QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 139	
PARTIES:	YR
(applicant)	
	v 	
	DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)	
APPLICATION NO/S:	CML243-19	
MATTER TYPE:	Children’s matters	
DELIVERED ON:	4 May 2021	
HEARING DATE:	1 April 2021	
HEARD AT:	Brisbane 	
DECISION OF:	Member Hughes	
ORDERS:	1.	The Tribunal confirms the decision of the Director-General, Department of Justice and Attorney-General on 13 June 2019 that the Applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 
2.	These reasons are to be published in a de-identified format only.	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – whether exceptional case – whether not in best interests of children to issue positive notice 

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where no convictions or charges since 2007 - where protective factors - where support network – where applicant had no alcohol or illicit drug use – where applicant has undertaken some counselling and parenting programs    

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where risk factors – where convictions for ill treatment and neglect of a child and assault occasioning bodily harm – where Tribunal cannot go beyond convictions – where pattern of not acting protectively towards children over extended period -  where children exposed to violence and trauma - where relationships characterised by volatility and abuse  – where lack of insight - where applicant sought to minimise behaviour – where applicant unnecessarily placed her children at risk by exposing them to violence and trauma and thereby failed to act protectively 

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – exceptional case – where interests of children must take priority over applicant’s interests – where it was applicant’s responsibility to provide safe environment for children – where those who work with children must act responsibly and protect them - where risk factors outweigh protective factors  

Human Rights Act 2019 (Qld), s 13
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6, s 156, s 221, s 226, s 360, Schedule 1, Schedule 2

Chief Executive Officer, Department of Child Protection v Scott (No. 2) [2008] WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Lister (No. 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293
JA v Chief Executive, Public Safety Business Agency [2015] QCAT 251
Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25
Re TAA [2006] QCST 11
RPG v Public Safety Business Agency [2016] QCAT 331
Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257
	
APPEARANCES & REPRESENTATION:	  	
Applicant:	Self-represented	
Respondent:	J Capper, legal officer  	
REASONS FOR DECISION
Are the reasons for these orders to be de-identified?
[1]	Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format. 
What is this Application about?
[2]	YR has a history of not acting protectively towards her children. Because of this, the delegate of the Director-General, Department of Justice and Attorney-General issued her with a negative notice for a ‘Blue Card’, preventing her from working with children.
[3]	YR wants the Tribunal to review the Director-General’s decision. Because YR is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.
[4]	In reviewing the Director-General’s decision that YR’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for YR to obtain a Blue Card. To determine this, I must identify and weigh protective factors with risk factors. I am assessing the risk in allowing YR to work with children.
[5]	YR is not required to show any error by the Director-General: The Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.
Is it not in the best interests of children to issue a positive notice to YR?
[6]	Because a Blue Card authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a Blue Card to YR. 
[7]	Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. 
What are the protective factors?
[8]	YR has no convictions or charges since her conviction for assaults occasioning bodily harm in 2007 – a considerable period of almost 14 years. The Tribunal also notes that the legislation does not deem any of YR’s criminal history as ‘serious’. 
[9]	YR reported being committed to her religious faith with a support network of friends. She teaches the Bible to interested persons. She gained employment with a non-profit organisation as a Family Support Worker. She has also been a family support worker and advocate for families involved with the legal process. She does not drink alcohol or use illicit drugs. 
[10]	YR also provided character references. They variously described YR as:
(a)	A well-respected member of the community, caring for all she meets; 
(b)	A great support to other families;
(c)	Treating children with care and respect;
(d)	Moral, genuine, conscientious, caring and compassionate with very good discerning insight into her previous lifestyle having made responsible improvements to change for her family’s benefit;
(e)	Attending to her children’s physical and emotional needs;
(f)	Giving her children appropriate boundaries; 
(g)	Dealing respectfully with people of all ages;
(h)	Recognising consequences of decisions and activities;
(i)	Demonstrating basic, simple, maternal and natural care for children of all ages; 
(j)	Having children’s best interests at the forefront of her parenting; and
(k)	Demonstrating a broad range of positive parenting practices, including removing a child from their parents when at risk of harm.
[11]	Unfortunately, none of the referees attended the hearing for cross-examination. This must reduce the weight to be attached to their references. Nevertheless, I am satisfied that YR has a supportive network who value her both as a mother and in her role as a member of the community. I am also satisfied that much of this network is able to provide guidance and support to YR. 
[12]	YR said that in 2003, she started communicating more with her children, listening to their concerns and finding solutions together. She said she learnt coping strategies in 2001 including working on her self-esteem, self-worth and self-control. She said this meant that if she was pushed to the limit she would always act appropriately, taking in the concerns voiced and not taking offence to criticism and asserting herself positively.  She also said she has undergone counselling and Cognitive Behaviour Therapy and attended parenting programs.
[13]	Unfortunately, none of this information was sufficiently detailed to reveal the extent to which she was able to identify and address the triggers for her behaviour and appropriate coping strategies. YR provided no expert evidence about her progress. 
What are the risk factors?
[14]	YR’s children were deeply entrenched in a cycle of domestic violence over a prolonged period spanning almost three decades. Child Safety and court records reveal numerous interventions from 1993 to as recently as 2018. In 1999, YR was convicted for ill treatment and neglect of a child. In 2002, she was convicted for breaching a domestic violence order. In 2007, she was convicted of assault occasioning bodily harm. Two of these offences relate to children. The Tribunal cannot go beyond YR’s convictions and must accept them as they are.
[15]	The sensitive and serious nature of the agency interventions are a matter of evidence that do not require repeating in detail. Victims of domestic violence must be treated with sensitivity and insight. It is sufficient for these proceedings to note that many of the interventions record deeply disturbing incidents of gratuitous and potentially life-threatening violence and abject neglect towards YR’s children while in her care. 
[16]	However, as a matter of fairness to YR, it must also be noted that she disputed some of the more serious and distressing allegations, including those involving punching her baby and threatening to kill her children. Nevertheless, the seriousness of these allegations within a framework of ongoing neglect is relevant in assessing risk. The totality of the evidence shows that YR at times abandoned and abused her children and exposed them to violence, trauma and severe neglect over an extended period: with and without domestic partners. 
[17]	Although the evidence is that YR was both a victim and perpetrator of domestic violence, the law requires that in considering whether to allow a person a positive notice for a Blue Card, the interests of children must take priority.  YR’s failure to act protectively over a prolonged period was a fundamental abrogation of her maternal responsibilities and would have clearly had a deleterious effect on her children. 
[18]	The passage of time since 2007 without convictions is not of itself conclusive that the risk of harm is reduced. It is only three years since the most recent reciprocal domestic violence orders. Although YR commendably spoke about walking away from domestic violence, she did not articulate strategies to deal with triggers for her own abusive behaviour towards children. The evidence of YR taking positive steps is minimal. 
[19]	Children also depend on adults to have insight into their actions and their likely effect. Unfortunately, the evidence is that YR has an ongoing lack of insight into the impact of her behaviour on her children. In her life story filed on 9 July 2019, YR referred to her misgivings in dealing with Child Safety and foster carers over the years. Similarly, in her application for review filed on 2 July 2019, YR refuted many of the claims relating to her conviction in 2007, submitted that ‘No Conviction Recorded’ meant that her conviction should not be used “as a suffering consequence against that person later in life” and sought to explain away her pleas of guilty to the offences. The purpose of these proceedings is not punitive: the paramount consideration is the welfare and best interests of children. At no stage did YR refer to the impact of her own behaviour on her children. 
[20]	Domestic violence is a scourge that takes many forms, extending beyond actual physical violence. Being aware of how violence impacts children means a person is less likely to repeat the behaviour, when subjected to similar stressors. Because children depend on adults to have insight into their actions and their likely effect, the community rightly expects those working with children to have the deepest understanding of this. YR has not shown this.
[21]	The evidence is that YR has not acted in the best interests of children over many years, especially when dealing with the emotions of others and her own emotions in response. Sadly, like many cases involving physical and emotional abuse, YR has consistently minimised the domestic violence. By seeking to minimise her and her partners’ behaviour, YR did not act protectively towards her children.
[22]	The evidence shows significant concerns about YR’s ability to provide a safe environment for children, thereby exposing them to risk of harm. 
Is this an ‘exceptional case’ to not issue a positive notice to YR?
[23]	A person’s behaviour takes on greater magnitude when viewed in the context of protecting children. It was YR’s fundamental responsibility to provide a safe environment for her children. YR’s failure to provide a protective environment over a prolonged period for her own children is relevant to child-related regulated employment. Those who work with children must act responsibly and protect them. YR is required to protect children in potentially stressful or threatening situations. 
[24]	YR’s failure to protect her children from an environment of trauma and violence, her attempts to minimise that violence and ongoing lack of insight are risk factors that outweigh the protective factors. YR has not shown she has developed skills and attitudes sufficiently to take responsibility for her own actions and the protection of children. 
[25]	Issuing YR with a positive notice is not in the best interests of children. YR’s case is exceptional because she has not shown that she will always act protectively towards children. 
Conclusion
[26]	Because YR’s case is ‘exceptional’, it prevents issuing her with a positive notice at this time. This is consistent with the proper purpose of promoting and protecting the human rights, interests and wellbeing of young people. Any limitation on YR’s human rights is consistent with the paramount interests of children. 
[27]	The correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 13 June 2019 that the Applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld).