QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	KHS v Director General, Department of Justice and Attorney General [2023] QCAT 22	
PARTIES:	KHS	

(applicant)	

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

(respondent)	

APPLICATION NO/S:	CML331-21	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	13 January 2023	
HEARING DATE:	6 December 2022	
HEARD AT:	Brisbane	
DECISION OF:	Member Matthews	
ORDERS:	1.	That the decision of the Director General, Department of Justice and Attorney General that KHS’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case. 
2.	In accordance with s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I make a non-publication order that prohibits the publication of any information within the file and provided throughout the hearing that would identify the applicant, his associates and family including all relevant children. 
3.	Each party are to bear their own costs, of, and incidental to the application. 	
CATCHWORDS:	CHILD WELFARE – APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant represents a risk of harm to children – whether protective factors outweigh risk factors – non publication order 
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24, s 66
Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 360 	
APPEARANCES & 
REPRESENTATION: 		
Applicant: 

Respondent: 	Scott Lynch, Barrister – instructed by Brendan Ryan, Mulcahy Ryan Lawyers

Carmel Massingham- Respondent  	

REASONS FOR DECISION
Background
[1]	The applicant, KHS applied for a working with children clearance (‘Blue Card’) pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (“The Act”).
[2]	Upon assessing KHS’s eligibility, the Respondent issued a negative notice by way of letter dated 19 July 2019.
[3]	KHS applied to cancel the negative notice by way of Application dated 22 November 2019 which was unsuccessful following consideration of the merits of the application afresh by Blue Card Services.
[4]	A copy of reasons dated 2 September 2021 was provided to KHS setting out the refusal to cancel the negative notice issued to him signed by Michelle Miller, Director, Blue Card Services (Screening Services), Department of Justice and Attorney General. 
[5]	The applicant, “KHS” applied to the tribunal by way of application filed 1 October 2021 for a review of a reviewable decision pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) 
[6]	Following unsuccessful resolution of the matter at the QCAT initiated Compulsory Conference, a hearing on 6 December 2022 was heard.
The law and legislative framework
[7]	Pursuant to the QCAT Act, the Tribunal in its review jurisdiction must make the correct and preferable decision by standing in the shoes of the decision maker.
[8]	This is based on a fresh hearing on the merits. 
[9]	 Pursuant to section 24 of the QCAT Act, the tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter to for reconsideration to the decision maker with any necessary directions the tribunal considers appropriate whilst having regard to both the QCAT Act and the paramount considerations within the WWC Act.
[10]	The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children and is a paramount consideration “to which all others yield.”
[11]	Additionally, it is accepted that the standard of proof required, namely, the test in Brigenshaw applies to child related employment decision. 
The Applicant KHS
[12]	KHS is currently 47 years old, and a father to one child, that he co-parents with his ex-wife. 
[13]	As an adolescent KHS was sexually abused which led to drug and alcohol abuse which plagued his life throughout his early adult life until at least 26 years of age. 
[14]	This led to KHS being charged with a myriad of drug and other offences including possession of cannabis, prescriptions, and wilful damage whilst drug affected.
[15]	During that time, KHS successfully obtained degrees from university which has led to employment and favourable opportunities. 
[16]	 For the past 18 years, KHS has remained abstinent from drugs and alcohol which he stated in the hearing was his “wild success”
[17]	In 2019, KHS was charged with common assault on his son, following a domestic incident at his home which led to police charging him with the afore mentioned offence and assault occasioning bodily harm.  The latter being formerly discontinued. 
[18]	The incident which occurred on 9 June 2019 led to notifications to the Department of child safety and the child being interviewed by police the following day. 
[19]	KHS provided an account of the incident at the hearing, which was also provided in the filed materials. 
[20]	Following investigations, and KHS attending for interview, KHS appeared at court in August 2019 where he plead guilty, was fined $600-00 and no conviction recorded. 
[21]	Due to the incident, KHS’s marriage ended, and the resultant negative notice was issued.
[22]	In the pursuing months, KHS attended the triple P parenting program and long standing counselling and therapies sessions which commenced many years earlier due to his past abuses, and consequent PTSD and possible bipolar disorder.
Filed proceeding materials. 
Applicant KHS:
[23]	The applicant KHS relied upon numerous affidavits and attached exhibits all filed and dated 31 January 2022.
[24]	Additional materials relied upon by the applicant KHS included KHS’s life story, an affidavit of KHS dated 31 January 2022 and Family Court orders dated 13 May 2020. 
[25]	Of the six people who provided affidavits in support of KHS’s application, five provided oral testimony at the hearing, and written and oral submissions by counsel. 
Respondent BCS:
[26]	The respondent relied primarily upon two bundles of documents marked BCS 1-110 and NTP 1-55.
[27]	The bundle marked BCS included the reasons, police information relating to KHS’s offending and KHS’s criminal history the continued negative notice, summary of Domestic violence orders, transcripts of sentencing remarks, and materials provided by CHS to blue card services prior to the issue of the continuing negative notice. 
[28]	The bundle marked NTP included all the notice to produce materials produced to the Tribunal by the Department of Child Safety and the Brisbane Magistrates Court and written and oral submissions. 
The reviewable decision
[29]	The decision under review is whether KHS’s case is an “exceptional case.”   
[30]	KHS since the issue of the first, and subsequent second negative notice considers that blue card services erred in their decision, on the basis that the negative notice was issued on wrong or incomplete information.
[31]	The respondent disagrees and stands by their position that it would not be in the best interests of children for KHS to be issued a blue card. 
[32]	The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case by case basis underpinned by the legislative framework where neither party bears the onus of proof in determining whether an exceptional case exists. 
[33]	When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in sections 226(2) and 228(2) of the WWC Act, and application of the Human Rights considerations, namely, as a public entity, it is unlawful for the Tribunal (public entity):
(a)	to act to make a decision in a way that is not compatible with Human Rights; or 
(b)	in making a decision, fail to give proper consideration to a human right relevant to the decision. 
The tribunal’s decision.
[34]	The tribunal’s decision was informed by the materials before the Tribunal, the considerations of risk and protective factors, submissions throughout the hearing and the oral testimony of the witnesses, with the primary regard being the paramount principle of the best interest of children, and whether, KHS would present a risk to children if he was reissued a blue card.
[35]	The tribunal is fully aware of the transferability of the blue card and consideration was given accordingly in this regard when reaching this decision, that KHS would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction.
Witness testimony
[36]	In the weighting of the evidence, the tribunal has regard to the oral testimony of KHS and the five witnesses who appeared before the Tribunal by phone and in person in support of KHS, including his ex-wife.
[37]	The evidence of the lay witnesses mirrors the evidence of the professional witnesses who all consider that KHS would not pose any risk if allowed to work with children, and all support KHS in this application. 
[38]	KHS gave evidence to the Tribunal where he provided an account of the incidents of 9 June 2019, his relationship with his son, his successful co-parenting of his child with his ex-wife, and accounts of his history of domestic violence which was further verified by his ex-wife’s oral testimony.  
[39]	The tribunal considered KHS to have been forth coming and honest in his testimony when he accounts for the stressors in his life, the loss from deaths of loved ones preceding the incident, his marital problems and his actions following. 
[40]	KHS presented as calm and contrite when providing evidence which the tribunal considers to be a display of insight and remorse by KHS. 
[41]	Evidence from KHS’s ex wife confirmed his long term commitment to his therapies and counselling, and how KHS has worked hard on addressing emotional regulation and that the incident of June 2019 occurred due to family stressors and that it is evident KHS has a great deal more mental stability and that he works hard to positively co parent with her. 
[42]	KHS shares custody of their child. KHS’s ex-wife stated that she has no concerns for her their child’s safety and wellbeing when in the care of KHS. 
[43]	Dr R has known and has provided counselling to KHS for many years.  Dr R first met KHS as a teenager to assist with therapies for survivors of sexual abuse.
[44]	Dr R confirmed KHS’s ongoing and continuing commitment to his counselling and therapies and that KHS remains proactive in seeking support. 
[45]	Dr R further opined that KHS has identified and addressed issues that arose from the June 2019 incident and that his current treatment assists to deal with safety. 
[46]	KHS regularly attends for appointments, and KHS has fully addressed the issues, and is aware of strategies to assist him so that no further alike actions occur again. 
[47]	KHS is committed, and seeks out additional appointments if, and when required on his own accord. 
[48]	Dr G has been seeing KHS for over 12 years and supports KHS in his application. 
[49]	Dr G is of the opinion that KHS is not a risk, nor presents a danger.
[50]	KHS’s therapies include being counselled about his reactivity.
[51]	RN is a psychologist who also has a long standing professional engagement with KHS which commenced in 2011.
[52]	RN provides EMDR therapies which is utilised to resolve feelings associated with KHS’s memories.
[53]	RN considers that KHS is not a risk and that the childhood memories which in the past led to KHS reactivity have been resolved, and that KHS would not react to similar situations the same in the future. 
[54]	RN in her engagement with KHS has witnessed a secure attachment with his child and KHS has been tireless in his efforts to make amends for his actions. 
[55]	Of the lay witnesses, CR has known KHS for many years, and is of the opinion that since KHS divorce, KHS is less stressed.   
[56]	Following the June 2019 incident KHS and CR spoke about impacts that his son could have felt, and KHS was aware he harmed his son, the child was hurt, and that trust would need to be rebuilt. 
[57]	The tribunal considers this to have been a focus of KHS and is achieved given the testimony from KHS regarding his relationship with his child, and the confirming testimony of KHS’s ex-wife regarding same. 
[58]	Further testimony before the tribunal also evidences that there is trust and redemption between KHS and his child, and his ex wife which has led to an extension of time granted to KHS by way of family Court orders.  
[59]	The tribunal found all witnesses to have been open and honest when providing their evidence, and all were fully aware of the application, the negative notice and the incident in June 2019 that led to the application and had no hesitation in recommending that KHS be issued a blue card.
[60]	The tribunal considers the following as pertinent to the matter.
(a)	KHS’s 17 years of sobriety from drugs and alcohol.
(b)	KHS’s demonstrated remorse and insight into the incident and his past behaviours.
(c)	Following the June 2019 incident, there have been no reoccurrence of any such incidents.
(d)	The tribunal is satisfied by the evidence that the June 2019 was not premeditated, nor a result of an intentional act to hurt the child. 
(e)	KHS’s commitment to his professional treatments and ongoing willingness to remain engaged.
(f)	Following the June 2019 incident, KHS attended a triple p parenting course and other family violence groups on his own accord.  
(g)	KHS’s relationship with his ex-wife and his ability to positively co parent and maintain healthy and respectful boundaries as a parent. 
(h)	KHS has an ongoing professional and personal support network.
[61]	The tribunal acknowledges that in his past, KHS has a criminal history which was considered against the paramount principle of the best interests of children. 
[62]	Whilst the criminal history was concerning, it was over 20 years ago, and prior to the 17 years of successful sobriety when KHS was young, suffering significant trauma and at the commencement of his counselling and professional support. 
[63]	KHS has demonstrated to the tribunal that he is remorseful, is insightful, and has built a support network around him that he actively seeks to address his stressors and issues with continued commitment and success.
[64]	The tribunal accepts the evidence provided, and that KHS and all witnesses presented as honest and credible when provided their oral testimony.
[65]	KHS has displayed insight and acceptance of the June 2019 incident which the tribunal considers as a mitigation of risk.
[66]	KHS has demonstrated that he is committed to his sobriety and seeking on going professional support.
[67]	There is no evidence before the Tribunal that satisfies, that KHS would pose a risk to children if reissued a blue card. 
Orders
[68]	That the decision of the Director General, Department of Justice and Attorney General that KHS’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 is set aside and replaced with the tribunal’s decision that there is no exceptional case. 
[69]	In accordance with s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I make a nonpublication order that prohibits the publication of any information within the file and provided throughout the hearing that would identify the applicant, his associates and family including all relevant children. 
[70]	Each party are to bear their own costs, of, and incidental to the application.