QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	MKD v Director General Department of Justice and Attorney General [2023] QCAT 138	
PARTIES:	MKD	

(applicant)	

	v	
	Director GeneRal Department of Justice and Attroney General	

(respondent)	

APPLICATION NO/S:	CML072-22	
MATTER TYPE:	Childrens matters	
DELIVERED ON:	27 April 2023	
HEARING DATE:	14 April 2023	
HEARD AT:	Southport	
DECISION OF:	Member McDonald	
ORDERS:	1.	The decision of the Director General, Department of Justice and Attorney General that the case is an exceptional case within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 is set aside and substituted with the 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 the names of the applicant, any witnesses appearing for the applicant and any relevant child.
	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL 
​FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – cancellation of blue card issue of negative notice – whether an exceptional case – where charges were dismissed – where information about domestic violence – consideration of factors at sections 226(2) and 228 – where other relevant considerations

Human Rights Act 2019 (Qld), s 8, s 13, s 58 
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66, s 99(2)(a) 
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 360 

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 and Anor [2004] QCA 492
DVL v Director General of Justice and Attorney General [2022] QCAT 33
Vaeau v Director General of Justice and Attorney General [2021] QCATA 142 [52].
Volkers v Commission for Children Young People and Child Guardian [2010] QCAT 243.
WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190, [70].	
APPEARANCES & REPRESENTATION:	

Applicant:	
MKD	

Respondent:	
Davis, C Legal Officer, Blue Card Services. 	

REASONS FOR DECISION
[1]	MKD held a working with children clearance since March 2014, having held four blue cards in that period. She was working with children as a foster care support worker in a non-government organisation when her blue card was cancelled following new police information being obtained. This information related to charges for common assault- domestic violence pertaining to an incident in her family home on 12 May 2021 at the breakdown of her domestic relationship. Blue Card services cancelled her blue card in response to this information. Blue Cards Services determined on this occasion that her case was an exceptional case in which it would not be in the best interests of children for MKD to hold a blue card. MKD sought the Tribunal’s review of Blue Card Services’ decision made 21 February 2022. 
[2]	The issue for the Tribunal to determine is whether DR’s case is an exceptional case within the meaning of the s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).  If the Tribunal is not satisfied that this is an exceptional case, a working with children clearance must issue. 
[3]	The purpose of a review in the Tribunal’s review jurisdiction is to produce the correct and preferable decision. The Tribunal must conduct a fresh hearing on its merits.
[4]	The WWC Act is protective legislation, whose objects promote and protect the rights of children in employment screening decisions to ensure that people who work or propose to work with children are suitable to do so. Guiding this decision is the principle that that that the welfare and the best interests of a child are paramount. This is the overarching principle in determining this matter requiring the best interests of children to take ultimately precedence over any other considerations.  The Tribunal must also be guided by the WWC Act’s principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’. 
[5]	Sections 226 and 228 of the WWC Act are relevant when determining whether an exceptional case exists where there has been a charge, which is defined to include a charge in any form, and there is relevant information, including domestic violence information. These considerations are not exhaustive, and the Tribunal may and have regard to other relevant matters. The Tribunal must also act in a way compatible with human rights, and can only limit a human right where it reasonable and justifiable.
[6]	The term ‘exceptional case’ is not defined in the WWC Act.  Whether this case is an exceptional case is a question of fact and degree, to be decided in on a case-by-case basis having regard to: 
“...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 – children”.
[7]	 The Tribunal must not take into account any hardship suffered by the applicant, and the Appeals Tribunal has been found such hardship to be an irrelevant consideration.
Considerations s 226 (2) WWC Act
[8]	The applicant has been charged with the offence of common - domestic violence. The Respondent asserts that although these charges were dismissed with no evidence to offer, and are non-extant charges, I must consider these under s 226 (2) despite decision of the Appeal Tribunal in Director General Department of Justice and Attorney General v CMH. Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. In that case, the Tribunal found that only non-extant charges for disqualifying offences should be considered. The Respondent asserts that the WWC Act has been amended since CMH, and amendments to section 221, and 228 require the Tribunal should have regard to all matters reasonably considered to be relevant in deciding whether it is in the best interests of children for the applicant to be issued a blue card. S221 defines relevant information to include information that the person has— 
a charge for an offence other than a disqualifying offence.
[9]	I accept that these charges form part of the relevant information the Tribunal should consider. S 226 applies where in deciding whether there is an exceptional case; and that the person has been convicted of, or charged with, an offence. The provision requires the tribunal to consider:
(a) 	in relation to the commission, or alleged commission, of an offence by the person— 
(i) 	whether it is a conviction or a charge; and 
(ii) 	whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and 
(iii) 	when the offence was committed or is alleged to have been committed; and 
(iv) 	the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and 
(v) 	in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357 , the court’s reasons for its decision; 
(b) 	any information about the person given to the chief executive under section 318 or 319; 
(c) 	any report about the person’s mental health given to the chief executive under section 335; 
(d) 	any information about the person given to the chief executive under section 337 or 338; 
(e) 	information about the person given to the chief executive under the Disability Services Act 2006 , section 138ZG;
(f) 	anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. 
[10]	Section 226(2)(b)-(e) do not apply. Matters in s 226(2)(a) are discussed below.
[11]	The information about the alleged offence relates to untested allegations pertaining to a charge of - assault occasioning bodily harm – domestic violence. This is not a serious or disqualifying offences within the meaning of the WWC Act . The alleged conduct occurred in May 2021, in the applicants home shared with her partner, where children were in the house at the time. 
[12]	The allegations, withdrawn and untested by any court, but certified by police as an accurate summary, allege that MKD in a physical altercation with her then partner. MKD is said to have grabbed the complainant and prevent her entry to the bedroom; grab the complainant tightly around the chest and not let go and push the complainant to the bed and hold her down at the bottom of her throat and started to kiss the complainant. A sexual assault allegation made by the complainant was withdrawn and does not form part of the charges. Police asked MKD (who did not have children) to leave the house and she has returned later that evening against the expressed wishes of the complainant. The alleged offence is an act of physical violence which of its nature may potentially raise questions about the applicant’s suitability to work with children, and raise a possibility of risk to children’s interests, in particular, children’s’ emotional needs. Because of this possibility, the Tribunal should have regard to this charge, not to determine guilt or innocence, but to consider it in the context of other risk and protective factors. The totality of the evidence is to be considered not merely the existence of the charge.
[13]	In relation to this event, there is no evidence which indicates that the children were aware or directly impacted by of the events of the evening.  MKD’s evidence is that a   physical altercation occurred in the couple’s locked bedroom in the evening hours around 9:30 pm after the children were in bed, and the children did not come out of their rooms. The children were however within the house at the time, aged 5 and 7. The Police statement reflects that “the named children were in the house and heard the verbal argument”. They have been exposed to domestic violence. There is however nothing in the material that indicates how this information was obtained, whether the children were observed, or who provided this information to support that statement.
Matters in S 226(2) (f): Anything else related to the commission of the offence 
[14]	The specific circumstances relating to this charge occurred on 12 May 2021. Charges were withdrawn and the matter struck out at court, and therefore the evidence before the Tribunal is untested. MKD states that these allegations were lies. She explained the evening in question when the police attended involved the breakdown of the relationship between her and her former partner of 3 months, with whom she shared a house.  Under oath, she told the Tribunal that her attempts to hold and hug the complainant were intended to calm the complainant down a technique she said had previously been successful in generating calm.  The evidence indicates that tensions were high amongst the pair and both made allegations of physical assault against the others in their statements. MKD strongly refutes the allegation that she grabbed the complainant by the throat, stating that she reported to police that the complainant held her by the throat. It is noted that the police record confirms this was reported. Police records also note;
 “At the time, police were unable to determine who was telling the truth between the aggrieved and the response and as a result of a DV other action occurrence was created.” 
[15]	There was no suggestion of drugs or alcohol involved in the incident in the police reports and this confirmed was by MKD.
[16]	The complaint was withdrawn on 22/May 2022. Earlier, the complainant made an allegation of sexual assault and withdrew that on the date of the incident. The charge was struck out. Given these allegations are not tested means the Tribunal can place little weight upon them. This is particularly so where the police have stated that they were not able to establish who was telling the truth. The Tribunal’s function is not to determine guilt or innocence but to consider risks to children generated by the circumstances involved. Where the veracity of the untested statements of fact is in question, I must be cautious to act in a way that is compatible with human rights, including MKD’s human rights to a fair hearing. The Tribunal and all public entities when making an administrative decision such as this are  bound to act in a way that is compatible with human rights.  While the Tribunal may be required to consider the charge as something that is reasonably considered relevant as to whether it is the best interest of children for a blue card to issue, it can place little the weight on the allegations as statements of fact.  I have had regard to MKD’s evidence in discussing these allegations as a means of understanding her insight into her and the complainant’s conduct on that evening and its impact on children.
S228 Considerations
[17]	As there is also domestic violence information relating to these incidents, I have also considered to s 228 factors in determining whether an exceptional case exists. This includes consideration of: 
(a)	 The circumstances of the domestic violence order; 
(b)	length of time that has passed since the conduct; 
(c)	relevance to employment involving children; 
(d)	anything else relating to the information relevant to the assessment: 
[18]	The circumstances of the domestic violence order pertains to incidents occurring during the breakdown of MKD’s 3 month live-in relationship with the complainant on 12 May 2021. The relevant alleged conduct is outlined in the previous section and facts around this are the same allegations. 
[19]	An initial non-contact temporary protection order, naming the complainants two children aged 5 and 7, was issued on 14 May 2021. A non-contact two-year protection order naming the children was made by consent without admissions on 24 June 2026. MKD stated that the duty lawyer at the court recommended to consent to the order since the relationship had ended and she had no desire for contact. She said had she been advised of the potential impact on her blue card she would have contested the protection order application. MKD maintains that she did not harm the complainant in any way, and physical contact initiated by her was a bear hug to calm the complainant down. She denies pushing her to the bed, stating that they fell awkwardly due to space restraints in the room, and denies applying any pressure on the complainant, stating that she had fallen on top of her kissed her head, and moved off her when she was asked to. The evidence relevant to the domestic valence application has not been tested as the order is by consent without admissions. The factual background remains allegations of one party over the other. The police Statement makes clear that they could not determine who was telling the truth.
[20]	Police records indicate that: 
“Police believe the defendant needs protection because the resp isn’t respecting the wishes of the agg when asked to leave the property, is continuously attempting to contact the agg by phone and messaging her and continued to go back to the property when told by the aggrieved no to return. The respondent does not want to end the relationship and continues to badger the agg about trying to work it out.”
[21]	The Police records also note:
“Police completed a domestic violence application with no contact conditions so that the defendant could not return to the property.”
[22]	These records refer to MKD having made admission to grabbing the complainant, which she stated at hearing to be a hug to calm the complainant down, a technique which had proved successful in other occasions.
[23]	The incidents relating to the protection order occurred on 12 May 2021. One year and 11months have passed since the incident, the facts around which remain disputed and untested.
[24]	The allegations have relevance to working with children, where the complainant’s children were in the house and may potentially be exposed to emotional harm through witnessing domestic violence. As stated in the previous section, police records states that the children overheard the verbal argument, and concluded that they were exposed to domestic violence. There is insufficient evidence to support the contention that the children have witnessed the alleged violence between the complainant and the applicant, noting MKD’s evidence that the incident occurred in the bedroom after the children had gone to bed, behind a locked door, which she said she locked to ensure the children did observe their conflict. There is no specific evidence to indicate that the children overheard to dispute apart from the police notation that they have. There is an indication they may have overheard, and again, that raises the possibility of harm. MKD gave evidence to the children that she was very aware of the children’s presence in the house and had taken other steps that she considered necessary to reduce the children’s exposure to the conflict, including attempting to calm the complainant. and reduce the noise of the verbal dispute to avoid the children overhearing. The respondent asserts that MKD’s “alleged behaviour (if true) prioritised her own feelings above those of the complainants’ children”. This is however inconsistent with the accounts of MKD, who appeared to be mindful of the children’ needs, and was taking steps, albeit unsuccessful, to calm the atmosphere.  Her return to the home after the police asked her to leave did not take into account the children’s emotional needs where there was a risk of further escalation to the dispute.  MKD stated that she had not understood that she could not return to her own home, and had done so to sleep on the floor when she had been unable to source a hotel room, and had nowhere to go. She indicated that she regretted that action, and accepted upon reflection that that may not have been best for the children since the argument may have revived.
[25]	I do not accept that the facts around the incident founding the domestic violence order have been established, and the stated facts exist as disputed allegations, which the police indicate are not clear. There are no sworn statements in the material. The circumstances in the police material indicate that a verbal and physical altercation occurred between MKD and her former partner when children were in the house.  It is not conclusive that her conduct caused any harm to the children, but the circumstances of a verbal and physical conflict gives rise to  the potential for harm to the children which the Tribunal should consider in assessing MKD’s suitability for a working with children clearance. MKD ‘s oral evidence demonstrated attempts to mitigate any harm to the children arising from the verbal and physical conflict between the couple. 

Other relevant Considerations
[26]	It is accepted that Mandatory factors under s 226 and 228 WWC Act should not be considered as stand-alone determinants of whether an exceptional case exists and the case of Vaeau makes clear other factors should be considered.  I have taken into consideration the witnesses’ evidence as to the general presentation and conduct, her insight into the harm cause by domestic violence and the risk and protective factors  that exist  determining whether the best interests of children would be affected by the issue of a blue card to the applicant.
(i)	Insight and future potential risk to children’s best interests
[27]	MKD gave evidence to the Tribunal that she understood the impact of children witnessing violence, and always is mindful of children’s needs in a conflict situation. She told the Tribunal that children can feel scared and angry if they witness domestic violence and may replicate what they see. She said she loves children and wants to work with them because wasn’t to keep them safe. She said she always tries to reduce the noise when there is an argument as she is concerned that children can become scared by raised voices. She said she was always trying to calm the complainant whose emotions would quickly escalate, by trying to lower voices. Her evidence suggests an understanding of the impact of violence upon children and intention to act protectively. 
[28]	She said that any allegations of physical violence allegations were untruthful, and were all hearsay. She strongly denied that she engaged in any strangulation attempt throat holding or restriction of movement beyond any attempt to calm down the complainant through a hug and kiss, which were previously successful in generating calm. She said she has never engaged in criminal acts and has no history of violence. She reflected that should not have gone back to the house.
[29]	MJ gave oral and written statements to the Tribunal. She is MKD’s defacto-partner, having known her for 6 years. She has observed MKD in a professional capacity working with children previous in a previous workplace and a personal capacity in her own home, with her own teenage children. They initially worked alongside each other on a day to day basis as colleagues for 2.5 years in a program in the child protection field, became friends and commenced a relationship. They were in that relationship for 12 months prior to MKD’s the 3-month relationship with the complainant, and following its ending, resumed their relationship in June 2021.They have shared a home for a cumulative period over 3 years. MJ states that MKD has never placed her or her children at any risk of emotional or physical harm. She has observed her to be supportive of her children, been patient and accepting of her children, and always advocating to put the children’s needs first.
[30]	MJ indicated in her oral evidence that she was aware of all the details of the incident. She confirmed that there had been no incidents of domestic violence or similar conduct in their relationship. MJ stated that the behaviour of 12 May 2021 was not typical of the way MKD managed conflict in their relationship. She stated that MKD typically seeks to calm the atmosphere when voices are raised, and is always aware of the presence of children if voices do escalate, and attempts to act protectively.  MJ’s written evidence indicates that MKD will typically withdraw herself from conflict involving her and MJ, allowing MJ time to process, and has never displayed any aggression or inappropriate behaviour through the years she has known her. She described her as honest and caring and supportive for herself and her teenage children. 
[31]	MJ has directly and over extended periods observed MKD with children in the workplace in intensive case- management with children in care; and her own with MJ’s own teenage children over the years. At home she has observed MKD intervene in household conflict with children to bring calm. She describes her as very protective of children, always putting children’s needs first at work and at home. She described her manner as very calming and that she understands children and approaches them in a way that they feel safe and trust with her, allowing them to disclose things to MKD that they do not to other workers. She reflected that MKD brings a strong understanding of the impact of domestic violence on children through her work with children who have experienced this. 
[32]	She said MKD was a crisis intervention trainer who teaches child protection staff to respond to children in crisis. She said she knows how to work in crisis, and how to be supportive and appropriate to children who have experienced violence and trauma. 
[33]	CF, MKD’s manager at the foster care program she worked with before her blue card was cancelled, stated that she MKD had been in a support worker for children in the program, supporting children with complex needs. She has observed MKD’s interaction with children and has no concerns about her behaviour or interactions. She describes her as professional respectful, kind and transparent and has no hesitation in allowing her to work with children. 
[34]	MK stated that she had known her for 2.5 years as her team leader working with foster children including those with complex and extreme needs.  She described MKD as having a calm, nurturing presence and always goes above and beyond the needs of her young people. She indicated awareness of the domestic violence offences and stated that she did not believed that situation impacted in any way on her ability to work with young people. She describes her as professional, friendly and approachable. She had never observed her to be aggressive or confrontational. She indicated that there had been no performance issues in her workplace, with children, and described her as an asset to the child protection organisation. 
[35]	LV a work colleague in the foster care program with children, described her as respected and lovable, having excellent skills in working with children. She described her strong rapport with children. 
[36]	KS a colleague at the child protection service in which MKD previously worked stated that she has worked with MKD for over 3 years, and remarked on the amazing work MKD had done supporting indigenous children. She described her as kind caring and supportive, an asset to the child protection organisation and suitable to continue working with vulnerable children. 
[37]	The applicant’s witnesses, MKD’s work colleagues and friends who have all observed her work with children provided consistent evidence that displays a calm and nurturing nature with children, prioritises children’s needs. Considerable weight should be placed on the witness evidence who have closely and directly observed her work with children over extended periods of time.
ii) Risk and protective factors
[38]	There are strong protective factors, where MKD has specialist knowledge and skills in dealing with children who have witnessed domestic violence and is trained in crisis intervention management. She is involved in a defacto-relationship, has a network of faithful long-term friends and colleagues from whom she seeks support, and has resumed engagement with family that was previously discouraged in her relationship with the complainant. These are strong considerations suggestive that it is not likely harm the best interests of children to issue MKD with a blue card.  
[39]	Risk factors do exist, relating to her return to the home on 12 May 2021, suggestive of a lack of awareness at the time of the children’s needs in the incident. MKD shows insight into the likely impact on children, reflecting however at the time her homelessness generated by the removal affected her thinking. She demonstrates regret about this.  This mitigates this risk to some extent. The respondent contends that the lack of respect for the complainant wishes in returning to the house is a risk factor. While this may reflect some risk, this arises in the context of MKD being made homeless due to the events, and seeking shelter. Although reflective of some risk in the confusion of the evening, it is considered to be remote when considered in context of the balance of the evidence. Further, the incident occurred reasonably recently, but this is likely to be mitigated by her engagement in a relationship with a different approach to conflict.
Determination
[40]	I make the following findings:  I find that that the evidence indicates that MKD has been engaged in incident during a relationship breakdown where there was physical and verbal conflict during the termination of a domestic relationship. This occurred when children were in the house. MKD took some steps to minimise the impact of the conflict on the children by locking the door, and trying to calm the situation, but also inflamed the conflict by returning to the home when told by police not to after she could not find anywhere to sleep. She reflects upon that choice to return as having the potential to impact on the children through prolonging the dispute. 
[41]	I find that the witnesses from those who have observed MKD on a day-to-day basis in her workplace with children and in her homelife with children indicate that the alleged conduct is not reflective of her behaviour with children. The witnesses evidence reflects that she has a calm manner, and manages conflict in way which takes into account children’s emotional needs. 
[42]	I find that the untested evidence may raise the potential for a risk to children but the weight of MKD’s and her witnesses evidence indicates that that risk is remote, given her nature, skills, and understanding of the impact of trauma on children and her commitment to prioritising children’s needs. 
[43]	There is inadequate evidence before the Tribunal to indicate that the children in the home on the night of the incident in 2021 were harmed, and they were named on the domestic violence protection order, in circumstances where the police could not determine who was telling the truth, and the complainant who lived at the house with her children did not want her to return to the house after the relationship had broken down. 
[44]	The existence of a protection order naming the children in these circumstances is not alone sufficient evidence of harm to the children. The protection order was made by consent without admission. The courts have not tested any evidence in relation to these events and the police identify questions of the veracity of the claims being unable to be determined. While it may raise the possibility of risk to children, the balance of the evidence indicates that risk is very small, having regard to the statements of those who know MKD, and clear evidence that there is no other criminal, child protection, or police or domestic violence information. I find that the conduct alleged to have occurred on 12 May 2021, which MKD challenges as untruthful, appears to be anomalous with the how she presents in other contexts around children. 
[45]	I have taken into account the transferable nature of a blue card, and any negative impact of the applicant has not formed part of my reasoning. 
[46]	A positive notice must issue unless I am satisfied that this is an exceptional case in which it would be in the best interest of children for a negative notice to be issued.
[47]	Based on the considerations, the findings and the existence of strong protective factors and minimal risk factors, on the balance of probabilities, I am not satisfied that an exceptional case exists in which it would not be in the best interests of children for MKD to be issued a blue card.
[48]	In reaching this decision I am satisfied that this decision is compatible with human rights and does not limit MKD’s human rights nor compromise the best interest of children which are protected by the WWC Act. I am mindful that to rely on untested evidence would be a breach of MKD’s human rights to a fair hearing and have considered the evidence provided under the notice to produce from QPS and the X Magistrates Court to and considered MKD’s oral evidence in response as part of determining whether the best interest of children could be affected.  
[49]	I am satisfied that it is not in the interests of justice pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for MKD to be identified. I make a non- publication order and de-identify MKD and her witnesses prohibiting the publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness to the extent that it could lead to her identity or witness to these proceedings.