. 
  15. [62]
    The respondent says LC agreed with Dr P’s assessment of her in 2017 that she experienced moderate potential for problems “within the anger control domain raising the possibility of a quick temper and the potential to express anger and hostility readily through verbal means, physical means or both”.[50]  Further, “the applicant normalised yelling as an appropriate means of dealing with conflict throughout her evidence. She suggested “it’s a good way to vent … it’s like that champagne bottle. You can only shake it so many times and the cork is going to pop”.[51]  This the respondent submits suggests that a lack of insight into her behaviour may have the effect of normalising that approach in a child’s impressionable mind.[52]

Conclusions

  1. [63]
    As discussed at paragraph [26], I am aware of 3 categories of relevant information as defined by s 221 of the WWC Act: information that LC has a charge for an offence other than a disqualifying offence; domestic violence information; and other information that I reasonably believe to be relevant, being information about LC’s mental health.
  2. [64]
    With respect to the charge of threatening violence, I note at paragraph [29] that the offence of threatening violence is relevant to employment that may involve children. My view of the evidence before me is that the applicant’s threats themselves that led to the charge were somewhat hollow. My greater concern was however her hesitation to immediately retract the threats.  This showed extremely poor judgment, belligerence and more generally a poor reflection on her personality and manner, particularly given the circumstances and the obvious consequences. While LC may have felt uncomfortable or frustrated that does not explain why she insisted on handcuffs and arrest, which could have been avoided.
  3. [65]
    I considered the circumstances of the PPN issued against the applicant at paragraphs [35]-[45]. Although the PPN and the charge of threatening violence arose out of the same incident in May 2021, section 228 allowed me to consider the circumstances of the incident in greater detail than section 226.
  4. [66]
    Having viewed the BWC footage of the police officers that attended the applicant’s house on 5 May 2021, I reject the applicant’s submissions that she made the threats the subject of the PPN and charge in a state of intimidation, pressure or duress. The threats do not reflect the applicant’s character positively. However, I find that the threats were hollow, and that LC’s physical circumstances place considerable limitations on  her ability to commit physical violence against her partner. I accept that violence can take other forms, including for example, coercive control.
  5. [67]
    The information about the applicant’s mental health is relevant to deciding whether it would be in the best interests of children for a blue card to be issued. I accept the respondent’s submissions that the state of the applicant’s mental health is relevant to whether she can work safely with children.
  6. [68]
    I accept the evidence given by the applicant about her experience working with and caring for children. Her experience working with youths in detention and caring for children and women in her community is commendable. I also accept the evidence given by Ms T, Ms R and Dr P about their support for LC and her ability to care for children. However, as noted at paragraph [51] I am unable to consider this evidence as relevant where the applicant also poses a risk to children.
  7. [69]
    The applicant’s mental health issues are not resolved. Although she has attending psychology sessions with Dr P, I am not satisfied on the evidence before me that she has developed the skills or adopted the strategies to cope with anger, frustration or panic in a satisfactory way.
  8. [70]
    Although I considered the applicant’s threats to be hollow, the mere making of the threats demonstrates that the applicant struggles to regulate her emotional reaction to difficult situations. Furthermore, the applicant maintained in the hearing that she views venting and yelling as an outlet for anger or expression to be an appropriate response. Not all violence is physical and it is important for adults, especially adults who work with children, to value and model emotional regulation and patience when dealing with anger or frustration. Children, especially young children, are impressionable.
  9. [71]
    Having considered the relevant information, I am satisfied on the basis of the applicant’s mental health and her ability to manage her emotions that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a blue card. The mere existence of the charge of threatening violence against the applicant of itself is not the principal reason for deciding that this is an exceptional case. However, the circumstances surrounding the charge and the PPN demonstrate, in my view, the applicant’s limitations in emotional regulation.  Despite Dr P’s confidence that LC would pose no risk to children, I am concerned that the situations of conflict that might be expected to occur in child related employment could trigger emotional responses including anger, frustration and hostility, through verbal means, physical means or both.  Disconnecting or removing herself from a triggering situation are not strategies that can be effective when working with children. The risks are too great.

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 section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

Footnotes

[1]  Ex 4, page BCS-1.

[2]  Ex 11.

[3]  Ex 2.

[4]  Ex 5, page NTP011.

[5]  Ex 4, pages BCS30-BCS34.

[6]  The police had attended the premises once before, a few months earlier, due to a similar complaint.

[7]  Ex 5, page NTP010.

[8]  Ex 2.

[9]  Ex 4, page BCS36; Ex 4, page BCS47.

[10]  Ex 4, page BCS52.

[11]  Ex 4, pages BCS128-BCS141.

[12]  Ex 4, pages BCS1-BCS27.

[13]  Respondent’s submissions filed 21 August 2023 [6].

[14]  Correspondence from Blue Card Services to QCAT Registrar - 20 January 2023.

[15]  Correspondence from Blue Card Services to QCAT Registrar – 1 March 2023.

[16]  Ex 8.

[17]  [2021] QCAT 56.

[18]  [2021] QCAT 116.

[19]  [2004] QCA 492.

[20]  WWC Act s 16.

[21]  [2023] QCATA 52.

[22]  Ibid [36].

[23]  [2015] QCAT 489.

[24]  Ibid [83].

[25]  [2022] QCAT 165, [47].

[26]  WWC Act sch 7.

[27]  T1-39, lines 37 – 46.

[28]  Ex 3, [68].

[29]  BWC footage, 1hr 20 m 56s.

[30]  BWC footage (watchhouse), 6m 20s.

[31]  Ibid, 9m 01s.

[32]  Respondent’s outline of submissions filed 21 May 2024 at [8].

[33] HXB v Director-General, Department of Justice and Attorney General [2024] QCAT 368 at [40].

[34]  Ibid [11].

[35]  Ex 1.

[36] Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171, [109]; LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333, [317]-[319].

[37]  [2022] QCAT 333, [322].

[38]  Ibid [13]-[14]. 

[39]  T1-51, lines 10-15; T1-66, lines 25-43.

[40]  T1-77, line 29.

[41]  T1-61, lines 35-36.

[42]  T1-43, lines 44-46; T1-61, lines 2-10.

[43]  T1-66, lines 14-34.

[44]  T1-81, lines 29-39.

[45]  T1-81, lines 41-45.

[46]  T1-47, lines 36-37.

[47]  Respondent’s written submissions filed 21 May 2024 [23].

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

[49]  T1-91, lines 5-26.

[50]  Respondent’s outline of submissions filed 21 May 2024 [20a].

[51]  T1-42, lines 28-29.

[52] GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260, [22].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 415

  • Court:

    QCAT

  • Judge(s):

    Judicial Member JR McNamara

  • Date:

    27 Sep 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 Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
DVL v Department of Justice and Attorney-General [2023] QCATA 52
2 citations
Jump To
Cite 1 - [2023] QCATA 52
Cite 2 - [2023] QCATA 52
ED v Director-General, Department of Justice and Attorney-General [2021] QCAT 56
2 citations
Jump To
Cite 1 - [2021] QCAT 56
Cite 2 - [2021] QCAT 56
GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260
2 citations
Jump To
Cite 1 - [2022] QCAT 260
Cite 2 - [2022] QCAT 260
HXB v Director-General, Department of Justice and Attorney-General [2024] QCAT 368
1 citation
Jump To
Cite 1 - [2024] QCAT 368
LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333
2 citations
Jump To
Cite 1 - [2022] QCAT 333
Cite 2 - [2022] QCAT 333
SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165
2 citations
Jump To
Cite 1 - [2022] QCAT 165
Cite 2 - [2022] QCAT 165
SM v Director-General, Department of Justice and Attorney-General [2021] QCAT 116
2 citations
Jump To
Cite 1 - [2021] QCAT 116
Cite 2 - [2021] QCAT 116
SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165
1 citation
Jump To
Cite 1 - [2021] QCAT 165
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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