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SJG v Director-General, Department of Justice and Attorney-General[2025] QCAT 111

SJG v Director-General, Department of Justice and Attorney-General[2025] QCAT 111

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SJG v Director-General, Department of Justice and Attorney-General [2025] QCAT 111

PARTIES:

SJG

(applicant)

V

Director-general, department of justice

(respondent)

APPLICATION NO/S:

CML373-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

17 March 2025

HEARING DATE:

12 November 2024

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

  1. The decision of the Director-General, Department of Justice dated 23 October 2023 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 had an extensive criminal history involving drug use – where that history was short in nature – where the applicant was also subject of domestic violence both as a perpetrator and a victim - where the applicant had made substantial changes in her life as a result of the conduct which gave rise to these events - whether the applicant demonstrated insight in her 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 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

R v Connelly [2023] QSC 25

Re TAA [2006] QCST 11

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

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

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

K. Malouf – Advocacy Officer Blue Card Services

REASONS FOR DECISION

  1. [1]
    On 29 May 2024, 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]
    SJG is a young women, at the time of the hearing before me being 37 years of age. She has had a difficult and challenging past, one which has resulted in her being involved in domestic violence, both as a perpetrator and a victim, and drug use. Sadly, she also has a reasonably substantial criminal history from 2006 to 2018. But, as I discuss it in these reasons, she has been progressively turning things around since then for the better.
  2. [3]
    As part of that process she applied for a Blue Card under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWC Act).[1] She was unsuccessful. The respondent’s decision-maker decided that her case was ‘exceptional’, as that term is used in the Act, concluding that it was not in the best interests of children for her to be issued with a Blue Card. Thus, she was issued with a negative notice under the Act.
  3. [4]
    SJG applied to this Tribunal for a review of that decision. For the reasons I discuss herein she was successful in that review. I gave orders setting aside the respondent’s decision, replacing it with my decision that there is no exceptional case.

Background

  1. [5]
    Ordinarily in writing reasons for my decision in a matter such as this I would detail with some specificity an applicant’s history that brought him/her to this Tribunal challenging a decision to deny him/her a Blue Card.
  2. [6]
    In this particular instance I do not consider that to be necessary. There is no purpose to be served detailing out the difficult past SJG had experienced. In my opinion it is sufficient to note it merely at a general summary level so as to provide any reader of these reasons some detail of the background upon which I considered the primary issue before me, such being whether it would not be in the best interests of children for SJG to be issued with a Blue Card.
  3. [7]
    As I noted it earlier, SJG’s criminal history traverses a lengthy period.[2] It starts in August of 2008 with a conviction for larceny when she was caught shoplifting from Bunnings at the age of 19 years. There was nothing subsequent to that until October 2016 when she was convicted of offences including the possession of a knife in a public place or school, and failure to take reasonable care and precautions in respect of a syringe or needle. Shortly after the occurrence of the events from which that charge arose, SJG found herself to be the subject of a domestic violence protection order following an altercation she had with the father of her two children at that time, but from whom, as I understand it, she was separated. It was at his residence whilst the children were present. As noted in the documentation before this Tribunal under the heading ‘Grounds for a Protection Order’ the following is recorded:[3]

… In the morning (sic) an argument broke out between the parties over who the Aggrieved was texting. This argument escalated and the Aggrieved stated that he wanted [SJG] to collect property from the address and leave. [SJG] has then engaged in a verbal argument regarding leaving the address.

The argument has escalated and [SJG] has made threats to the Aggrieved that she was going to use a knife to kill herself.

The arguing escalated and [SJG] has produced a black handled folding knife with an 8 cm blade. When [SJG] attempted to open the folding knife [SJG] has grabbed onto [SJG] and attempted to restrain her from doing harm to herself. The Aggrieved was also concerned that in her current state [SJG] may do something to harm himself or the children at the address.

  1. [8]
    As the description of that event continues under that heading, it records the following as having occurred after the police were called and attended:

Police observed two young children [redacted] at the address. It is understood that both children had witnessed what had occurred.

…

[SJG] stated to Police that she had made threats to kill herself with the knife that she had previously had in her possession. [SJG] has had issues in the past relating to mental health issues and has previously been attended to by the [location] Mental Health Unit. [SJG] has also been charged previously by Police in relation to Weapons Act charges where she was found to be in possession of a number of restricted weapons.

[Redacted] stated to police that she didn’t want her mum to kill herself.

[Redacted] appeared visibly upset at what had occurred. It is understood that the younger child [redacted] attempted to hide inside the house while this was going on.

  1. [9]
    This resulted in a Domestic Violence Protection Order being issued against SJG on 20 October 2016.[4]
  2. [10]
    In February 2017, the convictions continued including possession of property suspected of having been used in connection with the commission of a drug offence, and once again the possession of a knife in a public place. There were subsequently further convictions in June 2017 for drug offences.
  3. [11]
    By August 2018, she was convicted on a long string of charges which included unlawful possession of a motor vehicle, stealing, drug possession, entering premises and committing an indictable offence, as well as breach of bail conditions.
  4. [12]
    At around this same time, commencing earlier in 2018 continuing through to early 2019, SJG was the subject of attention from the Department of Child Safety when she was involved in, as I understand it, a relationship with a man who would become the father of her third child, he not being the person who was the aggrieved under the earlier domestic violence order. As I also understand it, such was relationship in which she engaged in drug use and in which SJG was the victim of domestic violence.[5]
  5. [13]
    Whilst there are many recorded circumstances of engagement during that period, most of which record circumstances of what appeared may be domestic violence but never reported or recorded as such, in a document dated 5 June 2019 prepared by a Child Protection Liaison Officer the following is noted in reference to SJG:[6]

13/02/2019 - presented to the Child Health Clinic at [location] Community Health Centre with [redacted].

[SJG] had a visible black eye and large fresh bruising to her legs which she stated was inflicted by her partner who go drunk and beat her up 2 x days ago.

[SJG] stated that she [redacted] did an application for a Domestic Violence order (DVO) and had moved into her parent’s house.

…

[SJG] stated that this wasn’t the first time that her partner had been abusive in a controlling and emotional way but denied other incidents of physical abuse.

  1. [14]
    In February 2019 she left the relationship with that person, taking her young daughter and returning to live with her parents. It was from this point onwards she started to deal with her challenging lifestyle and turn things around. As I discuss it later herein, this appeared to me to be what may generally be described as a ‘light-bulb moment’.
  2. [15]
    On 22 September 2021, SJG applied for a Blue Card under the WWC Act.[7] She was unsuccessful. Having considered her application and the submissions made in support of it, the respondent’s decision-maker decided that her case was ‘exceptional’ as that term is used in the Act concluding that it was not in the best interests of children for her to be issued with a Blue Card. Accordingly, on 23 October 2023, the respondent issued a negative notice under the Act (the Decision).[8]
  3. [16]
    On 24 November 2023, SJG applied to this Tribunal for a review of the Decision. That application ultimately came before me for hearing on 12 November 2024. At the conclusion of the hearing I reserved my decision to consider the documentary and oral evidence, informing SJG not to expect a decision from me before the end February 2025 due to commitments ahead of me at that time. Regrettably, it has taken me slightly longer than I had originally anticipated to get back to this matter so as to consider the material and make my decision. I offer my sincere apologies to SJG for this delay.

The Nature of this Review Proceeding

  1. [17]
    This Tribunal’s jurisdiction to review the Decision arises under the WWC Act 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 HR Act). In doing so I had all the functions of the decision-maker in terms of the decision to be made.[9]
  2. [18]
    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 SJG’s case as presented to this Tribunal. 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. [19]
    As I comprehended the filed material, the oral evidence, and the competing arguments as they were raised before me during the hearing, in my opinion an issue in this proceeding was whether SJG had moved on from the lifestyle she had been engaging in during the period in which her criminal history and domestic violence issues substantially arose. It was that lifestyle, as I inferred to it be, that gave rise to her substantive criminal history in 2016 to 2018, and more particularly a lifestyle arising from being in a relationship involving drug use and domestic violence, accompanied and compounded by her own mental health issues with which she was struggling.
  2. [20]
    But the more critical issue was whether SJG demonstrated in the hearing before me that she held the requisite level of insight into that lifestyle, and the consequences of such in terms of being permitted to care for children as a holder of a Blue Card.
  3. [21]
    That being said, even if I was satisfied that she had moved on from that lifestyle but she was unable to show me that she could look back on it with the proper level of insight, then it must lead to the conclusion that SJG’s case was one to fall within the category of an ‘exceptional case’ so as to deny her a Blue Card.
  4. [22]
    SJG argued it was not such a case. The respondent’s representative submitted it was.
  5. [23]
    In order to resolve that contest, consideration of WWC Act s226(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 WWC Act 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.
  6. [24]
    Because it involved domestic violence information, it was also necessary that I consider WWC Act s 228(2).

The Relevant Law

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

  1. [25]
    The matter in issue in this proceeding is whether or not a negative notice should be issued, the consideration of which starts with s 221 of the WWC Act, it setting 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 SJG’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) of the Act.
  2. [26]
    Given that SJG has been convicted, but not of a serious offence, under s 221(1)(b) of the WWC Act the starting position is that SJG 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. 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 SJG to be issued with a Blue Card.[17]
  3. [27]
    It is this which was in issue in this proceeding, such being that if I am satisfied her case is one in which it would not be in the best interests of children for her to be issued with such a clearance, then a negative notice must be issued.[18] In turn, in the circumstances of this case, that would mean it would be in order for me to confirm the Decision.
  4. [28]
    But the WWC Act does not define an exceptional case. It thus creates a degree of complexity in 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 WWC Act:[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. [29]
    There was no onus placed upon the applicant to demonstrate that an exceptional case did not exist.[20] It was a matter of discretion ultimately afforded me as the effective decision-maker, such that I was required to decide the question of whether an exceptional case existed on the balance of probabilities.[21]
  2. [30]
    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 SJG’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. [31]
    The criterion to which the Appeal Tribunal in Eales was referring is that now set out in s 226(2) of the WWC Act, and to the extent domestic violence is involved it is found in s 228(2). But, the matters listed therein are not exhaustive, they 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. [32]
    There is also the application of the HR Act that I was required to consider.[24]
  2. [33]
    The main objective of the HR Act 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] 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.
  3. [34]
    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 WWC Act.
  4. [35]
    In my opinion a number of human rights were relevant in this proceeding. Such included SJG’s right to recognition and equality before the law and her 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 that may limit SJG’s rights in the circumstances of her 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] Thus, a decision that SJG’s case is an exceptional case, such which might be said to infringe her rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on her human rights, the decision will be justified by the factors outlined under s 13 of the HR Act. This is because, amongst other things it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people.
  5. [36]
    Furthermore, any limitation on SJG’s human rights remains consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children are paramount. 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 SJG is afforded a right under the HR Act, in making the correct and preferable decision, by application of the WWC Act in conjunction with the HR Act such right must yield to the rights of a child and so be limited in a manner permissible under the WWC Act. That would include the making of a finding that the circumstance SJG found herself in is an exceptional case such as to deny her an entitlement to a Blue Card. Such is consistent with s13 of the HR Act.
  6. [37]
    Notwithstanding my decision in this proceeding was that SJG’s case was not exceptional, I applied that approach given that it was open for me to find her case was exceptional.

The Evidence & Submissions

  1. [38]
    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. It still required SJG to present her case and persuade me that her case was not exceptional.
  2. [39]
    In contrast however, the respondent’s representative was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker. Her role was to use her best endeavours to help me in making my decision on the review.[29] As she was required to do,[30] she provided material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant,[31] including an ‘Outline of Submissions’ which became her written closing submissions elaborated on by way of oral closing submissions at the end of the hearing.[32] She did not otherwise seek leave to produce any further material at the hearing, nor did she call any witnesses.
  3. [40]
    SJG’s material was however minimal. She had not filed any statement given by herself, nor any document which could be read as a ‘Life Story’, the latter being commonplace in proceedings such as these. She called only one person as a witness, namely her mother tendering a statement given by her mother to Blue Card Services during the assessment of her application.[33]
  4. [41]
    SJG also sought to rely on five (5) character witnesses presented to Blue Card Services as part of her material in support of her application.[34] She did not however call any of these persons to be presented for cross-examination.
  5. [42]
    My decision turned on the evidence and submissions presented to me in the hearing, both documentary and oral, which was ultimately quite extensive. It also turned on my observations of SJG in the conduct and presentation of her case and her responses to questions posed of her 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 WWC Act, 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.

SJG’s evidence & submissions

  1. [43]
    As I listened to SJG and understood the presentation of her case, SJG’s case could be readily summed up by that which she had expressed in her application to this Tribunal, such being in answer to the instructions contained therein under Part C of the application document, namely:[35]

State briefly why you think the decision is wrong or not properly made

5 years have past (sic) since my last charges and/or convictions. I have since then turned my life around completely. I have had another child in this time and also have been a single mother to her, her entire life. I also have very regular contact with my older children and their father and his family.

Briefly describe any other factors you think are important

I’m now steadily employed.

I enjoy working out regularly which has been extremely beneficial to my mental wellbeing after losing my father in a plane crash almost 4 years ago.

I regularly attend family gatherings with my older kids (sic) family like birthdays and Xmas.

SJG’s own evidence

  1. [44]
    SJG relied on this as her evidence in chief in the absence of a written statement / life story. The balance of her evidence was as given under cross-examination.
  2. [45]
    That examination was extensive. It was of great assistance to me. Aspects of it stood out to me as not only identifying, but as I heard and comprehended it also explaining, some of the reasons for why she had compiled a reasonable extensive criminal history, domestic violence history, and engagement with Child Protection Services.
  3. [46]
    Whilst the respondent’s representative took SJG through a substantial amount of the documentation contained in the respondent’s material filed in this proceeding, in my opinion it is not necessary for me to recount that in these reasons. I touch on only a few parts of it I saw to be demonstrative of the manner in which I observed SJG’s presentation in the hearing and her understanding of the relevant circumstances.
  4. [47]
    SJG readily accepted the fact, and reality, of her extensive criminal history which was created in a relatively short time frame.[36] She was able to explain the events as they occurred with some reasonable clarity, demonstrating an acceptance of them being charges and/or convictions properly laid against her. She did not at any time attempt to explain her conduct in a defensive manner, nor in any way endeavour to minimise the seriousness of her conduct. She took ownership of it and the consequences which flow from it.
  5. [48]
    One particular example of this was the discussion the respondent’s representative had with her in terms of the conviction for an unlawful possession of a motor vehicle with intent to deprive, or put more simply ‘theft of a car’. As SJG explained it, this was a hire car that she had not returned to the hire company when due, such being because she was sick and used the car to go to the Doctor rather than returning it. When it was put to her under cross-examination that she ‘stole’ the car, she rejected that contention asserting she was always intending to return it but was simply sick. She did not however challenge the argument that in fact and law she had stolen the car. As I observed her she readily accepted that her conduct was wrong and inexcusable.
  6. [49]
    She also readily accepted that, at times, some of her statements in past interviews and documents she produced contained inconsistencies, an issue which the respondent’s representative was at various times pressing strongly in cross-examination. That ultimately gave rise to this short exchange:[37]

Respondent’s Rep If the Tribunal accepts inconsistent material is shown in the documents, why should the Tribunal accept what you are saying today is true?

SJG When I was not truthful I was not leading a truthful life. Back then I had reason to lie. Now I do not and I now know I was not a good person then.

  1. [50]
    This also was raised in a discussion with SJG about her interaction with Child Protection Services where she at various times expressed an absence of concern about domestic violence in the relationship between her and her third child’s father, but yet where the evidence shows there was a relatively extensive amount of domestic violence against her. When a particular aspect of a recorded interview was raised with SJG in cross-examination, her response was as follows:[38]

Maybe I was naïve. I thought we could live as a family. It is funny how an abused person’s mind works.

  1. [51]
    Related to this aspect of the cross-examination was a short discussion about events on a day in February 2019 when SJG left her living situation with that person. As she described it, she just grabbed her child and ran. It seemed to me that this could readily be described as a ‘light-bulb moment’ when SJG realised the domestic violent and drug infused relationship she was in was one that was to her detriment and without any positive resolution to be found.
  2. [52]
    There was also a lengthy discussion with SJG regarding the presentation of her case purportedly reliant on a reference from a CST which she had provided to Blue Card Services in support of her application.[39] As I discuss it later in these reasons, SJG sought to rely on other character references as part of her case to this Tribunal, but ultimately did not rely on CST’s statement. I infer it was as a result of this discussion.
  3. [53]
    What became clear in that discussion was that much of what CST had to say in his reference was based on what SJG had told him. But under cross-examination it was established that some of what she had told him was not accurate, which she accepted was so having since read the relevant QP 9 documentation as it was contained in the respondent’s material filed. What also became clear in that discussion was that SJG then made a conscious decision to not call CST as a witness in the hearing.
  4. [54]
    Moreover, it was also identified under cross-examination that she did not tell him about the hearing. When the respondent’s representative asked SJG why this was the case, and thus not allowing the opportunity to arise for CST to be questioned about, and in turn clarify and/or correct, anything contained in his reference, her response was:

I had not read all the Police Briefs then.

I am only know realising the history of the charges.

I thought I had asked enough of him.

  1. [55]
    The history of SJG’s drug use and mental health issues was also discussed with her at some length. Once again I do not see any reason to detail herein that history and merely need to make only this comment. As I listened to the discussion between the respondent’s representative and SJG I readily formed the conclusion that SJG accepted the entirety of that history, that her conduct during the years in which she was using drugs was entirely inappropriate and put her children at risk. But I also concluded that it was conduct which arose, to some degree, not from her own direct choosing[40] but from being in what now should be readily viewed as a bad relationship with certain persons, particularly the father to her third child, and one contributed in part to her mental health issues at the time.
  2. [56]
    One aspect of the evidence in this regard that the respondent’s representative was clear in raising with me was the absence of a health professional’s report, be it either a psychologist or a psychiatrist, as to SJG’s mental health issues as they presently were in comparison to what they were then. Related to this was also the issue, as posed to SJG by the respondent’s representative, as to the absence of substantive counselling being engaged in by her or for her children.
  3. [57]
    When asked about both of these points, SJG answered without hesitation, stating that that whilst she recognised the past issues she did not see any reason to be presently engaged in such counselling. She explained this by informing me that whilst she and her elder children discuss the past issues ,they do not dwell on them, and at present there is no indication for the need for same, nor does she see presently see the need for herself to engage in such. In my opinion her evidence in this regard can be summed up by the following short exchange which concluded the cross-examination:

Respondent’s Rep You said you barely understood why you did it – do you think this is a reason to seek help?

SJG I know I made wrong choices but realise I know I would never repeat it.

SJG’s mother’s evidence

  1. [58]
    As I noted it earlier, SJG also presented her mother as a witness for cross-examination. Whilst her evidence was short in content it was helpful to me.
  2. [59]
    The evidence in chief was contained in a short statement given to Blue Card Services during the consideration of SJG’s application.[41] It was supplemented by a relatively extensive cross-examination. Once again I do not see any reason to describe it in detail, it merely being sufficient to note here that which I considered relevant and probative, namely:
    1. When SJG’s relationship with the father or her first two children broke down in 2016, SJG became depressed much of the time and the company she then started keeping introduced her to meth (ice), and her life spiralled out of control, with her losing contact with her parents and her other children;
    2. In February 2019, SJG had been in an altercation with the father of her new-born daughter, and she and SJG’s father brought SJG and her daughter to live with them;[42]
    3. In terms of SJG’s mental health, it has been good now for the past six years although at times was off with the loss of her father;
    4. She observed a significant change in SJG about six (6) years ago;
    5. SJG has now re-established a relationship with the father or her two older children, and even though the children reside with their father SJG sees them most days and spends the weekends with them;
    6. She is proud of the way in which SJG has turned her life around and “what a wonderful woman she now is.”

SJG’s character references

  1. [60]
    As for the character references SJG placed reliance on, whilst I recognise the positive assertions contained therein as to SJG’s character, I did not give them any weight. In the absence of these persons being presented in the hearing for cross-examination, and thus the inability to test their understanding of the relevant issues upon which the outcome of this proceeding would turn, these references were not of any assistance to me.

SJG’s closing submissions

  1. [61]
    In contrast to the respondent’s closing submissions, SJG’s closing was significantly short. But notwithstanding that, it was focussed. She concluded with these statements:
    1. She has a strong commitment to her sobriety;
    2. That discussed during the hearing highlighted many issues to her of importance and so reinforced her commitment;
    3. She regretted her history;
    4. She will seek assistance, in terms of mental health, going forward whenever it is needed.

The respondent’s submissions

  1. [62]
    The respondent’s representative did not lead evidence from any persons, containing the evidence to that of SJG as filed or provided under cross-examination. Extensive closing submissions however were provided.[43]
  2. [63]
    There was an acknowledgement on behalf of the respondent that the presentation by SJG during the hearing demonstrated frankness and some insight into her past circumstances. The abstinence from drug use for the past eight (8) years was also acknowledged and that there was an overall safeguard mechanism in place given that SJG now lived with her mother. It was also noted positively that SJG had demonstrated the existence of protective mechanisms such as the reengagement with the father of her first two children and that she now speaks out against adverse circumstances, issues not previously present.
  3. [64]
    However, notwithstanding these aspects of what became apparent during the hearing, the respondent’s representative maintained that SJG’s case remained exceptional for the following reasons:
    1. There was a lack of probative and independent evidence to support that which was said by SJG and her mother;
    2. It cannot be overlooked that SJG previously struggled with mental health issues and drug use which both impacted on her and her children;
    3. This of itself warranted independent assessment and counselling for both SJG and her children, the evidence of which was non-existent;
    4. SJG had demonstrated a lack of insight into what is a protective environment for children.

The Relevant Criteria

  1. [65]
    For the reasons I explain in the paragraphs that follow here wherein I discuss the relevant criteria, and on the premise of SJG’s evidence to which I have just referred, I do not agree with that submission.
  2. [66]
    Whilst I agree that 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 a message that could readily lead to that conclusion, in my opinion it does not derogate from the circumstances SJG was in, as I observed and understood them to be, at the time of the hearing. What I observed of her, and understood from her oral answers to the questions posed of her and the expression of her views, both by way of spoken and body language, in my opinion she demonstrated her development of insight since, what I described earlier as, the ‘light-bulb moment’ in February 2019.
  3. [67]
    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 her case was exceptional. I thus now turn to those criteria.

Section 226(2)

Whether the offence is a conviction or a charge[44]

  1. [68]
    Many of the charges within SJG’s criminal history resulted in convictions being recorded, most accompanied with fines being levied, but with the large number of charges in the first half of 2017 which were all dealt with together on 31 August 2018 resulting in an order of probation.[45]
  2. [69]
    Whilst the nature of the charges and those which led to a recorded conviction were in the majority not in any way to be minimized in the seriousness of them, in my opinion the weight they carried as a relevant factor in my consideration of the matter in issue in this proceeding, namely whether SJG’s case was an exceptional one, was not sufficient to lead to a positive finding of it being exceptional. The weight I attributed to them was exceeded by the weight I attributed to my findings on other criteria, in particular the extent to which I found SJG had developed insight.

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

  1. [70]
    None of the charges / convictions were a serious or a disqualifying offence under the WWC Act. Notwithstanding that, the existence and nature of her actions which brought about this criminal history remained relevant in determining SJG’s eligibility to work with children in regulated employment, such being the intention of parliament in enacting this provision within the legislation.[47]
  2. [71]
    Although, that being said, in the same manner as I have just indicated under the last criterion, her conduct that led to the offences was not sufficient to weigh against the positive findings I otherwise reached.

When the offence was committed[48]

  1. [72]
    As SJG’s criminal history shows, with the exception of the first offence for larceny which arose in 2006, her conduct which gave rise to the long list of charges and convictions started in September 2016 through to August 2017 with a final charge of forgery and uttering occurring in August 2018, it not being proceeded with on the basis of no evidence to offer.
  2. [73]
    That being so, it might be thought and said that a significant passage of time has passed since which might diminish the weight to be attributed to her conduct when considering the question of an exceptional case, particularly when as was said here there is no evidence of any further offending conduct since that time.
  3. [74]
    I do not agree with such a proposition. In my opinion the passage of time, when being considered as an issue of time only, is not relevant. It must be viewed in conjunction with what has occurred since. In all cases such as these, that passage of time since the events occurred and what has occurred during that time is important because it is within that passage of time an applicant for a Blue Card should have, if he/she was going to, gained the requisite degree of insight into his/her 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. But regrettably, that is not always the case and in some instances even over a long passage of time no insight has been learned.
  4. [75]
    In terms of this criterion, the respondent’s representative drew my attention to the absence of there being any evidence of SJG having recognised that professional assistance would be of benefit to her and/or her children given the past history of drug use, in particular methylamphetamine, mental illness, and domestic violence. This was as I noted it in paragraph [56] herein. In this regard he particularly referred to me to the decision of Applegarth J in R v Connelly [2023] QSC 25.
  5. [76]
    The published record in that matter is his Honour’s sentencing remarks of a woman found guilty of manslaughter after leaving her two children asleep in a car overnight and not attending on them until early the following afternoon by which time they had died from vehicular hyperthermia after, as it was estimated, the temperatures inside the car would have been in the vicinity of 60℃ by late morning and early afternoon. The woman was a user of methylamphetamine. In sentencing Ms Connelly, his Honour made these observations about what she had said about her use of methylamphetamine:

After you were arrested, you told a covert police operative that you smoked methylamphetamine daily but that your children “always came first and that smoking methylamphetamine never affected your relationship with your children.”

That astounding statement is one that only a drug addict could make.

If a parent smokes methylamphetamine, even in a tiny quantity, their children can never come first. Meth always wins that race. Their children, at best, come a very distant second. The money spent for the methylamphetamine deprives the parent of money to care for their children, and the effects of methylamphetamine on the parent and the therefore on the parent-child relationship are devastating.

Experts who know about parenting talk about creating a “Circle of Security” around children. Methylamphetamine use, however, creates a circle of insecurity, neglect, and dysfunction. In this case it caused the death of two infants.

  1. [77]
    As I understand the respondent’s representative’s submission and reference to this decision, it is that SJG has not shown any insight into her use of methylamphetamine and its effect on her children.
  2. [78]
    I do not accept that submission as being one appropriately and accurately made. I did not comprehend any of SJG’s evidence to be such that she minimized her use of methylamphetamine as an issue that did not have any effect on her children. To the contrary, I understood she realised that there was the real possibility that it did. However, what she also gave evidence of is that presently there is no manifestation of challenges being experienced by her or her children arising from that use, nor from the domestic violence issues that occurred during the time of her using, that suggested or otherwise dictated the need for intervention by a therapist.
  3. [79]
    In that regard, I did not see any evidence that indicated to me there was a lack of insight being held by SJG. To the contrary, unlike what I have seen in many other matters such as these, in the passage of time since the events that brought about not only SJG’s criminal history but her exposure to the use of drugs and the issues of domestic violence, in my opinion SJG has developed a sufficient and adequate degree of insight into what brought her to the conduct and issues she experienced. As I discuss in some further detail later in these reasons, I am satisfied that within that time she had learned more about her 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[49]

  1. [80]
    The seriousness of what transpired in the events that led to the offences for which SJG was charged and in part convicted, and overall her conduct as a mother engaging in drug use whilst in care of her children, should not minimized. It is 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 SJG during the hearing indicated to me that, as I have already discussed earlier in these reasons and continue to discuss later herein, she has progressed beyond the circumstances as they existed at those times and now recognises the unacceptability of such conduct.
  2. [81]
    As I often hear the argument from applicants in these types of matters, their offending 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. As I listened to SJG’s evidence, I found her to have recognised that her past conduct was entirely relevant, even if her  conduct was not directed specifically towards any child. I was also able to readily conclude that such recognition extended to the manner in which such relates to her being in an employment or business situation concerning and involving the care of children.
  3. [82]
    For these reasons I do not accept the respondent’s submissions on this criterion as carrying sufficient weight to show me that SJG’s case was exceptional. In all respects, whilst the circumstances of SJG’s history are directly relevant to employment, or the carrying on of a business that involves children and/or young people, on SJG’s case as she 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 her 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.[50]

  1. [83]
    The relevant various sentencing remarks concerning SJG’s offences that brought about convictions were put before me within the respondent’s material.[51] But whilst there were many such occasions on which relatively brief sentencing remarks were given, there was only one set of remarks that I considered to be of relevance and assistance in this proceeding. It is that which was given in terms of the extensive list of offences dealt with on 31 August 2018, such including charges which as I described them earlier can be put simply as stealing a car, stealing fuel, as well possession of drugs.[52]
  2. [84]
    I considered the following passage from that set of remarks to be  relevant. Whilst relatively lengthy, I extract it here because in my opinion it appropriately sums up the circumstances SJG found herself in at the time, and although the circumstances have moved on since then in my opinion the learned Magistrate’s comments made then are consistent with the view I took of SJG from the hearing having heard from and observed her in person:[53]

Well [SJG] ultimately you have pleaded guilty to all of your offences, and that can be seen in your favour … it is you taking responsibility for what you have done and owning up to it. I take into account the offences themselves and some of this really had the – the feel of quite brazen behaviour on your part. Just willing to do whatever it took to get yourself around. Misusing cars, stealing the fuel, not bothering to check where the cars were registered or insured. And perhaps most concerningly was the level of dishonesty you were willing to turn to, to avoid detection by the police of breaching your bail. It does fit with somebody who was pretty desperate, You obviously went through an awful phase of your life after being introduced to methylamphetamine. Because it does fit.

Prior to 2016, you had no trouble with the police with criminal offending. … And it would seem you just fell into a hole. You really hit rock bottom with your children not being with you and living the lifestyle of this kind of behaviour. ... all of this is a symptom of the bigger problem that was going on.

At least finally now, there seems to be light at the end of the tunnel. You have accepted the support you need from your family. This is not an easy drug to kick. …I can have some confidence that we will not see you back in trouble again, so long as you stay off the methylamphetamine and you stay focussed. You are 31. So you are mature enough to now realise that you do not want to turn back to drugs. And I hope you take the opportunity that I am going to give you to ensure that you stay clean.

A term of imprisonment is a sentence of last resort, but with the number of offence you had accumulated, it was within range today. I could have sent you to prison. And I hope you realise that as well. … But ultimately, I have been persuaded by [redacted] that I should give you a chance on a probation order. …

  1. [85]
    Ultimately the order was 18 months of probation.
  2. [86]
    As I comprehended her Honour’s remarks, the court was conscious of the fact that SJG had found herself in a complicated, challenging, and difficult situation. Moreover, it seemed to me that the court recognised that her conduct was, albeit entirely socially unacceptable and not to be condoned in any way, such that it arose from at least in part her drug use. For this reason, in my opinion the sentencing remarks made by the learned Magistrate did lend weight to what SJG had said had developed from that time up to present day. It seemed to me that the Magistrate identified, as her honour described it, SJG had recognised she was on a path of destruction and needed to remedy that.
  3. [87]
    Whilst I accept that her circumstances continued as they were for a further number of months before the ‘light-bulb moment’ in February 2019, ultimately SJG took the steps that were recognised by the learned Magistrate as being necessary.
  4. [88]
    In all respects these remarks support SJG’s case. I will return briefly to them later in these reasons.

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

  1. [89]
    Given that SJG’s history 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 WWC Act. The discussion which proceeds here deals thus only with only three issues.
  2. [90]
    Firstly, I deal with the discussion about CST’s evidence as I raised it in paragraphs [52] to [54] herein. As I understood the respondent’s representative’s reason for raising this issue in the manner in which she did, it was to give rise to some adverse inference being drawn that CST might not have been so supportive of SJG once the accurate facts had been brought to his attention. I did not however draw that inference. Whilst it would have been helpful to SJG to have provided complete transparency and clarity in the presentation of her case and accordingly she should have informed CST about the hearing and asked him to attend as a witness for her, his absence and her admitted choice not to have informed him about the hearing is not something that I found to be adverse to her case. To the contrary, what it demonstrated to me was that SJG was taking ownership of her own actions and history and not requiring another person to once again have to step up in her aide. As she said without hesitation, she considered that she had asked enough of CST. It was not an issue I considered relevant to that which I was required to decide.
  3. [91]
    Secondly, it is here I return briefly to the absence of evidence in terms of SJG’s mental health status current at the time of the hearing. It will be recalled that the respondent’s representative made a submission that was effectively the absence of such evidence should be viewed adversely to SJG’s case.
  4. [92]
    I do not accept that submission. Whilst the presence of such additional evidence would have been of assistance, I did not consider the absence of it to be prejudicial to SJG’s case. On having listened to the entirety of the evidence from SJG in response to the questions posed of her, I concluded that much of her mental health issues previously were a manifestation of her life at the time and the conditions she was exposed to in terms of drug use and domestic violence, but that those circumstances were not know present such that the risk profile in terms of adverse mental health issues had decreased. Once again I did not consider it to be an issue relevant to that which I was required to decide.
  5. [93]
    Thirdly, it is here that I turn more specifically to the issue of insight, it falling more fully within this criterion. 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 SJG’s conduct that gave rise to drug use and generally her past criminal history.
  6. [94]
    In her written closing submissions, the respondent’s representative identified what she argued were examples which demonstrated SJG “lacked insight and forthrightness into her behaviour.”[55] I did not accept that as being an accurate submission. Whilst the examples given show a lack of understanding at the time of the events in question, such being past in time, they do not show a lack of insight now.
  7. [95]
    Whilst I have already discussed in relatively short terms within the other criteria 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 SJG’s possession of genuine insight which is the critical factor in the consideration of her application to obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA: [56]

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. [96]
    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. [97]
    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: [57]

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. [98]
    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: [58]

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. [99]
    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 SJG’s case as it was before me, in my opinion these comments are still relevant. This is because, in this proceeding, not only has SJG not expressed a view that her conduct was either socially acceptable, or at the very least not socially unacceptable, having listened to her and observed her during the hearing I was left with the clear impression that she accepts and firmly holds the view that her past conduct, which brought about the charges and convictions against her, was entirely unacceptable. Moreover, such is a view held not just personally but in terms of 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 SJG demonstrated to me with clarity her development and now possession of that awareness.
  2. [100]
    In SJG’s presentation of her case, as I heard her oral evidence and observed her during the hearing, in my opinion she demonstrated that she readily understood the circumstances that brought about the conduct which led to her criminal history and exposure to domestic violence and in turn the exposure of harm to her children. Because she did so, I was readily able to conclude that at the time she appeared before me she had gained the requisite degree of insight.
  3. [101]
    Accordingly, I was satisfied that she could afford a child or young person the necessary guidance to assist them in reaching an understanding of their situation if faced with similar circumstances, and thus guiding them in taking the steps necessary to take so as to avoid being in that situation. It was thus my conclusion that she 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. [102]
    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 was also necessary for me to consider the provisions of s 228(2) of the WWC Act.
  2. [103]
    Therein, the Act 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. [104]
    The respondent’s representative addressed this issue with a certain degree of brevity in her written closing submissions. She submitted that the material demonstrated SJG had exposed children to domestic violence by both her actions and inactions. However she also acknowledged that the material demonstrated SJG was both perpetrator and victim, and so expressly empathised with SJG in that regard. But she submitted that the interests of children ‘must take priority’ even in circumstances where an applicant is experiencing harm themselves.[59] In that regard she referred me to the decision of the Appeal Tribunal in Vaeau v Director General – Department of Justice and Attorney General wherein it was observed:[60]

Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm. It is commonly the case that one party in a relationship, very often a woman, is substantially the victim of violence, although she may defend herself from physical violence from time to time. We are conscious of the undesirability of re-victimisation and the real difficulties faced by Ms Vaeau. However, the paramount consideration is the welfare and best interests of children. It is clear from the authorities that any hardship or prejudice to an applicant such as Ms Vaeau is irrelevant in deciding the proceeding.

  1. [105]
    It cannot be overlooked that there were circumstances of domestic violence involving SJG, particularly as perpetrator, and in particular engaged in whilst her children were present. It was this that brought about the Police Protection Order on 20 October 2016. Accordingly, the observations of the Appeal Tribunal cannot be ignored. It is, and I expect should always remain, relevant.
  2. [106]
    However in the present circumstances I do not see it as being in any way persuasive in terms of that which I must decide in the present proceeding. The extent to which SJG was connected to domestic violence, be it either as a perpetrator or a victim, is well established on the material before me as well as the potential impact from it on her children. But that is as far as the evidence goes. There is nothing to show me that it is an issue which continues to be relevant given the extent to which I accepted SJG had developed insight into her past conduct and the circumstances that surrounded and arose from it.
  3. [107]
    Whilst I have considered the mandatory requirements as they are expressed under s 228(2) of the WWC Act, in my opinion it is not necessary for me to go through them in detail in these reasons. 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 portrays the history of domestic violence. However, in my opinion, its 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 SJG, as she did during the hearing before me in terms of the circumstances she found herself in which brought about the relevant conduct. As I have already discussed it earlier herein, SJG 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.
  4. [108]
    All that being said, in my opinion ultimately nothing turns on the history of the domestic violence issues. It of itself did not lead me to a conclusion different to that which I have reached concerning the development of SJG’s insight and in turn whether her case was an exceptional one.

Conclusion

  1. [109]
    For completeness I repeat the earlier observation I made. There was a voluminous amount of documentary material filed before this Tribunal which portrays entirely unacceptable conduct engaged in by SJG. But that did not convey the whole story. To properly and comprehensively understand circumstances in which her drug use, the domestic violence she had been engaged in and been exposed to, such also exposing her children to the presence of such violence, and her overall criminal conduct, had  arisen it was necessary to explore the circumstances more deeply than could be  ascertained from reading the written words alone.
  2. [110]
    That is what occurred in the hearing before me. The hearing afforded me the opportunity to not just hear from SJG in terms of her spoken words, but to observe her in terms of her body language, facial reactions, and emotional reactions, all as a manifestation of her feelings when certain issues were being raised with her. In my opinion this is not merely beneficial, nor should it be said merely essential, it is critical in being able to not just be informed of the relevant circumstances but to understand the causes for the relevant conduct which resulted. It is only from this and learning with clarity the present circumstances that SJG was in could I determine the issue of insight with certainty.
  3. [111]
    It is on that premise that I return to the sentencing remarks of the learned Magistrate when sentencing the applicant on 31 August 2018, as I indicated I would in paragraph [87] herein.
  4. [112]
    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 earlier herein, particularly to the extent I emphasised portions of those comments. Such arose from my observations of SJG during the hearing and listening closely to what she had to say in terms of her descriptions / explanations of what had occurred in the past between herself and her partners at the various times, and at times her children. Notably this was before I had read in detail the transcript of the learned Magistrate’s reasons for imposing the probation order.
  5. [113]
    In all respects, having listened to SJG in the hearing and considered her responses to that raised with her under cross-examination, as well as having observed her during the hearing, I was left with the impression, and so reached the conclusion, that SJG would be suitable as a holder of a Blue Card. I was entirely satisfied she is a person who could be entrusted to ensure the welfare and best interests of a child would be protected should she find herself in a position of caring for children in an employment of business setting.
  6. [114]
    I was not able to find SJG’s case to be an exceptional case such that it would not be in the best interests of children and young people for her to be issued with a Blue Card. In my opinion, whilst it may not have been the case when the Decision was made, as I found them to be at the time of the hearing before me SJG’s circumstances do conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is not the correct and preferable one, and that it should be set aside. The correct and preferable decision is that SJG’s case is not an exceptional one. There was an order to that effect.
  7. [115]
    For completeness I make this one final observation for SJG’s benefit. It is not for this Tribunal to issue a Blue Card to her. 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]Ex 1 pg’s BCS-17 to BCS-19.

[3]Ex 2 pg NTP-5.

[4]Ex 2 pg NTP-11. See also Ex 2 NTP-17 to NTP-23 in terms of the records of this event held by the Department of Child Safety.

[5]Ex 2 pg’s NTP 31 to NTP 101.

[6]Ex 2 pg NTP 101.

[7]That document was Marked for Identification ‘A’ in the hearing.

[8]A copy of the Decision appears at Ex 1 pg BCS 76.

[9]QCAT Act s 19.

[10]QCAT Act s 20.

[11]QCAT Act s 24.

[12]WWC Act s 5.

[13]WWC Act 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 WWC Act, 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 WWC Act. Serious offences for the purposes of WWC Act are as described in Schedule 2 to the Act.

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

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

[18]WWC ACT s 221(2).

[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 Re OAA [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 WWC Act.

[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 HR Act in reaching the Decision, and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HR Act in the respondent’s written submissions, but that SJG did not raise any issue in her closing submissions or at any other time during the hearing as to her human rights or the application of the HR Act.

[25]HR Act 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 s25. I pause again to note that her 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 9.

[33]Ex 3.

[34]Ex’s 4 to 8.

[35]See MFI ‘A’.

[36]SJG was referred to Ex 1 BCS 17-19.

[37]This exchange occurred at approximately 12:32 pm. It is not to be read as verbatim because it is not taken from a transcript, but rather it is a record I made in my notes taken during the hearing. This same note is to be applied to later references I give in these reasons as to an exchange during cross-examination.

[38]Ex 2 – pg NTP 55.

[39]A copy of this appears at Ex 1 pg’s BCS 72 to 75.

[40]I pause here to observe that at one point during cross-examination SJG stated that her drug use did not start as a result of mental health issues but rather due to ‘party use’ and to ‘help me get through the day’ when her husband was away and ‘after looking after the kids all day’. Whilst that was an issue that of itself would tell against SJG it was not in my opinion such as to overwhelm the otherwise positive aspects of SJG’s evidence before me.

[41]EX 3 – This is contained in Ex 1 at BCS-69.

[42]As I understood the evidence, this is SJG’s third child, she being to a father different to her first two children.

[43]Ex 9 as supplemented by oral submissions.

[44]WWC Act s 226(2)(a)(i).

[45]Ex 1 pg’s BCS 17 to 19.

[46]WWC Act s 226(2)(a)(ii).

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

[48]WWC Act s 226(2)(a)(iii).

[49]WWC Act s 226(2)(a)(iv).

[50]WWC Act s 226(2)(a)(v).

[51]Ex 1 pg’s 126 to 138.

[52]See Ex 1 pg BCS 19 for that list.

[53]Ex 1 BCS 137 and 138. My emphasis.

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

[55]See Ex 9 para’s 41 and 42.

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

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

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

[59]Ex 9 para 34.

[60]Vaeau v Director General – Department of Justice and Attorney General [2021] QCATA 142, [52].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2025] QCAT 111

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    17 Mar 2025

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
R v Conley [2023] QSC 25
2 citations
Jump To
Cite 1 - [2023] QSC 25
Cite 2 - [2023] QSC 25
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
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
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
2 citations
Jump To
Cite 1 - [2021] QCATA 142
Cite 2 - [2021] QCATA 142

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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