SWJ v Director-General, Department of Justice and Attorney-General - [2021] QCAT 165

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165

PARTIES: SWJ

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML342-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

4 May 2021

HEARING DATE:

23 September 2020

HEARD AT:

Cairns

DECISION OF:

Member Kent

ORDERS:
1. The decision of the Director-General, Department of Justice and Attorney-General that SWJ’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

2. The Tribunal prohibits the publication of the names of the Applicant, any non-expert witnesses and the names of any victims, alleged victims, children or third parties referred to in the file material and at the hearings.

CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353,
s 354, s 358

Baker v The Queen (2004) 223 CLR 513
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
D and Department for Community Development [2007] WASAT 154
Re FAA [2006] QCST 15
R v Kelly [2001] 1 QB 198
RPG v Public Safety Business Agency [2016] QCAT 331
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

N Rajapakse

REASONS FOR DECISION

This application was determined by me as directed by the President of the Queensland Civil and Administrative Tribunal pursuant to s 168(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) having regard to the decisions and records of proceedings of the Tribunal as previously constituted.
This matter concerns a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’), dated 15 September 2019, to refuse to cancel the applicant’s negative notice. SWJ had previously held positive notices between 2011 and 2014. In 2017 the Queensland Police Service ( Police) notified Blue Card of a number of changes in the applicant’s criminal history and after this the Respondent cancelled the applicant’s positive notice and issued a negative notice. In 2019 decision the negative notice was confirmed .
SWJ had applied for a Blue Card based on it being a requirement for employment as a disability support worker.
As part of their application processing Blue Card Services undertook a criminal history check in relation to SWJ. This check and previous information from the Police disclosed the following criminal history:
(a)Convictions: Four offences of contravention of domestic violence order; one offence of possession of a weapon whilst not being a holder of a licence as specified in schedule 1 of the Weapons Act; one offence of possession of dangerous drug; one offence of possession of pipe for use in connection with smoking dangerous drug; one offence of found in dwelling house without lawful excuse; one offence of stealing and one offence of attempted break and enter with intent.
(b)Charges: Four charges of contravention of domestic violence order (DV).
Ultimately it was the decision of the Director of Blue Card Services that the best interests of children would not be served if the applicant was granted a Blue Card at the time the decision was made. Reasons given for this included there being insufficient evidence to displace the risks presented by the applicant's criminal history at this time. It was stated that Blue Card’s role was not to impose additional punishment upon the applicant but to focus on the best interests of children.
The ‘Blue Card’ legislative framework
Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’ or ‘Working with Children Act’). The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
[1]Working with Children Act, s 5.
A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
[2]‘Child-related employment decision’ is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.
[3]Working with Children Act, s 360. See also s 6.
As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a Blue Card to be issued.[4]
[4]Working with Children Act, s 221.
What is meant by ‘exceptional case’?
What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
[5]Re FAA [2006] QCST 15, [22].
Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
(a)Whether it is a conviction or charge;
(b)Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
(c)When the offence was committed;
(d)The nature of the offence and its relevance to employment that may involve children; and
(e)In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
[6]Working with Children Act, s 226(2)(a).
Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
[7]Working with Children Act, s 226(2)(f).
The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]
The applicant’s evidence and submissions - Discussion
[8]Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Children and Young People Bill, p 4391.

SWJ’s evidence was written and oral. His claim was that he was required to hold a Blue Card for employment purposes. The applicant provided submissions to Blue Card in February 2019, May 2019 and June 2019. His application for his negative notice to be cancelled and a Blue Card issued was refused on 5 September 2019.
Applicant’s Evidence
The applicant filed in the tribunal both a life story and the response he sent to to the Blue Card concerning his criminal history. It was his opinion that the decision of the Department assumed that he was not remorseful for his offending and that he had no understanding of the impact of his offending on his victims. He refuted this, saying it was completely untrue.
He said he had not reoffended since the initial charges were laid in 2016. The applicant said that the only member of his family he associated with was his sister as she is a close support and confidant. He did not speak to the rest of his family because of differences of opinion around the nature and impact of the abuse he suffered as a child in the family home. He said as an adult it was the breakdown of the long-term relationship with the mother of his children that had caused issues for him. This relationship he described as being toxic for several years.
He said that he struggled with his then partner’s drug use, physical and verbal violence, control and manipulation and lack of identity. He attributed his own drug use to his partner wanting this to occur, his trying to escape the toxic relationship with her and also it was his way of dealing with his childhood trauma.
In his written submissions the applicant said that he had high regard for women and he said that it was his childhood trauma that left him vulnerable to dysfunctional behaviours and that he facilitated co-dependency and drug use in his home which he now saw is very unhealthy. He also now attends Adult Children of Alcoholics and Dysfunctional Families and had done so for 18 months at the time of filing this material. He said he had a sponsor with 12 steps of that programme before then and he met with them every week. He said through the recovery programme he had discovered he had dysfunctional traits developed as survival strategies in childhood. He said he engaged with a psychologist to address these issues of dysfunctional behaviour and at the time of writing the submission he was in what he described as a rewarding relationship, however by the time he gave evidence at the tribunal hearing this was not the case.
In discussing his medical history, he said he had not been diagnosed with a serious or mental health condition, although it did appear that other evidence he gave and that of his psychologist conflicted with this. He said throughout his life he had engaged with different psychologists and he found this to be helpful. On the topic of his drug use he said that during his marriage he used cannabis occasionally and he said he ceased using it when he left the relationship. He considered it to have been a way of masking the childhood trauma he felt. He said now that he was using a 12-step programme, engaging in psychological support as well as mindfulness and meditation, he felt that he would not be at risk of relapsing into drug use. He opined that he consumed alcohol in moderation, having two glasses of wine one to two nights a week generally with a meal. He said that he had been required – through the Federal Circuit Court process that he undertook regarding his children and access to them – to undertake for random drug tests and that they had all been returned negative.
SWJ gave evidence that he had strategies from his programme that had helped him to deal with his childhood trauma, although he did say in response to cross examination that there was no treatment for childhood trauma, no distinct programme he could engage in. He said generally he tried to minimise the emotional effects It was the applicant’s evidence that he experience physical reactions because of his trauma . He said that that his response to his trauma ,it of itself , may never go away but he could learn to sense situations where he felt himself being elevated and he felt himself becoming emotional. His strategy at now is to remove himself from the situation. [9]
[9]Transcript Day 2 p 21 lines 15 to 23.
The applicant expressed that he had not reoffended since 2016. He resiled from this when it was put to him that he had had a more recent domestic violence order with someone other than his ex-wife and with his ex-mother-in-law. The applicant did not accept that the offending involving his mother-in-law was anything outside his relationship with his ex-wife. He described his ex-girlfriend as bitter and her allegations as “rubbish”. Under cross examination and in questioning from the Member, the applicant appeared to place a large proportion of the blame for his behaviour not upon himself but onto his ex-partner and spent a lot of time describing her as being the one with the issues including drug related issues.
The applicant said that he understood the trauma that was experienced by his children and victims of his domestic violence and anyone else who was a victim of his criminal offending. These words had a hollow ring to them as the applicant refereed to his own experiences as a child and were not reflective of his understanding of his impact on others, only his own perception of his trauma.
The applicant admitted in cross examination that he felt there was no treatment for the trauma he suffered. His evidence was that when he recognised tht he was becoming elevated he used the following methods to calm himself :meditation; taking himself away from a situation; talking to a psychologist or a support, or asking people to clear some space so he could talk to them. These are all commendable strategies, however the tribunal observes that these strategies have only been in place at best for a couple of years at the time of the hearing and the applicant was applying them in an attempt to deal with lifetime of trauma.
The applicant gave a different account of his criminal history with all his convictions and charges. He gave evidence both in writing and orally, stating that he took drugs because he was in a relationship with his ex-wife and that's what she wanted to happen, and she was manipulating him. It may well be that they were co-offenders with regard to this, but the applicant seemed to be unable to accept the gravity of his own situation regarding his criminal offences, charges and domestic violence orders and breaches. It is of concern to the tribunal that his offending in a domestically violent sense extended beyond what he referred to as the toxic relationship with his ex-wife to what he then referred to as a toxic relationship with his new girlfriend. The applicant appeared to have very little insight into himself and his own involvement in these situations coming about.
The tribunal needed to consider what would occur if a positive notice was granted to the applicant. This could lead to a Blue Card being issued to him and as these are fully transferrable it could be used to enable the applicant to work with children. If a person in charge of children or who is caring for children or working with children, then that person is not in a position to be able to disconnect themselves, remove themselves from the situation or to wait for a support person to become available. Children are entitled to the protection of the adult that is caring for them and has them under their protection. It appears that is necessary for the applicant to pursue a longer period of time to develop his own strategies beyond requiring what essentially is time out and a discussion with another person. Without further strategies it would not be appropriate for the tribunal or another decision maker should grant him a positive notice.
The tribunal was adjourned as SWJ had not made arrangements for his psychologist to give evidence at the tribunal hearing. It reconvened on 21 July 2020 when a doctor, Dr K Francis, was called on behalf of the applicant. Dr Francis said that she had had SWJ referred to her back in 2019 by his GP for symptoms of anxiety and depression on the background of relationship breakdown, the loss of contact with his children and of conflicts and childhood trauma. She said they worked together for six sessions; at the end of the six sessions, she said he was travelling well with his symptoms from the mild range of depression and she said that she thought he was taking responsibility for what happened to him in childhood and to take responsibility for building his own healing and to create a new life and move forward. She said she had been impressed by her patient’s development. She said he had already given up substances some years before and had been engaged with a 12-step programme but hadn't had a good relationship with his mentor. She felt the biggest risks for him were him being in situations where he was disempowered; she thought that disempowerment had been resolved and that he and his ex-wife had come to an agreement about custody and access to his children. Also, his youngest child had chosen to self-place with the applicant which was a new development and it had only come to her attention in their last session together. She also referred to his more recent relationship as quite difficult and said that this had been reported by the applicant. She thought it was healthy that he'd taken a step back and that he had navigated those risk factors.
Under cross examination by the respondent's legal representative Dr Francis was asked if she knew why she was at the hearing. She said that she believed that she was there because her patient had told her about his history: that there was a DVO, that he had probation and then events happened where he attended a festival, his wife and children were there and he was charged and ‘that's my understanding of why’. She was asked if she had read any of the material for Blue Card Services and she replied ‘no’ and said she thought that the Blue Card had been refused. When asked about her understanding of the offences charged with and why the blue card was refused, she said from memory it dated back to when he attended the festival and his wife and children were there and he was meant to be having no contact with his children and that was his charge. She said she didn't know of any other reason his Blue Card might have been refused. She said there were early offences she was aware of relating to a breach of a DVO where he had contacted his ex-wife by text. She however only thought that the texts were verbally abusive. She said she had not seen the texts and was relying upon a self report from the applicant. She agreed she had not seen the texts.
When asked about the 12 step programme that the applicant was involved in, she said she thought that the applicant still saw his mentor but not as often and that she felt that was really the purpose of it: to internalise the coping skills. She was asked if the applicant had had any treatment in relationships or complex trauma apart from with her and she said from memory she did not h believe that to be so.
Applicant’s written submissions post hearing
It is submitted that the Tribunal should set aside Blue Card’s decision to refuse to lift his negative notice because, among other things, the offence committed by SWJ in October 2016 did not involve children or violence; SWJ has not reoffended; and the expert evidence of his psychologist makes it plain that he poses no risk to children and is highly unlikely to reoffend.The applicant made submissions on the relevant legal framework, in particular section 221 of the Act which was described that as he has been charged or convicted with an offence other than a ‘serious offence’, the respondent must issue a positive notice unless the respondent is satisfied it is an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to be issued. In that event, the respondent must issue a negative notice.¹⁰
The Act does not define what is meant by an ‘exceptional case’. The authorities demonstrate, however, that each case must be decided on its own facts.
Further, in making the decision, the decision-maker must have regard to the matters specified in s 226(2) of the Act. These matters include the following:
(a)whether the person has been convicted or charged;
(b)whether the offence or alleged offence is a serious offence, and if it is, whether it is a disqualifying offence;
(c)when the offence was committed;
(d)in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence, the court’s reasons for its decision; and
(e)anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
Relevance of the Human Rights Act to the proceedings

The applicant raised the relevance   of the Human Rights Act 2019 (Qld) (‘the HRA’) to these proceedings. It was submitted that the decision of Blue Card impacted on his human rights and the way the decision was made was not compatible with human rights; or that in making a decision, Blue Card failed to give proper consideration to a human right relevant to the decision.
(a)He did not address the commencement date of the HRA. This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.
(b)However, this Act—
(i)      does not affect proceedings commenced or concluded before the commencement; and
(ii)      does not apply to an act, or decision made, by a public entity before the commencement.

(c)The commencement of the HRA was 1 January 2020. SWJ’s review, however, was commenced on 6 September 2019.
(d)In accordance with s 108(2) of the HRA, that Act therefore does not affect the proceedings.

Why the decision should be set aside from the Applicant’s perspective

The applicant’s submissions set reasons why the decision should be set aside. These are summarised below:
(a)First, the offences of which SWJ was convicted were not a serious offence or a disqualifying offence under the Queensland legislation.
(b)He was not a violent person.
(c)Contrary to the respondent’s submissions, he did understand the impact of his offending on his victims and his children.
(d)He said the last offending was in 2016 with the last charge relating to the festival being dropped and SWJ has not committed any offences since.
(e)SWJ would do things differently to when his relationship with his ex-wife was breaking up. He would remove himself from the situation and he would seek out others to talk to.
(f)He submitted that the expert evidence of Dr Francis demonstrates how much progress he has made. He is involved in a voluntary 12 step programme, he had supports he could reach out to, he was no longer in “toxic” relationships with two of his victims of DV and the third, his ex-mother-in-law, should be viewed as being part of the narrative of his turbulent relationship with his ex-wife. He had given up using marijuana as he had only used it to appease his ex-partner and block his childhood trauma symptoms.
(g)SWJ is aware of the wrongfulness of his actions.
Accordingly, the Tribunal in these proceedings should not find that this is an exceptional case under s 221 of the Act. It should instead set aside the decision of the respondent.
SWJ should not be further punished for the offence; he has insight into his offending and has taken all steps to prevent this reoccurring and the evidence of the expert is that he is dealing with his childhood trauma and not going to repeat this behaviour.
The respondent’s submissions
The respondent made submissions on the legal framework and relevant issues including that the tribunal must be guided by the principle under which the Act must be administered i.e. that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing (original footnotes from submissions omitted).
It was submitted that the term 'exceptional case' is not defined in the Act. What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, having regard to ‘... the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.’[10]
[10]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]) (emphasis added).
Further reference was made to section 226 of the Act in the context of a charge or a conviction as has occurred in this matter. This section does not present an exhaustive list of considerations. The respondent submitted that the paramount principle should be used by the tribunal to inform the standard of proof required in decisions under the Act.
Essentially the respondent submits, given the paramount principle and the nature of decisions under the Act, that the gravity of the consequences for children is what is the important consideration i.e. that is, if a working with children clearance were to issue, what would be the potential consequences for children. Any consequences, in terms of prejudice or hardship to the applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a working with children clearance are significant and, as such, the Tribunal ought to require cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the applicant. This approach is consistent with the reasons outlined by the Appeal Tribunal in Masri.[11] In that case the QCAT Appeal Tribunal referenced the paramount principle in holding that this approach is consistent with the Briginshaw test and ought to be employed "bearing in mind the nature of the reviewable decision".[12]
[11]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].
[12]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].
The respondent made further submissions stating that the decision of Maher[13] is often cited in support of the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether the applicant's case is an exceptional case. The respondent submitted that this interpretation is not correct. In Eales,[14] the Appeal Tribunal considered the decision in Maher and determined that:
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise ...
At its highest, 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 interest of children for a blue card to be issued to a person.
... No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher case.
[13]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[14]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].
Further, the respondent submits that adopting a "balancing" approach in child-related employment decisions risks the tribunal being led into error. The concept of "balancing" implies a weighing-up of two countervailing sets of factors. It connotes an equal distribution of weight between factors for, and factors against, the applicant's case. The respondent submits that when considering the factors, the tribunal should take a qualitative rather than a quantitative approach. In the respondent's view, applying equal weight to both sets of factors creates a risk that the tribunal will be led into error by failing to apply the paramount principle. Given that the welfare and best interests of children are paramount, in the Respondent's view, the tribunal must apply additional weight to any risk factors that are established.[15]
[15]Respondent’s written submissions dated 21 July 2020 p6 para 29.
The respondent’s submissions on the Human Rights Act 2019 (Qld) ('HRA') were that when conducting a review of a child-related employment decision, the Tribunal is a 'public entity' under the HRA and, as such, the HRA applies. The respondent submitted that the decision that the applicant's case is an exceptional case will nevertheless be compatible with human rights. This is because despite any limitation the decision places on the applicant’s human rights the decision will be justified by the factors outlined in section 13 of the HRA. The decision will be justified on the basis it will have a proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which of itself is a human right.[16]
[16]Respondent’s written submissions dated 21 July 2020 p23 para 53.
It was submitted that looking at each of the relevant considerations, the respondent contends that the Tribunal can be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that the applicant's case is an exceptional case in which it would not be in children’s best interests for the applicant to be issued with a working with children clearance and Blue Card.[17]
[17]Respondent’s written submissions dated 21 July 2020, paras 31 to 35 under heading of HRA.
The DV offending is across more than one person: ex-wife, girlfriend, and ex-mother-in-l. The respondent referred to the applicant appearing to minimise the severity of his offending, in particular that of his DV offending. He sought to explain this away by denigrating his ex-wife and her behaviour. The respondent submitted that the applicant’s domestically violent behaviour extended also to another partner and his ex-mother-in-law. The Tribunal was asked to consider this in light of the applicant’s explanation of the impact of his ex-wife’s behaviour on his offending behaviours. The respondent submitted that the applicant said he accepts his behaviours; however he spent a considerable amount of time in both written and oral evidence describing why he was acting in that manner due to the actions of others.
Other Relevant Matters
Material from Innisfail Magistrates Court
A Protection Order was made by the Innisfail Magistrates Court on 8 July 2016. Submissions were made in relation to the inconsistencies in the applicant’s evidence at the hearing including his lack of detail to his own psychologist relating to this protection order. The submissions of the respondent set out in full the detailed text messages sent by the applicant which included abusive, obscene and very concerning material. I will not repeat the material in full, however the applicant texted that he was off his meds and that he was going to try and destroy himself. He also contacted his former wife’s mother via Facebook (he had not had contact with her for some time) and made comments of an extremely personal and distressing nature about his ex-wife.
A protection order was also made by the Innisfail Magistrates Court on 25 October 2016. The aggrieved person was the applicant's new girlfriend. It continued in force until 25 October 2017. The respondent noted that the material from the Innisfail Magistrates Court suggested the Protection Orders naming the applicant as respondent were for the protection of SWJ’s ex-wife, children, former mother-in-law as well as a new girlfriend of the applicant. Therefore, included were persons other than just his ex-wife. It was submitted that this information, when taken in concert with the other information provided and filed in evidence, indicated that the applicant was unsuitable to be granted a clearance to work with children.

Material from the Qld Department of Child Safety, Youth and Women

This material contained detail of a notification of concern about the applicant and his former wife. The concerns raised about the applicant included that in January 2017 the Department received notification regarding the applicant's erratic behaviour and the applicant's use of illicit substances and lack of insight into how his behaviour adversely affected his children. The Department recorded a child concern report in relation to that notification. In November 2017 the Department received a notification regarding behavioural concerns about the applicant's children including self-harming and violent behaviours. This was recorded in a child concern report in relation to that notification. On 27 November 2017 the Department received a notification in relation to the applicant and former partner stating that the applicant had pushed his former partner in the face and knocked her and that the children had been exposed to domestic violence, illicit substances and aggressive behaviour. The Department noted there had been concerns about historical substance misuse by both parents, the mental health of the applicant and the applicant acting out and a child concern report was noted.
On 22 August 2018 the Department received a notification that the applicant's child's behaviour had escalated and that the child was self-harming and also had a history of physical violence towards animals and she had been a victim of domestic violence herself. It was noted that that child's mother had a DVO placed against the applicant. The notice to produce material from the Department stated that the child the subject of the notification had also physically been abused by her father. Following an interview with the applicant the Department closed the case without further intervention and this is clearly noted by the Tribunal.
Management of the applicant’s mental health
The respondent’s submissions under this heading note of the Department of Child Safety, Youth and Women’s concerns about the applicant's mental health. The text message by SWJ to his ex-wife stated that “he was off his meds” and the respondent was concerned that his apparent attitude to prescription medication may adversely flow through to his children, citing his objection to one of his children being on medication when he believed that her mood should be managed by diet and modification of environmental stressors. This material is from the notice to produce material of the Department of Child Safety, Youth and Women and was referenced by the respondent.
The Innisfail Magistrates Court material stated that the Applicant had difficulties in his childhood and had been erratic with his prescribed medication. The text messages suggested the applicant had suicidal ideation. The applicant himself refers to his experiencing emotional turmoil due to his childhood experiences.
Dr Francis provided a letter and gave oral evidence. It was submitted that the psychologist had not read the reasons for the refusal of the blue card for the applicant. Importantly she was not aware of the content of the text messages the subject of the DV conviction and the concerns that arose from those in relation to the domestic violence orders. She had been told by the applicant they involved name calling and she accepted this and based her opinion in part on this. The evidence before the tribunal that the texts were indeed much more than name calling. They also contained suicidal ideation. These things were not canvassed with the applicant by his psychologist because she was unaware of them.
The respondent submitted that the applicant had tried to shift blame away from himself to his ex-wife and next girlfriend. Evidence was given about what both he and Dr Francis considered to be his ex-partner’s triggers. His ex-wife’s triggers were discussed in evidence by Dr Francis. There was no evidence that Dr Francis had ever assessed on even met the applicant’s ex-partner. The psychologist said that the applicant had given some consideration to his role in the conflict.
The psychologist had six sessions with the applicant, and it appeared that the applicant was still experiencing his own personal those triggers in 2019. The respondent submitted the weight that could be given to the psychologist’s evidence should be considered because she was unaware of all of the information. She had not been advised by the applicant of the true nature of the allegations made against him regarding the domestic violence orders. At the hearing she admitted that she was unaware of the actual content of his text messages.
The respondent highlighted that at the beginning of the tribunal hearing the applicant said he was in a new relationship and by the time final submissions were being made in July 2020 that relationship was over. After discussion and checking of notes between the then constituted tribunal member and the legal representative for the respondent, the following was stated - that the psychologist had given evidence that the applicant had issues around loneliness and that this had stemmed from his childhood experiences .The respondent submitted that the applicant had sought relationships but they had ended in a similar way so it was almost a pattern like the psychologist stated. That was the point the respondent was making about his relationships. The then constituted tribunal member made the comment that “the point is lots of people have blue cards whose relationships don't work and they don't resort to domestic violence or other things which would disqualify them”. The respondent’s legal representative replied, “yes member that's right”. The respondent’s representative then expanded on this and submitted that the applicant’s psychologist had not read the reasons for refusal of a Blue Card for the applicant. She is also not aware of the text messages and the concerns arising from those. The applicant’s evidence was that he had seen the psychologist approximately six times and once for a catch up on the telephone; he had not commenced this treatment until 2019; he was involved in a voluntary therapy group or support group; and he said that he meditated and had his own supports and he could just remove himself from situations where he found himself becoming elevated or triggered because of his abusive childhood. It was the respondent's submission that the applicant had been treated for a relatively short period of time; he had denied he had any mental health diagnosis but then gave evidence about his turbulent relationship with his ex-wife triggering childhood issues. Oral evidence was that he had gained insight in participating in Adult Children of Alcoholics and Dysfunctional Families and said that he realised that he had been I'm in denial, he could see when he was being controlling and manipulative and that his dysfunctional family had had an impact on him and that he had a lack of ability to be alone and feared abandonment. When asked what strategies he had in place to deal with these issues he said he asked for support, he rang people to talk about stuff, continued to see the psychologist and attend ACA meetings, stopped drugs and meditated.
Insight
The respondent also submitted that regarding the applicant's insight into the impact of his behaviours on his children (that is, the behaviours of drug use and domestic violence), the applicant said it had caused sadness and he was an absent parent. The respondent drew the tribunal's attention to the fact that the applicant stated that those behaviours did not physically or emotionally harm the children and that in response to one question in relation to his children engaging in self harming behaviour, he said that was the result of the experience of growing up with his partner which impacted the children as the children wanted to be with him.[18] The respondent submitted that this suggested a lack of responsibility for his own behaviour.
[18]Respondent’s written submissions dated 21 July 2020 p23 para 51.
In relation to the text messages that resulted in his conviction for contravening a domestic violence order, the applicant said that he was destroying himself; he was going to get drunk and that he was struggling at the time he wrote those. He accepted the messages were inappropriate and tried to minimise them, stating they were short lived and that he said he thought he was allowed to send text messages which the respondent submitted was a strategy to minimise his behaviour and demonstrate a lack of regard for the content of those text messages. [19]
[19]Respondent’s written submissions dated 21 July 2020 p23 para 49.

The respondent submitted that he used illicit drugs with his partner. The applicant said it was she who had wanted to use cannabis and that he had done so with her and had wanted to stop but that had created difficulties. The respondent’s view was the evidence was that in addition to his convictions for drug offences in 1991 to 1994, the applicant by his own admission was using illicit substances until more recently i.e. 2017. Although the applicant’s evidence placed his drug use in the context of being badgered or forced into using by his ex-partner, it would seem from all of the available evidence including the criminal history and the applicant’s own admissions that his drug use has been ongoing until 2017.
The respondent submitted to the tribunal that it should consider that while the applicant gave evidence of his relatively newfound ability to meditate, his skills in removing himself from situations, contacting others for support to talk and in his own words to reflect upon the impact his own dysfunctional family had upon him, these steps had only been in place for a relatively short period of time. The evidence provided was that he suffered mental health issues in part as a result of his upbringing and stress from his childhood. He minimised his own DV behaviours and their impact on his victims and his children.
In summary the applicant’s material and evidence did not detail sufficient understanding or demonstrate appropriate insight or remorse in relation to the impact of his behaviours of concern on his children such as their exposure to illicit drug use and domestic violence.

Transferability

Submissions under the heading of transferability centred on the fact that once granted a Blue Card, an applicant is able to work in any child related employment or conduct a child related business supervised or unsupervised as regulated by the Act and not just for the purpose for which the applicant sought the card. The tribunal has no power to ensure a Blue Card is conditional. Once a Blue Card is issued it is fully transferable across all areas of regulated employment. It was submitted that the tribunal’s decision is not whether the applicant should be employed in his chosen job. The Tribunal’s decision was whether having regard to the paramount principle under the Act the applicant's case is an exceptional case in which it would not be in the best interests of children for him to be issued with a clearance.

Conclusion to respondent’s submissions

It was submitted that the Tribunal’s decision is whether, having regard to the paramount principle under the Act, the applicant's case is an exceptional case in which it would not be in the best interests of children for him to be issued with a working with children clearance. The respondent submitted that the Tribunal should take a precautionary approach to decision making in child-related employment matters.
Findings
The HRA
I thank both parties for their assistance and their submissions on the applicability or otherwise of the HRA to these proceedings. Based on consideration of these submissions, the relevant cases and adopting the approach of interpreting the legislation based on the underlying purpose of the Act I find that as the commencement date of the HRA was 1 January 2020 and SWJ’s review was commenced on 6 September 2019, the legislation has no applicability to this case. I have based this finding on the provisions of the HRA: section 108(2) of the HRA. However, if I am wrong about that issue, I accept the respondent’s submissions that the decision that the applicant's case is an exceptional case is compatible with human rights. This is because despite any limitation the decision places on the applicant’s human rights, the decision will be justified by the factors outlined in section 13 of the HRA. The decision will be justified on the basis it will have a proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which of itself is a human right.[20]
The factors in s 226(2) of the Act are factors that must be considered in deciding whether it is an exceptional case.
[20]Respondent’s written submissions dated 21 July 2020 p23 para 53.
I accept that in terms of the level of satisfaction required to meet section 221(2) of the Act, while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[21] I am aware that there is no power under the legislation for the Tribunal to issue a positive notice with conditions.
[21] [2004] QCA 492, [30].
I refer to the following factors in my consideration of whether this is an exceptional case: factors which must be considered and factors I consider relevant. I make the following observations:
Whether the offence is a conviction or a charge
SWJ’s criminal history contained the following convictions: four offences of contravention of domestic violence order; one offence of possession of a weapon whilst not being a holder of a licence as specified in schedule 1 of the Weapons Act; one offence of possession of dangerous drug; one offence of possession of pipe for use in connection with smoking dangerous drug; one offence of found in dwelling house without lawful excuse; one offence of stealing and one offence of attempted break and enter with intent.He was charged with the following: four charges of contravention of domestic violence order.
The applicant’s version of events that led to his domestic violence offending, including convictions and charges, at times contradicted the material provided by both police and the relevant Magistrates Court. His evidence was at times inconsistent on these points and certainly under cross examination by the respondent the applicant indicated either confusion or deceit about his understanding of the actual number of dates and types of matters he had been charged with and convicted of. SWJ made comments in relation to one of his victim’s statements as being rubbish. I find on balance that SWJ's conduct as set out in the applications for the Protection Orders occurred. SWJ asserts that his relationship with his ex-partner was toxic and the one with his next partner was also becoming toxic. I accept that violent domestic relationships are complex, however this does not change the bare facts that the applicant had been the subject of domestic violence orders until as recently as 2017 and had been ordered to undergo the supervision of probation due to a breach of domestic violence orders.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
The offences SWJ was convicted of are not a serious or disqualifying offence within the meaning of the Queensland legislation.
When the offence was committed or is alleged to have been committed
The offences by SWJ range in date from 1991 to 2016. His charges occurred in 2016 to 2017.
The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children.
The applicant has historically been convicted of a number of drug offences and in more recent years domestic violence orders were made and these were breached. This tribunal is not an appellate tribunal for the decisions of other courts in this context and therefore the tribunal has no power to look behind the convictions and sentences given by other courts. Convictions may be given greater consideration and the charges have less bearing on the outcome of this matter. These are taken as part of the factual matrix of the review.
The applicant says he has taken steps to rehabilitate himself and now has a suite of better coping strategies. The applicant's life circumstances included that whe was under enormous pressure in his home life and he suffered from the impacts of childhood abuse. He described himself as being in a turbulent relationship with his ex-wife. The applicant described that he had undergone a change in his current circumstances, and he was now, by the end of the tribunal hearing days, no longer in a relationship.
The applicant’s evidence was that should he ever find himself in a stressful situation again he had new coping skills and he was unlikely to return to offending behaviours. These coping skills had a temporal element to them e.g. he would detach or remove himself from the situation. I needed to consider whether that course of action would be appropriate should he have children in his care while holding a blue card. It is not always possible in these circumstances for the actions that the applicant said he would take (i.e. meditate, withdraw from the situation, contact others and wait for them to discuss the matter with him) to occur in the dynamic situation of having children under your care and control. Even if the applicant is not intending to be employed working with children, a Blue Card is fully transferable and therefore I must approach this on the basis as though at some time he may well have contact with children through his employment and it is on that basis that a blue card is required.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision
In relation to his conviction the tribunal had the benefit of receiving both police information and that of the Innisfail Magistrates Court. The penalties were summarised in the material filed by the respondent and appeared in the applicant’s criminal history. Ultimately, under cross-examination, SWJ did not appear to dispute these convictions had occurred; he did however dispute the circumstances or severity of the events.
Other relevant circumstances
I have considered the evidence, statements and submissions filed in this matter in coming to a decision about whether this is 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. I considered the nature of the offending. It is noted that it is not something to be trivialised, however it is not a serious offence nor disqualifying offence under the Act. The applicant's evidence was that he was not a violent man, however I accept that his offending did involve domestic violence and the domestic violence was alleged to have been perpetrated in front of his children. I refer to the notice to produce material of the Department of Child Safety, Youth and Women, the Innisfail Magistrates Court and the Queensland Police Service. It is not for the tribunal to go behind the fact of the convictions nor accept a different version of events.
The applicant might well be developing insight into his behaviours and developing strategies to deal with his offending behaviours. This personal progress should be commended, and it is. SWJ’s psychologist’s evidence was given based on information that she had been told by her client. I accept the respondent’s submission that I can only attribute lesser weight to this information as the psychologist was not fully informed of the reasons for Blue Card’s refusal of a positive notice nor was she fully informed of the circumstances of the applicant’s domestic violence. I appreciate the psychologist’s attempts and efforts to inform the tribunal as an expert, however from the material before the tribunal it would appear that her testimony could be of limited value as she had only seen the applicant six times and spoken to him once on the telephone and she wasn't fully informed of the circumstances of his offending or of the refusal of his Blue Card. As such, she made her best efforts to assist the tribunal but was severely hampered by this lack of information.
I accept the respondent’s submissions that any steps forward by the applicant towards modifying his behaviour and developing full insight into his behaviour and strategies to avoid future reoccurrence of it is in its infancy stage when taking a long term the total view of the trauma that has, according to the applicant, informed his behaviour over the years. While it's positive to hear that the applicant has been able to step up to the situation of his daughter self-placing with him, there is no further information in relation to this and consideration was given to the evidence relating to the self-harming behaviours and difficulties experienced by his children post separation with his ex-partner. The applicant in this proceeding said that the children behaved like that due to his ex-wife's behaviour and the fact that they wanted to be with him. I draw from this statement the belief that I cannot be comfortable accepting that SWJ demonstrates a full range of insight into the impact of his behaviour upon his children.
The applicant says he acknowledges his own behaviour; however he appears to have been unable to move past minimisation and blame shifting. The applicant submits he is at the stage of understanding and trying to recover from childhood trauma. It was the applicant’s submission that there is no treatment for this and that it might never go away but he felt that he was getting better at recognising circumstances where he was becoming elevated and withdrawing from those. The applicant says that he developed insight. This statement ws not supported by evidence beyond his own description of how he is now aware that he was in a toxic relationship and is aware of the impact it had on him. However, it's not clear to the tribunal that the applicant has developed genuine insight into the harm caused by his unlawful offending. He also appears to couch much of his evidence in the terms of his own trauma and his own personal growth. The applicant has not provided the tribunal with evidence which would allow it to reach a finding that he has insight into the impact that his previous behaviour would have had on vulnerable persons such as his children. Consideration of the evidence does not support a finding that the applicant is genuinely remorseful for or insightful about all of his offending behaviour.
The respondent urged me to consider the nature of the offending and previous notifications made to the Department of Child Safety, Youth and Women. Some of the offences occurred when SWJ was a teenager. The applicant does not shy away from the fact that his behaviour had led to his domestic violence charges and other convictions and charges; equally, the applicant seemed to be unable to move past blaming his ex-partner and next girlfriend and mother-in-law of the ex-partner as being largely to blame for the events occurring.
I accept the respondent’s submissions concerning the object of the Act and the principle that the welfare and best interests of a child are paramount. I accept that this supports a precautionary approach to decision making regarding child related employment. I agree with its submissions that the convictions and charges between 1991 to 1994 are for the offences related to dishonesty and illicit drugs and the 2016 offences and charges are related to domestic violence.
In considering whether this is an exceptional case I must determine the correct or preferable decision in the context of the paramountcy of the welfare and best interests of children. I accept the transferable nature of a Blue Card once it is issued. There is evidence that the applicant has made steps forward in his own recovery and has distanced himself from his ex-partners. The overall evidence, despite the applicant’s newfound skills of meditation, retreat, and reflection, indicates that contrary to what he says about not being violent SWJ does have domestic violence orders and convictions against his name. I accept that some of this behaviour occurred in the context of a domestically violent relationship. However, in the absence of further evidence regarding the steps, treatment and programmes he has undertaken to address his risk of this behaviour then the tribunal cannot be satisfied that his offending behaviours are no longer a significant risk factor for SWJ.
It is my view that SWJ minimised his conduct and having regard to the risk and protective factors I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.
Non -publication order
The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. A non-publication order should be made in this instance to protect the identity of the applicant, his family, his victims and any children and/or third parties named in the proceedings. The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.[22]
[22]       GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.
Orders
1. The decision of the Director-General, Department of Justice and Attorney-General that SWJ’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
2.     The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.[23]
[23]       GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.