WJL v Director-General, Department of Justice and Attorney-General
[2020] QCAT 343
•10 September 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
WJL v Director-General, Department of Justice and Attorney-General [2020] QCAT 343
PARTIES:
WJL
(applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
(respondent)
APPLICATION NO/S:
CML237-19
MATTER TYPE:
Children’s matters
DELIVERED ON:
10 September 2020
HEARING DATE:
18 March 2020
HEARD AT:
Caloundra
DECISION OF:
Member Feil
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 confirmed.
2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of:
(a) the contents of a document or thing filed or produced to the Tribunal;
(b) evidence given before the Tribunal; and
(c) any order made or reasons given by the Tribunal,
is prohibited to the extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or any non-party to the proceedings.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by Respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review – blue card – whether exceptional case – whether or not in best interests of children to issue a positive notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – where Applicant was convicted and received a suspended term of imprisonment for dangerous operation of a vehicle
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226Chief Executive Officer, Department of Child Protection v Scott(No 2) [2008] WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Kent v Wilson [2000] VSC 98APPEARANCES & REPRESENTATION:
Applicant:
L Marinovic, solicitor of ATSILS
Respondent:
D Taylor, legal officer of Director-General, Department of Justice and Attorney-General
REASONS FOR DECISION
The Applicant, WJL applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). On 28 May 2019 she was issued with a negative notice. On 26 June 2019,WJL applied to the Tribunal for a review of the decision of the Director-General, Department of Justice and Attorney-General (‘DJAG’) – Blue Card Services (‘BCS’), that her case was an exceptional case in which it would not be in the best interests of children for her to be issued with a positive notice and blue card.
The Legislative Framework
The screening of persons for regulated employment is set out in the Act and is administered under the principles that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects a child from harm and promotes the child’s wellbeing.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.
WJL was convicted of the offence of dangerous operation of a vehicle, being an offence other than a serious offence as defined in the Act.
Section 221 of the Act provides that a positive notice 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. If so, a negative notice must issue.
Section 226 sets out the factors which the Tribunal must consider in determining if there is an exceptional case for WJL. These factors are not an exhaustive list of considerations. The Tribunal must consider not only the provisions of s 226 of the Act, but the paramount consideration. This paramount consideration is the one to which all others yield.[2] The evidence considered takes into account s 226 of the Act. The purpose of the review is to produce the correct and preferable decision.[3]
[2]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
Exceptional case is not defined in the Act. Whether a case is exceptional is a matter of discretion to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act.[4] That the issuing of a negative notice may have an adverse impact on WJL is not however, a factor which the Tribunal is obliged or entitled to take into account.[5]
[4] Kent v Wilson [2000] VSC 98.
[5]Chief Executive Officer, Department of Child Protection v Scott (No 2) [2008] WASCA 171.
The Tribunal must exercise its discretion after considering the circumstances of WJL’s case, within the guiding principles of the Act.
WJL’s criminal and traffic history
WJL is 34 years old. Her application refers to her clean traffic and criminal record between 2005 and 2014. Her history is summarised as follows:
20 October 2003 – Maroochydore Magistrates Court
Contravene a direction or requirement, obstruct police, and behave in a disorderly manner on 6 October 2003. Behave in a threatening manner on 11 September 2003. No conviction recorded on all charges. Fined $400.00.
21 April 2005 – Maroochydore Magistrates Court
Wilfully damage property without consent and thereby cause a loss of $250.00 or less on 25 September 2004. No conviction recorded. Recognisance $150.00. To be of good behaviour for six months. Restitution of $140.85 ordered.
WJL also has traffic history which includes over 20 offences. WJL has five speeding offences, three offences involving driving an unsafe or defective vehicle, eight offences for failing to meet the requirements of a learner’s licence or provisional licence holder, three offences for unlicensed driving, and two offences for driving a vehicle whilst a driver or passenger was not wearing a seatbelt. She has an offence in September 2010 for smoking in a vehicle while a child under 16 was in the vehicle, and in May 2007 for failing to produce a learner driver licence when required.
On 3 September 2010 WJL was fined for driving with a passenger aged between four and seven years being unrestrained. WJL was last fined $252.00 on 14 December 2017 for speeding.
The Offence
On 19 May 2015, WJL was convicted of dangerous operation of a vehicle on 31 October 2014 (‘the offence’). She was sentenced to a term of imprisonment of six months, to be suspended for 12 months. Her licence was disqualified for six months.
The Police evidence is that on 31 October 2014 at approximately 10:00 pm, a witness and the informant stated that they had left a school function and prior to leaving, there was a verbal altercation between the informant and WJL. On leaving to proceed home with his wife and children, the informant observed WJL following them, causing the informant to pull over to avoid WJL following them home.
When the informant pulled up, WJL also stopped and verbally abused the informant and his family. She then turned her vehicle on the opposite side of the road, performed a U turn, and parked behind the informant’s vehicle. She then abused and threatened the informant before returning to her vehicle. She then accelerated towards the informant who jumped out of the way to avoid being hit. WJL then swerved her vehicle towards the informant’s vehicle colliding with the front right hand side of his vehicle.
In his Police Statement, the informant stated that he was with his wife and three daughters and that after jumping out of the way of WJL’s vehicle, he tripped in the gutter. He was fearful WJL would run him down or run into his car where his children were seated.
He then saw WJL turn back towards the gutter and hit the front of his vehicle. As a result of the incident, the informant had sciatic pain in the back and down his leg and took time off work due to his injuries. The wife of the informant indicated that she was in the vehicle with her children who were screaming in the back seat after witnessing WJL run into the vehicle.
Three witnesses supported the informant’s version of the events. Witness 1 stated that WJL was sitting in her car yelling. She then did a U turn and came behind the informant’s vehicle before driving at the informant who was standing between his vehicle and WJL’s vehicle. The informant had to jump out of the way to avoid being hit and WJL then drove her vehicle into the informant’s vehicle. Witnesses 2 and 3 saw WJL’s vehicle accelerate at the informant. They saw the informant jump out of the way towards the gutter and heard the vehicles collide.
Upon being located later, Police stated that WJL was uncooperative and abusive towards Police. She later stated that she left the scene as she was scared and had been threatened by the informant.
WJL’s Evidence
In her application WJL stated that insufficient notice had been taken of her clean traffic and criminal record between 2005 and 2014. However, at the hearing she acknowledged that she was not aware of the extent of her offending. She thought she had a “couple of offences”.
WJL referred to being a kinship carer, with no concerns as to her ability to safely care for children. Despite the negative notice issuing on 28 May 2019, WJL remains the carer of HH who self-placed with WJL. WJL stated that irrespective of whether she is granted a blue card, HH will not leave her care. However, she would like to care for other young people.
On 6 December 2018, WJL orally stated to Blue Card Services that the dangerous driving offence was “dropped down,” and that she did not serve a term of imprisonment. Further, none of her offences relate to children. WJL referred later in speaking with Blue Card Services on 23 May 2019, to the offence being “dangerous driving with intent,” and to it being “dropped down” because the Judge believed she did not intentionally try to damage or hurt him. At the hearing WJL clarified that she meant she was not imprisoned and received a suspended jail sentence.
There is no evidence to support WJL’s position that the charge of dangerous operation of a vehicle was in any way changed. In the transcript of the sentencing of WJL on 19 May 2015 by Magistrate Baldwin, Her Honour stated, “…aiming your car at someone is probably the same as aiming a gun at someone. It makes no difference. They are both lethal weapons and both gone wrong can kill people.”
On 23 May 2019, WJL orally stated to Blue Card Services that the informant pulled up behind her, blocked her car, hit her in the face and threatened to fight her. He stepped back as she drove up and she hit his car.
WJL stated that the informant had bullied her disabled nephew who lived next door to the hall where the function was held. After advising the informant she was calling the police, he tried to jump over the fence to WJL and her sister. WJL stated that she left and pulled over when she saw flashing lights, at which time the informant abused her, asked her for a fight, and then hit her. Her niece pulled her out of the way from being hit a second time. WJL then put her vehicle into drive and the informant moved out of the way. As she left, she hit his car by accident.
WJL stated that there were no children in the informant’s car and the only child present who witnessed the incident was her niece who was in her vehicle.
She stated that her solicitor proved at the Court that the witness couldn’t see anything. WJL clarified at the hearing that if the matter had proceeded to a trial, her solicitor could have established that the witnesses would not have been able to see the offence from where they were standing.
In respect of the alleged assault, WJL stated that the Police Officer did not believe her and he “got into a lot of trouble.” While she referred to having a black eye and a report from her GP who she attended the day after the offence, no medical evidence was provided to the Tribunal. Further, at the hearing WJL clarified that she did not have a black eye, only a mark on the side of her face.
WJL denied having anger problems. At the time of the offence her nan had died, her aunt had cancer, WJL had a stillborn child, and her emotions were not good. WJL stated that she got a bit angry when they attacked her disabled nephew. She called the informant some names after she hit his car. This was a protective action, as she would do anything for a child.
In her written statement WJL stated that she took her nieces and nephews trick or treating for Halloween. As she pulled up returning home, there was yelling at the back of the house. She saw a man yelling nasty stuff at her sister in law and disabled nephew. She stated that the man started yelling at her, but she walked away. About five minutes later when she was leaving, she noticed him following her. She pulled over and he pulled in front of her blocking her. He came to her window, yelled at her and tried to hit her three times. She was scared so she took off clipping his car for which she takes full responsibility. She was arrested for dangerous operation of a vehicle. The Judge dropped the conviction down to a suspended sentence.
WJL believes she should have a blue card because she has never hurt a child and never would. She did not think something that happened five years ago should affect her future. At the time of the offence she was going through the loss of a child.
In her affidavit dated 9 March 2020, WJL stated that the charge of dangerous operation of a motor vehicle was an extreme reaction to a pattern of harassment of her by the informant. At the hearing WJL changed her evidence and stated that this was a “one off” incident, and that there was no pattern of harassment.
WJL stated that she is limited in the support she has from Centrelink for HH, due to not having a blue card. At the hearing WJL stated that she receives Family Tax Benefits of approximately $200.00 per fortnight. If granted a blue card, she would receive full payments of approximately $500.00 per fortnight. WJL seeks a blue card to be able to care for other children as assessed by the Department of Child Safety (“DOCS”).
WJL’s oral statement to Blue Card Services that the informant pulled up behind her, blocked her car, hit her in the face and threatened to fight her, is not corroborated. She changed her version of this evidence at the hearing by stating that she pulled up behind the informant, who was in front of her vehicle. WJL stated that the informant came to her window, yelled at her and hit her on the side of the face with a closed fist, leaving a bruise and a red mark on the side of her face. This contradicts WJL’s written statement where she indicated that the informant tried to hit her three times.
WJL stated that she drove away as she felt her life and that of her niece was in danger. She stated that she did not intentionally hit the informant’s vehicle. However, WJL admitted at the hearing that she drove directly at the informant. She recalled hitting his vehicle. She stated that the informant was standing on the road where she had to drive. Her only alternative was to drive on the footpath. She did not use the horn to warn the informant and could not reverse as there was a traffic island with trees behind her.
While WJL denied making a U turn and stated she was assaulted, the evidence of the informant, his wife and three witnesses contradicts WJL’s version of events.
WJL indicated that there were no children present at the time of the offence. However, the informant’s Police Statement refers to him, his wife and their three children getting in the vehicle. In addition, WJL indicated that her 15 year old niece was in the vehicle with her. On the weight of the evidence including that of three independent witnesses, the informant and his wife, the informant was standing between his vehicle and WJL’s vehicle.
Based on the independent evidence, WJL’s change to her version of the events at the hearing, and the evidence from others that WJL’s acts were deliberate, the Tribunal does not give significant weight to WJL’s evidence. The evidence shows that WJL did not act protectively towards others and the children sitting in the two vehicles.
Life Story
WJL’s personal history dated 16 July 2019, refers to her mother and grandparents having passed away. She lives with her father and has a sister who also lives in the same town. She has an aunt and cousin in New South Wales, with whom she has regular contact. WJL completed Year 10 and has a Diploma in Child Care. A back injury at age 21 prevented her from working in childcare. She worked in a takeaway shop from ages 18 to 21. She has not worked since and receives a Disability Pension and Family Tax Benefits.
Since August 2018 WJL has cared for a young person HH aged 16, whom she has known since she was six or seven years old. WJL’s general health is good. She has dyslexia and manages her back injury.
While WJL does not hold a blue card, HH has chosen to self-place with WJL, with the full support of DOCS. She has worked with Anglicare who are supportive of the placement and her recent role as kinship carer.
WJL referred to her criminal history. In respect of the offence, WJL stated that she accepts that the police facts and the evidence of witnesses is inconsistent with her recollection of events. She considered her actions to be out of character given her relative lack of criminal history and complete lack in the four years since.
WJL stated that after looking after HH and with the support of Anglicare and DOCS, she has turned a corner and is far more responsible. She has learned patience and to control her anger. She is confident that with continued support, she would not be at risk of repeating her past mistakes or behaving in a way that impacts on her ability to look after HH or any other child.
Referees
WJL submitted one reference from Mr Ryan Kennewell dated 15 February 2019. Mr Kennewell stated that he has known WJL for ten years and that she is kind hearted, caring and loving. He stated that she has been good with children and would do anything to help them. Mr Kennewell stated in another document that WJL is a loving person who has looked after his boys plenty of times. He was fully aware of the charge which she was fully open and honest about, being dangerous operation of a motor vehicle.
Mr Kennewell did not attend the hearing. At the hearing WJL could not articulate the details of the other charges of which she informed Mr Kennewell. She indicated that he was in Court when she was convicted of the offence. However, there was no opportunity for Mr Kennewell to be cross examined as to his evidence or his knowledge of the other charges. As such, the Tribunal gives minimal weight to Mr Kennewell’s evidence.
The Tribunal received a letter from Mr Mark Luatutu, Child Safety Officer, dated 24 June 2019. This letter confirms WJL’s care of HH who has extremely complex and very difficult behaviours, with a number of placements breaking down. The connection to WJL has provided a mother figure to HH and has provided emotional stability and safety to her. Due to her loss of a blue card, WJL is no longer deemed by the “system” as an appropriate paid or registered carer. Mr Luatutu supports WJL’s application to have her blue card status reconsidered.
Mr Andrew Nethercott, a Foster Care and Kinship Care Practitioner with Anglicare, confirmed in a statement dated 10 June 2019, that he formally supported the placement of HH with WJL. Following the issue of the negative notice, HH decided to remain being cared for by WJL, despite WJL not receiving a kinship care allowance. Mr Nethercott stated that WJL provided child centred, trauma informed support that met the needs of HH, resulting in this being HH’s longest placement. HH considers WJL as her family. WJL organises contact between HH and her family.
Mr Nethercott noted that the offence resulting in the negative notice was concerning. However, he considered the risk to HH to be minimal and referred to the possibility of HH being forced to leave because of services being unable to support the care arrangement.
There is no evidence that Mr Luatutu or Mr Nethercott were aware of WJL’s history of other offending. They did not attend the hearing. As such, the Tribunal gives less weight to their evidence.
The Risk Factors
While WJL referred to none of her offences as relating to children, she is lacking in insight as to her actions in deliberately running into a parked vehicle when there were children in the back of that vehicle, and to her niece aged 15 at the time of the incident, being in WJL’s vehicle at the time she committed the offence. WJL in her evidence deflected blame to others. She alleged she was assaulted by the informant, in respect of which no evidence was provided. She stated that the informant was responsible for the incident when WJL deliberately drove her vehicle at the informant and damaged his vehicle.
At the hearing WJL stated that her niece was not traumatised following the incident. She showed a lack of awareness that any of the children who witnessed the incident might experience emotional trauma. WJL’s offending is directly child related and directly relevant to her ability to safely care for children and hold a blue card.
WJL referred to her actions being “an extreme reaction to a pattern of harassment of her by the informant.” There is no evidence of any such pattern, which WJL confirmed at the hearing. The evidence is that there was an argument outside the school hall between WJL and the informant, which continued when WJL was parked opposite the informant. WJL through her actions and not those of the informant, did a U turn and parked behind the informant before narrowly avoiding colliding with the informant. She then redirected her vehicle to collide with the informant’s vehicle.
WJL’s position that her dangerous driving offence was “dropped down” is incorrect. She was convicted of a charge of dangerous operation of a vehicle. She was given a sentence of imprisonment for six months, with that sentence being suspended for 12 months. She did not recognise the gravity in being sentenced to a suspended custodial sentence, or the risk that she could have more severely injured the informant.
WJL’s oral evidence given to Blue Card Services that she pulled over, that there were two men present and that she was assaulted, is not supported by any evidence. The evidence of independent witnesses is that WJL was verbally abusive to the informant, and that she deliberately ran her vehicle at him. WJL’s evidence lacks credibility.
In respect of her remorse, WJL advised Blue Card Services orally on 23 May 2019 that she knew she “did wrong” that day, and that she should have called for police assistance instead of driving off. However, she was scared for her life as there were two men present. She did not acknowledge the negative effect of her actions on her niece who was in WJL’s vehicle at the time of the offence, or on the occupants of the other vehicle, including the informant’s three children who were screaming at the time of the offence.
While she advised Blue Card Services that she would do anything for a child, WJL failed to acknowledge the possible impact of her actions on her niece who was in her vehicle at the time of the incident. WJL did not express any concern for the injuries sustained by the informant following her actions. It is concerning that WJL considered that her action in hitting the informant’s vehicle was a protective action on behalf of her disabled nephew, when he was not present at the time of the offence. By her actions, WJL has not demonstrated her ability to act protectively and in the best interests of children.
WJL gave a different version to the Tribunal of the incident to that of five other persons, including three independent witnesses. WJL alleged without any evidence in support, that she was assaulted by the informant. Her evidence of being assaulted by the informant changed substantially at the hearing. It was not supported, despite WJL having the opportunity to provide medical evidence. WJL’s evidence was inconsistent as to the circumstances of the offence, initially stating that the informant drove up in front of her vehicle, when WJL drove up in front of his vehicle. WJL denied that children were present at the time of her offending, despite being present with her niece. The change to her evidence at the hearing reflects adversely on her credibility.
WJL was 28 years of age at the time of the offence. She had a history of convictions for offences involving violence at the time of the offence. Her lack of appropriate insight despite her previous convictions, remains a risk factor.
While WJL referred to the negligible risk of her reoffending, she has an extensive traffic history including smoking in a vehicle while a child under 16 was in the vehicle, and driving with an unrestrained child in her vehicle. At the hearing WJL could not recall this incident, which she explained may have involved her niece. The Tribunal notes that WJL has a history of engaging in threatening and violent behaviour and being in conflict with police, including following the offence.
WJL demonstrated poor judgement and a lack of emotional regulation and self-control at the time of the offence when she deliberately drove towards the informant and collided with his vehicle with his children present in the vehicle and WJL’s niece present in her vehicle. WJL’s actions were a disproportionate response to the preceding argument and reflect an ongoing risk to children and others in the community.
WJL minimised the extent of her previous offending and the sentence of the Magistrates Court. She alleged that she had been the informant of a pattern of harassment, which she later denied. Her actions showed a blatant disregard for the informant and the children present, who could also have been injured by her actions. WJL did not recognise the child related nature of her offending.
WJL’s Protective Factors
WJL expressed remorse for and accepted responsibility for her actions. She advised Blue Card Services “I’m sorry for what I did and that’s where I leave it. I wish I hadn’t pulled over or hit his car. If I could go back and change it, I would.” At the hearing WJL acknowledged that she knew what she did was wrong, and that what was going on with her was not an excuse. If she could do something to change what happened, she would.
WJL advised Blue Card Services that after the incident she took the proactive step of attending counselling for two years to talk about the offence and losing her son. She thought she had an anger problem, but realised it was an emotional response to what happened to her. She was hurt at the time and needed to learn to manage her emotions. Her psychologist taught her breathing techniques and to walk away. She referred to another strategy of flicking a rubber band on her wrist, and dancing if at home. She ceased taking Valium two and a half years ago. WJL has identified her triggers and has indicated that she would manage the conflict now by walking away and calling the police, which she did when her nephew was picked on after the offence.
WJL’s oral evidence is that she saw the psychologist twice weekly for approximately two years. She could not recall the name of the psychologist and did not provide a report from the psychologist to support her position as to the extent of counselling undertaken by WJL. This would have been at significant expense as she indicated that the counselling was undertaken privately. She provided no professional evidence of the impact of the counselling on her ability to act protectively towards children and exercise self-control and restraint, particularly in the presence of children, given life’s stressors.
WJL has the support of DOCS and Anglicare. However, the Anglicare representative expressed concern as to the level of continuing support that can be provided to WJL, if she is not granted a blue card.
Ms Marinovic submitted that WJL’s father with whom she lives and who holds a Blue Card, is a protective factor. There was no evidence provided by WJL’s father to support this submission.
Blue Card Services’ (“BCS”) Submissions
BCS referred to WJL’s offending history, the witness statements, and the circumstances of the offence which have been referred to above.
BCS acknowledged WJL’s protective factors as including her acknowledgement of some responsibility for the offence, her level of remorse, attending counselling and learning to identify her triggers which led to her behaviours of concern. BCS also referred to the letters received from DOCS, Anglicare and the referee.
BCS referred to the risk factors as WJL’s history of offences involving violence and aggression, including the relevant offence, despite her reference in her life story to her “relative lack of criminal history prior to that event”. BCS referred to children being present at the time of the offence, and to WJL’s history of driving while a child was unrestrained and smoking in a vehicle with a child present, as indicating her previous failure to act protectively and in the best interests of children.
BCS referred to WJL’s actions in deliberately driving her vehicle towards the informant and into his vehicle, reflecting adversely on WJL’s ability to judge appropriate conduct and exercise self-control, with reference to the Magistrate’s remarks as to her actions necessitating a suspended custodial sentence. BCS submitted that being 28 years of age at the time of the offence, WJL was mature enough to understand the wrongfulness of her behaviour.
BCS submitted that the informant could have been more seriously injured because of WJL’s actions, and that WJL disregarded his safety and that of the children present. BCS submitted that WJL attempted to deflect blame on the informant by alleging he assaulted her, which is inconsistent with the Police material and witness statements. BCS submitted that WJL’s actions were disproportionate to her allegation that her nephew had been bullied, reflecting negatively on her ability to manage her anger and resolve conflict situations.
BCS submitted that WJL’s history reflects adversely on her ability to present as a positive role model for children and young people. It considered that WJL’s offending behaviour is adverse to her ability to promote the best interests of children in her care, including providing them with safe and lawful behaviour in their developmental years.
BCS noted that any hardship to WJL from not holding a blue card was of no relevance. It noted that a blue card is unconditional and fully transferable across all areas of regulated employment and business.
BCS submitted that the Act is premised on past behaviour being an indicator of future behaviour. It submitted that the risk factors render the case an exceptional case such that it would not be in the interests of children and young people for WJL to be issued with a positive notice and blue card.
Conclusions
While WJL’s application referred to her past criminal history, the Tribunal can take into account offences committed where no conviction was recorded.
While WJL referred to the length of time since her previous offending, the Tribunal notes that the offence of wilful damage committed on 25 September 2004 related to WJL damaging an indicator light and a left rear window after she threw something at the complainant’s vehicle. WJL admitted throwing a half full glass Coke bottle at the vehicle having been confronted by persons in the complainant’s vehicle who yelled at her. She referred to the complainant’s vehicle following her, and to her being afraid.
The facts of that incident are similar to the events giving rise to her conviction for the offence of dangerous operation of a motor vehicle. WJL stated that she was being followed by the informant, and that she was afraid. She corrected that evidence at the hearing by confirming that her vehicle was behind the informant’s vehicle before she drove directly at the informant and later, his vehicle. The wilful damage charge occurred ten years before the offence. This suggests that WJL has not addressed her previous behaviours, despite this passage of time.
The Tribunal notes further that WJL was convicted of driving a vehicle with an unrestrained child in that vehicle and smoking in a vehicle with a child inside the vehicle. The Tribunal finds that this history of offending reflects negatively on WJL’s ability to be a role model for children and promote their best interests.
While Mr Nethercott referred to the risks to HH and the possibility of her being forced to leave WJL’s care without a blue card, the transferability of a blue card means that if successful with her application, WJL would have unfettered and unsupervised time with all children. A “conditional” blue card cannot be granted. The Tribunal takes into account as a significant consideration, the transferability of a positive notice across any area of child related employment.
While WJL refers to the financial burden to her in respect of her assistance from Centrelink in not holding a blue card, this is not a factor which the Tribunal can consider. The Tribunal’s role is to consider the best interests of children.
The Tribunal is satisfied that WJL’s current risk factors raise concerns about her ability to make appropriate behavioural choices in the best interests of children and young people. WJL’s offending is child related.
The Tribunal is not satisfied that the protective factors outweigh the risk factors in this case.
The Tribunal finds that WJL’s negative notice must be confirmed, as this is an exceptional case in which it would not be in the best interests of children for her to be granted a positive notice.
The Tribunal finds on the balance of probabilities, that the statutory presumption prescribed by s 221 of the Act that a positive notice should issue, has been rebutted. The Tribunal makes this finding given the consideration that the safety of children is paramount in the Tribunal’s determination of whether an exceptional case exists, and after taking into account the relevant legislation.
The decision of DJAG is confirmed.
Decision
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 confirmed.
2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of:
(a)the contents of a document or thing filed or produced to the Tribunal;
(b)evidence given before the Tribunal; and
(c)any order made or reasons given by the Tribunal,
is prohibited to the extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or any non-party to the proceedings.
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