Applicant BB v Director-General, Department of Justice and Attorney-General [2020] QCAT 385

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,

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

Re FAA [2006] QCST 15

RPG v Public Safety Business Agency [2016] QCAT 331

• [1] This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, made on 23 July 2019, to issue a negative notice in respect of the application by Applicant BB for a blue card.
• [2] Blue Card Services undertook a criminal history check in relation to Applicant BB. This check disclosed the following criminal history which Blue Card Services considers to be of concern in relation to Applicant BB's application for a blue card:

(a) Applicant BB was charged with two counts of 'unlawful stalking/threatens to contravene an order/injunction - domestic violence offence' on diverse dates between 7 July 2015 and 1 November 2016, and between 6 August 2015 and 8 June 2016. The complainants were Applicant BB's former husband ('Complainant 1') and his new partner ('Complainant 2').

• [3] Applicant BB was found not guilty of these offences.

• [4] 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 Working with Children Act'). The object of the Working with Children 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.
• [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.
• [6] As applicable to this case, the Working with Children 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]

• [7] What constitutes an 'exceptional case' is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
• [8] Section 226(2) 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]

(b) Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;

(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.

• [9] Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
• [10] The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

• [11] Applicant BB provided the Tribunal with her life story dated 24 September 2019, and a further statement dated 28 February 2020. She also gave oral evidence at the hearing.
• [12] Applicant BB conceded that she engaged the services of a private investigator in relation to a suspected affair of Complainant 1 in early August 2015. As a result of this, and with the knowledge of Applicant BB, a tracking device was placed on Complainant 1's car. Another tracking device was placed on Complainant 2's car, apparently without Applicant BB's knowledge. Applicant BB conceded that these actions could have given rise to fear, particularly on the part of Complainant 2.
• [13] Applicant BB also conceded that she stood on the footpath outside Complainant 2's residence at approximately midnight on 7 August 2015.
• [14] Applicant BB also conceded that she sent a number of abusive emails to Complainant 2. By way of example, an email sent on 4 March 2016 contains the following passage:

Please hear me when I say you have nothing to worry about ... (Really nothing). By no means would I be attracted to a spineless, guilt ridden, poor excuse for a human being ... Just not attracted to that type of bad energy ... But each to [their] own.

• [15] Applicant BB also conceded that she applied for Justices Examination Orders against each of Complainant 1 and Complainant 2 on 12 August 2015.
• [16] Complainant 1 made allegations that Applicant BB attended his office on 1 July 2015 with their eldest daughter. Complainant 1 alleges that Applicant BB was physically and verbally abusive towards him. Applicant BB conceded that she attended the office, but denies that she was physical or verbally abusive.
• [17] Complainant 1 also made allegations that Applicant BB got into the front seat of his car and was verbally abusive towards him on 9 July 2015. Their eldest daughter was allegedly in the back seat. Applicant BB conceded that this occurred, but stated that she was initially unaware that their daughter was in the car. She also stated that their daughter got out of the car before anything serious was said.
• [18] I did not have the benefit of hearing oral evidence from Complainant 1 in relation to the allegations outlined in the preceding two paragraphs. Applicant BB made other concessions relating to her behaviour, but made denials in relation to these incidents. On the basis of the evidence before me, I prefer Applicant BB's account of these incidents to that of Complainant 1.
• [19] Evidence was provided that Applicant BB was the named respondent to a domestic violence order made on 30 September 2015. The order named Applicant BB's four children, who were then living with her. However, the order was made by consent and without admissions. Gregory Ploetz, Applicant BB's solicitor, gave evidence that this was done as a matter of convenience and on the basis of knowing that she would comply with the orders once made.
• [20] Evidence was also provided from the Department of Child Safety, Youth and Women that the Department was notified of concerns relating to Applicant BB's children. The Department concluded that there was no indication that the children had been harmed or that intervention was required.
• [21] Applicant BB provided a report from Dr Yolanda Gribble, clinical psychologist, dated 2 February 2020. Dr Gribble treated the applicant between 26 February 2015 and 21 August 2015. Relevantly, in her report, Dr Gribble states:

As [Applicant BB] has not been a client of mine for over four years, I am unable to comment on her current functioning and subsequently her capacity to work with minors.

...

During the course of therapy, [Applicant BB] gave birth to her baby and reported ongoing significant anxiety over what she believed were issues with her husband's mental health, due to his change in behaviour and his withdrawal from family life. Those stressors appeared to have impacted her greatly and significantly affected her ability to cope. At the time, [Applicant BB] had good support from her family. No indications of increased risk of harm to self or others were apparent during her time in therapy.

• [22] Evidence was given at Applicant BB's District Court trial that a Justices Examination Order was made in relation to her on 21 August 2015. This was the date of the last treatment session by Dr Gribble. Relevantly, the reasons stated were:

I am a clinical nurse with West Moreton. This application has been discussed with a consultant psychiatrist. [Applicant BB] has made accusations that she thinks a person is trying to steal her nine week old baby. There is no evidence that this is true. This behaviour has been occurring for a number of weeks. There is a fear her baby may be harmed, especially if her beliefs are because she is psychotic. Staff have attempted to assess her mental state when she is called, but she has refused to answer questions.

• [23] In the circumstances, I place little weight on Dr Gribble's report. The report does not express any views as to Applicant BB's capacity to work with minors, and is significantly at variance with other contemporaneous evidence.
• [24] Applicant BB also provided a report from Ms Shannon Burgess, clinical psychologist, dated 27 July 2020. Ms Burgess' report was prepared on the basis of two video interviews with Applicant BB, one lasting 60 minutes and the other lasting 10 minutes. Ms Burgess was also provided with Dr Gribble's report and the Blue Card Services statement of reasons.
• [25] Ms Burgess also attempted to administer psychometric testing to Applicant BB. She made these comments in her report:

Unfortunately, the results indicated an invalid report, due to an attempt at impression management. This included underreporting any traits that might be seen as shortcomings ...

There did not appear to be any evidence of [Applicant BB] withholding crucial information, but more so an intent to portray herself in a favourable light. Given the nature of this situation, such an intention is unsurprising.

[Applicant BB's] contemptuous and aggressive interactions with [Complainant 1 and Complainant 2] appear to have occurred in the context of relationship issues. There does not appear to be any connection to this interaction and [Applicant BB's] ability to safely parent her own children, or safely work with other children.

...

Two key issues present in regard to the assessor's decision; safety of children, and a moral judgment regarding the way [Applicant BB] handled her marital separation. While moral questions may be raised as to [Applicant BB's] decisions at the time, namely; to employ a private investigator, to place a tracking device on her then-husband's car to confirm suspicions of infidelity, whether she should attend a private residence where she believed her property had been stolen and relocated to, the manner of her communication towards [Complainant 1 and Complainant 2], these behaviours are not indicative of a high risk of future offending or impending risk towards children [Applicant BB] may came into contact with.

• [27] I do have some concerns about the conclusions reached in Ms Burgess' report given Applicant BB's attempt at impression management. However, I must also take into account that Ms Burgess was aware of these attempts at impression management and reached her conclusion notwithstanding those attempts.
• [28] I also heard favourable referee evidence from Applicant BB's current partner, as well as two friends and/or work colleagues of Applicant BB.
• [29] Two further workplace references were also provided. While neither of these referees gave oral evidence, it is relevant that they spoke highly of Applicant BB's work as a disability support worker.

• [30] The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case.
• [31] In terms of the level of satisfaction required to meet s 221(2), it has been accepted that 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.[9]
• [32] There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.[10]
• [33] Looking at the factors which must be considered and at factors I consider relevant, I make the following observations:

• [34] Applicant BB was charged with, but found not guilty of, two counts of 'unlawful stalking/threatens to contravene an order/injunction - domestic violence offence'.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

• [35] The offence Applicant BB was charged with is not a serious or disqualifying offence.

When the offence was committed or is alleged to have been committed

• [36] The offending with which Applicant BB was charged was alleged to have taken place on diverse dates between 7 July 2015 and 1 November 2016, and between 6 August 2015 and 8 June 2016.

The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children

• [37] The offences do not relate to children. In particular, I have not accepted the allegations against Applicant BB that relate to the presence of children on 1 July 2015 or 9 July 2015.
• [38] Nevertheless, Blue Card Services submits that the accepted behaviour engaged in by Applicant BB indicates that she may not have the conflict resolution skills and anger management skills to deal appropriately with challenging situations.
• [39] It is certainly the case that Applicant BB did not appropriately deal with her relationship breakdown. However, the ill-judged actions engaged in by Applicant BB do not appear to have related to children, which is the focus of my inquiry. The Department of Child Safety, Youth and Women did not identify any concerns in relation to children.

In the case of a conviction, the penalty imposed by the Court and the Court's reasons for its decision

• [41] I have considered the risk and protective factors in Applicant BB's life.
• [42] This is a finely balanced case. On the one hand, Applicant BB engaged in a number of ill-judged actions relating to Complainant 1 and Complainant 2 in 2015 and 2016. Applicant BB's actions appear to have arisen from an intense emotional reaction to the breakdown of her relationship with Complainant 1, and her suspicions of him having an affair with Complainant 2. I note that, at the time of these events, Applicant BB was either pregnant or had recently given birth.
• [43] The evidence regarding her psychological state at the time is opaque, with her treating psychologist opining that that there were no increased risks of harm to herself or others, while at the same time a clinical nurse was expressing concerns as to psychosis. While I have ultimately placed little weight on Dr Gribble's report, equally there is no evidence that would enable me to conclude that Applicant BB was in fact experiencing psychosis or required treatment.
• [44] On the other hand, approximately four years have elapsed since the time of Applicant BB's last behaviour of concern. She appears to have settled into a new relationship. She has also been working with vulnerable disabled persons for a period of time without incident.
• [45] Despite Applicant BB's attempts at impression management, Ms Burgess has nevertheless concluded that there is no impending risk towards children Applicant BB may come into contact with. It is difficult to second guess Ms Burgess' conclusions, particularly given the absence of any behaviours of concern in the past four years.

• [46] Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is not an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
• [47] I therefore set aside the decision under review and substitute a new decision that there is not an exceptional case in relation to Applicant BB.

• [48] I order that the publication of the name of the applicant and the names of any relevant children are prohibited other than to the parties to the proceeding pursuant to s 66(1)(a) of the QCAT Act.
• [49] I also order, pursuant to s 66(1)(a) of the QCAT Act, that the publication of documents obtained from the Department of Child Safety, Youth and Women is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.

[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.

[5] Re FAA [2006] QCST 15, [22].

[6] Working with Children Act, s 226(2)(a).

[7] Working with Children Act, s 226(2)(e).

[8] Re FAA [2006] QCST 15, [29], citing the second reading speech, Commissioner for Young Children and Young People Bill, p 4391.

[9] [2004] QCA 492, [30].

[10] Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 331, [27].