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  • Unreported Judgment

KFGJ v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 125

CITATION:

KFGJ v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 125

PARTIES:

KFGJ

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML249-15

MATTER TYPE:

Childrens matters

HEARING DATE:

27 April 2016

HEARD AT:

Brisbane

DECISION OF:

Member Feil

DELIVERED ON:

6 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice is set aside and a positive notice is to be issued.
  2. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the Applicant, any child identified, and any information that would identify the Applicant or lead to the identification of the child.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – where applicant’s application for a blue card for child related employment was refused - where applicant charged with offences against a child under 16 and was found not guilty of those offences  - whether an exceptional case exists

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Criminal Code Act 1899 (Qld)

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

Kent v Wilson [2000] VSC 98

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Timothy Meehan of Bosscher Lawyers appeared for the Applicant

RESPONDENT:

Ms Paula Hughes represented the Chief Executive Officer of the Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
      On 8 July 2011, KFGJ was issued with a Blue Card. It was cancelled on 13 June 2012 when the Public Safety Business Agency (“the Agency”) received notification from the Queensland Police Service (“Police”) that KFGJ had been charged with disqualifying offences. On 10 February 2015, the Agency received an application from KFGJ’s employer, a school. On 13 August 2015, the Agency issued a negative notice. On 10 September 2015, KFGJ applied to the Tribunal to review this decision.
  2. [2]
       In respect of the disqualifying offences (“the offences”), a nolle prosequi was entered in respect of one charge of carnal knowledge of a girl aged 12 to 16. On 3 May 2013, KFGJ was found not guilty of the remaining charges of carnal knowledge with a child under 16 (3 charges), sodomy (1 charge), and indecent treatment of a child under 16 (5 charges).
  3. [3]
      The issue for the Tribunal as KFGJ has been charged with these disqualifying offences, is that a positive notice must issue unless the Tribunal is satisfied on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to him.[1] The screening of persons for child related work is administered under the principle contained in s 6 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“WWC Act) that the welfare and best interests of children 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. The Tribunal must exercise its discretion after considering the circumstances of KFGJ’s case, within the guiding principles of the Act.[2]
  4. [4]
      The Tribunal must consider not only the provisions of s 226 of the WWC Act, but the paramount consideration. This paramount consideration is the one to which all others yield.[3] Section 226[4] sets out the factors which the Tribunal must consider in determining if there is an exceptional case for KFGJ. The evidence considered takes into account s 226 of the WWC Act. 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.[5]

The offences

  1. [5]
       Details of the offences with which KFGJ was charged were outlined in the Agency’s statement of reasons, the Police brief, the records of interview with KFGJ, a summary of the statement of the child complainant (“the child”), and KFGJ’s oral evidence.
  2. [6]
      The child was 14 and 15 years old and KFGJ was 20 years old at the time of the offences, which occurred over a period from September 2011 to March 2012. The child stated that she and KFGJ met at a school event and she later asked him to be a Facebook friend. KFGJ disputes this and states that he first met the child when he accepted her Facebook friend request, as she was a friend of his brother who was 17 at the time. The child stated her Facebook account noted her year of birth as 1997, and that she confirmed her age to KFGJ, which he denies.
  3. [7]
      The charges of carnal knowledge relate to KFGJ having protected intercourse with the child at his house, at his new residence, and in the child’s bedroom, which KFGJ admitted. He recalled having intercourse with the child two or three times. The child stated that she and KFGJ performed oral sex on each other. KFGJ responded that there might have been oral sex as part of foreplay, moving towards sexual intercourse.
  4. [8]
       On the first occasion of intercourse, the child stated that she was wearing her school uniform, which KFGJ denies. She states that subsequently, she and KFGJ talked on Facebook about her school and KFGJ’s work. The last occasion of sexual intercourse was towards the end of February 2012.
  5. [9]
      The charge of sodomy relates to the child stating that KFGJ asked if she would agree to anal intercourse. She nodded her head in agreement following which KFGJ “inserted his penis into her bum and had sex with her”. KFGJ recalled talking about but denies having anal sex with the child. He stated that he would recall anal sex if it had occurred.
  6. [10]
      The charges of indecent treatment relate to the child being requested by KFGJ to send him indecent photographs. She sent photos of herself in lingerie, naked, and after a request for a video, a series of images of herself masturbating with inanimate objects, which KFGJ confirmed receiving. He did not open or view these images before deleting them. The child stated that KFGJ sent her indecent images and videos of him masturbating. KFGJ confirmed “digitally and electronically flirting,” and sending the child pictures and videos of himself masturbating.
  7. [11]
      The child stated that KFGJ told her not to discuss their relationship after the first time they had sex, as it was illegal, which KFGJ denies. He asked her not to tell people as she was a friend of KFGJ’s brother, and because KFGJ was dating other people at that time.
  8. [12]
       In respect of his knowledge of the child’s age, KFGJ stated that some time later he discovered the child was under 16, as “someone said something to him and he put all the information in his head that she must be a child”. He referred to “figuring it out” and to it being “a gut thing” when he went on Facebook for the first time, looked at the child’s profile, and saw her birth date. He immediately ceased contact and deleted the child’s number. Some weeks later he attended the child’s home to speak to her parents, as he did not want any trouble to come out of it. KFGJ indicated that he wanted to indicate to the child’s mother that he was not preying on her daughter, and that there was never any malicious intent. KFGJ could not recall conversations about the child’s age, progress or school activities. He stated to Police that he only had intercourse with the child as he believed she was of age, being older than 16.
  9. [13]
       KFGJ stated that when they spoke about the child being his mother’s student, as his mother is a senior teacher, he thought she was 16 or 17. He later realised that she may not have been a senior student, as she was talking about his mother, but not as her teacher. He did not ask her specifically, but “figured it out” from what she might have said. As they were together during school hours and the child was not wearing a school uniform, he never thought the child was at school. KFGJ referred to the child being fairly well developed and dressing maturely, such that he did not question her age at all. KFGJ stated that they talked about adult and mature things, including financial intelligence and the child’s travel plans later in life. The child said she had another job. He did not recall the child talking about school in response to KFGJ talking about his employment. He stated that this wasn’t “flagged,” and he could not recall a time where the child said or alluded to being under age.
  10. [14]
       The child stated that she stopped herself from liking KFGJ due to finding out he had a girlfriend, due to their age difference, and the fact that others would not approve of their relationship.

KFGJ’s Life Story

  1. [15]
       KFGJ is 24 years old. He refers to a happy childhood with a supportive family of parents, siblings, grandparents and great grandparents. He is very close to his wife and parents, who assisted him during the trial.
  2. [16]
       KFGJ was elected Year 12 school captain, played soccer, and had a close circle of friends. After school he joined the Army as an officer cadet training to become a helicopter pilot. He left the Army in 2010, after being denied leave to attend his great grandfather’s funeral. He was employed by MBC in 2011. In 2015, was employed as a teacher aide at the Special Needs Unit of a high school to gain experience while studying secondary education. He left this position after the negative notice issued. He is studying a Science degree and intends to complete his Masters degree. He hopes to be employed by a University to teach science.
  3. [17]
       KFGJ married in 2014. He has a two year old daughter and his wife is pregnant. He became sexually active at age 16 and has had multiple sexual partners. He is now only intimate with his wife. KFGJ has never participated in illegal activities, has no significant health issues, and consumes alcohol socially. He has no drug related issues.

KFGJ’s Submissions in Response to the Chief Executive Officer

  1. [18]
       KFGJ referred to his acquittal on all charges, to one charge being discontinued, to his change of employment, and his full time education studies. He has been forced to confront his mistakes and is driven by the opportunity to “prevent another person from making the same choices that may devastate a young person’s life.” Having a daughter strengthens his desire to educate young people.
  2. [19]
       KFGJ had no idea the child was underage. She did not tell him she was under age. There were no circumstances where he would have met with the child if he had known this. He feels remorse and guilt when reminded of his actions. KFGJ denied engaging in anal intercourse or telling the child not to tell anyone of their actions, as the intercourse was illegal.
  3. [20]
       KFGJ referred to his honesty with Police and the child’s parents. As there were over 1000 people at the school event, he would not have remembered one person. His first introduction to the child was through Facebook when she introduced herself as a friend of his brother, who had graduated from high school. He referred to the child’s mature behaviour and to their discussions through the Facebook messenger application, which did not display the child’s age. KFGJ believed the child misled him when she told him her parents were aware of her actions with KFGJ.
  4. [21]
       KFGJ referred to his honest mistake of being promiscuous and ignorant, and to his remorse being very real. He referred to his family and the child’s family going through the ordeal. This has made him passionate about helping young adults from making the same mistakes. Despite two of his referees having knowledge of his Police history, they are encouraging him to become a teacher. He was grateful for the justice system protecting him and his family.
  5. [22]
       KFGJ referred to his protective strategies as admitting his mistakes, being happily married with a child, and being aware of the need to make reasonable enquiries, act appropriately, and respect boundaries in all interactions with children and young people. He was fully aware of his past mistakes and has made concerted efforts to make amends for them by contributing to the education and well being of children.

KFGJ’s oral evidence

  1. [23]
       KFGJ’s employment history includes his Army Officer cadet training from January 2009 to May 2010, and running a sports bar from June 2010 to 2013. From 2013 to January 2016, he progressed from call centre Team Leader to Business Analyst. While he cared for his young daughter, he worked as a

teacher’s aide where he ran a Homework Club. In January 2016, KFGJ commenced a traineeship with the Brisbane City Council. His aim is to work in the Planetarium and engage the public in science, which is his passion. He enjoys astronomy and community engagement.

  1. [24]
       KFGJ’s studies include a Bachelor of Science which he ceased on leaving the Army, a Medical Physics degree which he discontinued on being charged with the offences, one year of a Bachelor of Education which he ceased on receiving his negative notice, and his current studies in science from which he will graduate in late 2017, with proposed Masters studies.
  2. [25]
       KFGJ commenced dating his now wife in November 2010. They lived together from April 2012. Their daughter was born on 2 September 2013, and they married on 24 March 2014. KFGJ’s wife is due to give birth to a twin boy and girl on 13 July 2016.
  3. [26]
       In respect of meeting the child, KFGJ has no memory of her being at the school event. He accepted her as a Facebook friend and they talked and subsequently had sex. KFGJ sent and received explicit photos to and from the child. The child told him she worked at a $2 shop. He only saw her by day, and didn’t have in depth conversations with her. He mostly talked about his social life after bar work. He stated he was arrogant, as he mostly talked about himself, being an Army trait that he recognises and is working on. At no point did the child mention her age or her year level.
  4. [27]
       He did not check the child’s age with his brother. Almost everyone on Facebook was a stranger, as he worked in a hotel where others added him on Facebook, which he only used as a messaging service. The thought that he was engaging in illegal acts did not enter his mind. KFGJ stated that he may have found out the child’s age when bored, and when he saw her age on Facebook. Alternately, he may have asked his brother about the child’s age. He did not recall how he became aware of her age.
  5. [28]
       KFGJ did not give the child gifts at Christmas, or for her birthday. She did not mention her birthday. There was never an emotional commitment. The relationship was founded on a mutual desire to have a sexual relationship. All he cared about was that he was 20 and the child was 16 or 17 (which in his mind was her age,) and they wanted to have sex. He noted that his wife is eight years older than him. During his relationship with the child, he had three to four similar relationships, which was the culture of the hospitality industry. He left that industry as his values changed and his priority was moving towards a family.
  6. [29]
       At a point which he does not recall, KFGJ became aware the child was his mother’s student or ex student. This was not further discussed, as the last thing he wanted to think about was his mother, having different priorities at that age. The indications that the child was over age far outweighed her being underage. The situation is now completely different. He now considers this decision to be immoral. In hindsight he should have discussed the child’s emotional safety with her and would never have looked to have sex with strangers, as his priority is his family.
  7. [30]
       KFGJ did not tell the child not to discuss the relationship, as it was illegal. He told the child not to tell anyone, as he felt it was not necessary to “share his sexual conquests” in case he dated someone the child had told.
  8. [31]
       KFGJ explained that sending sexually explicit images was part of the culture of the Army and the hospitality industry. He now considers it to be “deplorable” to send such images to an under age person, or to someone not requesting the images.
  9. [32]
       KFGJ indicated that if he was a teacher and if a student had a crush on him or confided that the student was in a sexual relationship, he would refer the student to a guidance counsellor, chaplain or health nurse, without engaging with the child. He knows this from extensive reflection and from insight he has gained, for which he is grateful.
  10. [33]
      While involved with the child, KFGJ had a sexual but uncommitted relationship with his now wife. He became committed after a date before the Police interview. He removed himself from the hospitality culture and left that industry. He needed to change his lifestyle and not drag his wife into that life. His wife has fully supported him since the Police interview.
  11. [34]
       KFGJ hypothesised that the child looked to him for sex, as she was looking for approval. The child told KFGJ during their relationship that her parents were aware the child was with him, when they were not aware.
  12. [35]
       On finding out the child was 14, KFGJ stated that his reaction was overwhelming panic and guilt, as he knew what he had done was wrong. He wondered why the child would want him for approval. The fact that he had sex with someone not of age, now disgusts him. In hindsight it terrified KFGJ that he was involved with someone who was lacking emotionally and was looking for approval, by having sex with KFGJ and others.
  13. [36]
       KFGJ accepted responsibility for his actions. In hindsight, his responsibility as an adult was to check the child’s age, and to have connected with the child on a conscious level with conversations not directed towards sex. If he found the child was underage, he would have ended the relationship straight away. He acknowledged that it was not the child’s fault and that it was his fault. He has to live with this mistake every day. KFGJ stated that he now realises he took advantage of the child and her vulnerability for his sexual gratification, and that what he did was wrong. By virtue of her age, the child was “weak and vulnerable.” He knows his actions made a negative impact on the child and may have caused her to have a “skewed” version of what a healthy adult relationship with a male should be.
  14. [37]
       In relation to his strategies for boundaries, KFGJ explained that he would analyse the purpose of the relationship. He referred to an incident when a friend’s daughter wanted to be Facebook friends. KFGJ advised the child’s parents, and blocked the child from his Facebook. He referred to his continuing informal educational studies, as he enjoys learning. He considers this will assist him dealing with students, if he obtains employment at the Planetarium. He would not be alone with a student, and would not be in a position where the circumstances are not clear. KFGJ stated that the biggest strategy is that he is now married and no longer looks for sexual partners. He will soon have three young children and has reflected on how his actions would reflect on them.

Referees

  1. [38]
    The Tribunal received three references in support of KFGJ’s application. WC Senior English teacher and volunteer, in her reference of 12 June 2015, refers to having known KFGJ for ten years as a student, family friend outside school, and as a helper at the school’s homework club. WC referred to KFGJ’s “rare integrity,” to him being a natural leader to whom young people gravitate and from whom they seek advice, and to him giving up his military career to commit to his family. WC referred to KFGJ working co-operatively with his peers as a school leader, and to his enormous patience and gentleness with 11 to 17 year olds at the homework club. WC stated that KFGJ is always professional and responsible in his interactions with children.
  2. [39]
    The reference of CW, Head of English Department dated 12 June 2015, refers to knowing KFGJ as a teacher, and when KFGJ worked as a teacher aide. CW referred to KFGJ conducting himself with dignity and ethically, performing his duties professionally and diligently. As school captain he conducted himself maturely and confidently, was well regarded by the school community and his peers, as do the students with whom KFGJ currently works. CW referred to KFGJ’s dealings with the children as being fair and open, to him observing child protection protocols, being a respectful and positive role model, and being firm in his expectations of the children’s behaviour. CW recommended KFGJ having blue card status to continue to work within education.
  3. [40]
    The reference of WP Senior Teacher dated 13 June 2015, refers to him knowing KFGJ as a former student and as a teacher aide at that time. WP observed KFGJ in the classroom as acting maturely and appropriately, and to him being sensible and controlled. He was verbally and physically appropriate in his interactions with students, demonstrated great patience with demanding students, and was self controlled and professional. WP supported KFGJ’s application for a blue card.
  4. [41]
    KFGJ stated that he did not inform WP or CW of details of the charges. KFGJ’s legal representative confirmed that WC gave character evidence at the trial and was aware of the nature and specifics of the charges, in respect of which WC was cross-examined. As the referees were not called to give evidence and were unable to be cross-examined at the hearing, the Tribunal gives less weight to their evidence.

Dr Luke Hatzipetrou - Clinical Psychologist

  1. [42]
    Dr Hatzipetrou’s report dated 20 April 2016, referred to his interviews with KFGJ on 29 February and 3 and 11 March 2016. Dr Hatzipetrou received all relevant documentation relating to KFGJ’s application, including the Agency’s reasons for decision, and the Police material. Dr Hatzipetrou referred to KFGJ’s family circumstances, education and employment history, previously referred to. He describes KFGJ’s close and supportive family relationship, friendship groups, and his past relationships. KFGJ recognises his previous arrogant behaviour and lack of tolerance in a past relationship. He refers to the ongoing support his wife, and to his guilt on reflecting the duress she felt in respect of the legal matters.
  2. [43]
    Dr Hatzipetrou reports that KFGJ engages in infrequent alcohol consumption and denied using illicit substances or misusing drugs. KFGJ’s mental state examination revealed no formal thought disorder. He had previous feelings of hopelessness and depression at the time of the trial. KFGJ is motivated in his career and to fulfil his role as a parent and partner. He presented with mild anxiety symptoms stemming from his legal circumstances. Otherwise, there was no evidence of a major mental health or personality disorder.
  3. [44]
    In recounting KFGJ’s history, Dr Hatzipetrou refers to KFGJ indicating that the child was wearing jeans and a T-shirt on meeting, and to her not mentioning her age. She spoke of socialising with friends, drinking alcohol, having previous sexual relationships, and having sex with KFGJ during the day, when she was likely to be at school. KFGJ did not suspect she was under age as she identified herself as a friend of his 17 year old brother, appeared mature and intelligent, and requested images from KFGJ.
  4. [45]
    KFGJ reflected on his arrogance, and to him being autocratic, self confident and opinionated on leaving the Army. This behaviour contributed to a previous relationship break down. Dr Hatzipetrou considered KFGJ was insightful as to his attitudes, which others may construe as self-serving. He considered this was likely to be perpetrated by emotional insecurity. Dr Hatzipetrou referred to KFGJ’s occasional intimate relationships with other women as seeking immediate gratification following his Army discharge, to his future career uncertainty, and to him previously exchanging explicit photos with other women over 18, before meeting the child.
  5. [46]
    Dr Hatzipetrou found KFGJ was aware of the consequences of having a sexual relationship with a child under the age of 16, and that he was aware that such a child would not be psychologically or physically mature enough to engage in such relationship. KFGJ understood that children were not emotionally prepared and were susceptible to adult influences, with the adult being responsible to reject advances. KFGJ confirmed that a child under 16 could not give informed consent to a sexual act with an adult.
  6. [47]
    Dr Hatzipetrou agreed with the Agency that KFGJ did not take steps to find out the child’s age, and that KFGJ could have been more vigilant, which KFGJ accepted. Dr Hatzipetrou considered KFGJ’s actions reflected a degree of sexual promiscuity with contextual factors such as his age, the collapse of a previous relationship, his career path uncertainty, and his emotional immaturity. In contrast KFGJ is now four years older, he has married, has meaningful employment, and is focussed on full time study.
  7. [48]
    In his risk assessment, Dr Hatzipetrou noted that KFGJ had not perpetrated similar sexual behaviours, the child was not related to KFGJ, and he has no history of criminal offending or violence. KFGJ has an extensive and supportive cohort of peer and family relationships. He did not condone sexual relations between adults and children. There were no significant patterns of impulsive behaviours, or behaviours or attitudes increasing the risk of sexually abusive behaviours. His risk of such behaviour was no greater than non-offending members of the general public.
  8. [49]
    In respect of KFGJ’s risks of sexual violence, he has no convictions for sexual offending behaviour or evidence of sexual deviancy. He accepted responsibility for engaging in a sexual relationship with the child. KFGJ made disclosures to Police.
  9. [50]
    KFGJ’s increased anxiety did not reach clinical significance, and there was evidence of emotional resilience. There was no evidence of a serious mental health disorder. KFGJ did not present with violent or suicidal ideation. He has a close attachment to his wife and daughter, with effective communication, trust and support from his wife. KFGJ has had no problems gaining employment, and did not present with mental health disorders or sexual deviancy that increase his risk of reoffending. Dr Hatzipetrou found that KFGJ’s risk of perpetrating sexual offences was likely to be low.
  10. [51]
    Dr Hatzipetrou refers to KFGJ’s protective factors as including his marital relationship, the lack of evidence of mental health factors or anti sociality, KFGJ’s maturity, his lifestyle changes having married and reared a child, his appropriate career goals, and his demonstrated understanding of his behaviours and errors of judgement. He concluded that KFGJ did not present as an unacceptable risk to children under the age of 16 years.

KFGJ’s Final Submissions

  1. [52]
    KFGJ’s legal representative submitted that this is not an exceptional case, and that a positive notice should issue. KFGJ was found not guilty of all charges. In respect of the Agency’s submission that it was reasonable and that KFGJ failed to enquire as to the child’s age, KFGJ was found by the jury to have an honest and reasonable but mistaken belief as to her age.[6] He was honest in stating that he did not ask the child her age, and he now understands that he should have been more aware of this issue and would if the situation occurred now, have made better enquiries straight away. KFGJ shows insight into his failings, which is a protective way of thinking. He is married with one child and his wife is pregnant. His focus is on his family.
  2. [53]
    As a former teacher aide, KFGJ learned of a student’s discussion of concern and acted appropriately in reporting it to the Head of Department. When a young girl asked to be friends with him on Facebook, he not only denied the request, but blocked contact from her. These are examples of KFGJ acting protectively towards children.
  3. [54]
    It is over four years since the allegations were made and KFGJ is a different person. His focus is his family, and he has a significantly reduced risk of acting inappropriately with children given his experience as a father, and having endured a trial. He knows that anyone must be particularly cautious in dealing with children in these circumstances. KFGJ’s risks, and his benefit from hindsight, are not such as to establish an exceptional case.

The Chief Executive Officer’s Position and the Risk Factors

  1. [55]
    In his reasons, the Chief Executive Officer (the Agency) summarised the Police documents, the facts relating to the offences, the record of interview, the witness statements, KFGJ’s submissions, and his references. The Agency noted that offences are serious and disqualifying offences under the Act, and that KFGJ has not been convicted of an offence. The reasons refer to the alleged offending occurring in 2011 and 2012, followed by a trial in April 2013, and a not guilty verdict being returned on all charges.
  2. [56]
    The Agency was critical of KFGJ not attempting to find out the child’s age, despite opportunities to do so. This included KFGJ’s links with his former school, his mother being the child’s teacher, and the child’s statement that she told KFGJ her age and was in school uniform when they met. KFGJ’s behaviour is directly relevant to the assessment of his eligibility for a Blue Card, and reflects adversely on his judgement and his ability to present as a positive role model and safeguard the best interests and welfare of children and young people in his care.
  3. [57]
    The risk factors which the Agency considered were KFGJ being charged with disqualifying offences over a six month period, to him engaging in sexual intercourse with the child, sending her explicit images, and the significant age difference between KFGJ and the child of approximately six years. This raised concerns as to KFGJ’s judgement, putting his interests before those of the child. While the Agency acknowledged that KFGJ expressed remorse and guilt for his actions, it noted that he asserted the child misled him. The Agency considered that KFGJ failed to take full responsibility for what had occurred, noting the child’s vulnerable and impressionable position. The Agency noted that KFGJ had made positive changes in his life, but this did not mitigate the risk factors.
  4. [58]
    The Agency concluded that the primary issue is whether it is in the best interests of children and young people to allow them uninhibited access to a person who admits to exchanging sexually explicit material, and engaging in sexual intercourse with a child. It concluded that KFGJ is not an appropriate person to work in child related employment.

The Chief Executive Officer’s Final Submission

  1. [59]
    The Agency submitted in written submissions in respect of key issues of KFGJ’s offending behaviour, that nine of ten charges proceeded to trial and KFGJ was found not guilty of all offences. The submissions summarise the evidence of the offences already referred to, and note that the disqualifying offences of which KFGJ was charged, are the most serious of offences recognised under the Act. Despite the absence of any convictions, the Agency submitted that KFGJ’s child related employment would be contrary to the interests of children and young people. It raised as a concern, the age difference between KFGJ and the child, as giving rise to a power imbalance.
  2. [60]
    The Agency considered it was extremely unlikely over the course of the relationship, that conversations would not have given rise to an indication that the child was under age. It submitted that it was reasonable for KFGJ to make such enquiries, and that his failure to do so demonstrated recklessness and a disregard for the child’s well-being. While it referred to the child’s evidence that KFGJ asked the child not to discuss their relationship, it acknowledged KFGJ’s evidence that this was due to his uncertainty as to his relationship status, and as he was seeing other people.
  3. [61]
    The Agency referred to existing protective factors including KFGJ being found not guilty in respect of the nine charges, KFGJ’s stable and committed marriage with one child and his wife expecting twins, his consistent employment and study, and the lack of mental health, drugs or alcohol concerns.
  4. [62]
    Dr Hatzipetrou assessed KFGJ’s overall risk of sexual reoffending as low, and stated that KFGJ has demonstrated insight into the consequences of having a sexual relationship with a child. Three referees supported KFGJ’s application and referred to his positive engagement with children as a teacher aide. The Agency submitted that the risk factors included KFGJ maintaining a sexual relationship with the child, and that his behaviour raises serious concerns about his ability to maintain appropriate boundaries, exercise self-control, and prioritise the best interests of children.
  5. [63]
    The Agency submitted orally, that this is a protective jurisdiction and in the decision of Commissioner for Children and Young People and Child Guardian v Maher & Anor,[7] the Appeal Court held that it is necessary to balance the risk and protective factors. The weight afforded to the referees’ evidence was to be tempered, as they were not available for cross-examination. Ms Wells and Ms Waters’ knowledge of the charges was not corroborated. Dr Hatzipetrou was not available to give evidence, and the weight of his evidence was therefore to be tempered.
  6. [64]
    The Agency referred to KFGJ being previously involved in a culture of promiscuity in the hospitality industry with limited concern for others, to his circumstances and values having changed, and to him leaving that industry. He accepts he should have been more vigilant and should have recognised the age gap between him and the child. KFGJ demonstrated protective strategies such as limiting his Facebook usage, self-education, identifying strategies to maintain appropriate boundaries, his values and those of his family, and recognising his relationship with the child was wrong.
  7. [65]
    In addition to the risk factors set out in the written submissions, KFGJ was aware at some point that the child was under age, there was no discussion about their age disparity and safe sex (although the evidence is that KFGJ always wore a condom), the child was one of many persons with whom KFGJ engaged in sexual activity, the child was looking for validation, and in his view, “that was an unwell thing to do”. The Agency submitted the Tribunal needed to be cautious to ensure that all risk factors are mitigated, and that the protective factors do not outweigh the risk factors such that this is an exceptional case, and KFGJ should not be granted a Blue Card.

KFGJ’s Protective Factors

  1. [66]
    KFGJ has shown a high level of genuine and ongoing remorse for his actions. He acknowledged to Police that his actions in sending sexually explicit photos were not respectful of others.  He now considers this act to be “deplorable”, and his act of having sex with someone under 16 “disgusts” him. KFGJ stated that if he could go back in time, he would “slap (his behaviour) out of him,” and would never have entered the hospitality industry. He accepted responsibility for his actions as an adult. 
  2. [67]
    Dr Hatzipetrou confirms KFGJ’s remorse and outlines several protective factors in his report (as does the Agency in its submissions). He raises no concerns regarding KFGJ’s future involvement with children. KFGJ identified several boundaries to ensure the situation does not reoccur. He now has significant insight into his past actions and the negative impact of his past inappropriate behaviour and the resulting risks, on the child.
  3. [68]
    KFGJ was candid in giving his evidence. His judgement is now intact. His relationship with his wife and soon to be three children and his need to financially support his family is an ongoing protective factor. KFGJ has not reoffended. His offending behaviour occurred over four years ago. His life has dramatically changed from being a single person working in the hospitality industry, to being a husband and father in meaningful employment, while continuing tertiary and proposed postgraduate studies.

Conclusions

  1. [69]
    While not detracting from the seriousness of the offences, the Tribunal notes that KFGJ’s actions occurred from November 2011 to March 2012, over four years ago. Since then KFGJ has married, is in a committed relationship, and is a father. He has left the culture of the hospitality industry and works and studies fulltime. His current lifestyle bears little resemblance to his previous lifestyle. His evidence shows he is extremely remorseful and understands the emotionally harmful situation in which the child was placed. The Agency submitted that while KFGJ has a stable support network of his parents and family which were in place at the time of the offences, KFGJ also has the additional support of his wife and the care of his young family.
  2. [70]
    While the Agency considered it extremely unlikely that conversations would not have indicated that the child was under age, KFGJ’s unequivocal evidence was that this is not the case. KFGJ denied the indicia on which the Agency relied such as the child meeting KFGJ at a school event, and to her wearing a school uniform when with KFGJ. The Tribunal finds that with hindsight, KFGJ would have made enquiries as to the child’s age.
  3. [71]
    The Tribunal does not accept and Dr Hatzipetrou’s view does not support the Agency’s submission that KFGJ’s offending behaviour four years after the offences occurred, currently raises serious concerns about his ability to maintain appropriate boundaries with children. In giving oral submissions, the Agency accepted that KFGJ gave direct evidence of his ability to maintain such boundaries. In respect of his self-control, there is no evidence that KFGJ has engaged in any subsequent offending behaviour. In respect of the Agency’s submission that KFGJ is unable to identify and prioritise the best interests of children, the Agency in its later oral submission stated that KFGJ recognised his relationship with the child was wrong.
  4. [72]
    While the Tribunal accepts Dr Hatzipetrou’s psychological assessment of KFGJ, it cannot accept his findings as to what the jury determined at the criminal trial, as that evidence was not before the Tribunal. The weight of Dr Hatzipetrou’s evidence is tempered by him being unavailable to give oral evidence and be cross-examined. The Tribunal does not accept the Agency’s position that Dr Hatzipetrou’s finding that KFGJ’s low risk of reoffending is based on undue weight of the Court outcome. That evidence was not before the Tribunal. The Tribunal finds on the basis of the extensive psychological testing and interviews undertaken by Dr Hatzipetrou, that this inference cannot be reasonably drawn.
  5. [73]
    The Tribunal finds from the steps taken by KFGJ subsequent to the incident and his current life with his wife and young family, and from KFGJ’s self-education, protective factors, his insight into and reflections on his actions, and his subsequent appropriate judgement, that he has now demonstrated an ability to promote and protect the best interests of the children. The Tribunal is not satisfied that KFGJ’s current risk factors raise concerns about his ability to make appropriate behavioural choices in the best interests of children and young people. This is supported by Dr Hatzipetrou’s findings that KFGJ is not an unacceptable risk to children. The Tribunal is satisfied from the evidence and the evidence of Dr Hatzipetrou in his 19 page report, that the protective factors outweigh the risk factors in this case.
  6. [74]
    The transferability of a blue card means that if successful with his application, KFGJ would have unfettered and unsupervised time with all children. The Tribunal takes into account as a significant consideration, the transferability of the positive notice across any area of child related employment. The Tribunal has not taken into account any benefit or assistance to students from KFGJ’s desire to share his passion about science with children, as a result of KFGJ being granted a Blue Card. Any hardship to KFGJ in not being granted a Blue Card is also irrelevant.
  7. [75]
    For these reasons, the Tribunal finds that KFGJ’s positive notice must be granted, as this is not an exceptional case in which it would not be in the best interests of children for KFGJ to be granted a blue card. The Tribunal finds on the balance of probabilities, that the statutory presumption that a positive notice should issue, has not 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.

Non-Publication Order

  1. [76]
    The Tribunal accepts the Agency’s submission that it is appropriate to make an order prohibiting the publication of any information which would or may lead to the identification of the child. KFGJ’s legal representative supported this submission. While the Agency submitted that KFGJ’s name be published, the Tribunal accepts the submission of KFGJ’s legal representative that his name not be published, as the mother of the child gave evidence at the criminal trial, and an internet search of KFGJ’s name could lead to the name of the child’s mother being identified. The Tribunal finds from this, that there is a risk of identifying the child’s name. In the best interests of the child, the Tribunal finds it is appropriate to prohibit the publication of KFGJ’s name.

Decision

  1. [77]
    The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice is set aside and a positive notice is to be issued.
  2. [78]
    Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the name of the Applicant, any child identified, and any information that would identify the Applicant or lead to the identification of the child.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221(1), 221(2).

[2] WWC Act s 6.

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

[4] WWC Act s 226.

[5] Kent v Wilson [2000] VSC 98.

[6] Criminal Code Act 1899 (Qld) s 24(1) Mistake of fact. A person who does or omits to do an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

[7] [2004] QCA 492.

 

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Editorial Notes

  • Published Case Name:

    KFGJ v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    KFGJ v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 125

  • Court:

    QCAT

  • Judge(s):

    Member Feil

  • Date:

    06 Jun 2016

Appeal Status

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