Omt v Director-General, Department of Justice and Attorney-General - [2024] QCAT 280

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

OMT v Director-General, Department of Justice and Attorney-General [2024] QCAT 280

PARTIES:

OMT

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY -GENERAL

(respondent)

APPLICATION NO/S:

CML102-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

3 July 2024

HEARING DATE:

8 May 2024

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

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 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – General administrative review – Blue Card – where negative notice issued – whether an exceptional case – where convicted of an offence other than a ‘serious offence’- where charges for violent offences discontinued

Human Rights Act 2019 (Qld), s 8, s 13, s 58

Working With Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 228

APPEARANCES & REPRESENTATION:

Applicant:

Mr Wells of counsel appeared for the applicant, instructed by Mr McMahon of McMahon and Associates

Respondent:

Ms Davis

REASONS FOR DECISION

The applicant wishes to have a Blue Card so that she can continue to work as a teacher aide. She was issued with a Blue Card from 2005 until it was cancelled on 2 June 2020. She has applied to this Tribunal for a review of the respondent’s decision to issue a negative notice when she applied for a further Blue Card.
The applicant is a woman in her late 50s. She was convicted in 1999 in relation to unauthorised dealing with shop goods which appear to be valued at $10.14. That conviction has had no bearing on my decision, except that it is a conviction which activates particular sections of the legislation.
In 2014, the applicant was charged with a number of drug offences involving possession and production of dangerous drugs (cannabis), possessing utensils or pipes etc that had been used, and possessing anything used in the commission of a crime. The applicant claims that the items belonged to her former partner (they were separated but sharing the house). Ultimately, the prosecution offered no evidence to support the charges against the applicant.
On 21 January 2020, the applicant’s two sons, nephew, and another person were involved in a vicious assault upon a person known to the family. The victim was staying at a house neighbouring the applicant’s home. The applicant was not present during the assault but was charged with the following offences arising out of the incident:
(a)Acts intended to cause grievous bodily harm and other malicious acts – unlawfully wound/ cause grievous bodily harm / transmit serious disease;
(b)Enter dwelling with intent by break at night uses / threatens violence whilst armed in company damages property;
(c)Wilful damage;
(d)Stealing.
None of the charges proceeded to trial.
The applicant says she had nothing to do with the assault and should not be penalised because of the actions of her family members.
In considering this application, the Tribunal’s paramount consideration is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
The applicant has not been convicted of a “serious offence” as defined in the Working with Children (Risk Management and Screening) Act2000 (‘WWC Act’). Accordingly, a positive notice (and so a Blue Card) must be issued unless the Tribunal is satisfied that this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice.[1]
[1]WWC Act, s221
The Act sets out matters which the Tribunal must take into account in making that determination,[2] but this is not an exhaustive list.
[2]Ibid, ss 226, 228.
This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice.
In conducting the review, the Tribunal is acting as a public entity, as that term is described in the Human Rights Act 2019 (‘HRA’). Accordingly, it is unlawful for the Tribunal to act or make a decision in a way that is not compatible with human rights, or in making the decision, to fail to give proper consideration to a relevant human right. A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA.
An oral hearing was conducted and the applicant attended, and provided evidence in support of her application. I also have the benefit of the written material filed by the parties, and the evidence presented by the applicant’s support network, and submissions from each of the parties.
The applicant’s friends and colleagues provided evidence that she is staunchly anti-drugs, that she does not drink alcohol as a rule, and that she is a kind and supportive person to have in the classroom assisting special needs children.
The applicant provided evidence that, despite her best endeavours, her two sons became involved in using drugs. She provided oral evidence that they had begun using drugs after they were 18 years of age. When pressed by the Tribunal, the applicant confirmed that she had no memory of her sons using drugs prior to 18 years of age. It was only when provided with material produced by the Department of Child Safety that she recollected that at least one of her sons had been using marijuana at around 14 years of age and that she had spoken to the Department about that issue. In response to a question from the Tribunal, the applicant agreed that she could not, off the top of her head, recall when her children started using drugs.
The applicant was named as an aggrieved and a respondent in domestic violence orders in 2010.
It is agreed between the parties, and the Tribunal finds, that the events of January 2020 are matters that the Tribunal should consider in determining whether this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice. The applicant says that she had nothing to do with the incident. She submits that she has been the victim of a malicious prosecution and I understand that she has instituted a claim for financial compensation.
The respondent submits that the applicant is implicated in the assault, and that further concerns are raised in a clinical psychologist report provided by the applicant. The respondent submits that the Tribunal should be satisfied that this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice.

EVENTS OF 21 JANUARY 2020

In January 2020, the applicant lived in her home with one of her adult sons (PH) and PH’s girlfriend (GF). Her other adult son UA lived elsewhere in Brisbane. Her sons had attended a local school where they had met SE. It seems that all three young men had taken up using drugs as teenagers.
On 21 January 2020, SE was assaulted by PH, UA, their cousin EN and another person LE. He was beaten with golf clubs and a spirit level and was stabbed in the chest with a knife. Medical records indicate that he suffered significant wounds. In layman’s terms: chest trauma and bruised lungs caused by a blunt force to his chest, stab wound to his chest, fractured shin bone, right foot and ankle lacerated to the bone, and other lacerations. He almost died. The applicant claims she had nothing to do with the attack – that she did not encourage it, that she did not know it was going to happen, she did not know it was happening and in fact knew nothing about it until the police came to her house the following day.
By way of background, on 18^th January, SE had entered the applicant’s house and taken items from the bedroom of PH and TG. The applicant claims that SE assaulted PH and TG and took items of special significance to her, in particular a jewellery box handed down from her late father. She says that he also took two telephones, one of which belonged to TG. In a police statement, SE states that he was owed money by PH and took some watches and telephones to pressure SE into paying the money back. SE claimed that while he was in the house, PH attempted to hit him with a samurai sword.
The applicant had an acrimonious relationship with the neighbour over her back fence (SS). They had previously been in dispute regarding the behaviour of their dogs. SS was a friend of SE’s father and SE sometimes stayed with SS.
On Tuesday 21^st January, the applicant attended a friend’s home for a treatment. She says that she was feeling stressed and her friend is a Bio Energetic Synchronisation Practitioner. The treatment began approximately 8 or 8.30 pm and ended around 9 or 9.30pm. During the treatment, UA attempted to call her 7 or 8 times. When the treatment was finished, she returned UA’s call (her telephone records confirm that she called UA at 9.18pm and spoke for 48 seconds). The applicant states that UA told her that the belongings which SE had taken were at her neighbour SS’s place. She says that he told her that it was safe to go over as SE wasn’t in the home, and asked for her to go over to retrieve the items.
The applicant claims that:
(a)When she arrived home from her treatment, GF told her that her stolen telephone had been “pinging” from SS’s place, and she would accompany the applicant to retrieve the items;
(b)When they arrived at SS’s door (approximately 10pm), they were met by SE. When she told him she wanted her “dead father’s jewellery box”, he threatened her and told her to fuck off. In SE’s statement to the police, he states that the applicant then said “Fuck you. You’re not the only person who knows people” and tried to call someone “there and then”. At the hearing, the applicant adamantly denied trying to call anyone when she was speaking to SE. It was only when her telephone records were produced that she conceded that she had tried to call her son UA.
(c)As SE, who she knew to be a violent man, was threatening her, she left and went home. There she helped GF with packing. PH had been issued with a recent domestic violence order and was unable to remain living in the house, and PH and GF were moving out.
(d)She and GF remained in the house that evening with the air conditioning and television on apart from a time they left briefly to visit a friend of GF’s and collect some clothes. They had no idea of the events unfolding at SS’s place. She went to bed fairly early as she had work the next day. She assumes that GF used her telephone during the night and placed it beside her bed where it was when she got up the next day. She didn’t think to look through her text or call message history to see if there had been any contact between the offenders and her telephone during the night.
(e)She did not contact any of the offenders (her sons, nephew or the other person) during that night except when she spoke to UA after her treatment. Any phone calls or texts from her phone must have been made or sent by GF who was using her telephone as GF’s telephone being stolen by SE. GF did not mention anything to her about using the telephone or about what had happened. After the police arrived on 22 January and informed her, she and GF “had words” because GF had not told her what had been happening.
(f)She knew nothing of a claim that PH owed SE money.
(g)She had deleted telephone call records from her phone but this was something she regularly did when her screen showed multiple calls to or from the same person.
(h)She denies encouraging or inciting the behaviour of the offenders. In fact she denies knowing what they were going to do or what they had done until told about it by the police.
Telephone records indicate that the applicant’s telephone called or attempted to call UA’s telephone at 9.43pm (7 seconds), 9.44pm (7 seconds), 9.46 pm (7 seconds), 9.47 pm (8 seconds), 9.51 pm (3 minutes and 4 seconds), 9.58 pm (3 seconds), 9.59 pm (3 seconds), 9.59 pm (3 seconds), 10.01 pm (38 seconds).
Telephone records indicate that the applicant’s telephone called or attempted to call her nephew EN, at 10.02 pm (4 seconds), 10.14pm (2 minutes 20 seconds), 11.20 pm 1 minute 52 seconds), 11.33pm (20 seconds), 11.51pm (21 seconds).
Police records indicate that:
(a)At 10.05pm the applicant received a telephone call from her nephew EN (51 seconds).
(b)At 10.03.25 pm the applicant sent a text to LE saying “I already went and [SE] threatened me”.
(c)At 10.03.35 pm she sent a text to LE saying “Threatened me and [GF]”.
(d)At 10.18 pm a text was sent to LE saying “[SE] has [PH’s] house keys house”.
(e)At 11.23 pm a text was received from EN’s telephone “Can you see if theres police at [SS’s] house aunty”
(f)At 11.53 pm a text was received from EN’s telephone “ok hes coming out”
The applicant introduced into evidence an audio recording of a conversation between herself and her nephew EN which occurred at a time when EN was in prison awaiting sentencing (having pleaded guilty to his charges) and the applicant had pending criminal charges relating to the events of 21 January 2020. In the recording, EN thanks the applicant for money that she has sent him and EN says words to the effect that he doesn’t know why she was “dragged into it”, and that he had gone to SS’s house “because the phone was pinging there”. The applicant tells EN that her barrister may wish to speak to him.
The applicant’s legal representatives urged me to find that the recording is evidence that supports a finding that the applicant had not told the offenders that SE was at the address, that she had not urged them to commit the crimes, that she was not involved in the commission of the offences and that they had ascertained independently that SE was at the house because that was where the phone was pinging. I decline to make those findings. I consider the evidence has little weight. Both parties knew that the telephone call was recorded so I do not accept it necessarily represents their candid views. The applicant was awaiting trial and it is reasonable to consider that EN would not wish to say anything detrimental to her interests. EN was indebted to the applicant, particularly at that time when she was sending him money. EN does not say that they were not in contact on that night. EN does not say how he knew that a phone was pinging at SS’s address. EN was not available for cross-examination in these proceedings.
Put simply, I do not accept the applicant’s claims:
(a)In the Court Brief, the police indicate that they had seen a Facebook message conversation between the applicant and SE “discussing money that PH owed SE”.
(b)There is no independent evidence that GF was using the applicant’s telephone. On the contrary, GF refers in her police statement to using her own telephone in the period between 18 January and 21 January to locate the other telephone, and to take screen shots.
(c)The telephone records that the applicant provided to the Tribunal have handwritten notes on them, including a notation next to the 2 minute 22 second telephone call to nephew EN at 10.14pm “[the applicant] relating to EN her experience at SS’s”. The telephone records also have a notation “text from [the applicant’s] phone on 21/1/2020 22.03.23 HRS to [LE]. This coincides with the text discussed above. The applicant’s current solicitor indicated that the notes were written by her former solicitor and were not evidence that should be relied upon. The former solicitor was not called to give evidence to explain the notations and in the circumstances I will take them on face value.
(d)The applicant did not call any of the offenders to support her claim that there was no contact between them that evening.
(e)It is improbable that GF was using the applicant’s telephone and was aware of what had happened but failed to tell the applicant. I note that in her police statement, GF denies being in contact with PH that evening.
(f)I note that witnesses told police that when the offenders arrived at SS’s home, they began smashing up cars outside the house and yelling threats, and that their behaviour caused a significant disturbance. I note that in SS’s police statement he refers to one of the offenders yelling when they arrived at his home “Don’t fucking talk to my mum like that”. If true, this would indicate that the offenders knew of the conversation between SE and the applicant earlier in the evening. I do not accept the alternative hypothesis offered that the offenders were threatening SS because of an argument he had been involved in with the applicant some weeks prior regarding the behaviour of his dogs.
I find, on the balance of probabilities, that the applicant was in frequent contact with the offenders during the evening and that calls and texts to and from her telephone were sent and received by her. I reject her evidence that she did not tell the offenders what had happened when she confronted SE at SS’s house. Clearly, the applicant texted LE at 10.03 pm to say that she and GF had been threatened. That text could not logically have been sent by GF. Further, the text at 11.23 pm from EN contains a reference to “aunty” and was intended for her. I find any other explanation very unlikely.
I find it unlikely that the applicant and GF were unaware of the ruckus occurring at SS’s place on that night. The offenders yelled, smashed in two cars, smashed in a house window and damaged a garage door. Inside the house, a television was smashed and a safe was damaged. The noise was enough to disturb other neighbours who provided statements to the police. At 10.44 pm the police were called and a number of police attended. An ambulance arrived later. This was a significant event happening in the night on a neighbouring property. The applicant says at some stage that evening she left her home with GF to collect clothes from a friend. It is implausible to suggest that neither of them noticed any disturbance on that evening.
I do not accept that GF was messaging and calling the offenders during the evening on the applicant’s phone but without her knowledge. The applicant’s evidence is that she spent the evening in close contact with GF, packing and driving her to a friend’s home. Even if GF was using her phone (which seems unlikely), it is highly unlikely that she would have made no mention of the offenders’ conduct. I note the applicant’s evidence that she has never asked the offenders about what and when they told GF of their assault on SE.
I am unable to reconcile the applicant's evidence in another important respect. The applicant gave evidence that she did not know of the number of calls and texts exchanged between her telephone and the telephones of the offenders on the evening of the offence as she was asleep and GF must have been using the telephone. She claimed that there was no reason for her to check the call or text history the next day and so remained unaware.
The applicant also claims that some time before the police seized her telephone she deleted a large number of call records as she went through and tidied up her telephone. It stands to reason that in doing so she must have become aware of the volume of contacts and attempted contacts. Her evidence is not logical.

Having made those findings, I find that the applicant is an unreliable witness whose evidence it is not possible to rely upon. Her legal representatives point out that she has not been convicted of any offence. I accept that. They say that charges against her were maliciously laid in order to pressure the offenders into pleading guilty. They say there was insufficient evidence to establish that she counselled or incited the offenders to commit the criminal acts. I make no findings as to those matters. I consider it likely, however, that the applicant was in contact with the offenders during the night and I do not accept her statements that she was not, or that she was unaware of what had happened until the police told her the next day.
I find that either the applicant has deliberately and persistently told untruths to the police and to the Tribunal, or that she is so confused that she has genuinely forgotten what happened. The latter is the finding urged on me by the applicant’s legal representatives but raises difficulties with her application as I must then turn to consider the applicant’s state of mind.
The applicant provided a copy of a report of a clinical psychologist prepared on her behalf on 22 September 2022 for the purposes of assessing psychological damage sustained by her as a result of being arrested in January 2020. The report writer notes:
(a)The applicant advised that she was experiencing waves of elevated situational anxiety lasting an hour or two.
(b)The applicant advised that she had been seeing a psychologist for anxiety / stress management but did not provide any information from the psychologist on the progress of her treatment.
(c)Scores on testing indicated extremely severe levels of anxiety, stress, and depressive symptomatology.
(d)A Personality Assessment Inventory was administered, revealing inconsistent responses to items with highly similar content, as well as some idiosyncratic responses. Potential reasons could be problems with understanding or attending appropriately to items, confusion, reading difficulties, failure to follow test instructions and / or attempts at impression management. Her profile of responses is usually associated with marked distress, severe impairment in functioning, and significant thinking and concentrations problems, accompanied by prominent hostility, resentment and suspiciousness.
(e)The applicant’s profile suggests that:
(i)      She may be chronically tense and pessimistic about her future.
(ii)      She may harbour strong feelings of resentment of perceived slights and insults and may feel she is being treated inequitably.
(iii)     She may have difficulty interpreting the normal nuances of interpersonal behaviour that provide meaning to personal relationships. Her thought processes are likely to be marked by confusion, distractibility, and difficulty concentrating, and may experience her thoughts as blocked or withdrawn.
(iv)     She has significant depressive experience, and is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure.
(v)      She is likely to display a variety of maladaptive behaviour patterns aimed at controlling anxiety.
(vi)     She is in persistent “flight or fight” mode, experiencing ongoing high levels of anxiety and related maladaptive avoidant behaviours and coping strategies aimed at threat minimisation.
(vii)   She continues to experience high levels of trauma-related anxiety.
(f)PTSD is a disorder that, without effective treatment, can persist many, many years. Even with effective treatment it can linger.
(g)The applicant is likely to require psychological therapy on an ongoing basis until she is able to effectively regulate her anxiety and intrusive memories and regain her self confidence… regular therapy for up to three years, possibly more.
The author of the clinical psychology report was not available for cross examination. The applicant’s treating psychologist did not provide any evidence. The applicant advised that she now sees her treating psychologist on an as needed basis.
In the absence of an updated report, I can only rely on the report of 22 September 2022. The report raises concerns regarding the applicant’s psychological state, in particular the applicant:
(a)Presenting with the profile usually associated with marked distress, severe impairment in functioning, and significant thinking and concentration problems, accompanied by prominent hostility, resentment and suspiciousness;
(b)Being chronically tense and pessimistic;
(c)Having difficulty interpreting the normal nuances of interpersonal behaviour and her thought processes being marked by confusion, distractibility, and difficulty concentrating;
(d)Experiencing significant depressive symptoms;
(e)Displaying a variety of maladaptive behaviour patterns;
(f)Engaging in maladaptive avoidant behaviour; and
(g)Being unable to effectively regulate her anxiety and intrusive memories.

IS THIS AN EXCEPTIONAL CASE IN WHICH IT WOULD NOT BE IN THE BEST INTERESTS OF CHILDREN FOR A BLUE CARD TO BE ISSUED?

Adults working with children are expected to be able to create a safe and protective environment. The applicant’s psychological difficulties coupled with what I have found to be the provision of completely unreliable statements raises questions about her ability to provide a protective environment for children in her care, and her ability to judge appropriate behaviour and present as a positive role model to children and young people in her care. Further, I could not be satisfied that the applicant will be truthful in the event that a difficult situation does arise. The applicant has demonstrated a history of protecting her own interests at the expense of the truth.
In relation to the factors contained in s 226 and s 228 of the Act, I find:
(a)The applicant a conviction and has been charged with criminal offences.
(b)She has not been convicted of a serious or disqualifying offence as those terms are defined in the Act.
(c)The stealing offence was isolated, has been explained, and was a long time ago. It has no relevance to the applicant’s current employment involving children. The drug and violence charges are highly relevant. Someone actively using or producing drugs or engaging in the violence described in this case is not suitable to care for children. Someone aware of and complicit in such egregious behaviour is not suitable to care for children.
(d)The circumstances of the incidents leading to the charges in 2020 (described above) are relevant to the assessment of the applicant.
(e)Information relating to contact between the applicant and the offenders is other information which is relevant to deciding whether it would be in the best interests of children to issue a working with children clearance to the applicant. The nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information is described above. It occurred recently. The applicant’s failure to accurately recall the events of the evening of the assault is relevant to the assessment this matter.
I consider it highly likely that the applicant was aware of the events of the evening of 21 January 2020 as they unfolded. If the applicant was involved in encouraging the vicious attack on SE, she is a person who is violent and unstable. If the applicant was aware that the attack was going to happen or was happening and did not intervene to prevent it, she has demonstrated a proclivity to encourage and/or ignore violence and anti-social behaviour. If the applicant was aware that something was happening but did not realise the extent of the violence, she had the opportunity to attempt to intervene, or subsequently to assist the police with their enquiries but has chosen not to do so. In persistently denying responsibility for her involvement, I am persuaded that she cannot be relied upon to place the interests of children above her own self interests. It would not be in the best interests of children for such a person to be issued with a positive notice, and an exceptional case is established.
If I am wrong in that view, I must accept the applicant’s submissions, as articulated by her lawyers, that she has been traumatised by her wrongful arrest and has been thus “messed up” to the extent that she cannot remember key events. The psychologist has assessed the applicant as presenting with a profile usually associated with severe impairment of functioning, significant thinking and concentration problems, prominent hostility, and the applicant exhibiting difficulty interpreting the normal nuances of interpersonal behaviour, with her thought processes marked by confusion, distractibility and difficulty concentrating, and engaging in maladaptive avoidant behaviour. I am satisfied it would not be in the best interests of children for such a person to be issued with a positive notice, and an exceptional case is established.
For the reasons stated above, I am satisfied that these circumstances establish an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice. The decision under review is confirmed.

HUMAN RIGHTS ACT

In making this decision, I have given proper consideration to relevant human rights under the Human Rights Act2019 (Qld). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.[3]
[3]HRA, s 58.
A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the HRA,[4] and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
[4]Ibid, ss 8, 13.
To give proper consideration to a human right, I identified the human rights that may be affected by this process and decision, and considered whether this decision would be compatible with human rights.[5]
[5]Ibid, s 58(5).
I consider the following human rights are potentially impacted through this process and by this decision:
(a)s 15 – right to recognition and equality before the law
(b)s 25 – privacy and reputation
(c)s 26 – protection of families and children
(d)s 31 – fair hearing
(e)s 34 – right not to be tried or punished more than once
I am satisfied that the rights of the applicant to a fair hearing have not been limited. The application has been determined by a competent, impartial, and independent tribunal after a fair hearing. The parties are being advised of the reasons for the decision. The applicant is recognised and provided with equality before the law. Her privacy and reputation are protected. The decision affords protection to children. The decision does not punish the applicant twice for her history – this is an entirely different process. There is no limit on the applicant’s human rights. Accordingly, the process and decision are compatible with the applicant’s human rights.[6]
[6]Ibid, s 8.
In any event, the legislation states that it is to be administered under the principles that the safety and best interest of a child are paramount, and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
The Tribunal may make a decision not compatible with human rights if it could not reasonably have made a different decision because of a statutory provision.[7] In the event that this decision does limit the applicant’s human rights, I am satisfied that I am able to lawfully make this decision because of the provisions of the Working With Children (Risk Management and Screening) Act 2000 (Qld).
[7]Ibid, s 58(2).
This decision is compatible with human rights.