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SLH V Director-General, Department of Justice (No 2)[2025] QCAT 148

SLH V Director-General, Department of Justice (No 2)[2025] QCAT 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SLH V Director-General, Department of Justice (No 2) [2025] QCAT 148

PARTIES:

SLH

(applicant)

v

director-general, department OF JUSTICE

(respondent)

APPLICATION NO:

CML113-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 April 2025

HEARING DATE:

7 November 2024

HEARD AT:

Townsville

DECISION OF:

Member Kanowski

ORDER:

The decision of the Director-General, Department of Justice that SLH’s case is exceptional within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks review of decision to refuse to cancel a negative notice – where applicant was accused of domestic violence – whether exceptional case where not in interests of children for applicant to have a working with children clearance

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 228, s 294, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

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

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES &

REPRESENTATION:

Applicant:

A Raeburn instructed by Lee, Turnbull and Co, Solicitors

Respondent:

K Malouf, advocacy officer, Blue Card Services

REASONS FOR DECISION

Introduction

  1. [1]
    ‘SLH’ asks the tribunal to change a decision made by Blue Card Services about his eligibility for a blue card for working with children: he asks the tribunal to set aside the decision made on 9 March 2023 that his is an exceptional case. That decision was the basis for Blue Card Services refusing to cancel a negative notice that had been issued to SLH in 2018. A negative notice stops a person from holding a blue card.
  2. [2]
    SLH has faced criminal charges – the most serious of which were dropped – and he has been the respondent to domestic violence proceedings. The main issue in this case is whether his is ‘an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person’.[1]
  3. [3]
    In these reasons:
    1. ‘blue card’ should be understood as a working with children clearance under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’); and
    2. ‘Blue Card Services’ as decision-maker should be understood as the Director-General, Department of Justice who, as chief executive (via a delegate) made the decision the tribunal is reviewing.
  4. [4]
    SLH is currently 56 years of age. He and family members or former partners are not identified in these reasons. This is because he and some of them have been parties to domestic violence proceedings. Parties to such proceedings must, generally, not be identified: section 159(1)(b)(i) of the Domestic and Family Violence Protection Act 2012 (Qld).
  5. [5]
    The former partners referred to in these reasons are:
    1. SLH’s ex-wife, who is the mother of two sons with SLH;
    2. Partner B, a woman with whom SLH has had a long-term friendship and with whom he was in an intimate relationship after his marriage; and
    3. Partner A, a woman with whom SLH was next in a relationship.

History

  1. [6]
    SLH held a blue card from 2010 to 2018. In 2018 Blue Card Services decided to cancel his blue card and issue a negative notice. This was after it considered information about criminal charges pending against SLH and his response to that information.
  2. [7]
    In 2021, after charges had been dropped, SLH applied to Blue Card Services for cancellation of the negative notice. On 9 March 2023 Blue Card Services decided to refuse the application. It decided that SLH’s is an exceptional case in which it is not in the best interests of children for him to hold a blue card.
  3. [8]
    SLH has applied to the tribunal for a review of that decision. I conducted a hearing on 7 November 2024. Various documents filed by the parties were marked Exhibits 1 to 7. SLH and psychologist Robert Walkley gave oral evidence. A question arose at the hearing about whether Blue Card Services was obliged to have certain persons attend for cross-examination: namely its decision-maker, its decision-maker in the earlier decision made in 2018, Partner A and Partner B. I decided in SLH v Director-General, Department of Justice[2] that Blue Card Services was not obliged to produce those persons for cross-examination. I directed that the parties then make their closing submissions in writing. Submissions were received from SLH’s lawyer (dated 28 January 2025 and, in reply, 21 March 2025) and from Blue Card Services (dated 14 February 2025). Blue Card Services also relied on its opening submissions dated 11 April 2024.
  4. [9]
    Blue Card Services also provided some additional documents – page-numbered BCS127 to 132 – on 20 December 2024 in response to a tribunal direction. Although these have not been marked as an exhibit, I have taken them into account. 

Legislative framework

  1. [10]
    The object of the Working with Children Act is to promote the rights, interests and wellbeing of children and young people through a scheme involving the screening of persons employed in particular employment or carrying on particular businesses.[3] Screening is to ensure that the persons are suitable to work with children.[4]
  2. [11]
    The Working with Children Act is to be administered under principles that:
    1. the welfare and best interests of a child are paramount; and
    2. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[5]
  3. [12]
    When a person has sought the cancellation of a negative notice, section 294 of the Working with Children Act in a case such as the present brings into effect section 221 of the Act. This is because, amongst other things, SLH has a conviction for an offence other a ‘serious offence’ as defined. In that situation, Blue Card Services (or the tribunal on review) must keep the negative notice in place only if satisfied the person’s case is an exceptional one in which it would not be in the best interests of children for a working with children clearance to be issued to the person. Section 226 sets out matters to which regard must be had where the person has a conviction, and section 228 sets out matters to which regard must be had when there is domestic violence information about a person. Both sections are applicable here. The applicable matters under section 226 are, in summary:
    1. whether it is a conviction or a charge;
    2. whether the offence is within the category of either serious or disqualifying offence;
    3. when the offence was committed or is alleged to have been committed;
    4. the nature of the offence and its relevance to working with children;
    5. in the case of a conviction, the penalty imposed by the court and, if the person was not imprisoned, the court’s reasons for not imposing a sentence of imprisonment; and
    6. anything else in relation to the commission or alleged commission of the offence that is reasonably relevant.
  4. [13]
    The matters to be considered under section 228 are to similar effect, in summary:
    1. the circumstances of the domestic violence order or police protection notice including any conditions imposed;
    2. the length of time which has since passed;
    3. the relevance of the information to working with children; and
    4. anything else reasonably relevant to the assessment of the person.
  5. [14]
    The tribunal must conduct a fresh review on the merits, with the aim of producing the correct and preferable decision.[6]
  6. [15]
    It is relevant to have regard to human rights. The only right specifically identified in the submissions of Blue Card Services is the right of every child to the protection that is needed by the child and is in the best interests of the child because of being a child.[7] This right is clearly embodied in provisions of the Working with Children Act cited above. Blue Card Services says human rights of SLH are relevant but does not identify what they might be.[8] Mr Raeburn does not rely on a human rights argument.

Charges, criminal history and domestic violence proceedings

False representation

  1. [16]
    The earliest entries in SLH’s criminal history are for two offences of false representation, which were dealt with in a Childrens Court in 1984. The court admonished and discharged SLH. Sentencing remarks do not survive.

Breach of bail conditions

  1. [17]
    SLH was charged with a number of offences in 2018. Most charges were eventually dropped, but not charges relating to breaches of bail conditions. On 28 November 2019 the Magistrates Court admonished and discharged SLH for three such offences: two offences in September 2018 and one in December 2018. SLH pleaded guilty. Convictions were not recorded.
  2. [18]
    The bail breaches involved SLH having contact with complainants contrary to non-contact conditions in bail orders. According to SLH, one offence involved forwarding RSVPs for their son’s birthday to his ex-wife; another involved attending a session with a psychologist in Sydney with Partner A while they were attempting to reconcile; and the other involved a trip with Partner A in a further attempt at reconciliation. The magistrate’s description of the offending is brief but indicates that one of the offences involved sending texts about the transfer of funds in circumstances where SLH had a business together with the complainant and they were joint signatories on a bank account. The magistrate described the offending as involving ‘nothing sinister’ and being ‘very minor in the scale of things’.[9]
  3. [19]
    SLH said in a 2022 submission to Blue Card Services: ‘the circumstances of these [breaches] show that they were both related and opportunistic on behalf of both my former partner and ex-wife’.[10]

Charge of assaulting son

  1. [20]
    SLH was charged with committing an assault occasioning bodily harm upon his then six year old son on 12 September 2018. At that time, SLH and his ex-wife had the care of their sons in a week-about arrangement. SLH was living with Partner A. A police summary alleges that SLH collected the child from after school care; the child had lost his hat but said he could not remember how; SLH repeatedly demanded that the child tell the truth and threatened to smack him; when they got home SLH continued to yell at the child, demanding the truth; and he then proceeded to smack the child across the buttocks approximately six times in quick succession. I note that this must be based on information from Partner A. Further, according to the police summary, the smacks left red marks which SLH’s ex-wife observed two days later after the children had returned to her care. The summary mentions photographs of the marks, which must have been taken by SLH’s ex-wife. The photographs themselves are not in evidence before the tribunal.
  2. [21]
    SLH’s ex-wife in an affidavit prepared for a domestic violence proceeding refers to the incident as ‘an issue where [SLH] “disciplined” our son … but went way over the top’.[11] She describes ‘very red marks on [the child’s] bottom’ which were ‘not normal for domestic discipline’.[12]
  3. [22]
    SLH in an affidavit prepared for a domestic violence proceeding portrays the incident as one of calm disciplining rather than an intensifying and angry outburst. SLH denies that the smacks caused the red marks shown in the photographs. He also emphasises that his ex-wife did not immediately go to the police. (The incident was reported to police only after they received a complaint from Partner A about the incident on 19 September 2018 which is discussed below). SLH also says in the affidavit that, on reflection, physical punishment had not been effective in modifying the child’s behaviour; that he did not intend to use it again; and he was on a waiting list for a course to learn other disciplinary strategies.
  4. [23]
    The charge of assault occasioning bodily harm was discontinued in November 2019. The police prosecutions corps told Blue Card Services that this was because the prosecution had no reasonable prospects of a conviction and it was considered not to be in the public interest to pursue the prosecution.
  5. [24]
    SLH has provided a copy of a letter sent by his then barrister to the police prosecutions corps in August 2019 arguing that the charge should be withdrawn. The barrister noted that SLH had told his adult daughter that he had smacked the child, but he believed that it was a parent’s right to smack a misbehaving child. He also told his daughter he believed his ex-wife made the complaint to police in an effort to gain full-time custody of the children. The submission argued that SLH could rely on section 280 of the Criminal Code 1899 (Qld) which makes it lawful for a parent to use reasonable force in disciplining a child. The submission also pointed to evidence that the mother had made the complaint to police only after Partner A made an ‘unrelated allegation’[13] against SLH, and contended that the complaint was made in the context of a parenting dispute. It was, the barrister argued, not in the public interest to continue with a prosecution.
  6. [25]
    It seems likely that the prosecution discontinued the charge in response to the submission, given the similarity of reasoning in the submission and the explanation given by the prosecutions corps.
  7. [26]
    In his affidavit prepared for the tribunal proceeding, SLH says he maintains the version of events given in the submission. Likewise, in an earlier affidavit, prepared for a domestic violence proceeding in 2019, SLH had said:

I acknowledge that I smacked [the child] on 12 September 2018 but deny that the discipline was “over the top” or excessive as [SLH’s ex-wife] alleges.[14]

Charges of choking and assaulting Partner A

  1. [27]
    SLH and Partner A lived in an apartment. A police summary alleges that police were called to the apartment block on the night of 19 September 2018 because SLH was threatening to throw himself off a balcony; police observed bruising to Partner A’s throat, shoulders and biceps; Partner A told police that SLH had repeatedly verbally abused and violently assaulted her that day including by throwing her to the ground, pinning her down, squeezing her neck, and spitting in her face.
  2. [28]
    The tribunal has not been provided with any statements made by Partner A to police. However, the material before the tribunal includes a partially redacted copy of an affidavit Partner A made in 2021 in a domestic violence proceeding against SLH. In the affidavit, Partner A describes the events of 19 September 2018 in detail, and goes on to describe a history of emotional and sexual abuse, assaults and coercive control during the relationship. 
  3. [29]
    SLH denies the allegations made by Partner A. He has provided a detailed statement he made in 2020 about the events of 19 September 2018, describing verbal abuse from Partner A and portraying her as the aggressor in a physical altercation between them. He says in the evening Partner A continued with verbal attacks and drinking. He said to her ‘… if I don’t have anything I may as well just kill myself’.[15] Some minutes later, he went up to the top floor of the building for fresh air and looked at the views. Partner A came out of the lift and started saying ‘don’t do it, don’t do it’.[16] Police arrived soon after this. He also gave this version of events in a detailed affidavit prepared in 2021 for a domestic violence proceeding.[17]
  4. [30]
    SLH says that Partner A’s allegations of violence against him were ‘fabricated’.[18] He has pointed to text messages and recordings of conversations containing comments by SLH that are nasty, vengeful and threatening. These include, for example, comments about the desirability of SLH being sent to jail, as well as highly derogatory comments about his mother.
  5. [31]
    In respect of the incidents on 19 September 2018, the police laid charges against SLH described as follows:
    1. two charges of choking (domestic violence offence);
    2. common assault (domestic violence offence); and
    3. assault occasioning bodily harm (domestic violence offence).
  6. [32]
    The tribunal does not have a copy of the statements prepared for the prosecution.
  7. [33]
    SLH provided to Blue Card Services a report by forensic pathologist, Professor Johan Duflou, prepared at the request of SLH’s lawyer in the criminal proceeding. The report addresses whether the injuries to Partner A noted by a hospital doctor in the early hours of 20 September 2018 were consistent with Partner A’s account and medical history. Essentially, Professor Duflou gave the opinion that the injuries were not those typically seen in cases of manual strangulation, though he could not exclude the possibility that this occurred. He said the injuries were equally consistent with assault other than strangulation. He also mentioned that some of Partner A’s medical conditions made her more prone to bruising than the average woman of her age.
  8. [34]
    The charges proceeded to trial in the District Court but the jury was unable to reach a verdict. Later, Partner A and a police officer were cross-examined in a pre-trial hearing prior to an intended second trial. However, after the pre-trial hearing, the prosecution decided to discontinue the prosecution. The office of the Director of Public Prosecutions told Blue Card Services:

…After the pre-trial hearing and upon carefully reviewing the evidence as a whole, the decision was made that because of the inconsistencies in the evidence the complainant gave at the previous trial and during the pre-trial, as well as the inconsistencies with the evidence of the other witnesses, there were no reasonable prospects of convincing a jury to convict the defendant beyond reasonable doubt.[19]

Domestic violence proceedings

  1. [35]
    SLH has also been the respondent to domestic violence proceedings and the subject of temporary protection decisions. Some specifics are hard to pin down because the information provided to Blue Card Services is anonymised and the names of aggrieved persons are redacted in material supplied by the Magistrates Court. However, Blue Card Services notes:[20]
    1. a temporary protection order operative from 17 August 2018 to 18 September 2018;
    2. a temporary protection order operative from 24 September 2018 to 5 November 2018; and
    3. a police protection notice operative from an unknown date to 18 June 2019.
  2. [36]
    Blue Card Services notes that in two instances, children were included as protected persons. Conditions included a no-contact condition with the aggrieved person in one instance, and an ouster condition in one instance.
  3. [37]
    From other material in the exhibits and submissions, I gather that the first temporary order was made in a proceeding in which Partner B was both the applicant and the aggrieved person. I also gather that the second temporary order was made in response to a police application, and the aggrieved person was Partner A. I gather that the police protection notice was made in respect of SLH’s ex-wife. The notice must have been issued on or after 20 September 2018 because a police statement says that SLH’s ex-wife approached police on that date to seek assistance in obtaining a domestic violence order.[21]
  4. [38]
    The material before the tribunal includes a statement and an affidavit by Partner B prepared for her domestic violence proceeding. This material describes harassment and intimidation, including in the workplace where she was an employee of SLH, but not physical violence. I have earlier described Partner A’s affidavit prepared for a domestic violence proceeding, in paragraph 28 above. SLH’s ex-wife in her affidavit prepared for a domestic violence proceeding describes rapes, physical assaults and coercive control during their marriage.
  5. [39]
    All three domestic violence proceedings were withdrawn without any final orders being made. The material before the tribunal does not contain explanations of why the applications were withdrawn.
  6. [40]
    There is evidence that by September 2018 each of the three women was aware that the others had complained to police or commenced court proceedings about the behaviour of SLH.
  7. [41]
    In an affidavit filed in the domestic violence proceeding brought by Partner B, SLH contests Partner B’s version of events and describes her as ‘insecure and controlling’.[22] He portrays her as obsessed and vengeful. SLH has referred to the domestic violence application in respect of Partner A as ‘false and malicious’.[23] SLH has referred to the police protection notice in respect of his ex-wife as ‘false and malicious and made as a result of collusion’[24] between his ex-wife and Partner A. The material before the tribunal includes affidavits prepared by SLH for domestic violence proceedings in which he contests in detail the versions of his former partners.

Submission received by Blue Card Services in 2018

  1. [42]
    On 10 October 2018, Blue Card Services received an email from ‘[SLH]<director@[slh’s firm].com.au> (‘the director’s email account’), and expressed to be from SLH. It attached a submission, a medical certificate, and a letter from Celia Lane, psychologist, dated 9 October 2018. The submission addressed why SLH should retain his blue card. It described in detail how SLH had been going through a stressful period which had impacted his mental health and ‘made me feel suicidal’.[25] Referring to the events of 19 September 2018, the submission said:

On the day of the incident [Partner A] and I got into an altercation where it became a wrestling match that went too far, and I had a mental breakdown and attacked her physically. I also suffered a number of suicidal ideations the same day and threatened self harm the same night because of my actions. I am still shocked and appalled at my behaviour. When I threatened self harm [Partner A] made contact with QPS to assist maintaining my safety as well as her own.[26]

  1. [43]
    Ms Lane’s letter mentions her sessions with SLH since November 2017 before saying that SLH had ‘recently re-attended to seek a sense of understanding as to what caused him to be violent toward his partner’ which he was ‘struggling to understand’ and which was ‘completely out of character’.[27] Ms Lane said there were indications of SLH suffering depression, anxiety, intrusive experiences, and post-traumatic stress disorder relating to childhood trauma. She said she would continue providing psychological support to SLH.
  2. [44]
    The email from the director’s email account to Blue Card Services was sent at 6.43 pm on 10 October 2018. SLH says that he did not send it; rather, Partner A did. He says she had access to the director’s email account because she had taken over the running of his business following his arrest. In her evidence at the pre-trial hearing in the District Court in 2021, SLH acknowledged drafting a submission for SLH for Blue Card Services and having access to the director’s email account, though she denied sending the submission to Blue Card Services.
  3. [45]
    It is undisputed that there were earlier email exchanges on 10 October 2018. At 6.42 am, Partner A sent an email from her gmail address to SLH at the director’s email account that began ‘Hi honey    I have worked on a letter this morning to support your blue card. I hope you find it useful.’ It attached a draft of the submission saved as Blue card future consideration.docx.[28] The draft is substantially similar to the submission sent to Blue Card Services that evening, but there are differences. For example, in the draft, the passage about 19 September 2018 said:

Following a relationship argument the night before, [Partner A] and I got into another argument the next morning and I had a breakdown and attacked her physically. I also suffered a number of suicidal ideations the same day and threatened self harm the same night. [Partner A] made contact with QPS to assist maintaining my safety as well as her own.[29]

  1. [46]
    SLH replied to Partner A, from the director’s email account, at 6.56 am on 10 October 2018, saying ‘Thank you I will have a look at the letter’.[30]
  2. [47]
    When the email from the director’s email account was received by Blue Card Services at 6.43 pm on 10 October 2018, the submission attachment was in the name Blue Card Submission.docx.
  3. [48]
    In cross-examination at the tribunal’s hearing, SLH said he was unsure whether Ms Lane had actually written the 9 October 2018 letter, or whether Partner A had ‘doctored’[31] it ‘but I’ve never said to [Ms Lane] that I’ve been violent to [Partner A]’.[32]  Later in cross-examination, however, when it was pointed out that a letter from Ms Lane in 2022 quoted almost all of the 2018 letter, SLH did not maintain the suggestion that Partner A may have doctored the 2018 letter.
  4. [49]
    It was also pointed out to SLH in cross-examination that the statement of reasons prepared in 2018 for the issuing of the negative notice quoted the submission received by Blue Card Services on 10 October 2018. SLH said he probably did not receive this document, as he was not allowed to attend his workplace (where Partner A also worked) or their home. Asked how he came to know of the negative notice, he said Partner A let him know. 
  5. [50]
    The email sent by Partner A to SLH at 6.42 am on 10 October 2018 also featured at the pre-trial hearing in the District Court. It can be inferred from the transcript that SLH probably forwarded an incomplete copy of that email to police, omitting comments she did not want the police to know about. This incomplete version was therefore attached to the addendum statement from Partner A that the police then prepared and which she signed. The addendum statement included ‘an acknowledgement of that statement being true and correct’.[33]

2022 submission to Blue Card Services

  1. [51]
    In 2022, when SLH was seeking cancellation of the negative notice, he sent a submission to Blue Card Services. It included the following comments:

At no time have I ever resorted to striking / hitting my then 6 yr old son, occasioning bodily harm.

At no time have I ever resorted to violence of any kind with my ex-partner – I have never choked / strangled her. I have never resorted to violent behaviour.

I have at no time had a mental breakdown nor displayed suicidal ideations or threatened self-harm.[34]

  1. [52]
    SLH was cross-examined about these comments at the tribunal’s hearing. In relation to the first, his response was to the effect that he believed he was just disciplining the child and not inflicting bodily harm as legally defined. In relation to the second, he confirmed its accuracy.
  2. [53]
    In relation to the third, he was also taken in cross-examination to his evidence in his 2021 affidavit, mentioned in paragraph 29 above, in which he described telling Partner A that he may as well just kill himself. SLH’s response in cross-examination was that the comment about killing himself was a ‘throwaway comment’[35] intended to cause Partner A to stop harassing him, rather than a threat to actually kill himself.
  3. [54]
    SLH also sent Blue Card Services a letter dated 3 May 2022 said to be from Ms Lane (though not on letterhead and perhaps incomplete). Ms Lane quotes from her 2018 letter and mentions that SLH had since completed the MIMenTER course at a domestic violence resource centre. The course, Ms Lane wrote, challenges men to address their use of violence in relationships. Ms Lane says that SLH told her:

…what he believed was violence on his part, was not. He did not initiate any violence towards his then partner, more so he was trying to contain her violent attacks on him, usually when she was extremely intoxicated and irrational.[36]

  1. [55]
    SLH also provided other material including an affidavit by Partner A dated 5 November 2018 to the effect that a statement she gave to police on the night of 19 September 2018 was unreliable because of her intoxication. (Presumably this is the affidavit Partner A said, in a later affidavit, that SLH had ‘forced’[37] her to make).
  2. [56]
    SLH provided a reference by his current wife, dated 3 May 2022. She describes SLH as a supportive partner who has not raised his voice, let alone been violent, in the company of his children, her child, and grandchildren.
  3. [57]
    SLH also provided a reference by Partner B dated 4 May 2022. Partner B, it will be recalled, commenced a domestic violence proceeding against SLH in 2018 in which she criticised his workplace conduct amongst other things. In the reference, however, she comments on his professionalism in the workplace. Her comments also include observations about SLH’s interactions with his children: his daughter (who is much older than the sons) and then the sons. She says:

I often spent time with [SLH] when his oldest child was young. [SLH] himself was a young father and was always strongly opposed to smacking as a means of discipline. He was always gentle, loving and caring towards his daughter and her mother.

In recent years when [SLH] and I lived in a de-facto relationship, we had care of his 2 youngest sons in a week about arrangement with their mother. [SLH] loved being with them. [SLH] was always gentle, loving and caring towards them and continued to be strongly opposed to smacking as a form of discipline.

In the 36 years I have known him his loving nature and behaviour towards his children has never altered.[38]

Psychological assessment in 2023

  1. [58]
    SLH also relies on a psychological evaluation report by forensic psychologist Robert Walkley dated 14 June 2023. Mr Walkley commented that SLH ‘presented as an intelligent, cogent and deeply engaged individual who … did not demonstrate any existing psychopathology’.[39] Mr Walkley said that SLH had addressed mental health issues by undertaking the parenting course Magic 123, and the Men-Ter course[40] which is aimed at promoting better responses to relationship difficulties than domestic violence or other inappropriate behaviour. Mr Walkley considered that SLH was managing his mental health ‘in a meaningful way’[41] and is now in a relationship without significant conflict. Week-about parenting had resumed after being stopped after the 2018 incidents. Those incidents occurred during a period of high stress. Mr Walker’s prognosis for SLH was optimistic provided that SLH did not become immersed again in a toxic and dysfunctional relationship exacerbated by financial pressure.
  2. [59]
    In cross-examination, Mr Walkley acknowledged limitations on the ability of a forensic psychologist, as distinct from a treating psychologist, to assess a person. In particular, he acknowledged that he had seen SLH on only two occasions, and not since May 2023. Mr Walkley acknowledged that a person’s completion of a course does not necessarily mean they have learned anything, and that people are able to mask certain personality traits for short periods.

Submissions, findings and evaluation

  1. [60]
    SLH’s counsel, Mr Raeburn, in closing submissions submits that the evidence of SLH and Mr Walkley was not successfully challenged in cross-examination. He submits that it was procedurally unfair for Blue Card Services to cross-examine SLH about what was said in the statements of Partners A and B in the absence of those persons being cross-examined. Mr Raeburn submits that the tribunal should place no weight on the ‘untested material’[42] filed by Blue Card Services, and that the only material the tribunal can consider is the evidence of SLH and ‘the material tendered’.[43] This material shows no nexus to a possibility of risk to children, Mr Raeburn submits.
  2. [61]
    Both Mr Raeburn and Blue Card Services submit that the tribunal must decide whether an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved. They cite cases including Briginshaw v Briginshaw.[44] In Briginshaw,  Dixon J observed that the gravity of the consequences flowing from a particular finding is a consideration that must affect the question of whether an issue has been proved to the reasonable satisfaction of a tribunal.[45] Blue Card Services says that the gravity of consequences for children if SLH was issued with a blue card is the relevant matter,[46] as distinct, presumably, from the gravity of consequences for SLH. I note that in Director-General, Department of Justice and Attorney-General v CMH,[47] Senior Member Aughterson and I discussed the potential application of the Briginshaw principle when making findings of fact but doubted its applicability in an evaluative exercise about risk. 
  3. [62]
    It is not necessary here to decide here whether the gravity of consequences for the person seeking a blue card are relevant in fact finding. As will be seen, I have made a key finding adverse to SLH mindful of the Briginshaw principle (applied on the assumption that grave consequences to him are relevant).
  4. [63]
    In the closing submissions, Mr Raeburn does not mention specifically the recordings and texts in which Partner A made abusive and vengeful comments. However, Mr Raeburn does invite the tribunal to consider the material tendered by SLH which includes that evidence. However, I do not consider that this evidence advances SLH’s case. Partner A’s hostility would be equally consistent with her having been a victim of the harm she has claimed as with her being a proponent of lies.
  5. [64]
    Blue Card Services in its closing submissions submits that SLH’s case is an exceptional one. It places reliance on the ‘untested material’ such as the statements of Partners A and B, essentially treating that information as factual or at least as sufficiently credible to warrant the tribunal placing considerable weight on it. Additionally, Blue Card Services contends that SLH has credibility problems, and I will discuss some of those issues shortly.
  6. [65]
    First, though, it is desirable to address the question of placing weight on untested material.
  7. [66]
    In Commissioner for Children and Young People and Child Guardian v Lister (No 2),[48] the QCAT Appeal Tribunal commented that it was not the tribunal’s function ‘to determine whether Mr Lister committed any criminal offences’.[49] Commenting on statements given to police in the course of the criminal investigation, the Appeal Tribunal said:

The fact that the authors of the statements have not been cross-examined will affect what weight should be placed on them, but does not render them irrelevant. Even untested allegations made in sworn statements to the police bear on the question whether this is an exceptional case.[50]

  1. [67]
    I agree that the tribunal in a blue card case does not have the function of determining whether criminal offences were committed. That would require the application of the criminal standard of proof, rather than the civil standard. I also agree that the tribunal should have regard to untested allegations, because it is apparent that Parliament has intended to cast a very wide net in the Working with Children Act. This makes sense in the context of a scheme where the paramount concern is the protection of children. Examples of the need for this wide net include where a complainant has died, become too scared to testify, or become uncontactable. What the complainant has said in a written or verbal statement may be sufficient to raise a real concern about whether the alleged perpetrator is suitable to work with children.
  2. [68]
    The approach in Lister was taken even further in TNC v Chief Executive, Public Safety Business Agency where the tribunal commented ‘I do not need to be satisfied on a balance of probabilities that the offences occurred’.[51] It was taken even further again in DEF v Director-General, Department of Justice and Attorney-General where the tribunal said ‘I would reiterate and emphasise that the Tribunal’s role is not to make findings as to whether or not the allegations made against the Applicant are substantiated’.[52] I accept that it is not necessary that there be such findings. Ideally, though, the tribunal should make findings, on the civil standard, about whether particular conduct in the past (including conduct for which the person was charged by not convicted) occurred. This is a foundation for assessing the risk of future similar conduct. It is instructive that section 27B of the Acts Interpretation Act 1954 (Qld) requires a tribunal, where written reasons are required by an Act, to set out its findings on material questions of fact. That provision does not apply here, because the legislation does not require the tribunal to give written reasons. However, the provision reflects a broader expectation that reasons should include relevant findings.
  3. [69]
    In the present case, it appears that Blue Card Services has made no effort to obtain statements direct from SLH’s former partners. That is a forensic choice it has made. That choice has the consequence, as explained in SLH v Director-General, Department of Justice,[53] that Blue Card Services has not been required to produce those persons for cross-examination. The closing submissions of Blue Card Services do not address why the tribunal should, in effect, place considerable weight on information from those persons notwithstanding that the tribunal has not had the benefit of seeing the evidence tested. It is readily apparent that there are matters that could genuinely be explored in cross-examination including communication between the complainants, inconsistent statements, Partner A’s apparent use of a doctored email in a court proceeding, and the discontinuation of proceedings.
  4. [70]
    There are submissions within the closing submissions of Blue Card Services to the effect that the tribunal should not make an adverse finding about persons such as Partner A when that person has not been cross-examined in the tribunal proceeding.[54] I reject those submissions. The reason that such persons have not been cross-examined is because Blue Card Services has not obtained statements from them. It would be grossly unfair to SLH to preclude a finding in his favour simply because it reflected adversely on such persons.
  5. [71]
    I am mindful, while making comments about a forensic choice, that it has been said in various cases that review proceedings in tribunals are not adversarial.[55] In QCAT, where there is a statutory right to cross-examine witnesses,[56] it is unsurprising that review proceedings are often adversarial in practice. The choice of a party not to obtain a direct statement from a potential witness is relevant in deciding whether to place weight on particular evidence (such as a statement prepared by that person for another proceeding). In fact, this point is embodied in one of Blue Card Services’ closing submissions. Under a heading ‘Ninth, there is a lack of objective material presented by the Applicant to support his evidence’, Blue Card Services comments that SLH had given evidence at the hearing that he is married but:

…he did not call his wife as a witness to give evidence on his behalf and so the Tribunal cannot be satisfied as to the health of that relationship or the Applicant’s behaviour in that relationship.[57]

  1. [72]
    Although I have said it is desirable, where possible, to make findings about past conduct, in this case I do not consider it necessary to embark on that exercise. I have had regard to what the former partners have said, for context, but I do not consider it necessary to decide how much weight, if any, to place on that information, or to make findings about whether the particular conduct alleged by them occurred. This is because I have serious concerns about SLH’s credibility and character arising from his own evidence, and this alone makes his case an exceptional one in my view.
  2. [73]
    Before explaining this further, however, I should add that some of the other submissions made by Blue Card Services are not relevant in my view. These include submissions about the speed with which SLH has entered new relationships, that he has had relationships with employees, and that he has said unflattering things about ex-partners (though not in the presence of children) which Blue Card Services says shows a disrespectful attitude to women. However, Blue Card Services has not demonstrated how these things have a bearing on SLH’s suitability for working with children.
  3. [74]
    Mr Raeburn points out that the author of the closing submissions for Blue Card Services was not the advocate who appeared at the oral hearing. He submits that this should cause the tribunal to question the veracity of the submissions.
  4. [75]
    SLH gave oral evidence at the hearing, and I had the opportunity to observe him doing so, as did Mr Raeburn. The advocate for Blue Card Services heard SLH’s evidence but did not see him giving evidence as she attended by phone. The person who wrote the closing submissions for Blue Card Services had the transcript but neither saw nor heard the evidence. This would, in my view, limit their ability to comment on matters such as demeanour and evasion, and I have taken this into account. I have, of course, relied on my own observations. SLH’s manner in the witness box did not itself lead me to question his reliability. He appeared uncomfortable at times, but that would be expected in anyone, even a totally honest witness, being questioned about sensitive personal topics. 
  5. [76]
    A significant issue in this case is whether it was SLH or Partner A who sent the email to Blue Card Services on 10 October 2018 which attached the submission and the 9 October 2018 letter from the psychologist, Ms Lane, as well as a brief medical certificate. It will be recalled that the email came from the director’s email account and appeared to be from SLH. The issue is significant because of the admissions to violence in that material.
  6. [77]
    On the basis of uncontested facts, it is possible that Partner A sent the email. She did have access to the director’s email account, though SLH did too, as his email to Partner A on 10 October 2018 shows. Partner A had prepared a lengthy draft of the submission. If she sent the final version to Blue Card Services, this would have involved her first saving the final version under a new document name. It is possible that she did that, perhaps to give it a name, ‘Blue Card Submission’, that sounded more confident than ‘Blue card future consideration’.
  7. [78]
    As I have mentioned, Partner A at the pre-trial hearing in the District Court denied sending the 10 October 2018 submission to Blue Card Services. This was her sworn evidence in cross-examination, shown in the transcript which SLH has tendered in the tribunal proceeding.[58] It is relevant, though, that clearly the Director of Public Prosecutions eventually came to view Partner A as an unreliable witness, or at least as one not reliable enough to enable a conviction in a criminal trial. This was in light of inconsistent within her evidence, and with the evidence of other witnesses.
  8. [79]
    Mr Raeburn notes that Blue Card Services had been aware from the written material that SLH disputes sending the submission to Blue Card Services, yet Blue Card Services ‘chose not to call any witnesses to support the evidence relied upon by [Blue Card Services]’.[59]
  9. [80]
    The only witness that Blue Card Services could realistically have called on the issue would have been Partner A, I imagine. Perhaps one or both parties could have called evidence from an information technology expert, but it is by no means clear that this would have resolved the issue of who sent the email.
  10. [81]
    Blue Card Services did not lead evidence from Partner A. Even taking that into account, however, on the available evidence I am convinced on the balance of probabilities that SLH, not Partner A, sent the email to Blue Card Services on 10 October 2018.
  11. [82]
    The inherently likely course of events on 10 October 2018, consistent with the objective evidence, is as follows. SLH saved the draft submission that Partner A had sent him that morning on to his own device, giving it the new name. He looked over it, as he had told Partner A he would. He edited it before emailing the final submission to Blue Card Services that evening.
  12. [83]
    Further, the admission of an attack upon Partner A in the submission accords with the admission of violence made by SLH to Ms Lane as noted in her letter written the day before.
  13. [84]
    Further, there are several matters which cause me to doubt SLH’s credibility.
  14. [85]
    First, his comment in his 2022 submission that he had never resorted to striking / hitting his six year old son, occasioning bodily harm, was misleading. His explanation in cross-examination that he was thinking of the legal concept of bodily harm might have had some credibility, bearing in mind that he was charged with assault occasioning bodily harm, had it not been for the fact that he had attached to his 2022 submission the reference by Partner B portraying him as a long-term opponent of physical discipline. Had he wished to be candid with Blue Card Services, he could at the least have explained what happened in the way he had done in his 2019 affidavit (quoted in paragraph 26 above) instead of painting himself, in effect, as a person who would never engage in physical discipline.
  15. [86]
    On the other hand, I do acknowledge that in his affidavit prepared in 2023 for the tribunal proceeding SLH did obliquely admit to hitting the child by endorsing the version of events given by his then barrister in her submission to the police prosecutions corps.
  16. [87]
    Second, SLH’s comment in his 2022 submission that he had never displayed suicidal ideations or threatened self-harm is at odds with his comment in the 2020 statement and his 2021 affidavit that he told Partner A that he may as well kill himself. Even if this was a ‘throwaway comment’ meant to quieten Partner A, as SLH characterised it under cross-examination, it was clearly a suicide threat which alarmed Partner A according to SLH’s own detailed descriptions in his 2020 statement and his 2021 affidavit. 
  17. [88]
    Third, SLH’s evidence in cross-examination that he did not, in 2018, see the statement of reasons written by Blue Card Services in late October 2018, which quoted the 10 October 2018 submission, is inherently unlikely. SLH was aware that a negative notice was issued. While undoubtedly he had a lot going on in late 2018, in terms of criminal charges and domestic violence proceedings, it is hard to believe that he would not have sought out and examined the paperwork sent by Blue Card Services about its decision.
  18. [89]
    Fourth, his preparedness in cross-examination to suggest that Partner A may have doctored the 9 October 2018 letter by Ms Lane, until it was pointed out to him that this was inconsistent with other evidence that he had provided in 2022, indicates evasiveness.
  19. [90]
    Fifth, as described in paragraph 19 above, SLH in his 2022 submission to Blue Card Services attributed blame for the bail breaches to the complainants, describing them as ‘opportunistic’ on the part of his ex-wife and Partner A. This is a minimisation of personal responsibility.
  20. [91]
    I find that that SLH himself sent the 10 October 2018 email to Blue Card Services, attaching the final version of the submission which he had adapted and adopted, and attaching the medical certificate and the 9 October 2018 letter by Ms Lane. In making this finding, I am mindful of the serious adverse consequences for SLH. Assuming that the cautious approach to making such findings discussed by Dixon J in Briginshaw applies in SLH’s favour, I am nonetheless actually persuaded that he sent the email.
  21. [92]
    I have earlier noted the differences between the draft and the final submission in describing the incident on 19 September 2018. I find that SLH adapted the draft to arrive at the passage which I have already quoted but which bears repetition:

On the day of the incident [Partner A] and I got into an altercation where it became a wrestling match that went too far, and I had a mental breakdown and attacked her physically. I also suffered a number of suicidal ideations the same day and threatened self harm the same night because of my actions. I am still shocked and appalled at my behaviour. When I threatened to self harm [Partner A] made contact with QPS to assist maintaining my safety as well as her own.[60]

  1. [93]
    I do not accept SLH’s evidence to the tribunal that he merely acted defensively. SLH has retreated from his candour in 2018 when he admitted to a violent attack.
  2. [94]
    It is also apparent from Ms Lane’s 2022 letter that by that time he was reframing the violence as not violence at all. The implication in Ms Lane’s letter is that SLH attributed this reframing to what he had learned in a domestic violence course. That explanation is unconvincing. More probably he backtracked from initial feelings of shame and regret. I infer that in his 2022 submission SLH attempted to distance himself from his 2018 admissions of violence and suicidality after realising this approach had not worked.
  3. [95]
    Whether the violence was as extreme as described by Partner A cannot be ascertained on the available evidence. However, I find there was violence of some sort inflicted by SLH on Partner A and that he did not act merely in defence. There has been a pattern of denial or minimisation in relation to various matters, as I have discussed. This raises serious doubts about SLH’s credibility and trustworthiness. It cannot be known whether he has truly reformed when he now denies that he was ever violent. The retreat from candour also introduces serious doubt about whether the incident with his son was as benign as he portrays it.
  4. [96]
    While the risk posed by SLH to intimate partners is probably higher than the risk to children, I consider that there is nonetheless an ongoing risk of SLH acting in an uncontrolled way in responding to challenging behaviour by a child.
  5. [97]
    Mr Walkley, the forensic psychologist, was optimistic that future incidents of concern would not occur providing that SLH did not become immersed in a toxic and dysfunctional relationship exacerbated by financial pressure. That opinion seems reasonable. SLH says he is not in such a situation. However, in light of the credibility issues I have mentioned, I am not prepared to accept that in the absence of current corroboration from a source such as a treating psychologist or intimate partner.
  6. [98]
    It is not suggested that SLH’s offending as a juvenile in 1984 has a bearing on his suitability to work with children. SLH’s breaching of bail conditions on three occasions in 2018 has some bearing, in my view, notwithstanding the very modest sentence imposed. It demonstrates a preparedness to disregard lawful requirements.  
  7. [99]
    There are factors which favour SLH’s case, particularly:
    1. the passage of almost seven years since the charges were laid and the domestic violence proceedings commenced, without there being further charges or domestic violence proceedings;
    2. although choking is a disqualifying offence for blue card purposes, SLH has not been convicted of that offence;
    3. he has not been convicted of any offences of violence;
    4. he has not been subject to any final domestic violence orders;
    5. although two of the temporary domestic violence orders/notices extended protection to children, the proceeding in those cases and the other one were discontinued;
    6. SLH’s wife came with him to the hearing, which indicates that she remains supportive of him; and
    7. SLH has attended courses about domestic violence and raising children.
  8. [100]
    However, in view of the other matters I have outlined, these factors are not enough to dispel the concerns that arise about SLH’s trustworthiness, and his capacity for self-control. Significantly, he initially admitted being violent but he has later consistently denied this conduct. Capacity for self-control in stressful situations is, of course, essential in working with children. I do not consider that the community could have confidence that children would be protected were SLH permitted to have a blue card again. His is an exceptional case where it would not be in the best interests of children for SLH to have a blue card.

Conclusion

  1. [101]
    Accordingly, the tribunal confirms the decision of Blue Card Services that SLH’s case is an exceptional one.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2)(b).

[2]  [2025] QCAT 13.

[3]  Working with Children Act s 5.

[4] WJ v Chief Executive Officer, Public Safety Business Agency, [2015] QCATA 190, [17].

[5]  Working with Children Act ss 6, 360.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[7] Human Rights Act 2019 (Qld) s 26(2).

[8]  Blue Card Services’ submissions dated 11 April 2024, [94-96].

[9]  BCS128.

[10]  Exhibit 4, 85.

[11]  Exhibit 5, 150.

[12]  Ibid, 151.

[13]  Exhibit 2, 149.

[14]  Exhibit 5, 256.

[15]  Exhibit 2, 15.

[16]  Exhibit 2, 15.

[17]  Exhibit 5, 173.

[18]  Exhibit 2, 1.

[19]  Exhibit 4, 63.

[20]  Exhibit 4, 14-15.

[21]  Exhibit 5, 161.

[22]  Ibid, 82.

[23]  Exhibit 2, 3.

[24]  Ibid.

[25]  Exhibit 4, 77.

[26]  Ibid.

[27]  Ibid, 80.

[28]  Ibid, 88; Exhibit 2, 98.

[29]  Exhibit 2, 100.

[30]  Exhibit 4, 88.

[31]  Transcript, 1-62.

[32]  Ibid.

[33]  Exhibit 2, 116.

[34]  Exhibit 4, 85.

[35]  Transcript, 1-53.

[36]  Exhibit 4, 97.

[37]  Exhibit 5, 141.

[38]  Exhibit 4, 102.

[39]  Exhibit 2, 158

[40]  As I noted during the hearing, this stands for Men - Towards Equal Relationships.

[41]  Exhibit 2, 158.

[42]  Submissions on behalf of SLH dated 28 January 2025, [18].

[43]  Ibid, [19].

[44]  (1938) 60 CLR 336.

[45]  Ibid, 362.

[46]  Blue Card Services’ submissions dated 11 April 2024, [30].

[47]  [2021] QCATA 6, [16].

[48]  [2011] QCATA 87.

[49]  Ibid, [32].

[50]  Ibid.

[51]  [2015] QCAT 489, [89].

[52]  [2022] QCAT 127, [33].

[53]  [2025] QCAT 13.

[54]  See for example Blue Card Services’ closing submissions, [33].

[55]  See the discussion in Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [12-15], citing mainly Commonwealth cases.

[56] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 95(1)(b).

[57]  Blue Card Services’ closing submissions, [105(a)].

[58]  See Exhibit 2, 126.

[59]  Closing submissions in reply on behalf of SLH, [9(iii)(c)].

[60]  Exhibit 4, 77.

Close

Editorial Notes

  • Published Case Name:

    SLH V Director-General, Department of Justice (No 2)

  • Shortened Case Name:

    SLH V Director-General, Department of Justice (No 2)

  • MNC:

    [2025] QCAT 148

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    04 Apr 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
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
DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127
2 citations
Jump To
Cite 1 - [2022] QCAT 127
Cite 2 - [2022] QCAT 127
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
3 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
Cite 3 - [2021] QCATA 6
SLH v Director-General, Department of Justice [2025] QCAT 13
2 citations
Jump To
Cite 1 - [2025] QCAT 13
Cite 2 - [2025] QCAT 13
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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