Lo v Director-General, Department of Justice and Attorney-General - [2022] QCAT 16

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16

PARTIES: LO

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML067-20

MATTER TYPE:

DELIVERED ON:

HEARING DATES:

Children’s matters

9 January 2022

19 February, 1 March and 27 April 2021

HEARD AT:

Cairns

DECISION OF:

Member Stepniak

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(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. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to the extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.

CATCHWORDS:
LEGISLATION:
CASES:

CHILDREN’S MATTER – BLUE CARD – where convicted of offences other than a ‘serious offence’ – where charged with an offence other than a disqualifying offence – where issued a negative notice – where adverse evidence reliant on allegations by other party to familial conflict – whether an ‘exceptional case’

HUMAN RIGHTS ACT – BLUE CARD SCREENING -– where deciding whether an ‘exceptional case’- where as a public entity tribunal required to make decisions compatible with human rights and to give proper consideration to a human right relevant to the decision - - where harm due to decision is a limitation on a human right – where statute’s protection of a right is ‘paramount’- whether decision that ‘exceptional case’ compatible with human rights

Human Rights Act 2019 (Qld) ss 4, 8, 9,12, 13, 25, 26, 31, 34, 36 48, 58, Part 2, Division 2 and 3.
International Covenant on Economic, Social and Cultural Rights, Articles 4, 6.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 19, 20, 21, 22, 24, 28, 66, 90.
Weapons Act 1990 (Qld) s 60(1)(c)(i).

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 2, 5, 6, 167, 168, 220, 221, 223, 225, 226, 227, 228, 311, 318, 319, 335, 337, 338, 353, 354, 360; Chapter 8, Part 4, Divisions 4 and 7, Part 6, Division 2; Chapter 9, Part 1 Division 9; Schedules 2; Schedule 4; Schedule 7.

Briginshaw v Briginshaw & Anor [1938] HCA 34
Chief Executive Officer of Child Protection v Grindrod (No2) (2008) WASCA 28.
Chief Executive Officer 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 FGC [2011] QCATA 291.
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 and Anor [2004] QCA 492.
GP v Commissioner for Children and Young People [2013] QCAT 324.

HF [2020] QCAT 482

JF [2020] QCAT 419.

Kent v Wilson [2000] VSC 98.
LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244.
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273.
PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VCS 32.
Re FAA [2006] QCST 15.
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.
TNC Chief Executive Officer, and Public Safety Business Agency [2015] QCAT 489.
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243.

APPEARANCES & REPRESENTATION:

Applicant:

Mr M Thompson, Solicitor.

Respondent:

Ms G. Carrington, Legal Officer, representing Director General, Department of Justice and Attorney-General.

REASONS FOR DECISION
Background

LO (“the Applicant”) is a 43-year-old woman. She and her former partner DP are the parents of five children. The eldest two are their sons, DO (25) and JO (23). The younger children are daughters MO (19), EO (15) and IO (13).
The Applicant commenced her 17-year long de-facto relationship with DP in 1995 when she was 17 and he 28. It was a violent and abusive relationship, characterised by mental abuse, with DP frequently acting aggressively when under the influence of cannabis and alcohol.
A workplace accident in 2005 left DP incapacitated, although the compensation enabled the purchase of a family home. Due to DP’s inability to work, the Applicant’s income became the family’s sole source of money while DP became the house parent.
DP’s non-compliance with medication exacerbated his outbursts. The Applicant’s inability to work due to her difficult pregnancy in 2008 placed an additional strain on the family’s finances, and according to the Applicant prevented DP from buying illicit drugs on which he was dependant.[1] As a result, his abusive and aggressive behaviour deteriorated to the extent that he assaulted and threatened to kill the Applicant. Police intervened and took out a domestic violence order against him in 1998.
[1]Applicant’s Affidavit dated 8 May 2020, paras 122 and 125.
The parties separated briefly in 1999, again in 2004-5 and finally on 11 March 2012, when they agreed on 50/50 shared custody of the children. In 2012, they both took domestic violence orders out against the other. Their Family Court proceedings were only finalised in 2018.
In 2012, the Applicant commenced a new relationship with TR, a separated mother of three children. The Applicant left the family home and moved into a nearby apartment with TR. Although the Applicant and TR separated between 2016 and 2019, their relationship is ongoing.
In 2014 the Applicant began studying for a Disability and Community Service Work Diploma and soon after began working for a disability support service as a Support Worker. She appeared to thrive in this field of work and in the course of the next four years (prior to being issued a negative notice) was promoted to Key Worker, to Line Manager, to Service Coordinator, to Senior Service Coordinator and to Access and Service Lead.
On 12 June 2018, the Applicant applied for a Blue Card,[2] required for regulated employment such as the work of the disability service with which she had worked since 2014 and which involved children and young people.
[2]BCS-17 (Numbered bundle of materials relied on by Blue Card Services).
A Criminal history check on 5 July 2018 disclosed three items of the Applicant’s disclosable criminal history, which were brought to the attention of Blue Card Services.[3]
[3]‘Check Results Report, Australian Criminal Intelligence Commission, BCS-21.
Blue Card Services asked the Department of Child Safety, Youth and Women to provide a ‘Summary of substantiated notifications, matters of concern and investigations and assessments relating to the Blue Card applicant LO.’ The Department released the information on 22 November 2018.[4] A list of the complaints received is set out in Attachment D to the Blue Card Services reasons for the decision to issue a negative notice.[5]
[4]Letter to Blue Card Services from Central Screening Unit, Department of Child Safety, Youth and Women, 22 November 2018. The information was provided in accordance with the Child Protection Act 1999, s 187(3)(c)(i).
[5]‘Complaint Information’, Attachment D to Reasons for the Decision to issue a Negative Notice, 20 January 2020, BCS-30.
The Queensland Police Service (“QPS”) also notified Blue Card Services that the Applicant had been the informant when one of her sons was ‘charged with child sex-related offences’.[6]
[6]‘Information provided by Queensland Police Service,’ BCS-31.
Several motor vehicle related offences between 2002-2015 were also brought to the attention of Blue Card Services. These included speeding, unlicensed driving, driving an unregistered vehicle and smoking in a vehicle when a person under 16 is in the vehicle.[7]
[7]Queensland Police Service ‘Non-Torun Record’ and ‘Traffic Record’ BCS 67-69.
As required by the Working with Children Act (WWC Act),[8] when proposing to issue the Applicant with a negative notice,[9] the Respondent invited the Applicant to make submission on ‘whether or not there is an exceptional case.’[10] The Applicant responded by providing a submission and supporting documentation on 13 December 2018.[11]
[8]The Working with Children (Risk Management and Screening) Act 2000.
[9]Ibid s 229.
[10]Request for Submissions, 4 December 2018, BCS-32-3.
[11]BCS-41-58.
After assessing all information relevant to the Applicant’s eligibility to be issued a Blue Card, the Respondent issued to the Applicant a negative notice together with reasons for the decision and other relevant information on 20 January 2020.[12] On the same day, Blue Card Services advised the disability support service with which the Applicant had worked, not to employ the Applicant.[13]
[12]Letter to the Applicant from the Director, Blue Card Services (Screening Services) dated 20 January 2020.
[13]BCS-64.
On 25 February 2020 the Applicant filed an application asking the Queensland Civil and Administrative Tribunal (“the Tribunal”) to review the Respondent’s decision that the Applicant’s case ‘is an exceptional case in which it would not be in the best interests of children for the executive to issue a positive notice’.[14]
[14]The Working with Children (Risk Management and Screening) Act 2000, s. 221 (2).
The hearing, originally set down for 19 February 2021, was adjourned to 1 March 2021, and concluded on 27 April 2021.
In accord with directions issued by the Tribunal on 27 April 2021, the Applicant and respondent filed their final written submissions by 11 May 2021 and 25 May 2021, respectively.
The Relevant Law
1. The Working with Children (Risk Management and Screening) Act 2000 and the Queensland Civil and Administrative Tribunal Act 2019 (QCAT Act)
The Tribunal must undertake this review in accordance with the QCAT Act and the WWC Act.[15] The latter is the enabling Act, pursuant to which the decision being reviewed was made.
[15]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a).
The Tribunal’s jurisdiction to review a decision made under the WWC Act is conferred on the Tribunal by the enabling Act.[16] Such decisions are described as ‘reviewable decisions.’[17] The WWC Act’s list of reviewable decisions includes the decision, ‘whether or not there is an exceptional case for the person, if because of the decision … [the Respondent] issued a negative notice’.[18]
[16]Ibid, s 17.
[17]Ibid.
[18]Working with Children (Risk Management and Screening) Act 2000 (WWC Act) S 353(a).
The WWC Act provides that a person in respect of whom such a decision was made may apply, in accord with the QCAT Act, to the Tribunal for a review of such a reviewable decision.[19]
[19]Ibid, s 354(1).
The WWC Act provides that in cases such as the Applicant’s, where the decision maker is not aware of a conviction for an offence that for the purposes of the WWC Act constitutes a ‘serious offence’,[20] the decision maker, ‘must issue a positive notice’.[21]
[20]Ibid, s 167; schedule 2. See also further discussion below.
[21]Ibid, s 221 (1)(c).
However, there is an exception in this category of cases. The WWC Act states that, ‘the Respondent ‘must issue a negative notice to the person,’[22] if satisfied that the case is an exceptional case in which it would not be in the best interests of children for the Respondent to issue a positive notice’.[23] As the Respondent was satisfied that the Applicant’s case was such an ‘exceptional case’ the Respondent was required to issue a negative notice.
[22]Ibid.
[23]Ibid, s 221(2).
The application, filed on 25 February 2020, asks the Tribunal to review the Respondent’s decision that the Applicant’s case ‘is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice’.[24]
[24]Ibid, s 221(2).
This review is not an appeal of the earlier decision by Blue Card Services. Instead, the QCAT Act provides that in such a review the Tribunal ‘has all the functions of the decision-maker for the decision being reviewed’,[25] and ‘must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.’[26]
[25]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).
[26]Ibid, s 20(2).
Consequently, while reviewing the earlier decision, the Tribunal takes on the role of the earlier decision maker ‘to produce the correct and preferable decision’.[27]
[27]Ibid, s 20(1).
As the Tribunal’s review of the Respondent’s decision is by way of a ‘fresh hearing on the merits’, the Tribunal must consider not only the evidence available to the Respondent at the time of the decision under review, but also additional evidence submitted by the parties or otherwise obtained by the Tribunal because of its relevance to the Tribunal’s review of the reviewable decision.[28]
[28]Ibid, s 21(3).
The WWC Act restricts the decision options of the Respondent as decision maker and of the Tribunal following its fresh hearing of this reviewable decision on the merits.[29] The Tribunal may only confirm the decision-maker’s decision that the case is an exceptional case, or set aside the decision and substitute its own decision[30] that the case is not an exceptional case, as the correct and preferable decision.[31]
[29]The Working with Children (Risk Management and Screening) Act 2000, s 221.
[30]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
[31]Ibid s 20(1).
2. The Human Rights Act 2019 (Qld) (the HR Act).

In undertaking this review the Tribunal must also comply with applicable provisions of the HR Act.
When acting in an administrative capacity, courts and tribunals are deemed to be ‘public entities’ for the purposes of the HR Act. [32] The Tribunal is held to be acting in its administrative capacity when exercising its review jurisdiction through a fresh hearing on the merits, such as in this review, and therefore to be a public entity for the purposes of the HR Act.[33]
[32]Human Rights Act 2019 (Qld) s 9(4)(b).
[33]See: PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at [123]; HF [2020] QCAT 482 and JF [20220] QCAT 419.
As a ‘public entity’ the Tribunal, is required ‘to act and make decisions in a way that is compatible with human rights’,[34] and to give proper consideration to a human right relevant to the decision’.[35]
[34]Human Rights Act 2019 (Qld), ss 4(b), 58(1)(a).
[35]Ibid, s 58(1)(b).
The HR Act also requires ‘courts and tribunals to interpret provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.’[36]
[36]Ibid, s 4(f).
In section 8, the HR Act explains that—
An act, decision or statutory provision is compatible with human rights, if the act, decision or provision—
(a) does not limit a human right; or
(b) limits the human right only to the extent that is reasonable and demonstrably justifiable …
Thus, in the course of this review and in making a decision, the Tribunal is required to identify any limits on a human right and to determine whether its decision is compatible with the human right.
In determining whether the Applicant’s case is an exceptional case, this Tribunal must identify and give proper consideration to any human rights that the decision may limit – be they those of the Applicant, or of the children with whom the Applicant could work if issued a positive notice or those of others.
For a limit to human rights to be compatible with human rights, it must be a reasonable limit ‘that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’[37]
[37]Ibid, s 13(1).
Thus, any limits imposed by this decision on human rights (including those of the Applicant) must be reasonable and justifiable.
The Act provides guidance to the determination of, ‘whether a limit on a human right is reasonable and justifiable’ and expressly recognises the potential difficulty of seeking to balance and reconcile competing human rights.
In section 13(2) the HR Act lists the following as factors that ‘may be relevant’ to the Tribunal’s determination —
(a) The nature of the human right;
(b) The nature and purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom.
(c) The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d) Whether there are any less restrictive and reasonable available ways to achieve the purpose;
(e) The importance of the purpose of the limitation;
(f) The importance of preserving the human right, taking into account the nature and extent of the limitation of the human right;
(g) The balance between the matters mentioned in paragraphs (e) and (f).
While the HR Act’s reference to human rights is to the ‘Civil and Political Rights’ and ‘Economic, Social and Cultural Rights’ listed in Part 2, Divisions 2 and 3 of the Act,[38] other human rights are also recognised.
[38]Ibid, s 7.
The Act states that the consideration of human rights is not confined to those listed in the HR Act. It includes rights and freedoms listed under ‘another law’ examples of which, the Act states include ‘rights under international conventions, the common law, the Australian Constitution, and laws of the commonwealth.’[39]
[39]Ibid, s 12.
Specifically, the HR Act provides that, ‘International law and the judgements of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.’[40]
[40]Ibid, s 48(3).
What Makes a Case ‘Exceptional’?

In this review, the Tribunal is asked to determine whether it is satisfied that for the purposes of the WWC Act, the Applicant’s case is an exceptional case.
The literal or ordinary meaning of ‘exceptional’ is of something that is not ordinary or typical, or something ‘forming an exception or unusual instance [or] extraordinary.’[41] However, as the legislature may intend words to have a specific meaning in an Act, the term must be considered in the context of the WWC Act.
[41]Macquarie Dictionary, Eight Edition.
The WWC Act does not define the meaning of ‘exceptional case’. However, the immediate context of WWC Act s 221(2) makes it clear that what is needed to make a case exceptional is that while the case would ordinarily require the chief executive to issue a positive notice ‘the chief executive is satisfied …it would not be in the best interests of children for the chief executive to issue a positive notice.’
In the broader context of the Act, Justice Hedigan states, the determination of the meaning of ‘exceptional case’ calls for a consideration of ‘the context of the legislation… the intent and purpose of the legislation and the interests of the persons whom it is designed to protect’.[42]
[42]Kent v Wilson [2000] VSC 98 at [22], cited with approval in Commissioner for Children and Young People v FGC [2011] QCATA 291 at [31].
What renders a case exceptional is clearly assisted by the express object of the WWC Act. Section 5(b) states that –
The Object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring—
(b) the screening of persons employed in particular employment or carrying on particular business.[43]
[43]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

Further assistance is provided by section 6 of the WWC Act, which sets out the following principles under which the Act is to be administered—
(a) the welfare and best interests of a child are paramount;
(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[44]
[44]Ibid, s 6.
Under the heading, ‘QCAT Proceedings About Child Related Employment Review’,[45] the Act reiterates the principles set out in section 6(a), by stating, ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount’.[46]
[45]Ibid, Chapter 9, Part 1.
[46]Ibid, s 360.
Division 9 of the WWC Act is concerned with deciding applications seeking a positive notice, which is required for the issuing of a blue card. The Act specifies the circumstances in which notices of approval or refusal are to be issued[47] and how in certain cases approval or refusal is to be decided.[48]
[47]Ibid, ss 221, 222, 223, 225.
[48]Ibid, s 226, 227, 228.
The Act’s provisions state that a positive notice must be issued where an application is approved, and a negative notice must be issued where an application is refused.[49]
[49]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 220.
In the directly relevant Division of the WWC Act the term, ‘exceptional case’ is used consistently to identify exceptions to the mandatory issuing of a positive notice in some cases and a negative notice in others. The term is only used when referring to cases in which a decision maker is satisfied that a case is an exceptional case calling for an issuing of a different notice to that mandated for unexceptional cases of that category.
Thus, for cases described in s 223(3) of the WWC Act, ‘the chief executive must issue a negative notice’, unless –
the chief executive is satisfied that it would not harm the best interests of the children’ for the chief executive to issue a positive notice where a negative notice must otherwise be issued, [in which case] the chief executive must issue a positive notice.[50]
[50]Ibid, s 223(4).
The present case falls under s 221(1)(b)(c) of the WWC Act. In this category of cases, ‘the chief executive must issue a positive notice.’[51] Section 221(2) describes the exception to this requirement as being, where—
The chief executive is satisfied it is an exceptional case in which it would not be in the best interests of the children’ for the [decision maker] to issue a positive notice where a negative notice must otherwise be issued, [in which case] the decision maker must issue a negative notice.[52]
[51]Ibid, s 221(1).
[52]Ibid, s 221(2).
In each of the above situations the exceptional nature of the case rebuts the presumption, or forms an exception as to the notice that must be issued to an applicant of an unexceptional case of the same category.
Consequently, in order for the Tribunal to conclude that the Applicant’s case is an exceptional case, the Tribunal needs to be satisfied that—
(a)Even though the Applicant’s case is one in which the Respondent would otherwise be required to issue a positive notice, and appears to presume that on the basis of the classification of the offence the issuing of a positive notice in unexceptional cases falling within this category would be in the best interests of children,
(b)it is an exceptional case, in that the Tribunal is satisfied that it is an exceptional case – an identifiable exception to the norm of the same case category of offence, in that,
(c)the issuing of a positive notice permitting the Applicant to work with children would not be consistent with the object of the Act in screening persons to promote and protect the rights interest and wellbeing of children. [53]
[53]Ibid, s 5(b).
What constitutes an exceptional case clearly needs to be decided on its own facts, or as a ‘question of fact and degree in the whole of the circumstances of each particular case’.[54]
[54]LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244 citing Re FAA [2006] QCST 15, at [22].
Ultimately, whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decision on the balance of probability, while bearing in mind the gravity of the consequences involved.[55]
[55]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing test in Briginshaw v Briginshaw & Anor [1938] HCA 34 as authority.
While such determinations have also been described as ‘matters of discretion,^’[56] the decision maker’s discretion is not unfettered.
[56]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. See also: Commissionerfor Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33] per President.
Apart from the considerations addressed above, the WWC Act provides the decision maker with a detailed mandatory guide and check list of considerations in accord with which to determine whether a particular case is exceptional.
Specific Factors that a Decision Maker Must Consider in Deciding Whether a Case is an ‘Exceptional Case’

Section 226(2) of the WWC Act lists the following factors, to which the Tribunal ‘must have regard’ in deciding whether or not the Applicant’s case is an exceptional case.

First: Whether the commission…of offences by the Applicant, relates to a conviction or a charge.[57]

[57]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(i).

The Criminal Intelligence Commission conducted a search of Australian Police information. The Commission’s national criminal history check report dated 5 July 2018[58] disclosed three offences in the Applicant’s criminal history.
[58]BCS-21.
The earliest offence revealed in the criminal history information was a charge of Assault Occasioning Bodily Harm, on 21 March 2001. On 21 September 2001 the charge was struck out in the Cairns Magistrates Court, as no evidence was presented in relation to the charge.
Nine years later, on 10 August 2010, the Applicant was convicted of having committed a public nuisance on 18 July 2010. No conviction was recorded and the Applicant was placed on a 6 months good behaviour period with a recognisance of $200.
The most recent of the Applicant’s known offences concerns her ‘Breach of Order – Respondent Present in Court’, on 5 April 2012. On 4 July 2012 she was found guilty of the offence. No conviction was recorded and she was placed on a 12 month good behaviour period with $500 recognisance.
The Applicant has submitted that as the charge of Assaults Occasioning Bodily Harm was struck out in court because no evidence was offered, it should ‘never have been considered [or] taken into account [by the Respondent] when reaching a decision to issue a negative notice.’[59]
[59]Written Submissions of the Applicant, 11 May 2021, at 12.
However, the WWC Act is clear in requiring the decision maker to consider charges, even where they do not lead to convictions.[60]
[60]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1)(b)(iii); s 226(2)(a)(i); s 226(a)(iii); Schedule 7 Dictionary.
One of the reasons why it is relevant to consider charges which do not lead to convictions, is that the decision maker is ultimately determining an Applicant’s suitability to work with children. Information that is relevant to such an inquiry may be disclosed through information about incidents leading to charges being laid even if they do not lead to criminal convictions.
In addition, prosecutions may be discontinued for many reasons including those relating to the more onerous proof of beyond reasonable doubt or rules of evidence, neither of which restrict the decision maker’s inquiry in this matter.
Nevertheless, the decision maker is required to have regard to any ascertainable and relevant factors of the offence be it a conviction or a charge.
With respect to the convictions in 2010 and 2012, the Applicant has noted that no convictions of any kind have been recorded.
However, the WWC Act defines ‘conviction’ as ‘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.’[61]
[61]Ibid, Schedule 7.
Therefore, the Applicant’s convictions for Breach of Order – Respondent Present, and Commit Public Nuisance, qualify as ‘convictions’ for the purposes of the WWC Act, even though a conviction was not recorded for either.
However, this does not mean that a court decision to not record a conviction needs to be ignored as the decision maker is required to have regard to the penalty imposed and reasons given for the punishment imposed, as is addressed below.
Consequently, in deciding whether or not this is an exceptional case, the Tribunal must have regard to the Applicant’s two convictions and the offence, with which she was charged.
That the decision maker is required to have regard to the distinction between convictions and charges recognises the distinction between established and alleged offences. It follows that in having regard to anything else that the decision maker may construe as relevant to whether the Applicant’s case is an ‘exceptional case’, the decision maker must also distinguish between unsubstantiated allegations and those conclusively found to be true.

Second: Whether in relation to the commission…of offences by the Applicant, any offence is a ‘serious offence, and if it is, whether it is a disqualifying offence’.[62]

[62]Ibid, s 226(2)(a)(ii).

The WWC Act classifies offences as ‘disqualifying’, ‘serious’, ‘other offences’ and ‘alleged offences,’ and specifies how the Respondent, and the Tribunal on review, is to regard offences falling into such categories, when considering whether to issue a positive or a negative notice.[63]
[63]Ibid, s 221; and Chapter 8 Part 4, Division 9 in general.
In this case, none of the Applicant’s offences are considered either a ‘serious offence’[64] or a ‘disqualifying offence’[65] for the purposes of the WWC Act.
[64] Ibid, s 167; schedule 2.
[65] Ibid, s 168, schedule 4.
While the WWC Act directs a decision maker to distinguish between serious offences and other offences, it is clear in requiring offences falling outside of these categories and charges to also be considered by the decision maker.
The two offences for which the Applicant has been convicted fall into the category of matters described as those in which, ‘the chief executive is aware of a conviction of the person for an offence other that a serious offence.’[66]
[66] Ibid, s 221(1)(c).
The offence for which the Applicant has been charged but not convicted falls into the category of matters described as ones in which,’ the chief executive is not aware of a conviction of the person for any offences but is aware that there is….a charge for an offence other than for a disqualifying offence.[67]
[67]Ibid, s 221(1)(b)(iii)
As already noted, the key significance of the Applicant’s convictions and charge falling into these categories is that in both cases a positive notice is required to be issued unless the Respondent, or the Tribunal on review, is satisfied that the case is an ‘exceptional case.[68]
Third: When the offences and alleged offences were committed.[69]
[68] Ibid, s 221(1).
[69]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iii).
The Applicant’ allegedly committed, Assault Occasioning Bodily Harm on 21 March 2001. She also committed the offence of Commit Public Nuisance on 18 July 2010 and breached a temporary Domestic Violence Order on 3 April 2012.
As the offences for which the Applicant was convicted were committed nine and eleven years ago, and the offence for which she was charged was alleged to have been committed over 20 years ago, it cannot be said that any of her offences are recent.
While the Applicant argues that the offences were committed a long ago, the Respondent submits that they are nevertheless significant.
In the reasons for the decision to issue a negative notice, the Respondent states that –
even though a number of years has elapsed since these offences of concern, the clear intention of the legislation is that they remain significant in an assessment of the applicant’s eligibility to hold a blue card.[70]
[70]Reasons for the Decision to Issue a Negative Notice, 20 January 2020, para 8.3; BCS-13.
The WWC Act does indeed require the decision-maker to consider all offences, including those committed or alleged to have been committed a long time ago. However, the WWC Act also requires the decision maker to have regard to other factors such as whether the offence or alleged offence is a conviction, the nature of the offence, it’s relevance to engaging in regulated employment or businesses, and the reasons for the penalty imposed.
In having regard to such considerations, including, ‘when the offence was committed or is alleged to have been committed’[71] the decision maker is able to draw appropriate inferences as to the relevance and significance of each consideration. In so doing the decision maker may conclude that a past offence is highly significant or alternatively of little if any significance.
[71]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iii).
The timing of an offence or alleged offence may, for example, suggest that a once relevant offence is of little significance to the assessment of the person. It may also reveal a pattern of behaviour, relevance of unique circumstances, yet unresolved issues or other factors relevant to the determination of whether the case is an exceptional case.
On that basis, I consider that while the legislation requires me to have regard to when each offence was committed or is alleged to have been committed, it also requires me to determine whether and how they are significant, rather than presume the relevance or significance of the offences regardless of when they were committed and of the relevant context.
As an important reminder that the age of an offence should not be presumed to diminish in significance, the Respondent cites the Appeal Tribunal in Lister,[72] holding that ‘the passage of time without further offending, of itself, is not conclusive that the risk of harm to children is reduced.’[73]
[72]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55].
[73]Respondent’s Outline of Submissions, 25 May 2021 at 47.
While a valuable warning against an unwarranted assumption, it should equally not be presumed that the Applicant’s offences and charge create a presumption of risk of harm to children such as would require the issuing of a negative notice. To do so would be to ignore the distinction the Act makes between categories of offences requiring a negative notice to be issued and those requiring the issuing of a positive notice.
Had the Applicant been convicted of a ‘serious offence’, the decision-maker would be required to issue her with a negative notice.[74] In such a case, the risk of harm to children is deemed to exist and justify the issuing of a negative notice. When considering the significance of the passage of time, in such a scenario, evidence as to the reduction of risks to children may well be crucial to the determination of whether the case is an exceptional case such as would justify the issuing of a positive notice because the person no longer poses the risk to children that they had previously and does not prevent the issuing of a positive notice to the Applicant.
[74]WWC Act s 225.
On the other hand, in this case, the relevance of any reduction of risk over time only takes on significance if offences falling into a category of offences that would ordinarily warrant the issuing of a positive notice, would disclose risks such as would appear to satisfy the decision maker that the case is an exceptional case.
Clearly, each offender and the nature of their offences must be assessed individually to determine the relevance of the timing of their offences.
One arguable implication of the offences not being recent is that they may be viewed as something the Applicant may have once done, but due to the passage of time would not do again.
The Applicant’s offences occurred when she was younger and consequently, at least with reference to the alleged offence of assault occasioning bodily harm, it could be said that her actions were those of a young person who was yet to acquire the judgment and maturity to know better.
Twenty-three years ago, the Application was 23 years of age when she was charged with allegedly committing assault occasioning bodily harm. As the Applicant says, ‘I was very young and made the wrong decision to intervene.’[75]
[75]Blue Card Services, Reasons for the decision to issue a negative notice – BCS-4.
With respect to the more ‘recent’ offences it could be said, that over time and through experience, such insight and understanding is gained, as would mitigate against repeated offending. This could be argued to be the case with respect to the Applicant’s conviction for breaching a temporary Domestic Violence Order in 2012, as evidence suggests that she has learned to step back from confrontation.
Any inferences to be drawn from the Applicant’s actions over 20, 11 and 9 years ago must take into account the Applicant’s circumstances and the extent to which they, and perhaps only they, may explain the offences and alleged offence.
For reasons elaborated in the next section that I consider that it is almost exclusively the Applicant’s breach of the Temporary Domestic Violence Order that is the focus of this review. Any ongoing relevance of the domestic violence context, the insight acquired by the Applicant in the intervening, period, any significant and relevant changes in her circumstances appear to be of greater relevance than the period of nine years that have elapsed since the 2012 offence.
That the Applicant’s offences span a period of eleven years may arguably also suggest established traits, attitudes and behaviours that continue to be of concern.
As more recent incidents also disclose behaviour by the Applicant that has been suggested not to be sufficiently protective of the well being of her children, it could be argued that in this case it is less significant that the offences are not recent, as certain concerning elements of, and surrounding the last offence, have continued as recently as 2018.

Fourth: The nature of the offences…and their relevance to employment, or carrying on a business, that involves or may involve children. [76]

(a)The 2001 Assault Charge
[76]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iv).

The earliest offence recorded in the Applicant’s criminal history information is being charged with an assault occasioning bodily harm, on 21 March 2001.
It appears that the then 23-year-old Applicant had become involved in an altercation while assisting a friend retrieve his belongings from a house in which he had been staying. According to the Applicant, she was ‘attempting to diffuse a heated argument between a family member and a member of the public’[77]
[77]Blue Card Services, Reasons for the decision to issue a negative notice, BCS-4.
Police were called and recorded divergent accounts of what had transpired.[78]
[78]Queensland Police Brief, Court Brief, BCS-23-24, and reasons for the decision to issue a negative notice, BCS-26.
The complainant alleged that the Applicant intervened in her physical altercation with the Applicant’s friend, and had assaulted her, in so doing, breaking her finger. Her account was collaborated by other witnesses.[79]
[79]Ibid.

On the other hand, the Applicant says that when she intervened in a scuffle between her friend and the complainant, the complainant had assaulted her, while she acted in self defence.[80]
[80]Ibid, BCS-24.
On 21 September 2001 the charge was struck out in the Cairns Magistrates Court, as no evidence was presented in relation to the charge.[81] The Applicant testified that the it was deemed ‘a bogus claim’.[82]
[81]Ibid, BCS-23.
[82]Applicant in cross examination, 19 February 2021.
I note that in the reasons for the decision to issue a negative notice, the Respondent refers to this charge as a ‘finalised charge for ‘assault occasioning bodily harm’ where [the Applicant] is alleged to have physically assaulted a complainant, without provocation, causing injuries’[83]
[83]Reasons for the decision to issue a negative notice, at 8.4.
As the facts are in dispute and the reason why the charge was struck out unknown, I prefer not to treat the allegation and charge as established, nor to draw any inferences as to its relevance to the Applicant’s potential work with children or young people.
At most, I note that this charge reveals the Applicant’s tendency to stand up to those who threatened her or to those close to her.
(b) The 2010 Conviction for Public Nuisance
Nine years later, on 10 August 2010, the Applicant was found guilty of having committed a public nuisance on 18 July 2010.[84] No conviction was recorded and the Applicant was placed on a 6 months good behaviour period with a recognisance of $200.
[84]Queensland Police Service Court Brief, BCS-22.
The Respondent notes that according to the Applicant the conviction—
relates to an incident which occurred outside a recreation venue where I was verbally abused by another patron of the venue. An argument ensured and I was charged with public nuisance. No conviction was recorded and I settled the fine.[85]
[85]Blue Card Services, Reasons for the decision to issue a negative notice – BCS-4.
In cross examination at the hearing, the Applicant stated that she was ‘out on the town, drinking heavily’ and retaliated when confronted by a man’.[86]
[86]Applicant in cross examination, 19 February 2021.
Once again, as no further information is available, I do not draw any inferences from this offence for the Respondent’s potential work with children and young people.
This offence and the earlier charge reveal behaviour consistent with a young woman living in an abusive relationship, forced to fend for herself and on occasion to take her children away from the family home in order to protect them and herself. It seems that she did not shy away from confrontation when provoked or when she or others required assistance. The relevance of the Applicant’s unwillingness to step back when she, her children or her friends were in danger, and the impact of such actions on the welfare of her children is a central issue in this review.

(c) The Conviction for Breach of Temporary Domestic Violence Order

The most recent of the Applicant’s known offences concerns her ‘Breach of Order – Respondent Present in Court’ on 5 April 2012. [87]
[87]Australian Criminal Intelligence Commission, Check Results Report 5 July 2018, BCS-21.
On 4 July 2012 she was found guilty of the offence. No conviction was recorded and she was ordered to pay $500 recognisance and to be of good behaviour for one year.
In his protection order application dated 3 April 2012[88], DP refers to a history of domestic violence allegedly perpetrated by the Applicant, and states that the most recent incident of domestic violence occurred on 2 April 2012. On that day he alleges that the Applicant entered the family home, and was verbally abusive and threatening towards him and the children. DP states that he repeatedly asked the applicant to leave and that when she left she took one of the children with her.
[88]Protection Order Application 3 April 2012, NTP-279 (NTP materials from the Department of Child Safety, Youth and Women, in response to Tribunal Notice to Produce, dated 7 October 2020).
In outlining the alleged history of violence by the Applicant, DP states that the violence began in 1996 and increased over the years. He refers to the Applicant’s verbal and physical abuse of the older children, and of him when he steps in to protect the children.
DP also makes some allegations related to the circumstances surrounding his separation from the Applicant. He specifically states that when the Applicant left the family home on 30 January 2012 she did so to enter ‘into a lesbian relationship’. He alleged that ‘all 5 children have seen [the Applicant] and her female partner kissing, touching each other, nude [and] drug smoking’.
With respect to the children, DP alleges that—
The children have been living with me since [the Applicant] left and do not want to be around her. They beg me not to let her hurt them. I am submitting this application in an effort to protect them from her.
As to whether the domestic violence is likely to occur again, DP states, ‘I need legal help to protect them from her as she is now threatening our lives… she will take us out if we do anything including filing this application.’
In an affidavit sworn on 24 February, the Applicant sets out her version of what occurred on 2 April 2012. She states that she arrived at the family home, having arranged with DP that she would be picking up one of her daughters. She alleges that DP was inside but refused to allow her daughter to speak to her, so, she banged on a window and accidentally broke it.[89]
[89]At paras 20-25.
According to the Applicant the Police came and asked her to leave, and she did.
Materials obtained from the Department of Child Safety, Youth and Women and the Police[90], provide additional information regarding notifications received by Child Safety Officers expressing concern for children.
[90]Department of Child Safety, Youth and Women, in response to Tribunal Notice to Produce, dated 7 October 2020 (NTP)
On 3 April 2012, the day on which DP applied for a Protection Order, he also notified Child Safety that he was ‘very concerned for the welfare of his children and [that] the home life situation is ‘very bad’.[91]
[91]NTP-11.
In his Notifier Statement, DP makes the same allegations he made to the Magistrates Court in his Application for a Protection Order. The picture he presents is of the Applicant leaving him and the children for a lesbian relationship, with ‘barely any food to feed all the children’. He states that she fights with the older children and ignores the younger children. In addition to his allegations of verbal and physical abuse against the children, DP expressed concern that the Applicant and TF acted inappropriately in front of the children and smoked marijuana.[92]
[92]NTP-10.
Later in the day, on 3 April 2012, DP once again notified Child Safety, this time with the information that he was ‘aware that [the Applicant] smashed in the windows and totally smashed the place, trying to get to the children’. He is also reported to have said ‘she is absolutely insane’.
Child Safety assessed the concerns as not disclosing any immediate harm factors and recorded that, ‘Father is currently acting protectively.’[93]
[93]NTP-25.
The assessment of these concerns was said to relate to what was described as DP’s failure to protect the children from ‘experiencing harm and emotional abuse due to the actions of [the Applicant] both historically and at present.’ The ‘Details of Harms’ note that, ‘The father has allowed the mother to repeatedly enter the premises post their separation where she has continued to verbally and physically abuse the children.’[94]
[94]NTP-16.
On the evening of 3 April 2012, the Applicant was served with a copy of DP’s Protection Order Application and a summons to appear before the Magistrate Court on 5 April 2012.[95]
[95]NTP-292.
On 5 April 2012 the Applicant was present when the Court found that an act of domestic violence had been committed against DP. A Temporary Domestic Violence Order was made by consent.[96]
[96]NTP-292.
The terms of the Order[97] required the Applicant to be of good behaviour towards any named person and to not commit an act of domestic violence against any named person. The three children residing with DP were named on the Order.[98]
[97]Ibid.
[98]NTP-293.
The terms of the temporary order barred the Applicant from premises where DP or any of the children lived or worked, except as permitted by written agreement of the parents or order under the Family Law Act.
Having attended the hearing, the Applicant was also aware of the condition ‘not to go to, enter or remain in any premises where the aggrieved or named person is residing.’
As recorded in the Queensland Police Service Court Brief,[99]some two hours after the Court made the temporary Protection Order, DP attended a police station and told police that when he drove past the family home, he noticed the Applicant was there, in breach of the order. He was referring to the family home she shared with DP and the children before she moved out two months earlier.
[99]Queensland Police Service Court Brief (General) BCS 25-6.
Police attended and found the Applicant inside. She explained that she was on the premises because ‘she believed [DP] had moved out and[she]was reclaiming the property.’ This belief, she said was based on what an unnamed person had told her. She states that her actions were based on—
what I thought was a sound decision to take up residency in my own home. [DP] and I co-owned the property…He wasn’t living there. I know he had been gone for weeks. …As far as I was concerned, he wasn’t residing there. [100]
[100]Affidavit dated 8 May 2020, at para 145.
The police record confirms that DP had left the property temporarily on 3 April 2012‘, following ‘an incident involving the defendant on 2/4/2012 as he feared for his safety’[101]
[101]BCS-26.
According to the Police Brief, DP told police that he had not informed the Applicant that he was staying elsewhere, had not moved out his furniture or personal belongings and had every intention of returning after 2-3 days.
When directed by police to move off the property, the police recorded that the Applicant complied.
The Applicant has continued to maintain that DP had lied about residing in the house, and had instead been gone from the house for weeks, supported by his father.
According to police records, when the Applicant attended the Police station on 7 April 2012, where, presumably on legal advice, she refused to be interviewed.
The nature of the breach and the contested evidence has led the Applicant to submit that this was a mere technical breach.
To fully appreciate the context of the Applicant’s breach of the Order on 5 April 2012, it is significant to note that on 5 April 2012 the Applicant lodged her own Protection Order Application. In it, she outlines allegations regarding DP’s threats of domestic violence against her, her partner and the partner’s children, and his manipulation and control of their children. As the Applicant points out, these are allegations that are confirmed by her children, partner and mother as well as police records.
On the same day (5 April 2012), perhaps underlining the cross-order reality, the Court made a Temporary Protection Order (albeit, not by consent) against DP.
When considered in this light, the Applicant’s actions on the 2nd and 5^th of April 2012 are perhaps more appropriately seen as acts of frustration in her battle for custody of the children, and confrontation due to being denied access to her children.
In the reasons given for issuing a negative notice to the Applicant, the Respondent appeared to attach particular significance to the fact that three of the Applicant’s children were named as persons protected by DP’s Temporary Protection Order dated 5 April 2012.
The Respondent states—
I hold significant concerns given the Applicant’s three children were also named persons under the order. This strongly suggests the court’s considered restrictions on the Applicant’s interactions with the children necessary in order to protect them from harm. This is significantly adverse in my assessment of the applicant’s ability to engage in child regulated employment.[102]
[102]Reasons for the Decision to Issue a Negative Notice, dated 20 January 2020, at 9.
However, in the absence of evidence for why the three children were named on the order I also note the submission on behalf of the Applicant that, ‘The children were ‘named’ in the application because at the time they were residing with him.’[103] Thus, the Applicant challenges what the Respondent appears to regard as a decisive aspect of the evidence.
[103]Submissions of the Applicant, at 13.
In drawing inferences from the terms of DP’s protection orders, it is also important to note that DP’s order on 5 April 2012[104], the Variation to the Domestic Violence Order on 12 April 2012,[105] the temporary protection order made on 26 April 2012[106] and the Protection Order dated 10 May 2012[107] were all made by consent.
[104]NTP-292-295
[105]NTP-304-308.
[106]NTP-309-312.
[107]NTP-313-315.
Temporary Protection Orders made by consent on legal advice in the course of an acrimonious family court dispute over property and custody, while evidencing the commission of an act of Domestic Violence, are clearly distinguishable from verdicts in criminal proceedings.
In an affidavit sworn on 24 February 2020 the Applicant states that she was given legal advice not to contest DP’s Domestic Violence Orders, but instead to seek a counter order. She states, ‘I was advised that in these cases the court will still put the order in place and it was fruitless to fight it. I followed the legal advice I was given at the time.’
As noted above, the WWC Act defines ‘conviction’ to include ‘the acceptance of a plea of guilty by a court’.[108] However, where a qualifying reason for the guilty plea is known to the tribunal it needs to be taken into account.
[108]Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 7.
The Applicant submits that being advised to accept a domestic violence order without admission was the ‘normal process’.[109]
[109]Submissions of the Applicant, at 15 iii.
In her affidavit dated 15 June 2020, BT, Senior Practitioner of Cairns Regional Domestic Violence Service, refers to a 2017 report on Federally funded research that found that in all Australian jurisdictions –
it had become common practice for police and legal representatives to advise victims of domestic violence to accept a cross-order or stand-alone application for protection made by the perpetrator in order for their own application to be accepted in a timely manner. Victims are reassured that this will not have ramifications for them if they do not breach the Order.[110]
[110]BT Affidavit 15 June 2020 at para 31.
Thus, the Applicant testified that her guilty plea was on the advice of the Solicitor, to ensure that kids are safe.[111] ‘I followed the legal advice I was given at the time’.
[111]Applicant in cross examination, 11 May 2021.
On 5 April 2012, Child Safety received a further notification from DP, advising of the ‘temporary protection order against the Applicant,’ that [the Applicant] ‘broke into the house and locked herself in the house, and that ‘Police were called and removed her.’[112]
[112]NTP-20-21.
I note that the concerns notified to Child Safety by DP exaggerate the events and their impact on the children reported by police, the Applicant, her partner TF and son JO.[113]
[113]Evidence presented by TF and JO is set out below.
Noting that at the time of the Applicant’s breach of protection order, the Court made temporary protection orders for both DP and the Applicant, it is important to consider the eventual outcome of the cross applications.
On 10 April 2012, DP lodged an application to vary his temporary order[114] following the Applicant’s breach of the order. Alleging drive-by and online harassment by the Applicant and persons acting on her behalf, DP asks that the Applicant be ordered to stay a distance away from the family home and that as one of the children wished to live with the Applicant the child’s name be removed from the list of persons named on the order. With respect to the child wishing to leave, DP notes that he suspected manipulation.
[114]Application to Revoke or Vary a Domestic Violence Order, NTP-296-301.
The Variation of DP’s Temporary Protection Order made on 12 April 2012 did not contain a prohibition on the Applicant’s proximity to DP’s home but it did reduce the named Children of the Aggrieved from three to two.[115]
[115]NTP-304-305.
DP also lodged a further notification with Child Safety on 10 April 2012, alleging that the Applicant had broken into the house causing damage. He also alleged that she and a relative had made threats to kidnap the children. Consequently, he expressed ‘concern for the children’s emotional state’[116]
[116]NTP-18.
In their assessment of the ‘notified concerns’ Child Safety wrote that ‘the Mother’s behaviour continues to be of concern…while…The father appears to be acting appropriately, ensuring the care and protective needs of the children.’[117]
[117]NTP-21
On 10 April 2012 the Applicant notified Child Safety of her concerns.[118] The Applicant was reported to have said that, ‘the father is mental and has kidnapped the kids.’ When asked by an Intake Officer to ‘advise what the immediate risks to the children are’, the Applicant is reported to have said that [DP] is mental, uses drugs and drinks alcohol’. She is reported to have also said that DP ‘is a paedophile and gives girls tatts to give him a head job’.
[118]NTP-29
The Applicant is also reported to have made further allegations about DP’s provision of drugs and alcohol and sexual abuse of young girls. She also alleged that DP had made suicidal threats and had threatened to kill the kids.
Child Safety records indicate that she also told the Intake Officer about alleged past actions by DP. She mentioned that DP was known to have ‘had a contract out for his mother’s murder’, that he ‘stole the children of his previous relationship’ that he is ‘a very dangerous man’ that he abused the Applicant, that he is ‘a master manipulator,’ that he was jailed ‘for attempted murder in 1994 and has a contract out on his own mother’. She is recorded as having also detailed his mental health issues.[119]
[119]NTP-29-30.
The Applicant further notified Child Safety that she was unaware of the children’s current whereabouts.
While Child Safety appeared to regard many of the concerns raised by the Applicant as unsubstantiated or uncorroborated by other information received, they noted ‘concerns regarding the father’s alcohol use, prescription medication and marijuana use’. However, Child Safety assessment was that—
insufficient information had been provided to clearly evidence how this alleged behaviour is significantly impacting upon the children and the father’s ability to provide for their basic care needs.[120]
[120]NTP-31.
On 11 April 2012, DP contacted Child Safety with additional concerns that were considered to ‘not constitute significant child protection concerns.’[121]
[121]NTP-27.
On 12 April 2012, DP notified Child Safety of his concern that ‘as a result of [the Applicant’s] recent behaviour, the children are fearful.’ He referred to behaviours including that the Applicant drove her car through the fence of the family home and smashed the windows of the house, that one of the daughters was being slapped across the face and being called ‘a whore and a mole’, and that every week the children are being punched by their mother.
DP also quoted one of the children as saying, ‘my mummy is scary, she banged up my house and will burn me in my sleep’.

He also alleged that the Applicant was intimidating the family ‘by driving by the house and sitting outside in her car.’
DP indicated that he was aware that one of the children had chosen to live with the Applicant and that the child believed that the mother’s treatment of the kids ‘is okay’ and that ‘she’s not beating us, she’s teaching us.’[122]
[122]NTP-34.
On 13 April 2012 Child Safety recorded the comment that the concern received on 12 April was the 7^th additional notified concern reported since 3 April 2012
I note that by this stage the allegations contained in DP’s repeated notifications of concern appear to be recorded not as allegations, but as facts. These include statements such as, ‘[the Applicant’s] physically and verbally abusive behaviour towards DP and the children…[and] the children’s own disclosures of abuse as well as their feelings of fear, anxiety and distress over their mother’s actions, her possible actions in the future and the chaos (ie frequent police involvement) resulting from the current conflict.’
Consequently, on 13 April 2012 Child Safety’s assessment was that—
It is clearly evident that neither parent has the ability to adequately protect the children from exposure to the current conflict or from experiencing the effects of trauma resulting from their dysfunctional parenting relationship.[123]
[123]NTP-35.
The Notification by DP on 16 April 2012 conveyed his concern that ‘[the Applicant] needs help with her anger…[and] that the younger children have become increasingly more violent.’[124]
[124]NTP-40.
Further (undisclosed) information lodged by DP on 27 April 2012 was considered by Child Safety to ‘not raise any harms for children.’ It also appears to illustrate the Applicant’s allegations regarding DP’s unrelenting campaign to damage her prospects of being awarded custody of the children.
On 3 May 2012, a ‘safety assessment, revealed that current child protection concerns were based on notified concerns.’ As such concerns were apparently notified by DP it is perhaps not surprising that the formal assessment revealed that safety concerns regarding all five children had been found to be unsubstantiated and each of the children was deemed not in need of protection.[125]
[125]NTP-51-52.
Child Safety also observed that since the original notification of concerns received on 3 April 2012, nine further additional notified concerns were received.
In a summary of the information gathered, Child Safety recorded that ‘the children appear to be taking sides’ stating who they want to live with, that the older children are providing contradictory accounts of home life and that this suggests that parents have influenced the children’s statements.’
Child Safety also note that both parents,
have been informed of the risks of emotional harm to the children from being dragged into the current conflict and both have verbalised their willingness and ability to protect the children from such harm.’[126]
[126]NTP-54.
Risk factors identified predictably referred to the children’s exposure to the stress and conflict of their parents’ acrimonious separation and custody battle. In that respect it was assessed that,
While there is certainly the existence of familial conflict due to current Family Law proceedings which is impacting the children, it is not to such an extent that it is having a detrimental effect of a significant nature on the children.[127]
[127]NTP-58.
Child Safety also identified a factor, not otherwise identified as a risk factor – that of DP’s past criminal history of Assault, Grievous Bodily Harm, Assault Occasioning Bodily Harm and Armed Robbery.[128] Also mentioned are instances of DP’s Child Protection involvement incidents both in Qld and Victoria.[129]
[128]NTP-57.
[129]See, Background section, above.
The belated acknowledgment of these factors certainly casts a different light on what had appeared to be exaggerated concerns expressed by the Applicant.
Regarding Parental Willingness and Ability, Child Safety assessed the Applicant as -
both willing and able to meet the care and protective needs of the children when they are in her care, as evidenced by:
·[The Applicant] has articulated her ability and willingness to meet the care and protective needs of the children when they are in her care;
·[The Applicant]is actively pursuing Family Law Court processes to determine the care arrangements for the children;
·[The Applicant] has demonstrated insight in relation to the impact that the current familial conflict is having on the children and has articulated strategies to shield the children from this;
·[The Applicant] has reportedly engaged [one of the children] with a psychologist;
·[The Applicant] has agreed to a referral to ‘Act for Kids’ to assist in addressing the child protection concerns and accessing counselling for the children.[130]
[130]NTP-58.
In conclusion, Child Safety’s recorded, ‘Therefore, it has been assessed and an outcome of ‘Unsubstantiated – Children Not in Need of Protection’ has been recorded.[131]
[131]NTP-58.
On 5 May 2012 the Magistrates Court heard DP’s 3 April 2012 application for a Protection Order. By consent the Court made an order in the standard terms – ‘The Respondent must be of good behaviour towards the aggrieved and must not commit domestic violence. Significantly, no children were named.’ Unless Varied or Revoked earlier, the Order was to remain in force until 9 May 2014.[132]
[132]NTP-313-314.
On 10 May 2021 the Court heard the Applicant’s application and also made a standard Protection Order.[133] Following an application by the Applicant on 11 September 2013,[134] the Order was amended to include the term, ‘The respondent is prohibited from making telephone calls or sending messages to the aggrieved.’ [135]
[133]NTP-337.
[134]NTP-338-340.
[135]NTP-341.
A further safety assessment by Child Safety on 21 May 2012,[136] revealed no immediate harm indicators.
[136]NTP-45-50.
Conclusion
I have set out in some detail the nature of the conflict between DP and the Applicant as the context in which the Applicant committed a breach of a protection order.
The available documents appear to present two versions of the facts.
One, of a mother whose behaviour is such that her partner must protect the children from her. This is clearly reflected in the Child Safety records of concerns received. This is not surprising as the source of the concerns is DP, whose manipulation of the children and resorting to any means to win his family law dispute and especially the custody battle with the Applicant, is referred to throughout these reasons.
The other version of events is that of a mother who has finally left an abusive 17-year relationship. She entered into a same-sex relationship, which DP clearly resented, as his allegations, in applications and notified concerns reveal. Rather than retreat from his threats and intimidation, she fought back in large measure, it would appear, to prevent the children being turned against her and kept away from her. She was clearly frustrated and angry with Child Safety and anyone who would not believe her but chose instead to accept DP’s allegations.
The Child Safety records provide a wealth of material that appears to condemn the Applicant’s actions around the time of her breach of order. Only when the records are seen for what they are – either mere accounts of uncorroborated allegations from DP or statements reflecting allegations accepted as fact through repetition.
Inferences can be drawn from a focus on protection order proceedings in which the Applicant is the Respondent. When considered in the broader context of legal advice and tactics and closer analysis of corroborated facts, the initial perception of a mother who is so intent on harming her partner and children that she shows no respect for a court order keeping her away from the partner and children who are in fear of her and consequently in hiding, is revealed to be founded on mere allegations.
I agree with Child Safety’s concern as to the children’s exposure to their parents' conflict in a bitter custody dispute, but find it difficult to envisage how this could have been avoided without the unlikely cooperation of DP.

Fifth, the penalty imposed by the court and reasons for not imposing an imprisonment order and reasons for its decision.[137]
[137]Ibid, s 226(2)(1)(v).

This consideration requires the Tribunal to have regard to the penalties imposed for the Applicant’s two convictions and the reasons given for why the penalties were deemed to be appropriate.
With respect to the Applicant’s earliest recorded offence in 2001, I note that while she was charged with Assault Occasioning Bodily Harm, the charge was struck out by the Magistrate, as no evidence was presented in relation to the charge. No recorded official reasons as to why the matter was struck out were produced.
I note that with respect to the Applicant’s Public Nuisance conviction in 2010 she was placed on a good behaviour bond with a recognisance of $200.
The Applicant quite appropriately submits that the courts’ decisions not to record either of the Applicant’s convictions for Public Nuisance and Breach of Temporary Domestic Violence Order should be taken into account.[138]
[138]Submissions of the Applicant, 11 May 2021, para 13.
The Applicant also submits the Tribunal is required to note, with respect to the Breach of Order conviction in 2012, that the Magistrate Court imposed a lenient penalty – a good behaviour bond with a recognisance of $500.[139]
[139]Ibid.
In addition, the Applicant submits that the Breach of Order offence should not have been taken into account, in part because of the significance of the low punishment imposed by the Magistrate.[140] However, Section 226(2) of the WWC Act requires the decision maker to have regard to penalties (including lenient penalties) imposed by the courts in the case of each conviction.
[140]Ibid.
While further information on the reasons for the imposition of the lenient penalties was not made available to the Tribunal, I still consider it relevant that convictions were not recorded for the convictions and that relatively lenient penalties were imposed.
I also note the uncontradicted evidence that the Applicant pleaded guilty (or consented to the order) on legal advice, and that both parties took out domestic violence orders that were finalised by consent.
The low penalties imposed for the convictions appear to reinforce the revelations of the earlier consideration of the nature of the offences and the relevance of the offences to the Applicant’s regulated employment and businesses
Sixth, Information about the person received by the Respondent.[141]
[141]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(b), (c) and (d).

No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by Corrective Services under section 318 or 319 of the WWC Act.[142] No report about the Applicant’s mental health was given to the Chief Executive under section 335 of the WWC Act.[143] And, no information about the Applicant was given to the chief executive under sections 337 or 338 of the WWC Act by the Mental Health Court or the Mental Health Review Tribunal.[144]

Seventh, ‘Anything else relating to the commission of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.[145]

[142]Ibid, s 226(2)(b).

[143]Ibid, s 226(2)(c).

[144]Ibid, s 226(2)(d).

[145]Ibid.

Evidence of Witnesses

In addition to the Applicant, three witnesses who had provided sworn statements in support of the Applicant, were called to be cross examined by the Respondent. The Respondent asked to cross examine the Applicant and her witnesses TF and BT, while the Applicant called witness NH.
On the first day of the hearing, the Applicant and her partner, TF, presented oral evidence and were cross examined.
TF, the Applicant’s partner 2012-16, and since 2019, submitted a sworn statement[146] to which she testified, and on which she was cross examined by the Respondent.[147]
[146]Character Reference, 19 April 2020.
[147]Hearing on 19 February 2021.
Regarding DP’s behaviour, following the disintegration of his partnership with the Applicant, and TF’s commencement of a relationship with the Applicant, TF writes that DP had threatened to kill her and that she feared that he would.
In the same period of time, TF denied the many allegations made by DP including those about her inappropriate cuddling of children and of TF and the Applicant being undressed in the presence of children.
In her oral evidence TF testified that she had lived with the Applicant and with three children each and described the Applicant as a responsible and protective parent.
As to why the Applicant agreed to the shared custody orders in 2013, TF testified that the Applicant had to do so as she would have to go to court if she didn’t, something the Applicant could not afford to do having run out of money and not being able to secure legal aid.
In cross examination, TF told the Tribunal that the animosity between the Applicant and DP that existed before their custody agreement in 2013 did not reappear until 2017. During this interim period, TF stressed that the Applicant did not display any animosity towards DP.
In cross examination TF explained that due to the stress of the Family Court process between 2016 and 2019, she and the Applicant had separated. However, they did remain in regular contact.
TF outlined how things changed in 2017, when the Applicant’s middle daughter MO, disclosed that her brother DO had abused her sexually. TF stated that it was her understanding that three years earlier DO had told his father, DP, what he had done, and that his father had told him that he had done the same.
TF also wrote about how the Applicant worked to implement the safety plan in terms of DO, the Applicant’s eldest son, and her other children.
TF was also adamant that the Applicant never coached her children to make allegations of sexual assault/abuse by her former partner, stating that this was made up by DP. Instead, she noted that, ‘the children told us what they told us”.
Asked about the safeguards imposed on DO being in the same house as the other children, TF observed that DO was not to be left alone with the children, that Child Safety wrote up terms of agreement requiring doors to be open. She told the Tribunal that the restrictions were still in force and that the children were aware of them.
In her written statement[148] TF states that when the Applicant heard her youngest daughters’ allegations of sexual abuse by their father, the Applicant was aghast and determined to find out what was going on. She began by contacting Child Safety and the Police straight away.
[148]Statement dated 19 April 2020 in affidavit sworn on 25 June 2020.
TF also testified that after the Applicant’s youngest daughters made their allegations against their father, the Applicant set about seeking to have the custody order changed. TF stated that she helped the Applicant write an affidavit setting out ‘the whole story’. This appeared to succeed as one week after the Applicant submitted the affidavit to her solicitor, DP signed sole custody over the children to her.
TF described the Applicant as a strong person, generous, funny and warm with children. She described how the Applicant ‘held it together’ and did everything she could to protect her children.
As to the Applicant’s reaction to allegations that her children were abused or otherwise not protected, TF stated that the Applicant was devastated and, ‘went into protective mother mode.’
Regarding the Applicant’s 5-year career with disability support services, TF observed that the Applicant had empathy for children in need of care and that this was recognised in her promotions.
TF’s sworn statement and oral evidence were valuable in that she was able to offer first hand observations regarding particularly relevant events and actions by the Applicant. I found her to be frank and forthcoming when cross-examined at the hearing.
BT is a counsellor and Social Worker who submitted a statutory declaration[149] containing 54 pages of documents constituting a ‘summary of therapeutic contact with children of [the Applicant]’. She also presented oral evidence and was cross-examined.[150]
[149]Statutory declaration dated 15 June 2020,
[150]Hearing on 27 April 2021.
In her statutory declaration dated 15 June 2020, BT observed that she had provided therapeutic counselling and psychological assessment to the applicant’s three daughters. While she did not provide counselling to the Applicant, she provided family therapy and focused on how she could support the Applicant’s children.
BT indicated that she understood the reasons why a negative notice had been issued to the Applicant. However, under cross examination she conceded that she had not read the reasons given by Blue Card Services for issuing the negative notice.[151]
[151]Cross-examination 27 April 2021.
BT stated that she assisted the Applicant to ensure that the children were not exposed to familial conflict or “used as pawns” and provided her with strategies to deescalate and ensure the safety of the children came first.
As to the Applicant’s handling of her children’s disclosures of abuse, BT stated that the Applicant responded in a way expected from anyone in that situation, acting protectively and doing what was possible given the challenges.
She also stated that the Applicant’s capacity for, “critical self reflection and absolute honesty” was a protective factor.
In cross examination, BT stressed that the Applicant’s primary focus was the best interests of the children and ensuring that they were not drawn into the conflict.
In BT’s view, given the challenges, the Applicant had acted protectively and had been determined to keep her children and to seek counselling to determine what she should do in light of Child Safety and Police involvement.
BT observed that she was, ‘Struck by how well [the Applicant] managed trauma’
Traits possessed by the Applicant to which BT referred were her capacity for self reflection, honesty, integrity, and that she ‘didn’t sugar coat.’
In cross-examination, BT was asked to comment on Child Safety’s concern that the Applicant had not able to provide the children with a safe environment when DO was accused of sexually abusing MO. BT replied that the Applicant did her best to protect the children from DO and that she did not stop protecting her children when DO was accused.
I consider BT’s evidence to be particularly significant in that it provides a professional account of the Applicant’s efforts to protect her children, capacity to function as a mother in the midst of intense disruption and conflict, and of the younger daughters’ allegations regarding abuse by their father and their mothers’ response to the allegations.
NH, the Applicant’s previous employer provided a personal reference[152], and presented oral evidence.[153]
[152]Dated 25 May 2020
[153]Hearing on 27 April 2021.
NH states that she was aware of the Applicant’s criminal history, describing them as indiscretions many years ago. However, her cross examination revealed that NM had not read Blue Card’s reasons for issuing the negative notice and was not specifically aware of the Applicant’s criminal history or the details of the Applicant’s interactions with the Dept of Child Safety around the assault/abuse alleged to have been perpetrated against the Applicant’s daughters.
In her written reference NH states that the Applicant was recruited by the new carer service focusing on young people. She described the Applicant’s caring compassionate and supportive nature and as an ‘open, honest and warm person [with a] commitment to advocate for the rights of persons with disability.’

I find the exclusion of the media and public from hearings in this review, required under the provisions of the QCAT Act and the WWC Act and to be compatible with human rights as set out in section 31(1) and qualified in section 31(2) of the HR Act.
As set out above, the section 31(3) of the HR Act requires all tribunal decisions to be ‘publicly available’. However, s 66(1)(c) of the QCAT Act permits the Tribunal to make a non publication order,
(1) prohibiting the publication of…
(c) information that may enable a person who has appeared before the
Tribunal, or is affected by a proceeding, to be identified.
The Tribunal may only make such an order if it considers the order necessary for a number of specific reasons[287] including, ‘to avoid the publication of confidential information or information whose publication would be contrary to the public interest’[288], and ‘for any other reason in the interests of justice’.[289]
[287]Ibid, s 66(2).
[288]Ibid, s 66(2)(d).
[289]Ibid, s 66(e).
As the proceedings concern child-related employment under the WWC Act, the interests of justice require that nothing be published that could identify the Applicant’s children who are clearly ‘affected by the proceeding’.[290]
[290]Ibid, s 66(1)(c).
A non publication order is also required in order to protect children in accordance with the right set out in s 26(2), that ‘Every child has the right without discrimination to the protection that is needed by the child, and is in the child’s best interest, because of being a child.’
In addition, I also consider it necessary to prohibit the publication of the names or anything otherwise identifying the Applicant, witnesses or any third party to these proceedings as the publication of their names may unintentionally lead to the identification of the children and the disclosure of confidential information.
Such disclosures would be likely to also infringe on the Applicant’s and other’s right to privacy and not to have her reputation unlawfully attacked.[291]and arbitrarily interfered with.[292]
[291]Human Rights Act 2019 (Qld), s 25 (b).
[292]Ibid, s 25 (a).
Both Section 66(1)(c) of the QCAT Act, permitting non publication orders, and the actions of this Tribunal in issuing directions regarding non publication, clearly limit the Applicant’s right to a fair hearing, enshrined in s 31(3) of the Human Rights Act.
However, I also find that the limit imposed is reasonable and justifiable for the purposes of s 13 of the Human Rights Act, and therefore compatible to the rights of persons whose right may be limited.
In accordance with factors listed in s 13(2) of the Act I note ‘the importance of the purpose of the limitation’,[293] ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’[294], ‘the balance between the [last two factors]’[295] and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.[296]
[293] Human Rights Act 2019 (Qld), s 13(2)(e).
[294]Ibid, s 13(2)(f).
[295]Ibid, s 13(2)(g).
[296]Ibid, s 13(2)(d).
On this basis, I consider it appropriate and necessary to make a non-publication order prohibiting the publication of statements, documents and any other information in these proceedings that may be capable of identifying the Applicant, any child, witness or third party in these proceedings.
The Right to Work
Finally, I consider the Applicant’s right to work. This right appears to have been limited by both the decision to issue a negative notice and by the lengthy review process.
The HR Act lists a number of key Civil and Political Rights[297] as well as Economic, Social and Cultural Rights.[298] While the HR Act does not list the right to work amongst its 23 fundamental human rights, it states that—
A right or freedom recognised under another law must not be taken to be abrogated or limited simply because the right or freedom it is not included in the Act or is only partly included.
[297]Ibid, Part 2, Division 2.
[298]Ibid, Part 2, Division 3.
The HR Act lists ‘rights under the International Covenant on Economic, Social and Cultural Rights’ (ICESCR) as an example of ‘another law’[299]and provides that,
International law and the judgements of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.[300]
[299]Ibid, s 12 ‘Examples of another law’.
[300]Ibid, s 48(3).
Article 6(1) of the ICESCR recognises,
the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
However, the right to work enshrined in Article 6 of the ICESCR is also expressly qualified by article 4 which provides that –
the State, may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
The qualification of the right appears to be similar to the reasonable and justifiable limit of the HR Act.
Perhaps the main significance of taking into account the right contained in International Covenants such as the ICESCR is that it may be considered in the interpretation of statutory provisions.[301]
[301]Ibid, s 48(3).
The right to work is clearly qualified by the requirement that a person possesses the appropriate skills and qualifications to undertake particular work. On that basis it could be said that a negative assessment of a person’s suitability to undertake particular work is not necessarily a breach or limitation of that right.
The WWC Act establishes and regulates the screening of persons wishing to work with children. On that basis the right to undertake’ regulated employment’ appears to be a right to be assessed and if deemed suitable to be issued a positive notice.
Rather than being perceived as a law, process, or decision that limits the Applicant’s right to work, the Act may be said to respect the Applicant’s right to undertake work of her choice within the context of the primary object of protecting the safety and best interest of children.
While the present restrictions on work with children appear to be compatible with human rights, I note a related human right in s 36(2) of the HR Act, ‘Every person has the right to have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all.’

3. Transferability

The Respondent observes that holder of Blue Card allowed unsupervised and unfettered access to children in a range of regulated activities, and submits that ‘the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
While that is unquestionably the case, it is not clear what categories of regulated employment or regulated businesses would be more or most likely to lead to a finding that the Applicant’s involvement would not be in the best interests of children.
I note that the evidence in this case appears to establish that the Applicant was more effective than most others in coping with and protecting the welfare of her children in unique and particularly challenging circumstances.

Risk Factors and Protective Factors

I have addressed the factors the WWC Act and HR Act require the Tribunal to consider in deciding whether this is an exceptional case in which it would not be in the best interest of children for the chief executive to issue a positive notice.
In so doing, I have considered evidence regarding the Applicant’s offences as relevant to a determination of any risks to children with whom the Applicant may work if she were issued a positive notice. I have also addressed evidence suggesting that the Applicant would not pose such a risk, and evidence appearing to reduce or eliminate the significance of risks that may otherwise satisfy me that ‘it would not be in the best interests of children to issue a positive notice.’
Judicial authority is clear in denouncing the weighing up of identified risk factors against protective factors, when deciding whether a particular case is an exceptional case[302][303] In Eales[304] The Appeal Tribunal further observed that the weighing of risks and protective factors test ‘has been discredited by the Appeal Tribunal in FGC’.[305]
[302]Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492.
[304]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303.
[305]Commissioner for Children and Child Guardian v FGC [2011] QCATA 291.
However, it is important to clearly delineate the practice that was held to be inappropriate and discredited. The Appeal Tribunal in Eales does so, stating that—
the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interests of children for a blue card to be issued to the person.[306]
[306]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [7].
A consideration of protective and risk factors has the benefit of ensuring that the case is assessed in the light of all the evidence including not only factors suggesting risks to children but also of protective factors that may qualify risk factors and assist the determination of whether there is ‘an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice’.
On the basis of the above, I accept that a consideration of protective and risk factors is capable of assisting the decision maker determine whether a case is an exceptional case, but is not to be employed to determine whether an exceptional case exists by weighing risk factors with protective factors. In this sense I have considered protective and risk factors in a qualified rather than quantified manner, as the Respondent submits is appropriate.[307]
[307]Respondent’s Outline of Submissions, 11 May 2021, para 27.
I would like to turn to the issue of the relevance of evidence provided by the Applicant and her character witnesses as to her dedication to and skills in working with disabled young people, and the support she offered parents.
Authorities appear to suggest that in order for a factor to be a relevant protective factor, it must be protective of children or must lessen risks to children. Thus, on the basis that, ‘The Act is only intended to benefit children in so far as it is intended to protect them.’[308] In Scott, Buss J held that [my emphasis]—
any benefit that might be thought to flow to children by having access to the Applicant’s knowledge, experience or flair in working with children is of no relevance if there exists an unacceptable risk to children in future contact.’[309]
[308]Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 at [109].
[309]Ibid.
However, this should not be taken to mean that since the value of the Applicant’s likely contribution to children does not relate directly to the protection of children from risk, it is not to be taken into account when determining whether the case is an exceptional case.
In my view, the authorities merely state that where a risk factor has been identified that suggests that it would not be in the best interests of children for the Applicant to be issued a positive notice, that the applicant’s work with young people would also benefit them should not be taken into account as a protective factor that wholly or partly offsets the risk.
In this case, the Applicant’s demonstrated skills in working with disabled youth, and her employer’s and co-workers’ apparent high regard for her work and support for her application to be issued a positive notice are relevant to the determination and qualification of any perceived risks to children and young people, were she to be issued a Blue Card.
If inferences as to risks are to be drawn from the Applicant’s care and protection of her children during an acrimonious separation, family law dispute and revelations of intra family sexual abuse, then equally they should to be drawn from the assessments of the Applicant’s four years of work with the disability support service.
In this sense an assessment of the likelihood of risk to children takes into account not only predictions and conjecture as to risks but also the Applicant’s track record of working with young people.

Overall Conclusions and Findings

In this review the Tribunal must decide whether 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 ‘working with children clearance’
As the Court of Appeal held in Maher,[310] in order to confirm a decision that a case is exceptional, the Tribunal is,
required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would harm the best interest of children for a positive notice to be issued.[311]
[310]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[311]Ibid, at [30].
In light of the above considerations, I note the following key findings.
The offences disclosed in the Applicant’s criminal history are of little relevance to the assessment of her suitability to engage in employment or business requiring a Blue Card. At most they present a young woman living in and breaking out of an abusive relationship, who stands her ground when she or those close to her are threatened.
However, issues first disclosed in documents relating to the Applicant’s breach of protection order are shown to feature in the Applicant’s life for the next six years, and are central to this review.
The concerns about the Applicant’s capacity to protect the welfare and best interests of her five children are in almost all cases conveyed to Child Safety and Police by the Applicant’s former partner and the father of the children.
His allegations are often clearly vindictive and unfounded, and while repeatedly recognised as such, are nevertheless repeated and become indistinguishable from reality in assessment records. DP’s skill in influencing his children to support his allegations served to provide recorded sources of ‘confirmation’ for his allegations.
The Applicant’s ability to take care of her children was significantly hampered during the period of co-parenting with DP. Despite significant misgivings she grudgingly agreed to a shared custody arrangement Her ‘parenting from afar’ limited her influence and involvement in her children’s lives and her ability to address issues for which she was later held responsible.
While the Applicant acquired insight into how destructive it was for children to be exposed to bitter custody and other family law disputes, the children continued to remain involved in her conflict with DP.
The Applicant’s handling of multiple concurrent issues in 2017 appeared to stretch her capacity to act as Child Safety and police agencies authorities demanded. The disclosure of historical sexual abuse of her eldest daughter by her eldest son apparently came as a shock. She continues to be blamed because the abuse is said to have occurred in her home.
Apparently, her reaction to this revelation was not as others say it should have been. It seems that she was expected to hand her son over to the authorities and focus her attention entirely on the care of her daughter. That she also took into account her son’s fragile mental state and potential for self harm and made wider inquiries as to how best to handle the situation has been, unfairly in my view, labelled as an attempt to hide the assault, or at best to delay her son’s prosecution.
Complicating this revelation were her eldest daughter’s personal issues. MO had chosen to live with her father in part to take advantage of the unstructured and permissive lifestyle of his home. Under her father’s influence, she allowed herself to be used to support her father’s allegations about the Applicant. She became quite dysfunctional, abusing drugs and alcohol, and disruptive in school. At the same time she chose to distance herself from her mother.
The revelation that appeared to cause the greatest disruption and brought the most criticism of the Applicant from child care authorities, was the Applicant’s handling of alleged revelations by her youngest daughters that their father had been sexually inappropriate with them over a number of years.
This allegation was further complicated by the Applicant perceiving that it was not just the youngest girls that had been abused by him. She was not believed by the authorities and her discussion of these allegations with the children came to be seen as her grooming the girls’ evidence against their father. Police investigators were open in their dismissal of the Applicant’s concerns, labelling them as a blatant custody grab.
The Applicant’s frustration and anger that these allegations were not being taken seriously is evident in records of interviews with Child Safety and in her own accounts of the events. That independent counselling of the youngest daughters and accounts by others present in the household at the time appeared to substantiate the allegations, receives little acknowledgment. I note the unchallenged evidence that when threatened with full exposure of his abuse of the children, DP signed over custody of all the children to the Applicant in 2018.
There is a recurring theme in accounts of the Applicants actions and in reports of allegations. When unfounded or clearly malicious allegations were received, they continued to be cited as concerns received some even acquired the status of ‘evidence’ of the perceived inadequacies of the Applicant’s parenting. On the other hand, conclusions and formal assessment by Child Safety tended to be at least eventually positive in investigations or in the case of the 2017 upheavals, ultimately positive. Unfortunately, a number of interim and often reversed findings have been relied on to draw conclusions adverse to the Applicant.
The reasons previously given by the Respondent for issuing a negative notice rely on an inference that acts of domestic violence and abuse occurred in the Applicant’s home and hence demonstrated her inability to provide a safe environment for her children. However, the evidence appears to suggest that acts of domestic violence and child abuse occurred while the children were living with DP.
The evidence strongly supports the finding that the Applicant’s actions, whether or not approved by those assessing her child care, were motivated by a determination to protect and nurture her children. Where her actions appeared to be uncooperative or confrontational, it tended to be because she felt let down or not believed by those whose assistance she sought for her children.
This case illustrates vividly that a determination of whether it would be in the best interest for a person to be engaged with children and young people in regulated employment or business needs to deliberately take into account the circumstances in which a person’s suitability had been assessed.
The evidence establishes that the Applicant was tireless in her efforts to protect and promote the best interests of her children. That she did so while the children were only in her care for half the time, while she worked full-time, and while she was being assessed by authorities on the basis of misinformation against her. She continued to fight for her children during the two intra family sex abuse revelations (one of which was not believed by the authorities and the other being one for which she appears to have been unfairly blamed).

In this case, care needs to be taken not to attribute blame or responsibility to the Applicant or her assumed inability or failure to protect the children’s best interests. Sometimes, circumstances are such that no amount of insight, understanding or commitment is enough to prevent children being injured.
That some of the Applicant’s children suffered long term mental and psychological harm is not in question. What I reject is the view that as their mother, the Applicant should be held to blame. Sharing custody with her ex-partner and working full time meant that her influence and say was quite limited. Her role was to do her best to protect her children from DP. She did so, gaining additional skills and insight along the way. That at times the children to become involved in her conflict with DP is regrettable but unfortunately not avoidable in all the circumstances.
That in response to unfounded attacks and danger posed to children the Applicant stood up for herself and this appeared to be held against her. Child protection agencies appeared to want her to rely on them. That she resisted did not necessarily disclose a lack of insight or understanding but rather reflected a previous lack of support and trust, and consequently often amounted to a realistic assessment of immediate needs.
I also find that the Applicant learned and gained insights into dealing with situations ‘for which there is no handbook’ and was assessed to have done as well if not better than would have been expected of others in her position.
While admittedly she was at times determined to handle situations in her own way, it also needs to be emphasised that she sought guidance and cooperated with authorities. While her experiences have led her to feel let down and what she knew to be her children’s best interests not taken into account, she has come through with a greater awareness of how to promote the welfare and best interest of young people.
A factor that warrants emphasising relates to the relevance of the Applicant’s experiences with her children and to her work with young people in disability care services and other care she would be entitled to undertake with children and young people.
While speculating on whether she would pose a risk and therefore that her presence would not be in the best interests of children and young people, it is appropriate to consider her track record. The evidence presented regarding her four years with a disability support service is of a person who is exceptionally well suited and appreciated in the work she had undertaken. Additionally, it needs to be emphasised that she undertook such work on a full-time basis and a time when her personal life was in turmoil. Such professionalism says a great deal about how she would be likely to undertake any future working requiring a Blue Card.
The Respondent submits that permitting the Applicant to undertake work requiring a Blue Card would not be in the best interest of children and young people. However, I find evidence of such a risk to be hypothetical and based on inferences from contested events. As such it cannot be considered as evidence of real and appreciable risk.
In concluding that the Applicant’s case is not an exceptional case, I have —
(a)Considered all the available evidence in light of—
(i)      The WWC Act’s objects and principles;
(ii)      The ‘principle that the welfare and best interests of a child are paramount’ under which a ‘child-related employment decision is to be reviewed;’[312]
(iii) The statutory factors listed in s 226(2), to which the Tribunal, as decision maker, must have regard;
(iv)     Other factors of which the Tribunal is aware that are relevant to the assessment of the person;
(v)      Additional factors relevant to the assessment of the Applicant; and
(vi)     The requirement that the Tribunal---
A.give a proper consideration to human rights relevant to the decision;[313]
B.act and make decisions in a way compatible with human rights;[314]
C.interpret statutory provisions ‘to the extent that is consistent with their purpose, in a way compatible with human rights’;[315] and
D.determine whether any identified limits on human rights are reasonable and justifiable in accordance with s 13 of the Human Rights.
[312]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
[313]Human Rights Act 2019 (Qld), s 58(1)(b).
[314]Ibid, s 4(b).
[315]Ibid, s 4(f).
I note that the paramount consideration of the WWC Act is appropriately said to call for a precautionary approach to be taken in child related employment matters. In the words of Philippides J, ‘the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case.’[316]
[316]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 49 at [30].
This, the Respondent submits requires a finding that this case is an exceptional case such that it would not be in the best interest of children and young people for the Applicant to be issued with a working with children clearance and a blue card.[317]
[317]Respondent’s Outline of Submissions, 11 May 2021, para 34.
However, for the reasons set out above, I find that I am not satisfied that the Applicant’s case, in terms of s 221(2) of the WWC Act, is ‘an exceptional case in which it would be in the interest of children for the chief executive to issue a positive notice’.
Consequently, it is my decision that—
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(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. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to that extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.

[303]Respondent’s Outline of Submissions, 11 May 202, para 26.

CITATION:	LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16
PARTIES:	LO
(applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:	CML067-20
MATTER TYPE: DELIVERED ON: HEARING DATES:	Children’s matters 9 January 2022 19 February, 1 March and 27 April 2021
HEARD AT:	Cairns
DECISION OF:	Member Stepniak
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(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. Pursuant to s 66(1) of the *Queensland Civil and Administrative Tribunal Act* 2009, the publication of any statements, documents or other materials relating to these proceedings is prohibited to the extent that such could identify or lead to the identification of the applicant, any child, witness, or third party in these proceedings.
CATCHWORDS: LEGISLATION: CASES:	CHILDREN’S MATTER – BLUE CARD – where convicted of offences other than a ‘serious offence’ – where charged with an offence other than a disqualifying offence – where issued a negative notice – where adverse evidence reliant on allegations by other party to familial conflict – whether an ‘exceptional case’ HUMAN RIGHTS ACT – BLUE CARD SCREENING -– where deciding whether an ‘exceptional case’- where as a public entity tribunal required to make decisions compatible with human rights and to give proper consideration to a human right relevant to the decision - - where harm due to decision is a limitation on a human right – where statute’s protection of a right is ‘paramount’- whether decision that ‘exceptional case’ compatible with human rights Human Rights Act 2019 (Qld) ss 4, 8, 9,12, 13, 25, 26, 31, 34, 36 48, 58, Part 2, Division 2 and 3. International Covenant on Economic, Social and Cultural Rights, Articles 4, 6. Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 19, 20, 21, 22, 24, 28, 66, 90. Weapons Act 1990 (Qld) s 60(1)(c)(i). *Working with Children (Risk Management and Screening) Act 2000* (Qld), ss 2, 5, 6, 167, 168, 220, 221, 223, 225, 226, 227, 228, 311, 318, 319, 335, 337, 338, 353, 354, 360; Chapter 8, Part 4, Divisions 4 and 7, Part 6, Division 2; Chapter 9, Part 1 Division 9; Schedules 2; Schedule 4; Schedule 7. *Briginshaw v Briginshaw & Anor* [1938] HCA 34 *Chief Executive Officer of Child Protection v Grindrod (No2)* (2008) WASCA 28. *Chief Executive Officer 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 FGC [2011] QCATA 291. 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 and Anor [2004] QCA 492. GP v Commissioner for Children and Young People [2013] QCAT 324. HF [2020] QCAT 482 JF [2020] QCAT 419. *Kent v Wilson* [2000] VSC 98. *LCA v Director-General, Department of Justice and Attorney-General* [2017] QCAT 244. *Minister for Immigration and Ethnic Affairs v Teoh* [1995] HCA 20; 183 CLR 273. *PJB v Melbourne Health & Anor (Patrick’s Case) [2011] VCS 32. Re FAA* [2006] QCST 15. *Re Imperial Chemical Industries Ltd’s Patent Extension Petitions* [1983] VR 1. *TNC Chief Executive Officer, and Public Safety Business Agency* [2015] QCAT 489. *Volkers v Commission for Children and Young People and Child Guardian* [2010] QCAT 243.
APPEARANCES & REPRESENTATION:
Applicant:	Mr M Thompson, Solicitor.
Respondent:	Ms G. Carrington, Legal Officer, representing Director General, Department of Justice and Attorney-General.