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GOM v Director General, Department of Justice and Attorney General[2024] QCAT 51

GOM v Director General, Department of Justice and Attorney General[2024] QCAT 51

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GOM v Director General, Department of Justice and Attorney General [2024] QCAT 51

PARTIES:

GOM

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML163-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

29 January 2024

HEARING DATE:

17 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Matthews

ORDERS:

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

CATCHWORDS:

APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant poses a risk of harm to children – whether protective factors outweigh risk factors – where applicant has lengthy protracted criminal and other Family Violence history – paramount considerations.

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

Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 225, s 226, s 228, s 360

Human Rights Act 2019 (Qld), s 8

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

Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCA 289

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

Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Davis, CA

REASONS FOR DECISION

Background

  1. [1]
    The applicant GOM applied for a working with children clearance (‘blue card’) pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (‘WWC Act’) on multiple occasions during 2021.
  2. [2]
    GOM was advised by Blue Card Services that it was their intention to issue a negative notice and they afforded GOM an opportunity to make submissions about whether or not his case was an exceptional case.
  3. [3]
    GOM provided submissions and GOM’s eligibility was considered by Blue Card Services.
  4. [4]
    After Blue Card Services reassessed his eligibility, a negative notice was issued to him on 26 May 2022, and he was provided with a written notice of their decision, including the reasons and all relevant review information.
  5. [5]
    GOM filed an application with the Tribunal to review the respondent’s decision on 26 May 2022 on the basis that his case was not an exceptional case, that GOM is not a harm to children, and it would not harm the best interests of children for him to be issued a blue card.
  6. [6]
    A one-day hearing was heard on 17 April 2023.

The law and legislative framework

  1. [7]
    Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the purpose of the Tribunal in its review jurisdiction is to make the correct and preferable decision by standing in the shoes of the decision maker.[1]  
  2. [8]
    This is based on a fresh hearing on the merits.[2] Pursuant to section 24 of the QCAT Act, the Tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter for reconsideration to the decision maker with any necessary directions the Tribunal considers appropriate.
  3. [9]
    The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children which is a paramount[3] consideration “to which all others yield.”[4]
  4. [10]
    The regime of the WWC Act is to ensure protective scaffolding is placed around employment criteria for all people who wish to work with and or around children, and therefore, any hardship or prejudice the applicant may suffer if not successful in obtaining a blue card is of no relevance.[5]

Background

  1. [11]
    The applicant at the time of the hearing was 41 years old and the father of six children. Of those six children, two have reached adulthood, whilst the younger three where 13 and 6. Of the 6 children GOM has one child residing in his care and spends time each other weekend with his younger children.
  2. [12]
    The applicant over the years has owned his own businesses, worked for other companies to support his family and at the time of the hearing was home schooling his 13 year old son.
  3. [13]
    In the materials provided to the Tribunal, GOM outlines his childhood in New South Wales with his parents and sister, and his sporting career, and that he does not drink smoke or take drugs.
  4. [14]
    GOM has a passion for soccer, playing and coaching, and throughout the years has had success on the field playing for state teams and junior Australian representative soccer and currently coaches a junior local squad.
  5. [15]
    Over the past ten years GOM has been charged for a series of criminal and other offences and domestic violence charges which resulted in bouts of incarceration.
  6. [16]
    GOM’s relationship with his family, according to GOM, contributed to his past offending where at the time he could not see a way out of it and before he knew it, it had spiralled out of his control.
  7. [17]
    GOM’s criminal history spans over 25 years commencing when he was 14 years old with Domestic and Family Violence orders occurring when GOM was 39 years old in February 2021.
  8. [18]
    An account of the history of offences which GOM has been charged and or convicted ranges from, but is not limited to minor assault charges, to more serious charges of burglary, assault occasioning bodily harm, multiple charges for possessing and producing drugs, trafficking, unlawful possessions of weapons, and several temporary and final domestic violence orders naming the applicant as a respondent.
  9. [19]
    GOM in the past sought help for his offending, however, despite completing relevant courses, continued to offend.
  10. [20]
    GOM claims that whilst his offending history is significant, he has since turned his life around.
  11. [21]
    He currently has a good relationship with his wife T, there are no current DV issues, and they are working together to co-parent their four children.
  12. [22]
    GOM by his accounts remains committed to soccer and coaching junior teams and aspires for coaching to remain his main source of income now and into the future.

Filed proceeding materials.

Applicant:

  1. [23]
    The applicant filed and relied upon the following;
    1. A life story dated 5 October 2022;
    2. An email dated 26 March 2023;
    3. An undated Character reference of RC;
    4. Character reference of CM dated 8 June 2022;
    5. Character reference of MB dated 9 June 2022;
    6. Character reference of PG dated 9 June 2022; and
    7. Character reference of AV dated 12 June 2022.

Respondent BCS:

  1. [24]
    The respondent relied primarily upon two bundles of documents marked BCS 1-153 and NTP 1-98.
  2. [25]
    The bundle of documents marked BCS included the reasons statement, criminal history, extract of traffic history, police report in relation to GOM offending, and transcripts of sentencing remarks, all of which have been considered in reaching this decision.
  3. [26]
    The bundle of documents labelled NTP included materials produced to the Tribunal by the Beenleigh and Ipswich Magistrates Courts, Department of Children, Youth and Multicultural Affairs, and the Department of Transport.
  4. [27]
    All of the above have been considered in reaching this decision, including all filed materials of the applicant.
  5. [28]
    Additionally, both parties relied upon written and oral submissions provided throughout the hearing including closing submissions as filed and in compliance with the directions of the Tribunal.

The reviewable decision

  1. [29]
    The decision under review is whether GOM’s case is an “exceptional case.” In reviewing the decision, it must be decided in accordance with both the WWC Act and the QCAT Act.[6]
  2. [30]
    Given the applicant has been charged and convicted for a series of offences, the Tribunal must have regard to the prescribed considerations set out in the WWC Act when determining whether an “exceptional case” exists.[7]
  3. [31]
    The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case-by-case basis underpinned by the legislative framework where neither party bears the onus of proof in determining whether an exceptional case exists.
  4. [32]
    When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in s 226 and s 228 of the WWC Act which are not an exhaustive list, but “merely contain particular matters which the tribunal is obliged to consider in deciding the application.”[8]
  5. [33]
    Consideration was also given to the Human Rights considerations, namely that, as a public entity, it is unlawful for the Tribunal (public entity):
    1. to act to make a decision in a way that is not compatible with Human Rights; or
    2. in making a decision, fail to give proper consideration to a human right relevant to the decision, in these circumstances, section 26(2) specifically: the right of every child to “the protection that is needed by a child, and is in the child’s best interests, because of being a child.”
  6. [34]
    The Tribunal is satisfied that when making this decision, it has complied with the Human Rights Act 2019 (Qld) and acknowledges that if or where there is a limitation on GOM’s Human Rights, it is justified by the Act.[9]
  7. [35]
    In reaching this decision, I have considered all the relevant factors under the Act, and all relevant information on hand when determining if this is an exceptional case.
  8. [36]
    Further, the Tribunal is fully aware of the transferability of the blue card and consideration was given accordingly in this regard when reaching this decision, namely that GOM would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction if issued a blue card.

Oral Testimony of GOM

  1. [37]
    Regarding the contents of his filed evidence, GOM confirmed that they were true and correct, which include prior verbal submissions provided to Blue Card Services[10]  which GOM agreed were an accurate reflection on what he had said at the time.
  2. [38]
    For the past three years GOM has been coaching junior soccer and considers that he is supported and trusted by the club and the parents of the children in his squad.
  3. [39]
    GOM currently is the full-time carer of his 13 year old son, and co-parents and sees his other children on weekends and when his estranged wife T is working.
  4. [40]
    GOM denied any past and current drug use, steroid use, and any reliance on prescription drugs.
  5. [41]
    GOM stated that in the past when charged with offences he had advised his counsel to do and say anything to get out and so to receive a lighter sentence, which he claims on occasions included admitting to things he did not do, and saying things that were not true including to the police when questioned.
  6. [42]
    GOM accepted that he has lied to the police before, and if he made a mistake he admitted to them, stating that he has 99/100 times admitted and moved on.
  7. [43]
    The police briefs before the Tribunal set out the myriad of charges and court transcripts documenting the court proceedings and outcomes which on occasion GOM disputed.
  8. [44]
    GOM states that the key cause of his past offending was due to trying to help out his sister including his decision to sell drugs.
  9. [45]
    Due to associations at this time in his life, he claims he did not have a choice to stop and some of the offending was based on fear, but he knew and recognised that it was still his decision and in making that choice there would be consequences.
  10. [46]
    GOM accepted that his offending was significant and that everyone makes mistakes in life.
  11. [47]
    GOM stated that he is ashamed of his past, but he never placed children in harm, and that he no longer associated with nor has any involvement with any person from his past.
  12. [48]
    When asked about the impacts of his past offending GOM stated that those he sold drugs to were “already gone”, and that “no children were affected”.
  13. [49]
    GOM provided that at the height of his dealing, he would work from 6am-3:30pm than return home to the children until 8:30pm and thereafter he would go and conduct his business.
  14. [50]
    This business included attending at houses with drug users, his sister’s back shed, and other places frequented by drug associates and users.
  15. [51]
    GOM’s first assault charge resulted, according to his account, from his sister being assaulted. According to GOM’s account, people were rocking their roof and came to the home to hit his sister. The victim of the assault was the same age as him and the altercation involved him punching him in the face.
  16. [52]
    GOM claims that he hit the man once and his glasses broke as a result, and this occurred in 2004. Following 2004 other assault charges were made, which the details before the Tribunal show included assault on an elderly member of the community.
  17. [53]
    Regarding the other offences GOM again stated that he pleaded guilty to make them go away.
  18. [54]
    When questioned about the domestic violence charges, GOM disputed some of the facts including that he pointed a gun at his estranged wife T and that he followed her in his vehicle and punched her in the face.
  19. [55]
    GOM stated that whilst he was in prison T had moved on and stopped him speaking to his children.
  20. [56]
    He stated that the whole DV charge was based on the fact that in her (T’s) mind, he was going to get out, see her first, and want to see the children.
  21. [57]
    GOM stated that in the past the children had on occasion seen drug deals and been present when there was stolen property at their home but had witnessed no verbal abuse.
  22. [58]
    GOM claims that this life is behind him, and he has changed.
  23. [59]
    Regarding his support network at the time of the hearing he claims to have had no partner and was concentrating on himself and working. This is in contradiction with the accounts of the witnesses.
  24. [60]
    He is a father who raises his son and spends time with his twins during the week when his estranged wife T works.
  25. [61]
    He is involved and committed to his coaching responsibilities and enjoys time with his work colleagues and soccer teammates, some of whom he has known for 20 years.

Evidence of AV

  1. [62]
    AV confirmed the content of his statement as provided to the Tribunal and is in support of GOM’s application for a blue card.
  2. [63]
    AV has known GOM since 2016 through their associations with their mutual soccer club, and through monthly social catch ups.
  3. [64]
    AV states that he has witnessed GOM’s interactions with his children and current girlfriend when they are at the club in a social setting.
  4. [65]
    AV sates that he has witnessed GOM as a coach at their local soccer club and GOM is supportive and gives instructions from the sideline all the time.
  5. [66]
    AV states that he sees GOM at least 9 hours per week throughout the soccer season but is not known to him outside of the club.
  6. [67]
    AV states that he is aware of GOM’s criminal history and offending due to what has been told to him but has not witnessed the reasons document as provided to GOM by Blue Card Services.
  7. [68]
    AV stated that he is aware of GOM’s history and incarceration, and it was his understanding that it occurred in his late 20s but was not aware of any other matters occurring after.
  8. [69]
    AV stated he was not aware of GOM’s current circumstances or whether he was subject to a suspended period of imprisonment and could not provide any context as to the nature of the offending or details of the assaults and who they were perpetrated against and had no knowledge of whether or not GOM was a named respondent on any DV orders.

Evidence of RC

  1. [70]
    RC confirmed that he provided a statement and supports GOM in his application.
  2. [71]
    RC considers that GOM has grown, and that as a club they support incarcerated persons in their reintegration back into community.
  3. [72]
    RC considers that GOM is more advanced than most of the people that they support daily and is a standout person in their sporting community.
  4. [73]
    RC provided that GOM’s reasons for offending were due to his associations at the time and family strains, and that his trauma is complex.
  5. [74]
    RC considers that GOM’s offending was result of negative responses to trauma and his vulnerabilities.
  6. [75]
    RC considers that GOM is a fantastic, supportive father.
  7. [76]
    RC, prior to providing a statement of support, was not shown the reasons statement issued by Blue Card Services, but stated he had numerous conversations with GOM about the document.
  8. [77]
    RC has known GOM for 5 years which include 2.5 years within the sport community and the last two seasons of their children’s sport.
  9. [78]
    RC considers that GOM has been very transparent with him, or he would not have provided his support otherwise.
  10. [79]
    RC stated that GOM is very respected by many and shows respect to those at the club.
  11. [80]
    RC stated that GOM has painted his parents’ house and helped with the sale of their home.
  12. [81]
    The relationship between RC and GOM is through the club and involvement through close friends.
  13. [82]
    RC states that when witnessing observations between GOM and his ex-partners, they are civil and respectful, and he has seen them to be positive.
  14. [83]
    RC considers that GOM’s interactions with the children at sport events are healthy and GOM is present, and he has not witnessed what he considers anything adverse.
  15. [84]
    GOM is considered by RC to be encouraging with the children he coaches and supportive.
  16. [85]
    RC stated that it is his opinion that GOM has created a good culture within the club and provided maturity with his ability to lift children up and provides his support due to his observations.
  17. [86]
    RC stated that he believes GOM provided a transparent account of his offences to him, and whilst the disclosures were verbal, he had taken notes when discussions took place.
  18. [87]
    RC was not aware of whether GOM had used drugs previously, but assumed considering his history that he had previous drug use.
  19. [88]
    RC considers that GOM does not pose a risk to children in his observations, but when questioned about some of the finer details of the offences was not aware of, nor able to provide, finer details including whether or not GOM had a history of DV and whether or not he was a named respondent on orders.

Risk and protective factors

  1. [89]
    When considering risk and protective factors, the Tribunal takes the approach of Commissioner for Children and Young People and Child Guardian v Eales[11] and agrees that it should not be a balancing exercise.
  2. [90]
    The Tribunal notes the following which assisted in reaching its decision.
  3. [91]
    The Tribunal acknowledges that GOM is no doubt a loving and supportive father to his children and provides for their needs.
  4. [92]
    GOM has the respect of his soccer club and the friends and associates according to the witness testimony, which was based on the details of his account of his past history, and his dealings with the club.
  5. [93]
    It is quite evident that those who supported GOM attested to his character in a social setting in the company of other community members but could not attest to his character or ability to act responsibly or protectively in a domestic setting.
  6. [94]
    GOM is undoubtably ashamed and remorseful for his past behaviours.
  7. [95]
    GOM is making endeavours to live as is expected of adults according to community standards.
  8. [96]
    However, GOM has not demonstrated to the Tribunal that he has learnt or sought ongoing current treatment to assist with the triggers and stresses that led to his past offending. GOM in the past had sought intervention, but during that time continued to offend.
  9. [97]
    GOM has shown no insight into the impacts of his past offending and what impacts it had and could have had on children. This position was reached due to testimony provided throughout the hearing, that it was his opinion that no children were harmed by his selling of drugs, and that on occasions his children were present when deals were being made in their presence and when at home.
  10. [98]
    The Tribunal is not satisfied that GOM has the requisite suite of skills to ensure that if placed in the same situations he would not resort to offending behaviours to protect his family and close friends.
  11. [99]
    The Tribunal agrees that the recency of the 2020 domestic violence order demonstrates that GOM does not have the requisite ability to act protectively towards children, nor in the best interests of children and young people in his care, as his behaviours toward them starkly contradict his behaviours in a social setting.
  12. [100]
    Following on from this, GOM has not provided any probative evidence to the Tribunal as to the avenues and professional help he has sought to address these behaviours, nor, witness testimony to attest to his insight, or his willingness to address the seriousness of those matters.
  13. [101]
    GOM has in the past been willing to be dishonest and misleading to authorities to simply make matters go away instead of fully dealing with the matters appropriately, and has not provided any evidence to the Tribunal that the risk of the same like behaviour will not occur again if he considers it necessary, which creates doubt for the Tribunal that GOM is able to judge appropriate behaviours and respond according to community standards.
  14. [102]
    The Tribunal refers to the matter of CW v Chief Executive, Public Safety Business Agency[12] where it was observed that:

It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.

  1. [103]
    Whilst the Tribunal does not deny that GOM due to his skillset is able to provide coaching to children in a sporting club setting, considerations about skill in no way trump the critical considerations when assessing the ability of GOM to hold a blue card, and his ability to act protectively towards children.
  2. [104]
    GOM has a pattern of behaviour to lie if he considers it will protect his family or himself, or simply to make a matter go away. The Tribunal throughout the hearing was provided no evidence nor testimony that satisfied the Tribunal that GOM would not do the same if placed in the same position. This was a concern for the Tribunal regarding GOM’s ability to protect the best interests of children.
  3. [105]
    Regardless of his success in coaching, the Tribunal relies upon and supports the position held in Grindrod v Chief Executive Officer, Department for Community Development[13] where it was relevantly stated that, in considering a person’s eligibility,

any benefit to children from having access to the applicants’ skills or flair in working with children is not relevant if it is not in the best interests of children for the applicant to be issued with a blue card, and similarly, nor any hardship or prejudice the applicant may face.[14]

  1. [106]
    The last DV incident where GOM was listed as the respondent and his children as named persons in need of protection demonstrates GOM’s continued inability to exercise restraint, use appropriate conflict resolution strategies, and deal with stressful and difficult situations in a law-abiding manner.
  2. [107]
    He has not demonstrated that he possesses impulse control. GOM throughout the hearing became agitated when addressing his history and passive aggressive when providing testimony.
  3. [108]
    Additionally, the Tribunal is further not satisfied that GOM has the ability to assess a situation so to be able to effectively manage it or remain calm when put under pressure.
  4. [109]
    Furthermore, due to his past behaviours, GOM failed to satisfy the Tribunal that he has any real understanding of the impacts of his actions on other members of the public and children if exposed to such behaviours.
  5. [110]
    GOM has not satisfied the Tribunal that he has a solid support system in place to support him, as he has not demonstrated to the Tribunal that he is fully open, honest and transparent to those who provide him current support, nor has GOM provided any evidence to the Tribunal of continued professional support to address matters appropriately should they present again.

Orders

  1. [111]
    That the decision of the Director General, Department of Justice and Attorney General that GOM’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

Footnotes

[1]QCAT Act, s 20(1).

[2]Ibid, s 20(2).

[3]WWC Act, s 360.

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

[5]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCA 289 at [109].

[6]QCAT Act, s 20(2).

[7]WWC Act, ss 226(2), 228(2).

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

[9] Human Rights Act 2019 (Qld), s 8.

[10]BCS 10 at 4.2.

[11][2013] QCATA 303.

[12][2015] QCAT 219.

[13][2008] WASCA 171.

[14]Vaeau v Director-General, Department of Justice and Attorney General [2021] QCATA 142 at [52].

Close

Editorial Notes

  • Published Case Name:

    GOM v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    GOM v Director General, Department of Justice and Attorney General

  • MNC:

    [2024] QCAT 51

  • Court:

    QCAT

  • Judge(s):

    Member Matthews

  • Date:

    29 Jan 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
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (Grindrod) [2008] WASCA 289
2 citations
Jump To
Cite 1 - [2008] WASCA 289
Cite 2 - [2008] WASCA 289
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
1 citation
Jump To
Cite 1 - (2008) WASCA 171
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 Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
1 citation
Jump To
Cite 1 - [2015] QCAT 219
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
1 citation
Jump To
Cite 1 - [2021] QCATA 142

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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