CITATION:	WSN [2017] QCAT 333	
PARTIES:	WSN
(Applicant)	
	v	
	Director-General, Department of Justice and Attorney-General
(Respondent)	
APPLICATION NUMBER:	CML079-17	
MATTER TYPE:	Children’s matters 	
HEARING DATE:	14 August 2017	
HEARD AT:	Brisbane	
DECISION OF:	Member Clifford 	
DELIVERED ON:	6 October 2017	
DELIVERED AT:	Brisbane	
ORDERS MADE:	1.	The decision of the Director-General, Department of Justice and Attorney-General dated 9 February 2017, that the applicant’s case is exceptional within the definition of the Working with Children (Risk Management and Screening) Act 2000 (Qld), is confirmed.

2.	The Tribunal prohibits the publication of any information which may identify WSN.

3.	Other than to the parties to the proceeding, publication of the following documents are prohibited:  Documents provided by Metro North Hospital and Health Service; and   Uniting Care, Queensland, pursuant to Notices to Produce.
	
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – where no serious or disqualifying offence – whether exceptional case – where applicant has an intellectual impairment – where applicant under guardianship order – where applicant receives 24 hour support – where applicant has history of violent outbursts – where protective factors insufficient – where satisfied exceptional case is established 
EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – non-publication of documents -  not identifying applicant
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Working with Children (Risk Management and Screening) Act 2000 (Qld)
Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492	

APPEARANCES &/OR REPRESENTATIVES:		
APPLICANT:	J.Feely, Counsel. Appearing pro bono.
M. Baquero, Legal Officer, Office of the Public Guardian	
RESPONDENT:	I. McCowie, Legal Officer for decision-maker.	
REASONS FOR DECISION
Background
[1]	WSN is a 21 year-old man living with disability. WSN has been diagnosed with an intellectual impairment, Foetal Alcohol Syndrome and Autism Spectrum Disorder. WSN is currently subject of a Guardianship Order, whereby the Public Guardian is appointed as his guardian for all personal matters. Uniting Care Community provide WSN 24 hour supported care in the home he shares with another. 
[2]	In late 2012 WSN was charged as a juvenile, with the following offences.  One charge ‘assault occasioning bodily harm’, two charges of ‘wilful damage’ and one charge of ‘common assault’. 
[3]	In September 2015 WSN applied for a Working with Children Blue Card as he was a member of the Rovers, an organisation that is part of the Scouts group, and that associates in a volunteer capacity with children from the Scouting Association.  On 9 February 2017 the respondent denied WSN a Blue Card and issued him a Negative Notice.  The applicant sought review of the decision in March 2017.
Legal framework 
[4]	The Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act) prescribes reviewable decisions, outlines who may apply for review and what the Tribunal may or may not do in relation to the review. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that Tribunal may either confirm the decision or set it aside. 
[5]	When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; 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. 
[6]	The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. 
[7]	The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor, provided guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case.  The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations. 
Material and evidence considered
[8]	WSN provided the Application with annexures 1 – 7, including four references and a Life Story dated 26 April 2017. WSN, also responded personally to questions of the Tribunal.  J.Feely of Counsel provided brief written and oral submissions. WR, JB, and CB, referees for WSN, each attended by telephone to testify. 
[9]	The respondent provided a bundle of documents with annexures 1 - 8, (identified as BCS pages 1 - 62) including National Police History Check and Qld Police Service Court briefs and Memos (BCS 5 - 24). Mr McCowie for the respondent also made oral submissions.  
[10]	Under a Notice to Produce, Uniting Care Community provided six Volumes of material relating to WSN that included file notes, incident reports, management plans and a psycho-educational assessment dated 24 June 2015. Also under Notice to Produce the Metro North Hospital and Health Service provided a single Volume of material relating to WSN’s medical records.  Except as qualified, publication of all this material was prohibited under Order of the Tribunal on 11 and 12 July 2017 and continues. 
Preliminary issue – application under Evidence Act 1977
[11]	Counsel for WSN sought a direction from the Tribunal that the presumption of competency to give evidence was rebutted in WSN’s case given his diagnosis of intellectual impairment, Foetal Alcohol Syndrome and Autism Spectrum Disorder and very limited communication skills. Counsel sought a decision that WSN not be subject to cross-examination. Mr McCowie for the respondent opposed the application, noting in written and oral submissions, that the Tribunal was not bound by rules of evidence, was not bound by legal technicalities, that natural justice must be observed and that there were provisions under QCAT Act to accommodate special witnesses.
[12]	The Tribunal dismissed the application on the basis the Tribunal was not bound by the rules of evidence and legal technicalities, that in the interest of natural justice the Tribunal could offer a flexible and informal approach to any questioning of WSN by the respondent through the Tribunal, noting the Tribunal’s broad experience, under the guardianship jurisdiction in dealing with people with different levels of incapacity. And that ultimately, information given by WSN would be accorded appropriate weight in all the circumstances.
Issue – Is WSN’s case an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?
[13]	Firstly, in relation to the statutory considerations it is undisputed that WSN has neither any disqualifying or serious offence as prescribed. The Tribunal received no information or reports in relation to WSN as described under section 226 (2) (b) (c) or (d) of the Working with Children Act.
[14]	In late 2012 when WSN was a juvenile he was charged with one count of assault occasioning bodily harm on 18 November 2012, and on 
1 December 2012 charged with one count of common assault and two counts of wilful damage.
[15]	The first incident related to an altercation WSN had with a carer about the payment of money for soft drink following an excursion to a shopping centre. During the incident WSN allegedly tried to pull the carer out of the car punching, pinching and grabbing at her. WSN was allegedly yelling, swearing and swinging the plastic bag with the bottles of soft drink around. The carer feared for her safety and managed to lock herself in the car and called the Police. After backing the car out of the driveway WSN allegedly continued to kick and punch at the car. The carer suffered bruising and swelling to her head and cheeks, and bruising to her arms and legs. Since the incident it is reported that the carer has had anxiety attacks. WSN allegedly continued to be enraged with the Police. The Police brief indicates they were also advised of previous assaults on carers, and that they were considering referring the applicant to the Mental Health Court. Police ultimately submitted a Request for Authority to Withdraw Charge on 11 June 213, with the agreement of the carer for the charge to be discontinued. The Brisbane Children’s Court on 8 July 2013 found no evidence to offer and the matter was discharged accordingly. 
[16]	The other charges, some two weeks later, related to another alleged altercation between WSN and a different carer when visiting the local library. When the carer advised WSN that he could not play an Xbox WSN allegedly swore and threw his wallet at the carer, hitting him in the face.  After they left the Library and got in the car to go home, WSN allegedly started yelling at the carer not to ring the Police, hitting the dash board and grabbing the carer and punching him in the head. When the carer tried to use the phone WSN allegedly grabbed the phone and threw it into the car park. When the carer went to retrieve the phone, WSN allegedly punched him in the head. When the carer tried to restrain WSN, WSN allegedly spat at him in the face and continued to punch and kick at the carer. When WSN was pushed away he approached the car and punched it and punched the side mirror causing it to smash and cutting his hand. WSN then walked into the library and returned a short time later and sat in the foyer. A Librarian who witnessed the incident called the Police. When the Police arrived WSN was handcuffed but was unable to be interviewed because of his demeanour and released into the custody of another carer.  On 12 June 2013 the Police submitted a Request for Authority to Withdraw Charges, noting the carer and Uniting Church did not wish to pursue the charges. The Brisbane Children’s Court on 1 July 2013 found no evidence to offer, on all charges, and the matter was discharged accordingly. 
WSN’s current circumstances, risk and protective factors
[17]	The Tribunal has taken the approach of considering relative risks and protective factors when deciding whether a particular case is an exceptional case. The Court of Appeal in Maher and Anor accepted this approach as one way of deciding whether an exceptional case is made out. 
[18]	WSN provided a Life Story that outlined his medical, family and care history. WSN’s Life Story highlights a difficult childhood and a turbulent and unsupported adolescence. WSN outlined his current living and support circumstances.  At hearing WSN advised the Tribunal of his carers, the ones he gets along with well and ones he sometimes doesn’t get along with so well. WSN gave a very basic understanding of the past charges but stated ‘I think I’m a grownup man now, I behave quite well’. WSN states that he thinks about what he is doing much more now than before, stating that he tries to ‘stay calm’, advised that he has ‘got a cat’, ‘goes outside’, uses the ‘punching bag’ and ‘talks to staff members’. WSN had basic recollections of the charges and some of the incidents identified in the Uniting Care Community documents.
[19]	WSN has not had any charges against him since the 2012 incidents, nearly five years ago, that is a positive factor. However, a number of incidents reports and team meeting reports, recorded in the material provided under the Notice to Produce by Uniting Care Community involve learning or behavioural issues, and incidents of violence or aggression including where the Police have been called. These recentness and intensity of the incidents represent risk factors.
[20]	The Psychological assessment dated 24 June 2015 is an extensive report outlining WSN’s social history, diagnosis of intellectual impairment, Foetal Alcohol Syndrome and Autism Spectrum Disorder, and the assessment process and findings in various domains. The report records WSN experiences difficulties across many areas of adaptive functioning. His overall ability score was categorised within the Extremely Low range, as were his conceptual, social and practical domain scores, suggesting he requires significant support for his activities of daily living. The report made various recommendations in relation to providing support and teaching of adaptive behaviour skills. The high level of support and significant learning difficulties required to assist WSN in his activities for daily living in the context of a history of violent responses to particular circumstances are risk factors.
[21]	WSN lives with a cotenant in a house that is supported 24 hours by Uniting Care Community. Except for very short periods of 10 -15 minutes, WSN is always accompanied by a carer. Three staff members of the Uniting Care Community provided references for WSN and testified at hearing. 
[22]	WR provided a reference dated 10 March 2016. WR is the network manager for Uniting Care Community and has worked in the disability industry for many years. WR has been involved with WSN either directly or indirectly for around 3 and ½ years and supervises team members. WR testified she has observed WSN transition from a teenager with little choices to a young adult with more choices and increased responsibilities such as who comes into his life and house. WR stated WSN attends fortnightly catch-ups with his brothers. WR opined WSN has done ‘amazing work’ and is now  ‘a mature adult’. WR testified WSN has a good relationship with his support team and that it is a fairly consistent team. WR opined WSN responds ‘exceptionally well’ to change if he has support and clear guidelines given where he came from. WR opined that the incident report of 2 May 2016 occurred at a transitional period when WSN’s co-tenant has recently moved in. 
[23]	JB provided a reference dated 7 March 2016. JB is a direct carer of WSN. He has known WSN for around 3 years and works about 30 hours a week with him. JB stated he has seen WSN relate with love and respect to his three younger brothers, and describes his demeanour and expressions towards children, when he has observed him at school fetes or the Ekka, as entirely understanding, respectful and caring. 
[24]	JB described WSN as being very intense with a lot of uncertainty in his life when he first met him. JB testified that currently, whilst he has had disagreements with WSN about change of plans, he has not observed an incident of volatility from WSN for around 1 ½ to 2 years. JB opined that the incidents of May 2014 incident and 10 October 2016 related to WSN responding to thinking someone was forcing him to do something, not understanding information or not understanding his cotenant’s emotional point of view.
[25]	CB provided a reference dated 9 March 2016. CB is the programme manager at Cross Roads, Uniting Care Community. WSN attends Cross Roads with a support worker three to five hours every fortnight. CB stated that WSN has transformed into a responsible young man. CB testified that WSN has never presented with any anger or challenging behaviour and that he responds positively to corrective feedback. CB stated WSN has developed relationships at Cross Roads and is comfortable talking with support workers. CB testified WSN attends celebrations and works as the Disc Jockey.
[26]	The Tribunal accepts the referees’ testimony that WSN has matured and he has learned some better communication skills than when he was subject to the 2012 charges.  That is a protective factor. However, this is tempered with the relativity of change to WSN’s underlying incapacity to manage his own personal decision-making, particularly in the context of ongoing periods of aggressive and violent challenging behaviour and is in the context of carers whose duty is to put WSN’s best interest first. 
[27]	Counsel for WSN submitted WSN’s case was not an exceptional case, Counsel highlighted the presumption to issue a positive notice, WSN’s life story, the significant supports WSN has in place, that he has a good relationship with his younger brothers, that he leads a very structured existence, sees a psychologist regularly and takes medication.  Counsel submitted witnesses testify WSN has changed and all indicated support for a Blue Card. Counsel submitted there was no negative evidence from the Scouts Association and submitted there is no link between WSN’s behavioural problems and risk to children, and any causal link would be speculation. Counsel submitted, although noting some acknowledgement of the incidents, the Police documents are hearsay and little weight should be accorded to them in light of the Police offering no evidence and the charges being withdrawn. 
[28]	Mr McCowie for the respondent submitted the paramount consideration is the welfare and best interest of children, that WSN’s case is exceptional, and whilst noting he has made improvements submitted that he has some way to go to demonstrate that he can act protectively towards children. Mr McCowie submitted that the charges and information obtained under Notices indicate WSN has in the past acted violently. Mr McCowie also highlighted the transferability of a Blue Card across all areas of child-related employment, noting it is not issued with conditions or for a specific purpose. Mr McCowie submitted that the respondent’s decision should be confirmed.
[29]	WSN has had charges against him for acts of violence as an adolescent, some 5 years ago. The charges were discontinued, essentially because of WSN’s personal circumstances and medical diagnosis, and that the complainants, his service provider and personal carers, did not wish to pursue the charges. These were impulsive, aggressive and violent acts. Whilst the Tribunal notes that WSN has had no further charges made against him since that time, and the Tribunal accepts the testimony of the Unit Care Community workers that he has developed some relative maturity and learned some basic living and social skills since that time, which are all protective factors, it is clear from the material produced that WSN remains impulsive and responds to particular circumstances with violence and aggression. Whilst these incidents have not resulted in further charges, some have been to a level of intensity whereby the Police have been called and WSN counselled and warned by Police. Whilst the Tribunal notes that none of the incidents involve children, and almost all of the incidents are directed towards carers, the incidents have occurred inside and outside his home, witnessed by neighbours and have involved other people’s property. Carers attend all outside/community events with WSN. Paradoxically, their presence offers both protective and risk factors for WSN. 
[30]	The charges and incidents indicate high risk factors of impulsive and aggressive behaviour. And whilst the Tribunal is satisfied that there is no evidence that such acts of aggression have been directed towards children, the Tribunal is satisfied that given the public nature of the past charges and incidents, incidents that occur not irregularly and have been reported in recent months, that there is a reasonable probably and risk that such acts could occur in the presence of children. WSN’s previous actions have had lasting effect on one adult carer, reportedly causing her anxiety attacks. The triggers for such acts of aggression objectively, concern minor issues. Overall, the Tribunal is satisfied that witnessing such acts of aggression could have a lasting impact on children’s trust, confidence and development and does not represent protection from harm or promotion of their well-being. Exposure to such acts would not be in children’s best interest.  
[31]	WSN’s significant intellectual impairment alone does not represent a risk factor, however, the challenging behaviour WSN continues to display, in the form of impulsive and violent acts, impacts a level of risk to the protection of children. The Tribunal is satisfied on the balance of probabilities that such a risk outweighs the protective factors WSN has in place. 
[32]	The Tribunal is therefore satisfied that WSN’s case is an exceptional case and that it would not be in the interest of children to issue a positive notice. The decision of the respondent is confirmed, and the Tribunal orders accordingly.
Non-publication order 
[33]	Publication of the documents produced by Metro North Hospital and Health Service and Uniting Care, Queensland, pursuant to Notices to Produce, were prohibited other than to the parties to the proceeding, until further order. On its own initiative, the Tribunal proposed that pursuant to s 66 of the QCAT Act that the prohibition of those documents continue along with prohibiting information that would identify WSN. The Tribunal was satisfied it would be contrary to the public interest to publish such confidential material particularly when the material involved a protected person under the Guardianship and Administration Act 2000 (Qld). Neither party to the proceeding opposed the proposal. The Tribunal ordered accordingly.