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OXB v Department of Justice – Blue Card Services[2025] QCAT 204

OXB v Department of Justice – Blue Card Services[2025] QCAT 204

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

OXB v Department of Justice – Blue Card Services [2025] QCAT 204

PARTIES:

OXB 

(applicant)

v

department of justice – Blue card services

(respondent)

APPLICATION NO/S:

CML113-24

MATTER TYPE:

Childrens matters

DELIVERED ON:

27 May 2025

HEARING DATE:

17 April 2025

HEARD AT:

Ipswich

DECISION OF:

Member Jensen

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 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”.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant, family members and witnesses and accordingly the published reasons for decision in this proceeding are to be deidentified.

CATCHWORDS:

CHILDRENS MATTERS – BLUE CARD – where the Director General cancelled the applicant’s blue card and issued a negative notice – where the Director General refused the applicant’s application to cancel the negative notice earlier issued to the applicant – whether the applicant’s case is an “exceptional case” in which it would not be in the best interests of children for the applicant to hold a blue card

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 228, s 318, s 319, s 335, s 337, s 338

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

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

Kent v Wilson [2000] VSC 98

OAA Re [2006] QCSA 14

Perry and Browns Patterns (1993) 48 RPC 200

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr Gochette

REASONS FOR DECISION

The issue

  1. [1]
    The applicant was previously issued with a working with children clearance (a “blue card”).
  2. [2]
    On or about 3 September 2020, the respondent made a decision to cancel the blue card and issued a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the “WWC Act”).
  3. [3]
    On 13 October 2022, the applicant filed an application to cancel the negative notice earlier issued to her.
  4. [4]
    Pursuant to s 221 of the WWC Act, the decision-maker must issue a blue card unless satisfied that an “exceptional case” exists and that it would not be in the best interests of children to do so. The respondent assessed this later application and on 23 April 2024 made a decision to refuse to cancel the negative notice for the reason that the applicant’s case is an exceptional case (the “Decision”).   
  5. [5]
    On 26 April 2024, the applicant filed an application in this tribunal to review the Decision.
  6. [6]
    The issue therefore is whether the tribunal (“standing in the shoes of the authorised officer”) is satisfied that this is an “exceptional case”.

The relevant legal principles

  1. [7]
    The assessment of whether a person is to be issued with a blue card is carried out under the provisions of the WWC Act:
    1. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring the development and implementation of risk management strategies and the screening of persons employed in particular employment or carrying on particular businesses;[1]
    2. The WWC Act is to be administered under the principles that the welfare and best interests of a child are paramount (the “paramount principle”) 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;[2]
    3. Under s 221(1) of the WWC Act, the decision-maker must issue a working with children clearance if the decision-maker is not aware of any “relevant information” about the applicant; or is not required to issue a negative notice to the person under s 221(2) of the WWC Act.
    4. Under s 221(2) of the WWC Act, the decision-maker must issue a negative notice to the person if the decision-maker is aware of “relevant information” about the person and is satisfied it is an exceptional case in which it would not be in the best interests of children for the decision-maker to issue a working with children clearance to the person.
    5. Under s 221(3) of the WWC Act, “relevant information” for the purposes of ss (1) and (2) is:
  1. Information that the person has–
  1. a charge for an offence other than a disqualifying offence; or
  1. a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. a conviction for an offence other than a serious offence;
  1. investigative information;
  1. domestic violence information;
  1. disciplinary information
  1. adverse interstate WWC information;
  1. other information about the person that the decision maker reasonably believes is relevant to deciding whether it would be in the best interests of children for the decision maker to issue a working with children clearance to the person.
  1. Under ss 226(1) and (2) of the WWC Act, in deciding whether or not there is an exceptional case for the person and if the decision-maker is aware that the person has been convicted of, or charged with an offence, the decision-maker must have regard to the following:
  1. in relation to the commission, or alleged commission, of an offence by the person:
  1. whether it is a conviction or a charge; and
  1. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. when the offence was committed or alleged to have been committed; and
  1. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. in the case of a conviction – the penalty imposed by the court… and the reasons for its decision.

Further information as set out in paragraphs (b) to (e);

Anything else relating to the commission, or alleged commission, of the offence that the decision-maker reasonably considers to be relevant to the assessment of the person.

  1. Under s 228 of the WWC Act, in deciding whether or not there is an exceptional case for the person and if the decision-maker is aware of domestic violence information about the person or other information the decision-maker reasonably believes is relevant to deciding whether it would be in the best interests of children for the decision-maker to issue a working with children clearance to the person the decision-maker must have regard to the following matters in relation to the information:
  1. if aware of domestic violence information about the person–the circumstances of a domestic violence order or police protection notice including the conditions imposed on the person by the order or notice;

……

  1. the length of time that has passed since the event or conduct the subject of the information occurred;
  1. the relevance of the information to employment, or carrying on a business, that involves or may involve children;
  1. anything else relating to the information the decision-maker reasonably believes is relevant to the assessment of the person. 
  1. [8]
    Under Schedule 7 of the WWC Act, a
    1. “charge” means a charge in any form including a notice to appear served under the Police Powers and Responsibilities Act 2000.
    2. “conviction” means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.
  2. [9]
    A review of a reviewable decision must be decided in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”) and the WWC Act.[3]
  3. [10]
    In exercising its review jurisdiction, the tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[4]
  4. [11]
    The purpose of the review is to produce the correct and preferable decision from a process that requires the tribunal to hear and decide the review by way of a fresh hearing on the merits.[5]
  5. [12]
    There is no onus on the decision-maker to convince the tribunal that on the balance of probabilities the applicant’s case was an exceptional case such that it would harm the best interest of children for her to have a blue card. The tribunal is required to determine whether an exceptional case exists or not after evaluating all available evidence before it without any party bearing the onus of proof that an exceptional case exits.[6]

Background

  1. [13]
    It is not disputed that:
    1. The applicant was born on 24 December 1995. Her son was born on 21 September 2018;
    2. On or about 8 May 2018, the applicant was given a notice to appear in court on a charge of common assault on that day. The allegations were that the applicant took her vehicle to a mechanic for servicing. The applicant and the mechanic argued about the quality of the servicing given to her motor vehicle. The applicant then left the mechanic’s premises after the argument to return about 10 to 20 minutes later to commit the assault which consisted of the applicant pushing the mechanic in the back causing him to stumble. It was alleged that the applicant’s de facto partner also arrived at the premises and became aggressive towards the mechanic; and that there was verbal abuse by the applicant towards the mechanic and towards the police. The applicant was, at the time, the holder of a blue card (issued on 22 March 2016). She was also pregnant when this incident occurred;
    3. On 11 May 2018, the Queensland Police Service notified the respondent that the applicant’s police information had changed namely that the applicant had been charged with common assault arising out of the incident on 8 May 2018;
    4. On 12 June 2018, the common assault charge was dealt with by the court after a guilty plea. The applicant was released upon giving a $600 recognisance and conditioned to be of good behaviour for a period of 12 months. No conviction was recorded;
    5. On 26 November 2018, the respondent reassessed the applicant’s eligibility to hold a blue card and decided to continue the blue card that had previously been issued to the applicant;
    6. On or about 14 and 15 January 2020, the applicant engaged in domestic violence against her then de facto partner at their home to which their 15-month son was exposed. All three were living together at the time. After being contacted by the applicant, the police issued a protection notice on 15 January 2020 naming the applicant as respondent, her partner as aggrieved and stating that their child has been exposed to domestic violence with the allegation that the respondent was using the child during arguments. The protection notice was made returnable in the Ipswich Magistrates Court on 20 January 2020;
    7. On 20 January 2020 upon application by the police, the court made a temporary domestic violence order naming the applicant as respondent and her de facto partner and her child as aggrieved. The applicant and her partner separated at the end of January 2020, after the domestic violence incident;
    8. On 23 June 2020, the applicant was given a notice to appear in the Ipswich Magistrates Court (on 17 July 2020) upon a charge of leaving her son unattended while she said she went shopping;
    9. On 25 June 2020, the Queensland Police Service notified the respondent that the applicant’s police information had changed namely that the applicant had been charged with leaving a child under 12 years unattended;
    10. On 17 July 2020, the court dealt with this charge of leaving the child under 12 years unattended, with the applicant appearing via telephone. The orders made this day were supplanted by those made on 28 August 2020;
    11. On 20 July 2020, the temporary domestic violence order became a final order that remained in force until 19 January 2025;
    12. On 28 August 2020 (after having applied to the court to reopen the case of leaving a child under 12 years unattended) and after appearing in person this time, the applicant was ordered to pay a fine of $500 and the conviction was recorded. These orders supplanted those made on 17 July 2020;
    13. On or about 3 September 2020, the respondent reassessed the applicant’s eligibility to hold a blue card, and this time cancelled the blue card and issued a negative notice. The police information available to the decision-maker was:[7]
      1. The common assault conviction on 12 June 2018; 
      2. An outstanding charge against the applicant of leaving a child under 12 years unattended on 23 June 2020;
      3. That police had applied for domestic violence orders as of January 2020 which listed the applicant as the respondent;[8]
    14. On 7 September 2020, the applicant provided written submissions in response to her blue card cancellation and the issue of a negative notice;
    15. On 8 September 2020, the applicant filed in the tribunal a review application of the decision of 3 September 2020;
    16. On 13 January 2021, the Queensland Police Service disclosed domestic violence orders information to the decision-maker in relation to the applicant that she was the:
      1. aggrieved in a domestic violence order issued by the Richlands Magistrates Court on 7 April 2016 and which had expired on 6 April 2017;
      2. aggrieved in a domestic violence order issued by the Richlands Magistrates Court on 30 May 2019 and was due to expire on 29 May 2024; 
      3. respondent in a domestic violence order made on 20 July 2020 issued by the Ipswich Magistrates Court which was due to expire on 19 January 2025;
    17. On 6 April 2021, the applicant withdrew her review application which was effective on 19 April 2021;
    18. On 13 October 2022, the applicant filed an application to cancel the negative notice earlier issued to her and was invited to make submissions about whether or not her case was an “exceptional case”; 
    19. On 26 October 2022, the Queensland Police Service disclosed domestic violence information to the decision-maker in relation to the applicant as respondent and her son as one of the aggrieved as follows:
      1. The police protection notice effective from 15 to 20 January 2020;
      2. The temporary protection order made on 20 January 2020; and
      3. The final protection order made on 20 July 2020 (which was to expire on  19 January 2025);
    20. On 8 February 2023, the applicant provided a written submission in support of her tribunal application; 
    21. On 23 April 2024, the respondent made the Decision. Included in the information available to the decision-maker was:
      1. Criminal convictions for–
        1. common assault on 12 June 2018 (conviction not recorded); and
        2. leaving a child under 12 unattended (conviction on 28 August 2020) after a re-opening of the case;
      2. The domestic violence information previously provided in 2021 and 2022 as mentioned above;
    22. The offences for which the applicant has been convicted do not fall into the category of “serious” or “disqualifying” offences under the WWC Act. Nevertheless, the information regarding the applicant’s criminal history and the domestic violence are to be considered in determining her eligibility to work with children in regulated employment;
    23. On 24 April 2024, the applicant filed an application in the tribunal to review the Decision.  

Life story

  1. [14]
    The claimant says that from 2018 to 2020 she made terrible decisions which she now regrets and that since 2020 she has gone through self-reflection and identified areas of weakness that she needs to improve. Her life story as presented in this review application is as follows:

I am from Liberia, West Africa. My family and I were fortunate enough to migrate to Australia in 2004. I lived majority of my childhood and teenage years in Coffs Harbour, NSW. I went to a private Christian school and grew up in a Christian family. I never got into trouble with the law during my time in Coffs harbour, I was a law-abiding citizen. I moved to Queensland in 2015 after I Graduated from high school because I had gained entry into Southern cross university in gold coast to study Bachelor of business. It was also during this timeframe that I began dating my son's father. Life In gold coast was quite lonely, as I didn't know anyone and also, I wasn't really passionate about my business degree after the first semester. I decided to move Brisbane and stay with my son's dad and his family. Later during the year My son's dad mom passed away due to breast cancer, after this we began living together on our own. It was after his mother's death that things in the relationship became more chaotic where law enforcement was being called. In 2016, I did my certificate 3 course in disability and aged care than began working as a personal care working. I really enjoyed working as a carer, so I later decided to try for my nursing degree, but I have been unable to finish due to my poor decision making that lead to the cancellation of my blue card. From 2018 - 2020 was during the timeframe where I made terrible decisions that I truly regret. These decisions resulted in negative effects for my son, his dad and the mechanic. From 2020 until now I have gone through self-reflection and identified areas or weakness that I need to improve. Some of these areas include my communication techniques, de-escalation techniques, appropriate decision making and just my overall approach to situations. It weird because I know and do all this within my professional work life but didn't know I was not enacting them in my personal life. I Know for a fact that it would not be sustainable for the community and my loved ones to continue living and making choices like the way I used to. I can't be responding and approaching situations like I used to. I have become more self-aware and more mature. I do not have a lot of family support In Brisbane as majority of my family are in NSW and Melbourne; I do have my two brothers and cousin in Brisbane whom help out whenever they can. I was lucky to meet an amazing family day care operator in 2020, and they have become like a second family to my son and I. They have been in our lives since 2020. I don't have a large support system, as I am more of an introvert but I do have a few people can call upon for support. I have made some terrible life choices that I truly regret. I am however doing everything I can to make sure I make better choices.

Consideration

Legal principles in relation to an “exceptional case”

  1. [15]
    The respondent must issue a blue card unless satisfied that an “exceptional case” exists in which it would not be in the best interests of children to do so.
  2. [16]
    The term “exceptional case” is not defined in the WWC Act. In Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 (“FGC”) at paragraph [28] it was contended that the term “exceptional case” should have a special meaning being interpreted in a special sense, referable to principles which have been brought across from the family law jurisdiction relating to access to and contact with children and applied in an earlier decision of the Queensland Childrens Services Tribunal in the decision of OAA Re [2006] QCSA 14 at [41]. However, the appeal tribunal in FGC said that the proper approach was to apply the term in each particular case, unhampered by any special meaning or interpretation. The appeal tribunal said the following:

[31] 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 children.[9] 

[32] 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’.[10]

[33] 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. [17]
    Whether “satisfaction” that an exceptional case exists under s 221(2) of the WWC Act involves how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children. Does the applicant have the ability to act protectively of children and young people who may be in her care or does she pose a potential risk to them? Refer to Director-General, Department of Justice and Attorney General v CMH[11] where it was said:

Further, the relevant question in the present case is whether the Tribunal, standing in the shoes of the Chief Executive, is satisfied that it is an ‘exceptional case’. If the chief executive is so satisfied, then a negative notice must be issued to the person.[12] To the extent that it is necessary to make findings in relation to past conduct, the Tribunal might consider evidential principles and take into account the considerations outlined in Briginshaw.[13] However, the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children.

  1. [18]
    Therefore, what is an exceptional case is a matter of discretion with each case to be considered on its own facts and applying the paramount principle. This requires taking a qualitative approach to the risk and protective factors and not a just doing a balancing of the two countervailing sets of factors (giving equal weight to both) to identify whether an exceptional case exists.[14]
  2. [19]
    Based on the applicant’s life story and statements made in other documents, the respondent submits “it appears that the Applicant seeks a blue card because it is required for her to complete a nursing degree.” The respondent further submits that this is not a relevant factor in determining whether the applicant’s case is an “exceptional case” because this is a protective jurisdiction by reason of the paramount principle. Below is the passage taken from page 2 of the applicant’s life story:

In 2016, I did my certificate 3 course in disability and aged care than began working as a personal care working. I really enjoyed working as a carer so I later decided to try for my nursing degree, but I have been unable to finish due to my poor decision making that lead to the cancellation of my blue card. From 2018 - 2020 was during the timeframe where I made terrible decisions that I truly regret.

  1. [20]
    I agree with the respondent that this is not a relevant factor for consideration. First, statements about studying nursing are part of the background only and give context and a chronology to the applicant’s life story. Second the paramount principle is to be applied in these review hearings. 

Section 226(2) of the WWC Act

  1. [21]
    Whether the offence is a conviction or a charge – The respondent relies on information regarding the:
    1. common assault conviction on 12 June 2018;
    2. leave child under 12 years unattended conviction on 28 August 2020; and
    3. applicant’s traffic history.
  2. [22]
    The applicant does not dispute that the above offences occurred.
  3. [23]
    The respondent submits that the applicant’s traffic history (which the applicant does not dispute) includes numerous speeding infringements in addition to a variety of other miscellaneous traffic infringements. The submission is that this demonstrates a carelessness or a disregard for rules designed to keep road users, including children, safe.
  4. [24]
    The applicant’s traffic history reveals she was given a 12-month good driving behaviour period on 23 January 2018 for accumulation of demerit points and a six-month suspension on 13 February 2019 also for accumulation of demerit points. In the last five years, the applicant has acquired six demerit points (with the last offence on 18 February 2021 incurring one demerit point for speeding) which is indicative of an improved approach to driving and compliance with the road rules. The applicant’s driving history shows a reasonable improvement in the last five years and three out of the four offences during that five-year period (each incurring one demerit point) are at the less serious end of the scale. 
  5. [25]
    Whether the offence is a serious or disqualifying offence – None of the offences for which the applicant has been convicted are defined as serious or disqualifying offences under the WWC Act.
  6. [26]
    When the offence was committed or is alleged to have been committed – The offending occurred in 2018 and 2020. The respondent submits that the passage of time without offending is not of itself conclusive that the risk of harm to children is reduced. This can sometimes be the case, however, in this instance, I place a some weight on the passage of time because of the change in the applicant’s circumstances which indicates that the lifestyle factors at the relevant time have been eliminated, in particular the ending of the de facto relationship with her son’s father in January 2020. 
  7. [27]
    The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children – The respondent states that the facts of the common assault were as follows at paragraph 53 of its submissions:

On 12 June 2018, the Applicant was convicted of one count of common assault. The police brief of facts reveals that on 08 May 2018 the Applicant attended an automotive mechanic business as she had booked a service for her car. The victim completed the service, and no other work was performed. The Applicant watched the victim perform the service and brought her own oil to be used in the service. The Applicant left the business and returned some 10 to 15 minutes later and complained that the victim had deliberately sabotaged her vehicle to gain more business. Soon after a person believed to be the Applicant's partner arrived and was aggressive and abusive toward the victim and said that if the victim did not fix the vehicle, then he would have bigger issues. The Applicant said she would smash the workshop up, and that he was lucky he did not live in Africa as they did things differently and would smash the victim's head in. The Applicant continued to be aggressive and said she wanted to throw her phone at victim. Police were called and arrived a short time later, they observed the Applicant to leave in her car. Some 10 to 20 minutes later the victim saw the Applicant return and take photographs of vehicles outside the business. The Applicant approached the victim and verbally abused him. The Applicant motioned toward the victim as if to attack him. The Applicant pushed the victim. The Applicant's presumed partner said they would be back.

When police tried to speak with the Applicant, she was belligerent and would not listen to the reason she was at the station and continued being argumentative and aggressive. The Applicant was noted to continue to be aggressive, loud and obnoxious. The Applicant refused to acknowledge what was being explained to her, refused to take the notice to appear and was verbally telling police they were racist.

  1. [28]
    In relation to the conviction of leaving a child under 12 unattended, the respondent states also at paragraph 53 of its submissions that:

On 17 July 2020, the Applicant was convicted of one count of leaving a child under 12 unattended. The police brief of facts reveals that on 12 June 2020 at approximately 2:30pm, police attended the Applicant's address in relation to a young child being left alone. The police were notified the child was left alone by a 000 call. Police arrived to find the victim child with two adults (the witnesses) at the front of the house. The witnesses stated that they became aware of the child after they heard crying for approximately 45 minutes before contacting police. The witnesses said they attended the address, and the victim child was just inside the door and crying. Police called the Applicant who said she was at the shops by herself. A short time later the Applicant returned home. Police asked what arrangements she had made for the child, with the Applicant stating there was none. The victim child was alone for an hour.

  1. [29]
    With respect to the relevance of the above offences to employment or carrying on a business that involves or may involve children, the respondent submitted at paragraph 54 to the effect:
    1. The conviction for leaving a child under 12 unattended on 12 June 2020 raises serious questions about the extent to which the applicant recognises and understands appropriate behaviour, conduct and boundaries when looking after children and further to the extent to which the applicant may pose a risk to the welfare and best interests of children; 
    2. The offending raises questions about the applicant’s ability to manage her anger, regulate emotions, judge appropriate behaviour, exercise sound judgement and respond to situations of stress or conflict in a manner that is rational and law abiding;
    3. The offending displays the applicant is not a positive role model to children.
  2. [30]
    In relation to the conviction for leaving a child under 12 unattended, the applicant’s evidence is that she was a first-time parent and doing her best. She states that she was home with her son and that he had been unwell through the week. He was suffering from a constant flu/chest infection so the doctor would give him repeat scripts. She states that it was while her son was sleeping that she drove to the chemist to restock on his medicine. She states that the chemist was not far away from where she lived, but she did not take into account traffic and the possibility of the chemist being busy. It was during her absence that her son managed to open the front door and walk outside to the front of the home. It is not disputed that the applicant was absent for approximately one hour. The applicant admitted in evidence to having also gone shopping in Woolworths.
  3. [31]
    The conviction for leaving a child under 12 unattended is clearly child related. The incident itself exposed the applicant’s son to risks such as dangerous equipment inside the home, wandering onto the nearby road where there is traffic or vulnerability to strangers. This conviction is relevant. I take it into account and the submission by the respondent. However, I give it reduced weight in relation to its relevance to employment or carrying on a business that involves or may involve children, as follows:
    1. The undisputed evidence is that:
      1. the applicant entered a guilty plea to the charge;
      2. this was a one-off incident; a spur of the moment decision, and that this is the only time her son has been left unattended;
      3. some days or weeks after the incident, the police showed up to the home and did a follow up check to make sure everything was in order and then departed;
      4. the applicant recognises her mistake in judgement and has taken measures to ensure her son is well taken care of and supervised at all times including by his father, family day care, trusted family or friends;
    2. The applicant gave evidence that this was a one-off mistake in judgement and that she loves children and would never intentionally hurt them. I am satisfied, from the applicant’s demeanour during the hearing, that this is credible evidence and that she has taken actions that mitigate the future risk to the welfare and best interests of children. Also, it was never contended by the respondent that the applicant intended to place her son in danger.
  4. [32]
    In relation to the first conviction of common assault in 2018, it is observed that this information was referred to the respondent who reassessed the applicant and decided to continue with the blue card. I infer from this decision that the respondent did not consider this offence (when taken alone) to be material when coming to the decision on 26 November 2018. However, for the purposes of this review, I consider all offending to be relevant, which includes the common assault in 2018. 
  5. [33]
    The applicant says in her evidence that she made terrible decisions that she truly regrets. I accept this evidence because I found the applicant to have given truthful evidence at the hearing. Furthermore, her conduct supports this as there have been no criminal convictions since August 2020 and the domestic violence order expired in January 2025, without incident.
  6. [34]
    The criminal offending occurred over a specific timeframe between 2018 and 2020. By entering pleas of guilty, the applicant acknowledged her guilt for these offences in a timely way.  
  7. [35]
    I do not accept the contention that the applicant’s offending means that she is now not a positive role model for children. First, the applicant’s evidence is that she has grown and matured over the years, analysed her mistakes and identified areas she needs to work on. Second, there are four references provided by the applicant which I have had regard to.
    1. AD (known the applicant for some years) says that the applicant is very thorough at work; is very caring to the client; her punctuality is great and that she is commended for sheer hard work as a disability worker;
    2. PM (known the applicant for several years) says that the applicant has a good work ethic and that she is respectful;
    3. IE (known the applicant over the past few years) says that the applicant is meticulous and passionate in her work and that she has excellent human relationships;
    4. TB (known the applicant for many years) says that the applicant always demonstrated a positive and present role model within the church; that she has demonstrated great leadership skills and is ready to help and show support at all times. He says she is a respectful individual who demonstrates good work ethics and is well mannered, caring and professional.
  8. [36]
    I take into account that none of the references acknowledge being aware of the applicant’s criminal record, traffic history or the domestic violence order and ordinarily I would give them reduced weight for that reason. However, in this instance, the references speak highly of the applicant in particular over the past five years and I am satisfied they are relevant to her being a positive role model for children. I am therefore satisfied that they should be given weight.
  9. [37]
    In the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 357, the court’s reasons for its decision – Paragraph 9.5 of the Decision provides that the Court’s reasons for imposing the penalties it did (in relation to the common assault and the leave child under 12 unattended) were not sought as the penalties imposed are not so significant as to materially affect the Decision.
  10. [38]
    The common assault was the applicant’s first offending as stated in the reasons at line 15. The applicant was not fined for this offence. The Magistrate took into account the plea of guilty and the fact that the applicant had no other history and released the applicant upon entering into a recognisance of $600 on condition that she keep the peace and be of good behaviour for 12 months, without recording a conviction. There is no evidence before me that the applicant was required to hand over the $600 and I therefore infer that she was not in breach of her commitment to the court. As evidenced by the penalty, the magistrate regarded this offence at the less serious end of the scale of offences. 
  11. [39]
    As to the leave child under 12 unattended offence, the applicant entered a plea of guilty and was fined $500 with the conviction being recorded. The Magistrate’s reasons comprise six lines and the respondent submits that they suggest doubt over the applicant’s contention that it was “a 10 – 15 minute run to the chemist and back home”. However, I do not place a lot of weight on these reasons because the Magistrate also stated in the reasons: “I think we are all aware of the tragedies that can occur if kids are left unattended in a car”.
  12. [40]
    Any information about the applicant provided under sections 318, 319, 335, 337 or 338 of the WWC Act – The respondent submits that no information has been requested or received pursuant to these sections given they are not relevant or applicable to this matter. On a consideration of the material before me, I accept this submission.
  13. [41]
    Any other factors relevant to the police information are discussed below.

Section 228(2) of the WWC Act

  1. [42]
    Nature of the information, including the circumstances and gravity of the behaviour – The information provided to the respondent shows that the applicant is named as respondent in the police protection notice, the temporary protection order and then final domestic violence order. The notice and the orders name the one aggrieved (the applicant’s then de facto partner) they also had a child under the age of ten named (the applicant’s son).
  2. [43]
    As to the circumstances and gravity of the behaviour the subject of the information, the respondent provides the following evidence at paragraph 62 of its submissions being the grounds for a protection order as taken from the police protection notice dated 15 January 2020:

a) As of 15 January 2020, the Applicant was described as having a 15-month-old child.

b) On 14 January 2020, the Applicant was arguing with the aggrieved. The Applicant took the child into the main bedroom and refused to allow the aggrieved to spend time with the child. There was damage to a wall, which the Applicant said occurred while the aggrieved forced his way into the bedroom and removed the child. The aggrieved said the damage occurred while the Applicant attempted to take the child from him in an aggressive manner and he braced himself against a wall. The police observed the damage and said it appeared consistent with the aggrieved's version of events (i.e., not the Applicant's version of events).

c) Later on 14 January 2020, the aggrieved returned home after work and the Applicant locked him out of the house. The aggrieved recorded the Applicant securing the door with objects. The Applicant further deactivated the garage door to prevent the aggrieved from entering. Police viewed the recording and noted the aggrieved appeared calm. The aggrieved slept in his car.

d) On 15 January 2020, the aggrieved attempted to enter the house with his key. The Applicant prevented him from doing so. The aggrieved then turned the power off to the house causing the Applicant to exit and allowing the aggrieved to enter. The aggrieved recorded himself entering the house, collecting his son and leaving. No abuse or threats were made by him.

e) Later on 15 January 2020, the Applicant has contacted police alleging that the aggrieved has forced entry to the dwelling and threatened her. The Applicant said she wanted the aggrieved removed from the dwelling permanently. The Applicant insisted that as she had a prior domestic violence order naming her as the aggrieved, then the current aggrieved must be wrong. The Applicant provided several versions of events to police, with each account alleging increasing degrees of violence. The Applicant said the aggrieved threatened her and she could produce a recording. The recording was viewed by police and no threats were identified.

f) Police formed the viewed that the Applicant was attempting to use a prior domestic violence protection order naming her as the aggrieved to control and intimidate the then current aggrieved. Police also formed the view that the Applicant had used the child in an attempt to control the then current aggrieved. The Applicant had an aggressive demeanour when served with the police protection notice.

  1. [44]
    The police application was heard by the Ipswich Magistrates Court on 20 January 2020 when a temporary protection order was made “by consent and without admissions” that:
  1. The respondent (OXB) must be of good behaviour towards the aggrieved (PXB, her de facto partner) and not commit domestic violence against the aggrieved.
  1. The respondent (OXB) must be of good behaviour towards the child (CXB – the child of OXB and the de facto partner) must not commit associated domestic violence against the child and must not expose the child to domestic violence.
  1. [45]
    The temporary order continued in force until the final protection order was made on 20 July 2020 on the same conditions as the temporary order (and was also made “by consent and without admissions”) to remain in force until 19 January 2025.
  2. [46]
    The applicant’s (OXB) version of the incident is to the effect that a discussion about repairing a hole in the wall in the child’s bedroom escalated into to a hurtful argument causing her to take the child into her room. The aggrieved person then used force against the door to enter which resulted in damage on his side of the door. The applicant’s evidence is that the aggrieved person managed to take the child and ran outside and got in his car and drove away at which time she called the police. The applicant does not state the date on which this incident occurred, but the photo taken of the damaged door is date stamped 15 January 2020.
  3. [47]
    The order being made “by consent and without admissions” creates a degree of ambiguity in relation to the facts of the incident. It could be inferred from the words “by consent” that the facts are agreed upon when the orders were made. By contrast, it could also be reasonably inferred from the words “without admissions” that the facts are not necessarily agreed and that the respondent is only agreeing to the order as a way of disposing of the application without further stress and inconvenience. In this instance, because the temporary and final protection orders were made based on the version of events presented by the police, even though stated to be “without admissions”, I place more weight on the police version than the version presented by the applicant in these review proceedings.
  4. [48]
    Length of time that has passed since the event or conduct – It is not disputed that the incident occurred on or about 15 January 2020.
  5. [49]
    Relevance to employment or carrying on a business that involves or may involve children – The respondent submits that the protection order raises questions about the applicant’s ability to act protectively of children and young people, and the degree to which the applicant may pose a risk to the welfare and best interests of children and young people who may be in her care. The respondent submits that children are inherently vulnerable and that their welfare depends upon adult carers being able to recognise risk and act in an appropriate and protective manner. It is further submitted that a person working with children must be vigilant in their protection of children in their care.
  6. [50]
    The applicant gave evidence that, after the incident, she left the house and went to live with her brother and his partner until she was able to find a place to live. She says that since the incident, she and the child’s father co parent and that she is more self-aware and has better conflict management approach and is improving her communication, which the applicant admits could have been a contributing factor to the parties’ difficulties.

Other relevant information

  1. [51]
    The respondent has submitted that the following matters are also relevant when determining if the applicant’s case is an “exceptional case” in which it would not be in the best interests of children for her to be issued with a blue card:
    1. The respondent does not necessarily accept that the respondent’s period of self-reflection has resulted in improvements and how they have impacted and will impact the applicant’s decision-making in the future remains unclear;
    2. The respondent’s (lack of) forthrightness regarding the time absent from her son when going to the chemist;
    3. The respondent’s (lack of) insight into the harm that was caused or could have been caused by her conduct which is regarded as a protective factor;
    4. The transferability of a blue card. 
  2. [52]
    In a document dated 8 February 2023 the applicant said:

I have matured in ways that I did not know I was lacking. I am more self-aware and not so naïve. I now analyse every decisions I make especially when it comes to my sons and make sure there will be no negative outcome…..

I now make sure there is always alternative care arrangement in place for my son….

I am doing my absolute best to try and be a great mother to my son and created a better foundation for him to grow and flourish in life. He is now 4 and just started kindergarteen [sic] and is excited to start big school next year. I will never ever put him in that situation again, will always make sure he is with supervision.

  1. [53]
    I am satisfied from the evidence that the passage of time since the offending without incident; the applicant’s period of self-reflection and genuine remorse; her change in personal circumstances and the arrangements made for the care and welfare of her child establish that the factors that gave rise to the offending have now been eliminated enabling an improved decision-making now and into the future. 
  2. [54]
    The applicant states in her email to the respondent dated 19 August 2020 that “….my son fell asleep and that’s when I made the bad decision to not wake him up and a quick run to shops to get more Panadol and food which was a 10-15 minute drive from the house.” The respondent argues this statement displays a lack of candour on the part of the applicant. However, I am not satisfied that it does. First, the applicant admitted to police (who came to the home on the day and who recorded the incident on body cam) that she was absent from the home for “a bit over an hour” and was shopping at a local shopping centre. A 10-15 minute drive each way from the home to the shopping centre plus allowances for worse than expected traffic conditions, parking at the centre and shopping time is not inconsistent with a one-hour absence. At the hearing, the applicant also admitted to shopping at Woolworths that day which further explains her period of absence from the home.
  3. [55]
    As to insight, there is also the applicant’s evidence from statements provided including the one extracted above dated 8 February 2023 which I am satisfied shows insight into the harm that was caused by her behaviour. At the hearing, the applicant also gave evidence that she had a lot on her plate back then and would not put any child under her care at risk. In relation to the common assault conviction, the applicant’s evidence at page seven of her submissions is that her actions were “not appropriate and I had no right putting my hand on another individual. However, I know better now; I know that violence and more conflict is never the solution, there are better problem solving options.” I find that the applicant’s demeanour during evidence at the hearing was one of a truthful and sincere person and of a person who showed genuine insight that her prior behaviour was wrong and was regretful for it. An example is her statement titled “Response to Blue Card Services”

I have made some terrible choices that I am not proud of. I allowed myself to stay in a toxic relationship that exposed my son to domestic violence without considering the potential impact it may have on his development. I reacted to a situation with more conflict and violence instead of using a more appropriate deescalating and civil approach. And the worst of all, I left my son unsupervised when it is my duty to supervise, protect and care for him at all times. I wish I could go back in time and fix all these mistakes, but I will definitely be making better and wiser choices that will not negatively affect others. I was young and immature, learning and going through a lot during these times. I have since grown and matured over the years, analysed my mistakes and identified areas I needed to work on.

  1. [56]
    As to the transferability of a blue card as being relevant as to whether the applicant’s case is an exceptional case, I am satisfied it is relevant and have taken it into account,  but do not place much weight on it. 
  2. [57]
    The respondent submits that the relevant information raises questions about the applicant’s ability to exercise restraint, respond to stressors in a rational and lawful way and engage in appropriate conflict resolution. The respondent further submits that although the applicant says that she can handle situations better, she does not say how she would do that. However, without limiting any reasons already stated, I am satisfied from the evidence that:
    1. The applicant was 22 years of age when she committed the common assault and 24 years of age at the time she committed domestic violence and the offence of leaving a child under 12 unattended. The common assault conviction and the domestic violence order occurred when the applicant was in a de facto relationship which ended in January 2020. This is not to downplay the applicant’s poor behaviour or to deflect blame but only to put her behaviour in the context of having occurred when she was in what she describes as a “toxic relationship” which ended in January 2020; 
    2. The offence of leaving a child under 12 unattended was a one-off mistake in judgement and is not part of a pattern of behaviour of that type;
    3. The offending occurred over a specific time frame which is confined to the years 2018 and 2020 when she was reasonably young and in her early twenties. I am satisfied that the applicant has shown increasing maturity since then;
    4. The applicant:
      1. is living in a stable environment;
      2. has identified areas of weakness and made improvements including communication techniques, de-escalation techniques, appropriate decision making and “her overall approach to situations”. This is supported by her evidence, both written and oral, and the fact that there is no evidence of poor behaviour on her part since mid-2020. I am satisfied that the protective factors are sufficiently developed;
      3. is a person who cares for children and that her son is in a safe living environment;
    5. The domestic violence order has expired;
    6. The applicant has the ability to act protectively of children and young people who may be in her care and that the protective changes made by the applicant are sufficiently developed to mitigate risk.
  3. [58]
    For the reasons given in this decision, I am satisfied that the correct and preferable decision is that the applicant’s case is not an “exceptional case”. 

Orders

  1. [59]
    The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 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”.
  2. [60]
    Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly the published reasons for decision in this proceeding are to be deidentified.

Footnotes

[1]WWC Act s 5.

[2]Ibid ss 6, 360.

[3]QCAT Act s 19(a).

[4]Ibid s 19(c).

[5]Ibid s 20.

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

[7]Reasons for decision dated 3 September 2020, pages 6 and 7 of 8.

[8]This had been dealt with finally on 20 July 2020.

[9]See, eg, Kent v Wilson [2000] VSC 98, [22] (Hedigan J).

[10]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [34] (“Maher”), adopting the approach of Luxmore J in Perry and Browns Patterns (1993) 48 RPC 200.

[11][2021] QCATA 6, [16].

[12]WWC Act s 221(2).

[13]Briginshaw v Briginshaw (1938) 60 CLR 336.

[14]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

Close

Editorial Notes

  • Published Case Name:

    OXB v Department of Justice – Blue Card Services

  • Shortened Case Name:

    OXB v Department of Justice – Blue Card Services

  • MNC:

    [2025] QCAT 204

  • Court:

    QCAT

  • Judge(s):

    Member Jensen

  • Date:

    27 May 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
Children and Young People and Child Guardian v Maher (1993) 48 RPC 200
2 citations
Jump To
Cite 1 - (1993) 48 RPC 200
Cite 2 - (1993) 48 RPC 200
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 Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [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
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
2 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
McClintock v Queensland Building Services Authority [2006] QCSA 14
2 citations
Jump To
Cite 1 - [2006] QCSA 14
Cite 2 - [2006] QCSA 14

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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