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  • Unreported Judgment

ED v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 163

CITATION:

ED v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 163

PARTIES:

ED

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML254-15

MATTER TYPE:

Childrens matters

HEARING DATE:

23 March 2016

HEARD AT:

Rockhampton

DECISION OF:

Member Beckinsale

DELIVERED ON:

30 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision made on 3 September 2015 to issue a negative notice is confirmed.
  2. Publication of this matter will occur in a de-identified manner.

CATCHWORDS:

CHILDREN – BLUECARD – exceptional case –where a review sought of decision to issue a negative notice – where person convicted of an offence of aggravated assault – where that offence was not categorised as serious – where evidence of risk factors and protective factors –whether or not in the best interests of children for a negative notice to remain in place – where decision to issue a negative notice was confirmed.

Commissioner for Children and Young People and Child Guardian Act 2000 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 237(1), 237 (2), 354, 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2), 66

Child Protection Act 1999 (Qld) ss 189(1)(a), 194(1)(a)

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Re TAA [2006] QCST 11

Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171

Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

Minister for Immigration & Ethnic Affairs v Gungor [1982] 42 ALR 209

 

APPEARANCES:

APPLICANT:

ED represented himself

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency represented by Ms P. Hughes, an officer of the Public Safety Business Agency

REASONS FOR DECISION

Background

  1. [1]
    ED applied to the Chief Executive Officer, Public Safety Business Agency (‘PSBA’) to be issued with a positive notice and Blue Card under the Working with Children (Risk Management) Act 2000[1] (the Act) on 11 March 2015. Subsequently, the Queensland Police Service notified the PSBA of ED’s criminal history. The PSBA issued a negative notice to ED on 3 September 2015.

The Legislation

  1. [2]
    ED applied to the Tribunal for a review of that decision pursuant to s 236 of the Act.
  2. [3]
    Under s 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[2]
  3. [4]
    The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[3]
  4. [5]
    The Act provides that as ED has no conviction for a serious offence,[4] the PSBA must issue a positive notice and a Blue Card unless satisfied this is an exceptional case where it would not be in the best interests of children for a positive notice to be in place.[5]
  5. [6]
    The Act does not define “exceptional case” and phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[6] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[7]
  6. [7]
    Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) of the Act requires the Tribunal to consider a number of matters, including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
  7. [8]
    In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[8]
  8. [9]
    The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist[9] when ordering the issue of a positive notice.
  9. [10]
    Neither party bears the onus of proof as to whether an exceptional case exists.[10]
  10. [11]
    Any detriment to ED is irrelevant to the Tribunal’s consideration as to whether an exceptional case exists,[11] as is any benefit resulting from his having access to children because of particular knowledge, experience or flair if there exists an unacceptable risk from contact.[12]
  11. [12]
    The passage of time alone is not determinative of whether or not a case is an exceptional case[13] nor does the passage of time detract from the seriousness of allegations or convictions relating to offences committed a number of years ago.[14]

The Evidence

Life History

  1. [13]
    ED was born in New South Wales in 1976 and is now 39 years old. He said his childhood was very happy.  His parents separated when he was seven years old and he and his younger brother spent weekends with their father.
  2. [14]
    After completing grade 12 ED said he worked as a painter and decorator, in labouring jobs and night filling in supermarkets.
  3. [15]
    ED said he worked in a day care centre from 2002 to 2003 as a childcare worker and then moved from New South Wales to Western Australia and continued “looking after children” in day care until 2006. He described himself as a “childcare teacher” in written material but did not provide the Tribunal with a copy of his qualifications in the industry.
  4. [16]
    ED said he then moved to the Northern Territory where he worked as a residential manager in disability services. He also worked as a security guard.

Criminal Offence

  1. [17]
    At the time ED was charged with aggravated assault in 2011, he was in a relationship with MB with whom he had a son aged three. MB had five older children, including a thirteen year old daughter.
  2. [18]
    The particulars of the offence are set out in the police report provided in the Reasons document. ED is described as the de-facto partner of MB, although the particulars state that on the date of the offence being 5 June 2011, he was staying at her house for the weekend.
  3. [19]
    The particulars state that at about 5:00pm ED was sitting at the dining table with MB’s family. A conversation with her thirteen-year-old daughter about respect made him upset and he slammed his hand onto the table causing her to “start”.
  4. [20]
    MB tried to calm the situation. Her daughter and son left the table and went into the kitchen followed by ED who shoved her daughter with his right elbow and right side causing her to knock her brother into a cupboard.
  5. [21]
    ED returned to the table but when the daughter made a remark, he attempted to climb through the servery window to get to her. MB tried to restrain him but he went around to the kitchen. MB placed herself between her daughter and ED and he pushed her out of the way. MB grabbed ED around his neck from behind. ED put his hands on either side of the daughter’s head and squeezed hard causing pain. He held his face 1cm from hers and screamed into her face. She was screaming for him to let go. As she tried to pull away from his grip, she struck her head on the cupboard behind her. ED then released his grip and left.
  6. [22]
    Two of MB’s other children, aged six and eleven. were stated to have been present when the offence was committed.
  7. [23]
    ED pleaded guilty to the offence and was released on a good behaviour bond of eighteen months.
  8. [24]
    ED has no other criminal history.

ED’s Evidence Regarding Criminal Offence

  1. [25]
    ED said he pleaded guilty on “legal advice” and because he had not wanted MB’s daughter to have to go through the process of giving evidence. He said he would not have pleaded guilty if he had known the effect on his employment in his chosen field.
  2. [26]
    ED was asked MB’s view of the proceedings against him. He described her as “not fazed” and supportive of both him and her daughter through the process. He said MB told him neighbours called the police but he thinks MB did and lied to him.
  3. [27]
    ED made the statement in oral evidence that “I believe I am not guilty. There’s nothing to support that I was guilty. She never went to the doctor for any bruising or headaches…I have not done anything wrong. She suffered no harm.”
  4. [28]
    ED agreed he was at the table and there was a conversation about respect. He thinks MB may have asked her daughter to do something and she gave her “cheek”. He said he thought he slammed his hand onto the table because she wasn’t listening to her mother but denied being angry or upset. He then said perhaps he had put his hand down on the table to get up to go to the kitchen. He denied knocking into her or her brother or trying to climb through the servery. He said he walked around to the kitchen.
  5. [29]
    He said MB and her daughter continued to argue and the daughter swore at her mother. He said he “wouldn’t say” he was “angry”: just “slightly upset or annoyed” she was talking to her mother like that. He agreed MB went into the kitchen to “deescalate” the situation but denied she attempted to physically restrain him. When asked what she was deescalating he said he and her daughter were having a “little argument” with voices that were “slightly raised”. He denied squeezing her head and said “I don’t scream at children”. He said “instead of causing harm” he left for home and “I know my limitations.”
  6. [30]
    In his application for review to the Tribunal, ED said a relevant fact was that the thirteen year old child of his partner disliked his relationship with her mother, the implication being the child had made up or at least exaggerated the incident. At the hearing he said he thought “maybe” MB had made up the incident. When asked whether he had asked MB why she would do that, he talked about the fact she had been going to take her daughter to the doctor afterwards but did not do so. He was asked again what her response had been to his question as to why she made up the incident and he replied that MB “thought that’s what happened.”
  7. [31]
    ED said the only thing he accepted responsibility for in relation to the incident was raising his voice and “they had nothing on me.” Whilst he emphasised the lack of evidence of physical injury to the child he acknowledged that children can be emotionally harmed but added “but this was a one off”.
  8. [32]
    ED agreed children should not witness violence and said doing so could affect a child’s self-esteem, development and the way they express themself. He said he had not been exposed to violence in childhood and he had been responsible for removing children away from violence.
  9. [33]
    Not long after ED was charged with the offence, he and MB moved to Queensland. Initially this sounded like a family decision but then ED clarified that MB intended to move to Queensland where she had family and as he did not wish to be away from his son he went too and they all travelled in the same vehicle.
  10. [34]
    ED also clarified that whilst he and MB were in a relationship, they mostly lived separately as it worked better that way. He said they were still together when they moved to Queensland. He had travelled back to the Northern Territory to have the charge dealt with and it was shortly after that that he and MB separated once he found his own accommodation.

Current Circumstances 

  1. [35]
    After moving to Queensland ED said he continued work in the disability sector. He said he worked for the Cerebral Palsy League as a casual support worker for some months with a 15 year old client and then for Centre Care as a support worker for around eighteen months. He then worked for Edmen Community Staffing Solutions as a casual support worker where in April 2014 he was named Employee of the Month,[15] which he said was an award applying across Queensland.
  2. [36]
    ED said that after working for Edmen for six months he was employed on a permanent full time basis by Endeavour and then promoted to shift leader. His training for Endeavour involved a week in Brisbane as well as in-house training online, including in the area of restrictive practices. He said he had been likely to be promoted to a supervisor role with Endeavour had he not lost his position in September 2015 when he was unable to obtain a yellow card, which he said was the result of his ongoing application for a review of the PSBA’s decision. ED said Endeavour is keen to reemploy him if he can obtain the appropriate clearances.
  3. [37]
    ED described the clients he worked with as having very challenging behaviours. His role involved not only managing those behaviours but finding new activities for the clients to take part in and as shift leader, ensuring medication was correctly administered and that other workers performed their role. ED’s role was demanding and often stressful but he said he was good at the job and enjoyed the work very much.
  4. [38]
    Since losing his position with Endeavour, ED said he has worked in casual jobs when he can.
  5. [39]
    ED is currently in a defacto relationship with PT with whom he has two sons aged two years and six months. In his written statement dated 23 October 2015, he said he had known PT for eight years and they had been dating for three years. At the hearing he said he and PT had known each other four years and had lived together nearly three years. When the difference in his earlier statement was pointed out he said it was a mistake. PT’s four-year-old son also lives with them and spends some weekends with his father.
  6. [40]
    In written submissions, ED said he and MB have a “fine relationship” for the sake of their son and that he spends a couple of nights each week with him and PT. At the hearing he said the time his son spent with him was a weekend every fortnight. He said he and MB are on friendly terms and he sees her and her children, including her daughter whom he was convicted of assaulting, when he collects his son. He said he has driven her daughter to work on occasions and MB must not have concerns about his interactions with that daughter or her other children or she would not allow him to be in contact with them.
  7. [41]
    ED said his only involvement with the Department of Child Safety, or any such agency outside of Queensland, was shortly after he and MB moved to Queensland. Officers arrived at their home one evening and said there had been reports of the children not being properly fed. ED said there was no action whatever taken after that visit, the officers being satisfied with the care of the children.

Evidence of Psychologist

  1. [42]
    ED provided a very brief report from Dr Alan Keen, consultant clinical psychologist.[16] Dr Keen stated ED reported being convicted of aggravated assault in 2011 and being placed on an eighteen month good behaviour bond.
  2. [43]
    Dr Keen reported ED had seen him for a total of ten sessions since January 2015 and had responded well to psychotherapy to manage “maladaptive thoughts and behaviour”. He said:

“It appears to me that (ED) is currently suitable to return to his previous employment that was child related.”

ED’s Evidence Regarding Psychological Treatment

  1. [44]
    ED said he had sought help from a psychologist because he was having trouble listening, processing and responding to questions and with “mood swings” which he described as “mumbling under his breath and not thinking clearly”. He said friends suggested he needed help. He could not remember when he first noticed these problems but said it was maybe a couple of years ago. He agreed it was possibly at the time of the offence and could be related to that.
  2. [45]
    ED said his short term memory is okay but he has problems with long term memory. He said however, he remembered everything about the incident with MB’s daughter. When asked why his version of events should be accepted, given his memory problems, he responded that the girl had not been taken to a doctor, had no bruising and that MB had not taken out any AVO against him and allowed him back in the house.
  3. [46]
    ED spoke positively of seeing Dr Keen. On his advice he has adopted a healthier lifestyle which included quitting smoking, meditation, exercise, eating healthier food and enjoying nature. He said Dr Keen has taught him things to do when he is about to have a “slight outburst” such as breathing techniques and “ways to look at” a situation to deter the behaviour.
  4. [47]
    ED thought he had not experienced an outburst since seeing Dr Keen. When asked whether it was such behaviour which prompted him to see a psychologist he said no that it was because of friends telling him he needed help.
  5. [48]
    ED was asked to describe an outburst. He said “disagreeing with someone then having a tantrum over it. That’s when I realised I needed to see a psychologist” contradicting the answer he had just given.
  6. [49]
    ED added that outbursts never happened at work. He was asked whether it occurred mainly at home and he agreed. He was asked whether children were present and he answered he did not think so and that “it was by myself.” When asked to explain that he said he “argued by himself” in a “slightly” raised voice but has time out in his own area to calm down.
  7. [50]
    ED said Dr Keen has said he may have bipolar disorder or Asperger Syndrome although no diagnosis has yet been reached. ED said a friend of his has suggested he has a split personality disorder and added “I know deep inside I’ve never harmed anyone.”
  8. [51]
    ED was asked again whether the incident resulting in his being charged could have occurred because of whatever diagnosis is arrived at. He replied initially that he did not think so but went on to say that if Dr Keen “gets the whole story out of me and if he figures out down the track…perhaps it could be related.”
  9. [52]
    When asked whether he had talked to Dr Keen about the incident ED said he had told Dr Keen what happened and that there was “no GBH in anyway.”
  10. [53]
    ED said he would continue to work with Dr Keen. He is not currently on medication for any mental health issue. 
  11. [54]
    ED said again, the only thing he would do differently in relation to the incident involving MB’s daughter was that he would not “use tone” or raise his voice in front of her “as that is all that happened.” He asserted he could not recall any occasion in his life when he had been angry.

Evidence of Other Witnesses

  1. [55]
    PT provided a reference to the PSBA as part of ED’s original submissions and was his only witness at the hearing.
  2. [56]
    PT said she and ED met in 2013 and she fell pregnant soon after with their first son being born in February 2014. She said they had not actually lived together prior to their relationship breaking up. She thought the break up occurred when their first son was about eighteen months old and just before she learned she was pregnant with their second son who was born in September 2015 but conceded those time frames did not align. She went on to say that ED had moved in in January 2015 but clarified they had “gotten back together two months ago” so presumably she meant January 2016, but she then said that ED had “moved back in in October 2015.”
  3. [57]
    As to whether she knew what had happened for ED to lose his Blue Card, she replied “bits and pieces” from what she heard discussed between ED and MB. She said she had read the Reasons document and the police report did not coincide with what she had heard. She described MB as being “shocked” that ED had lost his Blue Card. She said she had seen MB’s daughter with ED and she was not frightened of him but in fact excited to see him as are all MB’s children.
  4. [58]
    PT initially said ED and MB said he had only “grabbed” MB’s daughter “softly” and said “will you listen to me?” She then said ED did not say he had grabbed the girl, only that he had “gently got her attention” or maybe that he softly grabbed her arm or had just stood in front of her. She said she had not asked ED any questions about the incident because she trusts him and had “taken into account what I’ve heard spoken about.”
  5. [59]
    PT agreed that MB’s son comes to stay weekends usually every weekend or every second weekend although MB keeps changing it. She said the last visit was a fortnight ago although lately the visits had not been regular. She said she does not allow him to visit if he is sick and that he “gets sores”. She said MB gets angry when she says her son is sick and that recently MB had “cracked” and said she will not allow ED to see their son. PT expressed confidence that MB will allow visits to resume. She described MB as telling a “lot of lies” and that MB had said her son needed an exorcism rather than a doctor.
  6. [60]
    PT described ED as interacting well with children. He is a father figure to her eldest son. He plays with her nieces and nephews and dressed as a clown for a recent birthday party.
  7. [61]
    When asked what ED does when the children are naughty, PT suggested he would give them “time out”.
  8. [62]
    PT was asked to describe ED managing a situation where he was angry or frustrated. She said he walks away, calms down and then comes back. She said he gets upset easily and sometimes does not see her side and does not listen when she tries to explain. She said he is never violent and does not get cross with children to “a bad extent”.
  9. [63]
    As to any weakness, PT said ED cannot control his mouth sometimes and says straight up what he is thinking.
  10. [64]
    PT was asked whether she has seen changes in ED since knowing him. She replied “not really” but said he had been lately stressed a lot which she thought was due to not having a job. She was asked about ED’s friends noticing changes and that ED described himself as having outbursts and memory problems. She said during arguments he has said things that are untrue that he does not mean, for example, he called her lazy. She described that as belittling her and not something to say to someone you love. She also said that he thinks he is being “picked on” when that is not the case. She gave an example of her father fixing the car, which is the type of chore he is better at than ED, and ED assuming her father will then think less of him.  PT said that she had not seen ED “do that stuff since seeing the psych” and he was more patient and easier to get along with.
  11. [65]
    PT described ED as a good person who is reliable, honest, and trustworthy. She said she knows he would not hurt children.

Written References

  1. [66]
    ED provided three references but those people did not attend to give evidence on his behalf.
  2. [67]
    A letter[17] from a former manager, described ED as having always shown a professional and compassionate attitude to his work and to the care of the people he supported. He said he had witnessed attacks by clients on ED and that ED had not retaliated and had never shown any aggression or violence to clients or staff.
  3. [68]
    A letter[18] from another colleague stated ED had acted as shift leader, organising and delegating responsibility for activities and community access and had implemented strategies for staff to assist with skills development. He described ED as acting professionally and that he had “demonstrated integrity as a Disability Support Worker.”
  4. [69]
    A reference from another colleague[19] described ED as caring, sympathetic, patient and as putting the wellbeing of his clients first and foremost.

Submissions of Blue Card Services

  1. [70]
    The PSBA identified a number of protective factors relevant to ED including:

1) He has a single offence in his criminal history.

2) He has experience working in the community service sector in childcare and disability services.

3) He gave evidence of his ability to manage high needs clients with challenging behaviours.

4) His referees speak positively of his character, work ethic and performance in the disability service sector. He received recognition from within the sector having received a statewide award.

5) He has made positive lifestyle changes including quitting smoking, meditating, exercising and seeking to maintain a positive lifestyle balance. His partner attested to the good changes seen by her.

6) He has consulted a psychologist who stated ED had responded well to psychotherapy to manage “maladaptive thoughts and behaviour” and ED gave evidence he will continue to seek treatment.

7) His partner has observed his very positive interactions with children and there was evidence of ED showing a current ability to manage the behaviours of his own children.

8) ED acknowledged the adverse impact on children of being exposed to violence.

  1. [71]
    The PSBA submitted that whilst there were protective factors there were a number of risk factors arising from the evidence.

1) ED committed a violent offence against a thirteen-year-old girl, constituting a failure to protect the child’s welfare and safety and raising concerns about whether he is an appropriate person to be entrusted with the care and protection of children.

2) The offence was committed in the presence of two other children aged six and eleven.

3) At the time of the offence ED was a mature adult and occupied a position of trust and authority as the partner of the child’s mother. His age and position gave rise to a power imbalance between himself and the victim which is an aggravating feature of his offending.

4) His offending behaviour persisted despite the child’s mother trying to calm the situation and then trying to physically restrain him and then place herself between him and her daughter. The prolonged, persistent nature of ED’s conduct raises concerns about an ability to manage feelings of anger and aggression.

5) In the course of regulated employment, ED would be expected to appropriately manage typical childhood misbehaviour and respond to situations of frustration or conflict which are likely to occur in a child related environment. His offending behaviour raises concerns about his ability to protect children from exposure to violence and aggression and to model for them appropriate methods of dealing with anger and frustration.

6) ED’s version of events is inconsistent with the police brief. ED insists he was not guilty of the offence and only pleaded guilty on legal advice and “concern for the other party”. His guilt has been established through the legal process and the Tribunal is unable to go behind a finding of guilt of a criminal court.[20]

7) It is a significant risk factor ED is not willing to accept responsibility for his offending behaviour other than raising his voice. He cited the absence of injury to the child as showing the offence did not occur when injury is not an element of the offence. He has memory problems yet insists he remembers what occurred. He has not identified the triggers to such behaviour or what protective strategies he has developed to reduce or eliminate the likelihood of further offending.

8) ED’s continued denial of culpability for the offence shows a lack of remorse and lack of insight which is a significant risk factor.[21]

9) The offence took place relatively recently.

10) The PSBA submitted DOCS involvement, although the Tribunal has no further information, means a degree of risk attaches to children in ED’s care.

  1. [72]
    The PSBA submitted Dr Keen’s report does not provide any explanation as to how he has formed a view that ED is suitable to work with children and it is not apparent what knowledge Dr Keen had of the offending behaviour. Dr Keen was not available to answer questions about his expertise, ED’s progress or what is the nature of his ongoing treatment. No diagnosis has been made of ED’s mental health issues.
  2. [73]
    The PSBA submitted that while PT has made positive comments regarding ED, they lack objectivity given the close relationship and should be given less weight.
  3. [74]
    The PSBA submitted that none of the references given on behalf of ED show awareness of his offending and the referees only knew ED in a professional role. Less weight should be given to the references given the referees did not attend the hearing and were not available to question.
  4. [75]
    The PSBA submitted that the transferability of a Blue Card is a factor to be considered.
  5. [76]
    The PSBA concluded the risk factors raise significant concerns about ED’s ability to care for children in a way that protects them from harm and promotes their wellbeing. His violent offending behaviour against a child is of direct relevance and this is an exceptional case in which it would not be in the interests of children for ED to be issued with a Blue Card at this time.

ED’s Submissions

  1. [77]
    ED made the following submissions.

1) He has a single episode involving police and has not had a problem with any person since then.

2) He is nearly forty years old and service work is all he has known. It would be tough on him to venture away from the work he has known and loved. He has a Certificate III in community services. He is genuine about the people he looks after. He lost his job through an incident which took place three months after he had a Blue Card.

3) Endeavour Foundation would reemploy him which shows what sort of person he is.

4) His character references show how well he was regarded at work.

5) He has taken positive steps to improve his life recently and will continue to see Dr Keen and maintain his healthier lifestyle.

6) He has never harmed a child in his life; it has never been proven. He does not understand why he was charged with aggravated assault when there was no evidence against him. He only pleaded guilty to protect the child. He is not a violent person. If he was likely to harm a child his partner would not be with him nor would his ex-partner allow contact with their son.

Discussion

  1. [78]
    I find a number of problems with ED’s evidence.
  2. [79]
    He acknowledged he has memory difficulties which may explain his being a poor historian and getting dates confused but the contradictions occurring throughout his evidence could not all be explained by a bad memory. For example, he said he had slammed his hand on the table but minutes later said he had put his hand down in order to get up from the table. He contradicted his own explanation for consulting a psychologist a few sentences later in his evidence. He explained his outburst behaviour as being disagreeing with someone then having a tantrum about it. When pressed on where this would occur he said he was alone and having an argument with himself.
  3. [80]
    I find that ED tended to exaggerate the duration and stability of his relationships with the mothers of his children. He had given the impression of being in a continuous relationship with PT and of being currently friendly with MB.
  4. [81]
    PT’s evidence was that she and ED had only resumed a relationship “a couple of months ago” and that MB had recently stopped visits with ED’s son. Whilst some aspects of PT’s evidence were confusing, on these points I prefer her evidence to that of ED.
  5. [82]
    Whilst not a lot turns on those aspects of his case, it gives an overall impression of ED being an unreliable witness.
  6. [83]
    The evidence available to the Tribunal regarding ED’s mental health raised more questions than answers. ED said he had problems processing and responding to questions and that was apparent in his oral evidence. His evidence that he cannot recall ever being angry and his explanations about “slight outburst” behaviours was difficult to accept.
  7. [84]
    I agree that little weight can be placed on the expressed opinion in Dr Keen’s report that ED “is currently suitable to return to his previous employment which was child related” when it is not known what information Dr Keen had about the offence committed by ED and the basis on which that opinion was formed. I would question whether Dr Keen knew it has been some years since ED worked in child related employment.
  8. [85]
    Of greatest concern is that ED indicated his mental health issue is yet undiagnosed and may include bipolar disorder which would require medication.
  9. [86]
    I do not accept ED’s account of what occurred in relation to MB’s daughter. His ongoing assertions that because no physical injury was suffered by the girl there was no evidence and he was wrongfully charged is clearly misguided. He seems to be under a misapprehension that “aggravated” assault entails a physical injury, even “grievous bodily harm” based on what he says he told his psychologist.
  10. [87]
    Whilst ED articulated that children should not be exposed to violence, he failed to see that he was violent on this occasion to a child and in the presence of other children. 
  11. [88]
    The account of the incident which resulted in ED being charged with assault as detailed in the police information would have been compiled from statements given by the child and her mother. Dealing appropriately with disrespectful teenagers is a situation adults face frequently. ED’s reaction as detailed is, to some extent, understandable although not excusable.
  12. [89]
    In my view, a person who had committed that single offence as outlined, would not necessarily be precluded from being issued with a Blue Card if the positive factors present outweighed the risk factors such that a repetition of that behaviour was unlikely.
  13. [90]
    The problem for ED is that his account of what occurred is implausible. He has been convicted of the assault of a thirteen year old girl with whom he was in a position of responsibility. He lacks remorse and insight into his behaviour. If he is unable to acknowledge what occurred he cannot understand the triggers for such behaviour and risks repeating the behaviour. That the offence occurred within the last five years is not significant in my view. What is significant is ED’s attitude after that period of time.
  14. [91]
    I have already said parts of PT’s evidence were confusing; in particular, her recollection as to what she understood occurred to result in ED being charged with assault. However, I find she did try to give an honest account of her relationship with ED, including aspects of his behaviour which did not paint him in a good light. I accept her evidence as to ED’s conduct around his children and the good response he has with the children in his life. I accept her evidence that ED has been helped by Dr Keen.
  15. [92]
    I do not consider the one off involvement with Child Safety, for which there is no evidence that there was anything more than a house call to check on a report of concern, is a risk factor in this case.
  16. [93]
    The written references speak favourably of ED in a work environment but they are of limited assistance, being confined to a limited timeframe in a specific work environment and show no knowledge of the offence for which ED was convicted.
  17. [94]
    Any detriment to ED being unable to work in his chosen field is not a factor I can take into account.
  18. [95]
    It is very positive that ED has found Dr Keen to be so helpful and that he will continue to work with him to address the problems he has experienced and to ascertain what mental health issues, if any, he has. 
  19. [96]
    I encourage ED to continue down the path of self-improvement and to possibly reapply for a Blue Card after he has better addressed the matters identified as risk factors. At present I find that there are risk factors which outweigh the positive factors and I am satisfied this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. Accordingly, the decision to issue a negative notice is confirmed.

Non-Publication of Identifying Information

  1. [97]
    The PSBA submitted it would be appropriate for the Tribunal to make an order prohibiting the publication of any information that would identify, or may lead to the identification of a child, or a person who was a child at the time of the offending pursuant to s 6 of the Queensland Civil and Administrative Act 2009 (Qld) and s 194(1)(a) of the Child Protection Act 1999 (Qld) and I agree.

Orders

  1. The decision made on 3 September 2015 to issue a negative notice is confirmed.
  2. Publication of this matter will occur in a de-identified manner.

Footnotes

[1]  Formerly named the Commission for Children and Young People and Child Guardian Act 2000 (Qld). 

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).

[4] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.

[5]  Ibid s 221.

[6] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291at [31].

[7]  Ibid at [33].

[8] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].

[9]  Ibid citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[10] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[11] Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.

[12] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.

[13] Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 at [65].

[14] Grindrod v Chief Executive Officer, Department for Community Development op cit.

[15]  Letter dated 17 April 14 from Service Manager, states ED was chosen for the award for “his exceptional performance over the past month.”

[16]  Report from Dr Keen provided by ED dated 15 March 16.

[17]  Unsigned letter from former support and operations manager for Endeavour Foundation dated 23 October 15.

[18]   Dated 29 October 2015.

[19]  Letter undated.

[20] Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209.

[21] Re TAA [2006] QCST 11.

Close

Editorial Notes

  • Published Case Name:

    ED v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    ED v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 163

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    30 Mar 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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