Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

WAS v Director-General, Department of Justice and Attorney-General

 

[2017] QCAT 243

CITATION:

WAS v Director-General, Department of Justice and Attorney-General [2017] QCAT 243

PARTIES:

WAS

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML009-17

MATTER TYPE:

Childrens matters

HEARING DATE:

11 July 2017

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

18 July 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The decision of the Director-General, Department of Justice and Attorney-General on 15 December 2016 to issue WAS a negative notice is confirmed. 

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where application for review of negative notice to work with children – whether exceptional case – whether not in best interests of children to issue Positive Notice – where applicant was teacher who had sexual relationship with student – where behaviour serious and recent – where applicant showed modest insight or understanding of impact of offending behaviour on student – where community expects those working with children to understand impact of behaviour on others

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Working with Children (Risk Management and Screening) Act 2000, s 6, s 156, s 221, s 226, s 360, Schedule 1

ABM v Chief Executive Officer Public Safety Business Agency [2015] QCAT 189

BI v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311

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

Diefenbach v Commissioner for Children and Young People and Child Guardian [2014] QCAT 382

Harley v Department of Justice and Attorney-General [2012] QCAT 620

HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403

JA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

O’Brien v Gladstone Regional Council [2015] QCATA 82

Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56

Queensland College of Teachers v DCG [2016] QCAT 29

Queensland College of Teachers v WAS [2015] QCAT 61

Re TAA [2006] QCST 11

APPEARANCES:
APPLICANT:WAS appeared in person
RESPONDENT:Ms Y Chen, Government Lawyer, appeared for the Director-General, Department of Justice and Attorney-General, instructed by Mr Ian McCowrie, Government Lawyer

REASONS FOR DECISION

What is this Application about?

  1. [1]
    WAS cannot obtain a positive notice (Blue Card) to conduct child-related activities.[1] This is because on 15 December 2016 the Director-General, Department of Justice and Attorney-General issued WAS with a ‘negative notice’ for factors related to disciplinary proceedings brought against him as a teacher in 2015.[2] WAS had engaged in a sexual relationship with a female student aged 16 years, over a period of several months.
  2. [2]
    WAS wants the Tribunal to review the Director-General’s decision. The Tribunal considers the matter afresh to produce the correct and preferable decision.[3] This means that WAS need not prove the Director-General made an error – the original decision is not presumed correct.[4]
  3. [3]
    The Tribunal effectively “stands in the shoes” of the Director-General and makes its own decision.[5] The Tribunal may confirm, amend or set aside the Director-General’s decision and substitute a new decision or return it to the Director-General to reconsider.[6]

Background

  1. [4]
    The Tribunal previously ordered that the publication of these proceedings to the extent that it could identify WAS is prohibited.[7] Accordingly, these reasons have been published in a de-identified format.

Is it not in the best interests of children to issue a Positive Notice to WAS?

  1. [5]
    Because WAS is not convicted of any ‘serious offence’, WAS is entitled to be issued with a positive notice unless his case is ‘exceptional’.[8]
  2. [6]
    Because a positive notice authorises a person to conduct child-related activities in any environment, the welfare and best interests of a child are paramount.[9] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[10]
  3. [7]
     In reviewing the Director-General’s decision that WAS’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice.[11] To determine this, I must identify and balance protective factors with risk factors.[12]

What protective factors favour issuing a Positive Notice to WAS?

  1. [8]
    WAS submitted the following factors to support his application:
  • He has undertaken numerous behavioural interventions since the disciplinary proceedings;[13]
  • He has worked with and interacted with children at his son’s primary school for the past eight years, and in numerous other schools since April 2016, without incident; and
  • He has rehabilitated.
  1. [9]
    Since the offending behaviour, WAS has been supported by his wife and is striving to be a good father to his young son. He has a supportive network of friends and professionals. He is involved in his son’s post-curricular activities and volunteers at the school canteen. He is working as a trainer and assessor and also has a part-time clerical position in the Australian Defence Force. There have been no further incidents of offending behaviour since 2014.
  2. [10]
    WAS provided positive character references.[14] These attest to him being trustworthy and capable of working with children and a loving father. However, only one of the referees’ evidence was tested orally at the hearing.[15] Although the referee was aware of WAS’s relationship with the student, he had not been provided with the Tribunal’s decision from the disciplinary proceedings or the Department’s reasons for its decision not to issue a positive notice to WAS. It is also unclear whether the other referees were aware of the previous offending behaviour.
  3. [11]
    These factors must reduce the weight of the referees’ evidence,[16] as the Tribunal cannot be satisfied that they have expressed their views fully apprised of all relevant circumstances.
  4. [12]
    WAS also provided a report from his general practitioner, Dr Sarah Kay[17] and reports from Dr Susan Boyce, Forensic and Clinical Psychologist.[18] Dr Kay assessed WAS as “low to moderate” risk of self-harm and harm to others.
  5. [13]
    Dr Boyce relevantly stated:
  • WAS’s inappropriate behaviour was irresponsible and impulsive rather than malicious or premeditated, (although she conceded some pre-meditation under cross-examination); 
  • She has had six sessions with WAS since 12 October 2016 and WAS remains an open client;
  • WAS has made considerable gains in his insight into the factors contributing to his inappropriate behaviour with the student;
  • WAS has made considerable progress in the past two years in insight into his inappropriate behaviour, its context and his own mental health issues;
  • His current mental state is stable and he is receiving appropriate treatment through medication and counselling; and
  • Although a formal risk assessment has not been undertaken, WAS would likely pose a very low risk of harm (i.e. inappropriate sexual behaviour) to any young person in his care. He presents with minimal risk factors for relapse into his past behaviour and considerable protective factors including a stable mental state, stable employment, stable long-term relationship, supportive family members, acting as a care-giver for his son and a lack of anti-social behaviour and substance abuse history. 
  1. [14]
    Dr Boyce’s more recent report identifies WAS’s vulnerability at the time, avoidance pattern of coping, poor boundaries, workplace stress and family/relationship stress as triggers for his behaviour. She notes that WAS has completed a preliminary relapse prevention plan to identify potentially problematic situations and high risk situations, with coping strategies and support networks to match these situations.
  2. [15]
    Although positive, neither Dr Kay’s report not Dr Boyce’s report identify the information used in their compilation. Under cross-examination, Dr Boyce conceded that she had not been provided with the Department’s Statement of Reasons[19] and that WAS had not been fully candid with her as he did not inform her of his wife’s own behaviour towards the student that resulted in separate disciplinary proceedings.[20]
  3. [16]
    This incomplete information reduces the weight of Dr Boyce’s report and in particular, her assessment of risk because WAS’s wife’s initial blaming of the student impeded WAS’s ability to develop insight at the time, by minimising his own behaviour.
  4. [17]
    The Tribunal is of the view that the expert evidence is tempered by not being based on any formal testing,[21] and the incomplete information upon which it is based.
  5. [18]
    Nevertheless, the Tribunal is satisfied that the evidence does show some effort by WAS to address the triggers for his offending behaviour.

What key risk factors prevent issuing a Positive Notice to WAS?

  1. [19]
    When cancelling WAS’s registration as a teacher and suspending him from re-applying for registration for a period of six years, the Tribunal required WAS to provide a report from a psychologist or psychiatrist assessing ten criteria, including:
  • His suitability to teach and work in a child-related field;
  • His ability to differentiate between personal and professional relationships;
  • His awareness of the legal obligations of teachers and tutors;
  • His ability to develop and maintain professional standards when working with young people and ability to implement professional boundaries with students;
  • His ability to identify problematic situations and venues, and to initiate realistic solutions to avoid the risk of harm to students;
  • His awareness of the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor;
  • His awareness and understanding of personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
  • His awareness and understanding of the effect of inappropriate relationships with students; and
  • His awareness and understanding of the trust and power granted to a teacher.[22] 
  1. [20]
    Although the Tribunal made this Order when sitting in its disciplinary jurisdiction, because a positive notice would authorise WAS to work with children in any environment without restriction, similar considerations are relevant here:

Once a decision is made that a person is suitable to work with children there are no conditions around that decision and the blue card holder is authorised to work with children in any environment. This transferability means the assessment must take into account all possible work situations. The intended circumstances of the proposed employment, together with any supervision that may be available will not normally be factors relevant to the decision.[23]

  1. [21]
    In particular, the Tribunal notes the need for WAS to demonstrate an awareness and understanding of the nature and impact of his behaviour. The need for WAS to demonstrate this understanding is more acute in circumstances where he did not end the relationship with the student because of his recognition of its inappropriateness, but only because his wife discovered it.
  2. [22]
    Moreover, the Tribunal notes that WAS continued contact with the student until February 2014 – months after he had apparently ended the relationship. In the relatively short period since, WAS has shown only modest insight into, and remorse for, the impact of his behaviour on the student.
  3. [23]
    Much of WAS’s evidence and indeed, the evidence from his experts, focused on his recently acquired insight into the reasons for his offending behaviour, including his own traumas – both in his childhood and more recently.
  4. [24]
    WAS spoke of how his behaviour “impacts on me every day”, “nothing prepares you for the impact on you”, how his “entire life had been trawled through”, how he had “gone from a respected member of the community to being ostracised” and talked at length about his own victimisation and his own experience of sexual assault. 
  5. [25]
    However, it was not until late in his evidence when questioned by the Tribunal that WAS turned his attention to the potential impacts on the student. This was the first time that WAS acknowledged that she would have been most affected by his behaviour.
  6. [26]
    Earlier, in his written material WAS had made only general statements of remorse including that he has “acknowledge(d) and continue to acknowledge the harm I created to all parties and affirm my commitment to recovery”,[24] his “complete remorse for not addressing my formerly unresolved childhood trauma previously”,[25] and his “significant behavioural insight into the harm I have caused”.[26]
  7. [27]
    In the disciplinary proceedings, the Tribunal imposed a six year prohibition period on WAS for him “to mature and take opportunities to reflect and learn” and noted that he will not automatically gain re-registration at the end of this period[27] – in July 2020. This reflects the seriousness of the behaviour and the need for deep reflection.
  8. [28]
    Despite this, WAS applied for a Blue Card within a year of the disciplinary orders and he is only three years into his six year suspension period. WAS’s behaviour was serious. He was neither young nor inexperienced. He exploited for his own needs and desires a student already vulnerable from sexual abuse.[28]
  9. [29]
    In his submissions, WAS referred to his “previously unresolved childhood trauma” and “self-compassion” as a way of dealing with his own emotional crisis from sexual abuse.[29] Unfortunately, he did not refer to compassion for the student who was the target of his own inappropriate behaviour.
  10. [30]
    Although WAS has undergone counselling, he was also undergoing counselling when he commenced the relationship with the student and when he again contacted the student in February 2014[30] – months after he ceased the relationship.  Although WAS explained that this counselling did not deeply explore his own childhood trauma, it does shows an inability by WAS to exercise good judgement, even when receiving professional help.
  11. [31]
    When asked during the hearing what he had done to develop insight into children’s wellbeing, he mentioned completing two training courses (although one was a work requirement). As recently as August 2016, WAS tried to minimise his behaviour and sought to transfer responsibility by noting that the student was “not under my timetable and further I had no direct subject teaching responsibility”, his previous child protection training was “treated as an administrative hurdle by the establishment and failed to truly impress the serious nature of the content”, and only seeing now “the serious uncompromising reality of what child protection really means”.[31] 
  12. [32]
    When asked during the hearing how he felt towards the student, WAS said he felt he had let the student down for not doing his job properly and regretted his decision not to report her disclosure of childhood sexual abuse. He did not mention his own inappropriate relationship with the student. When asked about it, he said it was “inappropriate due to the power imbalance” but added that he did what she wanted him to do, he did not feel any authority and there were lots of inappropriate relationships at the school.
  13. [33]
    By minimising the offending behaviour, WAS still does not appear to be fully aware of the impact of this type of behaviour on others. This is relevant to child-related employment.[32]

Is this an ‘exceptional case’ to not issue a Positive Notice to WAS?

  1. [34]
    It is just over three years since WAS ceased contact with the student. I am not satisfied that this period is sufficient to demonstrate that WAS does not present as a risk, given the seriousness and recency of the behaviour, the incomplete information upon which the evidence from his experts was based and his insight into his behaviour still being a ‘work in progress’.
  2. [35]
    The focus of WAS’s submissions was the impact of sexual abuse on himself, rather than the impact of his own behaviour on the student. WAS did not appear to understand that his application is about the best interests of children, rather than any detriment or benefit that he might experience.[33] WAS’s insight into his behaviour was curtailed by his attempts to minimise and at times, deflect it.[34]
  3. [36]
    The community expects those working with children to at least understand how and why their past transgressions were inappropriate, as children depend on adults to have insight into their actions and their likely effect.[35] Being aware of this means that a person is less likely to repeat the behaviour, when subjected to similar stressors.[36] WAS has not yet shown this understanding.
  4. [37]
    At the end of the hearing, WAS informed the Tribunal that he will continue to rehabilitate, regardless of the decision. The Tribunal encourages him to continue with counselling to reflect more deeply on the impact of his behaviour on the student, rather than just its consequences for himself.
  5. [38]
    Although WAS has made some progress, the Tribunal is of the view that insufficient time has passed since his inappropriate behaviour to show that he is ready and able to make judgements in the best interests of children.[37] I am not satisfied that WAS has demonstrated “that he has gained awareness of matters such as the ways in which inappropriate relationships can affect students”[38] in the three years since his suspension commenced.
  6. [39]
    Because these risk factors outweigh the positive factors, WAS’s case is ‘exceptional’ and prevents issuing him with a Positive Notice.

Conclusion

  1. [40]
    The law requires that in considering whether to allow a person a Positive Notice, the interests of children must take priority over an applicant’s interests. Issuing WAS with a positive notice at this time is not in the best interests of children.
  2. [41]
    The correct and preferable decision is therefore to confirm the decision of the Director-General, Department of Justice and Attorney-General on 15 December 2016 to issue WAS with a negative notice.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000, s 156 and Schedule 1.

[2]Queensland College of Teachers v WAS [2015] QCAT 61.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[4]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[5]O’Brien v Gladstone Regional Council [2015] QCATA 82, [18].

[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[7]Order dated 21 March 2017.

[8]Working with Children (Risk Management and Screening) Act 2000, s 226.

[9]Ibid, s 6(a), s 360.

[10]Ibid, s 6(b).

[11]Ibid, s 221.

[12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[13]See for example reference from Gillian Meteyard, Specialist Counsellor dated 5 July 2016.

[14]References of NG dated 3 July 2016, WC dated 4 July 2016, BJL dated 4 July 2016, WD dated 7 July 2016, WXD dated 4 July 2016, WS dated 7 July 2016 and BE dated 8 July 2016.

[15]WD gave evidence by telephone.

[16]BI v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311, [32].

[17]Report of Dr Sarah Kay dated 6 February 2017.

[18]Reports of Dr Susan Boyce dated 19 October 2014 and 17 February 2017.

[19]Reasons for the decision to issue a negative notice dated 15 December 2016.

[20]Queensland College of Teachers v DCG [2016] QCAT 29.

[21]JA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251, [36].

[22]Queensland College of Teachers v WAS [2015] QCAT 61.

[23]JA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251, [4].

[24]Letter WAS to Public Safety Business Agency dated 11 November 2016.

[25]Ibid.

[26]Ibid.

[27]Queensland College of Teachers v WAS [2015] QCAT 61, [41].

[28]Queensland College of Teachers v WAS [2015] QCAT 61, [38].

[29]Reasons for the decision to issue a negative notice dated 15 December 2016, 6 – 7.

[30]Ibid, 6.

[31]Reasons for the decision to issue a negative notice dated 15 December 2016, 7.

[32]HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [65].

[33]Diefenbach v Commissioner for Children and Young People and Child Guardian [2014] QCAT 382, [57].

[34]HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, [58].

[35]Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.

[36]Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, [49], citing with approval Re TAA [2006] QCST 11.

[37]ABM v Chief Executive Officer Public Safety Business Agency [2015] QCAT 189, [25].

[38]Queensland College of Teachers v WAS [2015] QCAT 61, [41].

Close

Editorial Notes

  • Published Case Name:

    WAS v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    WAS v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2017] QCAT 243

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    18 Jul 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.